"CR"
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
WA NO. 310 OF 2022
AGAINST THE ORDER/JUDGMENT IN WP(C) 9391/2021 OF HIGH COURT OF KERALA
APPELLANT/S:
1 UNIVERSITY OF CALICUT
REPRESENTED BY ITS REGISTRAR, CALICUT UNIVERSITY
P.O., MALAPPURAM - 673 635.
2 THE REGISTRAR
UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O.,
MALAPPURAM - 673 635.
3 THE VICE CHANCELLOR
UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O.,
MALAPPURAM - 673 635.
BY ADV SRI.P.C.SASIDHARAN, SC, CALICUT UNIVERSITY
RESPONDENT/S:
1 DR. C.RAJENDRAN
PROFESSOR (RETD), HOUSE NO.28/1097, RAJADHANI,
CHEVAYUR, CALICUT, PIN 673 017.
2 K.P.VELAYUDHAN
ASSOCIATE PROFESSOR (RETD), AMBADI HOME,
KAKKENCHERY, CALICUT UNIVERSITY P.O., MALAPPURAM
DISTRICT, PIN - 673 635.
4 DR.T.C.AYISHABI
AGED 68 YEARS
PROFESSOR (RETD), MENICHEDATH PARAMBA,
PUTHIYARA.P.O.,CALICUT, PIN 673 004
BY ADV.
K.M.GEORGE SRI. K.M. GEORGE
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
26-05-2022, THE COURT ON 3-6-2022 DELIVERED THE FOLLOWING:
W.A. No. 310 of 2022
-2-
"CR"
A.K.JAYASANKARAN NAMBIAR
&
MOHAMMED NIAS C.P., JJ
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W.A. No. 310 of 2022
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Dated this the 3rd day of June, 2022
JUDGMENT
Mohammed Nias, C.P.J.
The University of Calicut, the Vice Chancellor and the Registrar are the appellants challenging the judgment in W.P.C. 9391 of 2021 dated 22-11-2021 allowing the Writ Petition filed by the respondents and directing the appellants to disburse the salary for the periods they worked attained the age of superannuation till the end of the academic year.
2. The brief facts necessary for disposing the above appeal are as follows:
The respondents, the writ petitioners were Professors in the University who attained the age of superannuation on 12-11-2012, 1-12-2012, 1-10-2012 and 4-10-2012 respectively. The petitioners continued beyond the age of superannuation namely 60 years till 31-3- 2013, the end of the academic year, which according to them, was permitted by the university. The Calicut University Statute stipulates W.A. No. 310 of 2022 -3- retirement at the age of 60 and whether a teacher can continue till the end of the academic year is no longer res integra, as a Division Bench of this Court in Writ Appeal 617 of 2010, categorically held that the teachers cannot continue beyond the age of 60. We have also held so in our judgment in Writ Appeal No. 170/2022 dated 29 th March, 2022. Thus, there cannot be any dispute as to the entitlement of the petitioners to continue beyond the age of superannuation or for seeking any benefit on continuance after that.
3. The University had issued Ext. P6 series in the year 2013 and 2014 objecting to the payment of salary and benefits to be granted to the petitioners for the period they worked after they attained the age of superannuation. The Writ Petitioners challenged the said action of the university of the years 2013, 2014 in 2018 by filing W.P.C. 26685/2018 which was withdrawn with liberty to challenge Ext. P4 (a) series of the years 2013 and 2014 and accordingly, the present writ petition was filed in the year 2021.
4. The petitioners contented that they are entitled to the salaries and allowances for the service they rendered after they attained the age of 60 as the University permitted them to do so and that even if they were mistakenly employed, no recovery of the W.A. No. 310 of 2022 -4- amounts paid for the period they actually worked could be effected by the appellants. The University had opposed such a prayer, as according to them, the teachers are not entitled to continue beyond that and consequently no benefits for the period they continued beyond the age of superannuation could be granted to the petitioners who were fully aware of the statute which mandated superannuation on attaining the age of 60.
5. The learned Single Judge holding that there was the practice and precedent to allow the teachers to continue till the end of the academic year and that the petitioners had not misrepresented for allowing them to discharge their duties till 31-3-2013 and relying on the ratio in State of Punjab and Others v. Rafiq Masih White Washer [(2015) 4 SCC 334] held that the salary and allowances cannot be withheld and accordingly, set aside the the orders impugned and directed payment of the benefits within one month, failing which to carry interest at the rate of 6.5 %.
6. The University challenges the said judgment mainly contending that going by the University statute the teacher was not entitled to continue after attaining the age of 60 and the issues stand covered by the Writ Appeal 617 of 2010 and Writ Appeal 170 of 2022. W.A. No. 310 of 2022 -5- The principle in State of Punjab and Others v. Rafiq Masih White Washer's case is not applicable to the petitioners since they are professors in the University and that the said judgment relates to recovery of employees belonging to Class III and Class IV categories and in the contingencies noted in the said judgment. It was also urged that the reliefs claimed ought to have been declined since the orders challenged were issued way back in 2013 and 2014 and the writ petition was filed only in 2018. The continuance of the petitioners after attaining the age of superannuation was at their risk and the University cannot be directed to pay the salary.
7. The petitioners relied on Thomas Daniel v. State of Kerala and Others [JT (2022) 5 SC 31], State of Bihar and Ors. vs. Pandey Jagdishwar Prasad [MANU/SC/8388/2008], State of Punjab and Others v. Rafiq Masih (White Washer) and Others [(2015) 4 SCC 334], North Delhi Municipal Corporation v. Ram Naresh Sharma and Ors. [MANU/SC/0497/2021] , The Chief Secretary, Government of Kerala, Government Secretariat and Ors. v. Amarnatha Shetty and Ors. [MANU/KE/1242/2016] and the Order of the Supreme Court of India in Man Singh v. The State of Uttar Pradesh through Secretary & Ors. (Civil Appeal No 7841 of 2011) to support the judgment . W.A. No. 310 of 2022 -6-
8. Heard Adv. Sri. P.C. Sasidharan, the Standing Counsel for Calicut University and the learned Advocate Sri. Dr. K.M. George.
9. The learned counsel for the respondents/writ petitioners argued on the basis of the judgments above cited that since there was no misrepresentation or fraud committed by them, there cannot be any recovery of the amounts by the university. In otherwords, the contention appears to be that in the absence of fraud or misrepresentation, no recovery of the amounts paid, can be made even if it is erroneously paid. We straightaway reject the said argument in view of the law laid down by the Supreme Court in Chandi Prasad Unival v. State of Uttarakhand (2012) 8 SCC 417 which the Supreme Court held to be the correct position of law in the judgment reported in (2014)8 SCC 883.
In Chandi Prasad Uniyal Case, (supra) "the issue was whether the appellant therein can retain the amount received on the basis of irregular/wrong pay fixation in the absence of any misrepresentation or fraud on his part. The Supreme Court after taking into consideration the various decisions of the Supreme Court held that even if by mistake of the employer the amount is paid to the employee and on a later date if the employer after proper determination of the same discovers that the excess payment is made by mistake or negligence the excess payment so made could be recovered. Therefore, the law laid down in Chandi Prasad Uniyal case, in no way conflicts with the observations made by the Supreme Court in the other two cases. In those decisions, directions were issued in exercise of the powers of the Supreme Court under Article 142 of the Constitution, but in the subsequent decision the Supreme Court under Article 142 of the Constitution, but in the W.A. No. 310 of 2022 -7- subsequent decision the Supreme Court under Article 136 of the Constitution in laying down the law had dismissed the petition of the employee"
10. The Supreme Court has clearly noticed that the two Judge decisions which held that no recovery could be made in the absence of any fraud or misrepresentation on the part of the employer which led to the wrong fixation of pay has to be understood to be one made under Article 142 of the Constitution of India invoking the plenary power to do complete justice between the parties. The Supreme Court categorically held that the proposition in Chandi Prasad (supra) is the law. Thus, the contention of the respondent herein is wrong and reliance placed on the judgments of the Supreme Court rendered under Article 142 of the Constitution of India cannot be of any avail to the Writ petitioners to prevent the recovery in the instant case.
11. The only circumstance in which the recovery of excess amount paid by mistake is not recovered is when the recovery would result in the hardship of such nature which would far outweigh the equitable balance of the employers right to recover. In otherwords interference would be called for only in such cases were it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration and test to be applied, reference needs to be made to a situations noticed in the judgment in W.A. No. 310 of 2022 -8- State of Punjab and Others v. Rafiq Masih White Washer [(2015) 4 SCC 334] . The exercise of jurisdiction under Article 142 of the constitution of India for doing complete justice cannot be treated as a precedent under Article 141 of the Constitution of India. It is to be noticed that public money wrongly paid at the instance of the official cannot be allowed to be retained except in the circumstances noted above. In cases where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error was detected or corrected, within a short time of the wrong payment, courts will not grant relief against recovery.
12. There is no doubt either in fact or in law that the Writ Petitioners are not entitled to any amount after the attainment of the age of superannuation for the period they continued till the end of the academic year. The Writ Petitioners, Professors, cannot be equated to the employees belonging to Class III or Class IV services or to any class of employees dealt in the judgment in 2015 (4) SCC 334 (supra). The Writ Petitioners clearly knew that they could not continue beyond the age of 60. This Court cannot exercise power akin to Article 142 of the Constitution of India in the face of the express provisions and in violation of the law laid down by the Apex Court and this Court noted above . It is also to be noticed that the writ petitioners were aware of W.A. No. 310 of 2022 -9- the objection on the part of the University and had prayed for stopping the recovery against them by their letters in the year 2013 itself (R1
(b) Series). Inspite of knowing that the amounts were being recovered in the year 2013 itself, the petitioner had filed the writ petition only in the year 2018 which was also dismissed as withdrawn with liberty to challenge Ext. P4 (a) series which again is of the year 2013 and the writ petitioners are clearly guilty of delay and laches. There is no convincing explanation in the writ petition as to what prevented them from challenging the orders of the year 2013 till 2018. The writ petition ought to have been dismissed on the ground of delay and laches as well.
13. The upshot of the above discussion is that the judgment of learned Single Judge being contrary to law cannot be sustained and is accordingly set aside and the writ petition filed by the respondents herein would stand dismissed.
This Writ Appeal is allowed as above.
Sd/-A.K.JAYASANKARAN NAMBIAR , JUDGE Sd/-MOHAMMED NIAS C.P, JUDGE ani/ W.A. No. 310 of 2022 -10- APPENDIX OF WA 310/2022 PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE JUDGMENT IN W.A.NO.617 OF 2010 AND CONNECTED CASE DATED 02.09.2015.