Laliamma Varghese vs State Of Kerala
2021 Latest Caselaw 9449 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

     MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943

                       WP(C).No.1820 OF 2012(B)


PETITIONER:

               LALIAMMA VARGHESE, AGED 45 YEARS
               W/O. K.C. TOMY, LOWER PRIMARY SCHOOL ASSISTANT,
               LITTLE FLOWER LOWER PRIMARY SCHOOL, MANIMALA,
               PIN - 686 543.

               SRI.S.JAYAKRISHNAN

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY THE SECRETARY TO GOVERNMENT,
               GENERAL EDUCATION (J) DEPARTMENT, THIRUVANANTHAPURAM
               - 695 001.

      2        THE ACCOUNTANT GENERAL
               INDIAN AUDIT AND ACCOUNTS DEPARTMENT, OFFICE OF THE
               PRINCIPAL ACCOUNTANT GENERAL (AUDIT), KERALA,
               THIRUVANANTHAPURAM, PIN - 695 039.

      3        DEPUTY DIRECTOR OF EDUCATION
               KOTTAYAM - 686 001.

      4        THE ASSISTANT EDUCATIONAL OFFICER
               KARUKACHAL, KOTTAYAM-686540.

      5        THE MANAGER, LITTLE FLOWER LOWER PRIMARY SCHOOL,
               MANIMALA, PIN - 686 543.

               SRI. P.M.MANOJ -SR.GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD            ON
22.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.1820 OF 2012(B)

                                       2


                                 JUDGMENT

Dated this the 22nd day of March 2021

The petitioner has impugned Exts.P2, P4 and P6 which

are audit objections and orders to recover certain amounts

from her, on the allegation that those amounts had been paid

to her irregularly. The petitioner additionally assails Ext.P4,

which is the demand against her, on the ground that it has

been issued without hearing her and after more than 11 years

after the benefit was validly given to her.

2. I have heard the learned counsel for the petitioner,

Sri.S.Jayakrishnan and the learned Senior Government

Pleader, Sri.P.M.Manoj, appearing for respondents 1 to 4.

3. The learned Senior Government Pleader asserted that

Ext.P2 audit objection and Exts.P4 and P6 orders are

irreproachable because the petitioner was granted higher

grade benefits in the year 1989 based on Ext.P1 circular,

which was, however, withdrawn through Ext.R1(a) order as

early as in the year 2001. He submitted that, therefore, the

grant of higher grade to the petitioner, reckoning her prior

service in Government Schools was in error; and it is,

therefore, that the impugned objections and orders have been WP(C).No.1820 OF 2012(B)

issued. He, therefore, prayed that this writ petition be

dismissed.

4. When I hear Sri.P.M.Manoj as afore, it has to be borne

in mind that the law is now well settled by the Hon'ble

Supreme Court in State of Punjab v Rafiq Masih [(2015) 4

SCC 334], wherein, the Hon'ble court has declared that the

benefits obtained to an employee under a valid sanction and

without any vitiating reason that can be attributed to him,

cannot be recovered subsequently on the basis that the initial

grant was irregular.

5. In the case at hand, the petitioner was paid all the

benefits as per Ext.P1 Circular as early as in 1998. The audit

objection was raised only in the year 2009, whereby, the office

of the Principle Accountant General found that the reckoning

of the prior provisional service of the petitioner in a

Government School for granting her higher grade was

irregular. It is based on this objection that Ext.P4 order has

been issued.

6. As regards the contention of the learned Senior

Government Pleader that Ext.P1 has been withdrawn through

Ext.R1(a) is concerned, it does not appeal to me because the WP(C).No.1820 OF 2012(B)

higher grade was granted to the petitioner based on the

former order when it was in force; and at no point of time, the

said benefits had been cancelled, pursuant to Ext.R1(a).

Therefore, even if Ext.P1 had been cancelled through

Ext.R1(a), it does not mean that automatically the benefit of

higher grade given to the petitioner would stand terminated

or revoked..

7. The facts of this case would obviously obtain the

benefit of the ratio in Rafiq Masih (supra) because the

petitioner was paid the now objected benefits, reckoning her

provisional service validly as per Ext.P1; but Ext.P2 finds it to

be irregular more than 11 years later and through Ext.P4, it is

sought to be recovered. This is impermissible as per the ratio

of the judgment above, particularly when there is no

allegation against the petitioner that she had obtained the

benefits now objected on account of any error or reason that

can be attributed her. In fact, on the contrary, it is virtually

conceded that all such benefits had been granted to the

petitioner at the relevant time on the strength of valid orders

and sanctions.

In such circumstances, I have no hesitation in quashing WP(C).No.1820 OF 2012(B)

Ext.P4 order to the extent to which it orders recovery of

amounts against the petitioner; and consequently, direct the

respondents not to recover any amounts based on Ext.P2 audit

objection in future.

This writ petition is thus ordered.

Sd/- DEVAN RAMACHANDRAN

stu JUDGE WP(C).No.1820 OF 2012(B)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE CIRCULAR No.52373/J2/03/G.Edn.dated 06-03-1998

EXHIBIT P2 TRUE COPY OF THE AUDIT OBJECTION NO. SPL.CELL (HQ)11/11/13-4126/493 DATED 23-01-2009 OF THE 2ND RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 21-04-2009 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE NOTICE NO. A/873/09 DATED 05-01-

2010 OF THE 4TH RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 29-10-2011 SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE CHIEF MINISTER.

EXHIBIT P6 TRUE COPY OF THE LETTER NO. K2/15591/11 DATED 13/12/2011 OF THE 3RD RESPONDENT.

EXHIBIT P7 TRUE COPY OF JUDGMENT DATED 07/03/2017 IN WPC.NO.26430/2011 OF THIS HON'BLE COURT.

RESPONDENT'S EXHIBIT:

EXHIBIT R1(a) TRUE COPY OF THE GOVERNMENT CIRCULAR NO.29065/J2/1998/G.EDN. DATED 08.05.2001.