Kerala High Court
Syamalakumary Amma A vs The State Of Kerala on 24 September, 2021
WP(C)Nos.19979/2021& 20088/2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
FRIDAY, THE 24TH DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943
WP(C) NO. 19979 OF 2021
PETITIONER/S:
1 SYAMALAKUMARY AMMA A.
AGED 62 YEARS
W/O. PREMACHANDRA NATH, THEKKADATHU VEEDU,
PANAYAMCHERRY, ANCHAL, KOLLAM DISTRICT PIN 691 306
2 SAURA BEEVI N
AGED 63 YEARS
W/O. MEERA SAHIB R, ALPHI MANZIL, AEROM, THADICADU
P.O, ANCHAL, KOLLAM DISTRICT 691 306
3 BABY KUTTY P.D
AGED 62 YEARS
S/O. DAVID, PADINGATTINKARA VEEDU, PERA, ANDOOR
P.O, VALAKOM, KOTTARAKARA, KOLLAM DISTRICT 691 532
4 MARIYAM BEEVI Y
AGED 61 YEARS
W/O. BASHEER M, KETTIDATHIL, KOTTUKKAL P.O, ANCHAL,
KOLLAM DISTRICT 691 519
5 MOLLY KUTTY P.M
AGED 59 YEARS
W/O. BABUKUTTY, KALEELAZIKOM, SAMS BALE., VALAKOM,
KOTTARAKKARA, KOLLAM DISTRICT 691 532
6 PRASANNA KUMARY S
AGED 58 YEARS
W/O.S REEDHARAN POTTI, PALLANA NEELAMANA, KARUMADI
P.O, AMBALAPUZHA, ALAPPUZHA DISTRICT 688 564
7 ANITHA D
AGED 56 YEARS
W/O. PRAKASH, VAISAKAM, EDAMULAKKAL P.O, ANCHAL,
KOLLAM DISTRICT 691 321
BY ADVS.
SIJI ANTONY
P.M.JOSEPH
WP(C)Nos.19979/2021& 20088/2021 2
MATHEW KURIAN MATTAM
RESPONDENT/S:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM 695 001
2 DIRECTOR GENERAL OF EDUCATION
DIRECTORATE OF DIRECTOR GENERAL OF EDUCATION,
JAGATHI, THIRUVANANTHAPURAM 695 001
3 THE DEPUTY DIRECTOR OF EDUCATION
OFFICE OF THE D.D.E, KOLLAM 691 009
4 THE DISTRICT EDUCATIONAL OFFICER
OFFICE OF THE D.E.O, PUNALUR,
KOLLAM DISTRICT 691 009
5 THE ASSISTANT EDUCATIONAL OFFICER
PUNALUR, NELLIPPLY P.O, KOLLAM DISTRICT 691 305
6 THE ACCOUNTANT GENERAL (A AND E) KERALA
THIRUVANANTHAPURAM, PIN 695 039
7 THE HEADMASTER
A.K.M.H.S, THADICADU P.O, EDUCATION DIST,
PUNALUR, KOLLAM DISTRICT 691 306
SRI BIJOY CHANDRAN, SR GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 24.09.2021, ALONG WITH WP(C).20088/2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WP(C)Nos.19979/2021& 20088/2021 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
FRIDAY, THE 24TH DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943
WP(C) NO. 20088 OF 2021
PETITIONER/S:
1 JEEJA P.M
AGED 52 YEARS
W/O SAKKIR HUSSAIN, H.S.A., A.K.M.H.S., THADICADU,
EDUCATION DIST., PUNALUR, KOLLAM DISTRICT-691 306
RESIDING AT VARALAZHIKATHU VEEDU, THADIKADU P.O.,
ANCHAL, KOLLAM DISTRICT-691 306.
2 JUNAIDA M.
AGED 51 YEARS
W/O. NAUSHAD, H.S.A., A.K.M.H.S., THADICADU,
EDUCATION DIST., PUNALUR, KOLLAM DISTRICT-691 306
RESIDING AT JITHIN MANZIL, THADICADU P.O., ANCHAL,
KOLLAM DISTRICT-691 306.
BY ADVS.
SIJI ANTONY
P.M.JOSEPH
MATHEW KURIAN MATTAM
RESPONDENT/S:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL
EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 DIRECTOR GENERAL OF EDUCATION
DIRECTORATE OF DIRECTOR GENERAL OF EDUCATION,
JAGATHI, THIRUVANANTHAPURAM-695 001.
3 THE DEPUTY DIRECTOR OF EDUCATION
OFFICE OF THE D.D.E., KOLLAM-691 009.
4 THE DISTRICT EDUCATIONAL OFFICER
OFFICE OF THE D.E.O., PUNALUR,
KOLLAM DISTRICT-691 009.
WP(C)Nos.19979/2021& 20088/2021 4
5 THE ACCOUNTANT GENERAL (A&E)
KERALA, THIRUVANANTHAPURAM, PIN-695 039.
6 THE HEADMASTER
A.K.M.H.S., THADICADU P.O., EDUCATION DISTRICT,
PUNALUR, KOLLAM DISTRICT-691 306.
SMT NISHA BOSE, SR GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 24.09.2021, ALONG WITH WP(C).19979/2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WP(C)Nos.19979/2021& 20088/2021 5
JUDGMENT
The petitioners in W.P.(C) No.20088/2021 are aided school teachers
working at the AKMHS Thadikkadu, whereas the petitioners in W.P.(C)
No.19979/2021 are retired teachers of the said school. They have
approached this Court being aggrieved by the order issued by the
respondents directing them to return the amounts paid to them for
undertaking the enumerator work in connection with the preparation of the
National Population Register (NPR) on the ground that they had been
granted Higher Earned Leave than what was eligible to them.
2. It is the case of the petitioners that they are/were aided school
teachers (Vacation department). They contend that they had undertaken
the enumerator work in connection with the preparation of the NPR on the
basis of the list prepared by the District Administration. They contend that
they have carried out the vacation duty during April 2010 to May 2010 for a
period of 32 days and they are thus eligible for Earned Leave as per Rule 81
r/w. Rule 12(7) of KSR, Part-I.
3. For the sake of convenience, reference to parties and Exhibits
shall be as per their description in W.P.(C) No. 19979 of 2021.
4. According to the petitioners, without taking note of the hard
work of the petitioners, Ext.P4 was issued by the 1st respondent wherein it
is stated that the teachers are eligible for leave surrender only for 8 days. As
a matter of fact, the petitioners had worked for 30 days for the purpose of
conducting census. They contend that the Government after considering the
grievance of the petitioners had issued Ext.P5 order and had directed the
respondents not to implement Ext.P4 Government Order until further notice.
5. According to the petitioners, after several years, respondents 3
and 4 have initiated steps to recover the amount towards excess salary
drawn by them. The petitioners contend that the teachers from Kottayam
district had approached this Court and by Ext.P6 judgment dated 22.3.2021,
this Court had set aside the orders as per which, recovery was ordered and
the respondents were directed to ensure that all service and retiral benefits
of the petitioners therein are disbursed. It is in the afore circumstances that
the petitioners are before this Court seeking the following reliefs:
(i) issue a writ of certiorari to quash Ext.P3 and P4.
(ii) issue a writ of mandamus or any other appropriate writ,
direction or order directing the 7th respondent to recall Ext.P3.
(ii) issue a writ of mandamus or any other appropriate writ,
direction or order directing the respondents to stop further
proceedings of Ext.P3 based on Ext.P4 and pass appropriate
further orders in the spirit of Ext.P5.
iv) declare that the petitioners are entitled for the total amount of
surrender of earned leave sanctioned as per duty certificate
submitted in connection with work assignment as enumerator duty
of census 2011.
6. I have heard Sri. Siji Antony, the learned counsel appearing for
the petitioners and Smt. Nisha Bose, the learned Senior Government Pleader.
7. I have considered the submissions advanced and have perused
the records.
8. The materials placed on record reveals that the petitioners were
engaged as enumerators and after undergoing training, they had conducted
house listing and housing census operations in connection with the
preparation of NPR from 12.04.2010 to 27.05.2010. At the time of engaging
the petitioners as enumerators, they had been granted the benefit of earned
leave as per the relevant provisions of Part I of the KSR. There is no case
for the respondents that any benefit was obtained by the petitioners on
account of any fault or error or reasons that can be attributed to him/her so
as to initiate recovery of the amount which is stated to have been paid in
excess.
9. I find that an identical issue was raised by teachers in various
schools under the Education Department in Ernakulam District and a learned
Single Judge of this Court relying on the declaration of law in State of
Punjab v. Rafiq Masih (White Washer) (2015(4)SCC 334)had interfered
with the orders passed by the Deputy Director. While disposing of the writ
petition, this Court had occasion to observe as follows in paragraph Nos. 8 to
13 of the judgment in W.P.(C) No. 9205/2020.
"8. The petitioners specifically contend that they had been
engaged as Enumerators in the year 2010 and they had been given the
benefit of earned leave as per Rule 81 of Part I KSR; and that this was
offered to them on the strength of valid orders, without any
misrepresentation or reasons that can be attributed against them.
9. They say that, therefore, merely because Government now
says that the process of Enumeration could have been done in 16 days
and therefore, that teachers are entitled only to 8 days of earned leave,
the Deputy Director could not have recovered any amount from them on
such basis.
10. They say that this is more so because the Government
themselves have issued an order dated 14.05.2013, freezing their earlier
order directing recovery; and that this is still in force.
11. As a corollary adjunct to the afore contentions, petitioners
say that even if any recovery is possible, the same is impermissible at
this time on account of the ratio of the Hon'ble Supreme Court in Rafiq
Masih (Supra) and that therefore, the impugned orders be set aside.
12. There can be no doubt that the ratio in Rafiq Masih (Supra)
is unmistakable that unless a benefit has been obtained by an employee
on account of any fault or error or reasons that can be attributed to
him/her, such recovery is not possible after more than eight or nine
years, as has been attempted in this case.
13. The declarations in Rafiq Masih (Supra) make it further
indubitable that the recovery ordered against persons who are nearing
retirement, with respect to benefits that were given to them under valid
and legal orders, cannot be recovered merely on the ground that such
sanctions were in error at the time when they were issued."
I respectfully concur with the observations and findings of the learned
Single Judge.
In that view of the matter, the petitioners are entitled to succeed. The
impugned orders will stand set aside. There will be a direction to the
competent respondents to ensure that all the service and retiral benefits of
the petitioners are disbursed to them de hors the orders impugned in these
writ petitions. The entire exercise shall be concluded expeditiously, in any
event, within a period of four months from the date of production of a copy
of the judgment.
There will be no order as to costs.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
IAP
WP(C)Nos.19979/2021& 20088/2021 10
APPENDIX OF WP(C) 19979/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE CENSUS OF INDIA 2011
IDENTITY CARD ISSUED BY THE TAHSILDAR,
PATHANAPURAM TO THE 1ST PETITIONER.
Exhibit P2 TRUE COPY OF THE CERTIFICATE OF COMPLETE
COVERAGE AND INVENTORY OF USED/UNUSED
MATERIAL FOR ENUMERATOR DATED 27-05-2010
OF THE 1ST PETITIONER.
Exhibit P3 TRUE COPY OF THE NOTICE DATED 13-09-2021
ISSUED BY THE 7TH RESPONDENT TO THE
PETITIONERS ALONG WITH THE TABULAR SHEET.
Exhibit P4 TRUE COPY OF THE GOVERNMENT ORDER NO.
G.O(MS) NO. 142/2013/G.EDN DATED 20-04-
2013 ISSUED BY THE 1ST RESPONDENT.
Exhibit P5 TRUE COPY OF THE CIRCULAR NO.
42076/G3/2010/G.EDN DATED 14-05-2013
ISSUED BY THE 1ST RESPONDENT.
Exhibit P6 TRUE COPY OF THE JUDGMENT IN W.P(C) NO.
NOS 34624/2019 AND 35682/2019 OF THIS
HON'BLE COURT DATED 22-03-2021.
RESPONDENTS EXHIBITS:NIL
WP(C)Nos.19979/2021& 20088/2021 11
APPENDIX OF WP(C) 20088/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE NOTICE DATED 13.9.2021
ISSUED BY THE 6TH RESPONDENT TO THE
PETITIONERS ALONG WITH THE TABULAR SHEET.
Exhibit P2 TRUE COPY OF THE GOVERNMENT ORDER NO.G.O.
(MS) 142/2013/G.EDN. DATED 20.4.2013
ISSUED BY THE IST RESPONDENT.
Exhibit P3 TRUE COPY OF THE CIRCULAR
NO.42076/G3/2010/G.EDN. DATED 14.5.2013
ISSUED BY THE IST RESPONDENT.
Exhibit P4 TRUE COY OF THE JUDGMENT IN WPC
NOS.34624/2019 AND 35682/2019 OF THIS
HON'BLE COURT DATED 22.3.2021.
RESPONDENTS EXHIBITS:NIL
