Kerala High Court
The Deputy Director Of Education vs The Deputy Director Of Education on 20 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 20TH DAY OF JANUARY 2021 / 30TH POUSHA, 1942
WA.No.197 OF 2020
AGAINST THE JUDGMENT DATED 6.11.2017 IN WP(C) 26416/2011(B) OF
HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS IN THE WPC:
1 THE DEPUTY DIRECTOR OF EDUCATION
KOLLAM-691001.
2 THE ASSISTANT EDUCATIONAL OFFICER,
CHAVARA-691583.
SRI, A.J.VARGHESE-SR. G.P.
RESPONDENT/PETITIONER IN WPC:
P.T.VIJAYAMMA
H.M.RETIRED, S.K.V.U.P.S, MYNAGAPALLY NORTH P.O.,
DHANYTA, MUZHANGODI, THODIYUR P.O.-695023.
BY ADV. VINOD MADHAVAN
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.197/2020
2
JUDGMENT
Dated this the 20th day of January 2021
Shaffique, J
This appeal is filed by the State challenging the judgment dated
6.11.2017 in W.P.(C).No.26416/2011 by which the learned Single Judge
having set aside the impugned order observed that the recovery
sought against the petitioner after one year of the retirement, to
recover a benefit given a decade ago is also to be set aside. The
impugned orders are Exts.P6, P9 and P12. By Ext.P6 dated 24.1.2011,
the Assistant Educational Officer had informed the petitioner that if the
objection is not dropped, the excess drawn due to the fixation of pay of
Headmaster with effect from 14.7.1996 will be fixed as liability. By
Ext.P9 order dated 17.3.2011, an amount of Rs.1,32,045/- was fixed as
the liability. Ext.P12 is the proceedings of the Deputy Director of
Education, Kollam issued on 23.8.2011. As per the above order it is
inter alia indicated that the petitioner was not eligible for
Headmaster's scale as she had acquired the qualification for
Headmaster's scale of pay only on 15.3.1991 and was promoted as
Headmistress on 15.3.1991. That apart, it was ordered that the charge
W.A.No.197/2020
arrangement as Headmistress with effect from 10.6.1988 cannot be
treated as regular HM promotion for fixation of Higher scale.
2. Learned Government Pleader submits that by virtue of
Ext.P12, the pay of the petitioner had been fixed taking into account
the fact that she became eligible for the Headmaster's scale of pay
only on completion of 15 years of service.
3. We heard the learned counsel for the respondent as well.
4. There is no dispute about the aforesaid factual situation
that the petitioner while initially being in charge of Headmistress was
not qualified and she became entitled to the post of Headmistress only
on 15.3.1991, on completion of 15 years of service. As per rules, she
is eligible for a higher pay of scale of a Headmaster only on completion
of the required service. Therefore there is justification on the part of
the Government in issuing Ext.P12.
5. But as far as fixation of liability is concerned, it is relevant
to note that the amounts had been paid on the basis of a wrong
fixation several decades back. It is after one year from the date of
retirement that a notice had been issued to the petitioner and
thereafter attempts had been made to issue Exts. P6 and P9. Of
course, this is a case in which she was not eligible for Headmaster's
scale of pay as she was not qualified at the relevant time. Therefore, if
a higher scale of pay had been granted without taking note of the said
W.A.No.197/2020
fact, it requires correction which had been done by the Government in
terms of Ext.P12.
6. Taking into consideration the aforesaid factual situation,
when a mistake had been committed by the Government and it is
corrected, necessarily, it requires compliance. Therefore, we don't find
any error being committed by the Government in re-fixing the scale of
pay even after retirement. But as far as recovery of amounts from the
petitioner is concerned, the learned Single Judge has placed reliance
upon the judgment in State of Punjab & Others v. Rafiq Masih
(White Washer) & Others [(2015) 4 SCC 334] and observed that, if
the amounts had been already paid decades back, the same need not
be recovered. In fact, we had occasion to consider a similar issue in
Vijayakumary v. Kerala Land Development Corporation Ltd.
[2020(3) KLT 773] wherein we had held that the re-fixation is
permissible, but the amounts paid several years back cannot be
recovered. The same position will apply to the facts of the present
case.
7. Accordingly, we modify the judgment of the learned Single
Judge to the extent that the amounts already paid by the Government
shall not be recovered. As far as the fixation of scale of pay is
concerned, the Government was justified in re-fixing the scale of pay
and payment of amounts accordingly. The Government shall make all
W.A.No.197/2020
endeavour to complete the procedure within a period of three months
from the date of receipt of a copy of the judgment.
The writ appeal is allowed to the extent indicated above.
Sd/-
A.M.SHAFFIQUE
JUDGE
Sd/-
GOPINATH P.
kp True copy JUDGE
P.A. To Judge
