Kerala High Court
V.N.Devaky vs The State Of Kerala on 16 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942
WP(C).No.25760 OF 2013(T)
PETITIONER:
V.N.DEVAKY, AGED 63 YEARS
WIFE OF M.N.RAJU, MAROTTIKAL HOUSE,
P.O CHETTUPUZHA, THRISSUR DISTRICT
(HEADMISTRESS(RETIRED),UPPER PRIMARY
SCHOOL,PERINCHERRY)
SRI.V.A.MUHAMMED
SRI.M.SAJJAD
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001
2 THE ASSISTANT EDUCATIONAL OFFICER
CHERPU,THRISSUR DISTRICT 680 561
SRI. P.M.MANOJ - SR.GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
16.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.25760 OF 2013(T)
2
JUDGMENT
Dated this the 16th day of February 2021
The petitioner says that she had retired as Headmistress
from the Upper Primary School, Perincherry and that while she
was so serving, she had availed Leave Without Allowance
(LWA) from 06.02.1978 to 31.03.1978. She says that this
period was correctly reckoned as qualifying service when she
was awarded Selection Grade in the category of Upper
Primary School Teacher, with effect from 01.07.1989; and that
she had consequently, opted under the 1992 Pay Revision with
effect from 01.07.1994.
2. The petitioner says that she was, thereafter, appointed
as Headmistress with effect from 01.04.1995 and that she
availed of her "Headmistress (Higher Grade)" with effect from
the same day itself. She says that the Assistant Educational
Officer, Cherpu, however, directed that her Selection Grade be
regularised only after excluding the period when she spent on
LWA and that she, therefore, preferred a request dated
01.02.2000, to permit her to re-opt under the 1992 Pay
Revision with effect from 01.09.1994 and for the
"Headmistress (Higher Grade)" with effect from 01.09.1995;
WP(C).No.25760 OF 2013(T)
but that this was rejected by the Government for the reason
that Rule 15, of the Rules for fixation as per the Government
Order bearing No.G.O.(P)No.3000/98/Fin. dated 25.11.1998,
such reoption can be allowed only if there is a court order or a
retrospective promotion.
3. The petitioner says that she was, therefore,
constrained to approach this Court by filing
O.P.No.25974/2000, which was allowed, declaring that such
reoption is permissible and thus directing the Authorities to
allow her to do so, subject to her entitlement, with a definitive
declaration that if any arrears of pay becomes payable, the
same will be paid in cash from the date of option and further
that the amounts which becomes entitled by way of higher
emoluments, in between the date of option and the date of
exercised option, will not be paid in cash but utilised to set off
excess amount which has to be refunded on account of such
reoption, so that the balance alone need be refunded to the
Government.
4. The petitioner submits that pursuant to the said
judgment, the Government considered her case and issued
Ext.P9 order, wherein, her requests for reoption from
01.09.1994 - as far as 1992 Pay Revision is concerned - and
WP(C).No.25760 OF 2013(T)
from 01.09.1995 - with respect to the "Headmistress (Higher
Grade)' - were allowed, but that the amount of Rs.27,927/-
recovered from her erroneously, without reckoning the period
when she availed of LWA, has been refused to be returned
solely for the reason that she retired from service on
31.03.1999 and therefore, that the refund of the amount in
cash is not permissible as per the judgment of this Court in
O.P. No.25974/2000. The petitioner says that Ext.P9 order to
such extent, is in error and therefore, prays that the same be
set aside.
5. Sri.P.M.Manoj - the learned Senior Government
Pleader, in refutation of the above, submitted that in
paragraph 9 of the counter affidavit filed on behalf of the first
respondent it has been explained why the amounts recovered
from the petitioner has been ordered not to be returned. He
submitted that the excess amount paid to the petitioner,
reckoning the period when she spent on LWA, was rejected
soon after she retired on 31.03.1999 and therefore, that the
Authorities were justified in recovering it from her. He,
therefore, prayed that Ext.P9 be left uninterdicted and that
this writ petition be dismissed.
6. I have examined Ext.P9 order. It is without doubt that
WP(C).No.25760 OF 2013(T)
the petitioner's request for exercise of reoption as 01.09.1994
of 1992 Pay Revision; and as 01.09.1995 for the Higher Scale
of Headmistress, has been granted in it. However, as far as
the question of return of the recovered amount of Rs.27,927/-
to the petitioner, this has been declined only because the
Government has taken a view that the judgment of this Court
in O.P.No.25974/2000 authorises such payment only if the
petitioner was in service. According to the Government, since
the petitioner retired from service on 31.03.1999, she is not
eligible for any arrears in cash, as directed by this Court and
therefore, Ext.P9 has been issued declining that request.
7. However, when I go through the judgment in
O.P.No.25974/2000, it has been made clear therein that "the
employees had got the right to opt the time bound higher
grade from the date chosen by them" and that "if arrears of
pay and allowances become payable to the employees on
account of such re-option, the said arrears will be paid in cash
only from the date of exercise of option" . These observations
in the judgment had been interpreted by the Government to
mean that the amounts recovered from the petitioner, namely
Rs.27,927/-, while she was in service - on account of the fact
that the period spent by her on LWA had been earlier reckoned
WP(C).No.25760 OF 2013(T)
incorrectly - cannot be returned because she had retired from
service on 31.03.1999. Ext.P9 order is dated 20.12.2012 and
the Government, therefore, takes the stand that since the
recovery from the petitioner was made immediately after she
had retired in the year 1999, the same need not be returned,
particularly because this Court had authorised such payment
in cash only if the employee was in service.
8. I am afraid that I cannot find favour with the
observations in Ext.P9, since it appears to have misinterpreted
the judgment in O.P.No.25974/2000. I say this because, the
right of an employee to obtain the Time Bound Higher Grade
from the date chosen by him/her has been unequivocally found
therein and in fact, Ext.P9 also accedes to this. The judgment
further says that if arrears of pay and allowances become
resultantly payable to the employee, the same will be paid in
cash from the date of the said option. Obviously, this will apply
even to the case where amounts had been recovered from an
employee while he was in service, particularly when the said
recovery was made on the basis of the fact that the earlier
option made by him/her warranted it. Pertinently, when Ext.P9
order acceded to the petitioner's request for the change of
dates - consequent to the re-option - both under the 1992 Pay
WP(C).No.25760 OF 2013(T)
Revision and with respect to the Higher Scale for
Headmasters, I fail to understand how they can now take the
stand that the amount of Rs.27,927/- recovered from her
cannot be returned, merely because she had retired from
service.
In the afore circumstances, I order this writ petition and
set aside Ext.P9 order to the extent to which the request of the
petitioner for refund of Rs.27,927/- has been declined; with a
consequential direction to the competent respondent to ensure
that this amount is paid to the petitioner appropriately, as
expeditiously as is possible, but not later than three months
from the date of receipt of a copy of this judgment. .
I further order that if this amount is not paid within the
time frame granted in this judgment, the same will carry
interest at the rate of 9% from the date of Ext.P9 order, until it
is actually paid.
Sd/- DEVAN RAMACHANDRAN
Stu JUDGE
WP(C).No.25760 OF 2013(T)
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE LETTER OF THE ASSISTANT
EDUCATIONAL OFFICER DATED 20-07-1999
EXHIBIT P2 TRUE COPY OF THE G.O(P) NO 101/80/(167)
FIN.DATED 30-01-1980 OF THE GOVERNMENT
EXHIBIT P3 TRUE COPY OF THE PETITION SUBMITTED BEFORE
THE GOVERNMENT DATED 1-2-2000
EXHIBIT P4 TRUE COPY OF THE LETTER OF THE
HEADMISTRESS DATED 18-2-2000
EXHIBIT P5 TRUE COPY OF THE LETTER OF THE ASSISTANT
EDUCATIONAL OFFICER DATED 18-05-2000
EXHIBIT P6 TRUE COPY OF THE ORDER OF THE GOVERNMENT
DATED 10-07-2000
EXHIBIT P7 TRUE COPY OF THE G.O(RT) NO
2446/2000/FIN.DATED 10-04-2000 OF THE
GOVERNMENT
EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN O.P NO
12457/2001-G DATED 5-6-2003
EXHIBIT P9 TRUE COPY OF THE RODER OF THE GOVERNMENT
DATED 20-12-2012
