Kerala High Court
The State Of Kerala vs Mary Paul on 28 October, 2025
Author: Anil K.Narendran
Bench: Anil K.Narendran
1
OP(KAT)No.155 of 2018 2025:KER:80104
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
TUESDAY, THE 28TH DAY OF OCTOBER 2025 / 6TH KARTHIKA, 1947
OP(KAT) NO. 155 OF 2018
AGAINST THE ORDER DATED 28.07.2017 IN OA NO.181 OF 2016 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS:
1 THE STATE OF KERALA REPRESENTED BY ADDITIONAL CHIEF
SECRETARY TO GOVERNMENT,FINANCE DEPARTMENT,GOVERNMENT
SECRETARIAT,THIRUVANANTHAPURAM KERALA 695 001
2 THE DEPUTY DIRECTOR OF EDUCATION
KALPETTA, WAYANAD, KERALA 673 125
3 THE ACCOUNTANT GENERAL (A & E)
KERALA, THIRUVANANTHAPURAM, KERALA 695 001
BY ADV A.J VARGHESE, SENIOR GOVERNMENT PLEADER
RESPONDENT/APPLICANT :
MARY PAUL, HIGH SCHOOL ASSISTANT (PHYSICAL
SCIENCE)GOVERNMENT HIGHER SECONDARY SCHOOL,ARATTUKARA,
(KOILERY)PAYAYAMPALLY P.O,MANANTHAVADY 670 646,WAYANAD,
KERALA, MOBILE 94477611882.
BY ADVS.
SRI.JELSON J.EDAMPADAM
SRI.PIRAPPANCODE V.S.SUDHIR
THIS OP KERALA ADMINISTRATIVE TRIBUNAL WAS FINALLY HEARD ON
15.10.2025, THE COURT ON 28.10.2025 PASSED THE FOLLOWING:
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OP(KAT)No.155 of 2018 2025:KER:80104
JUDGMENT
Muralee Krishna, J.
The respondents in O.A.No.181 of 2016 on the file of the
Kerala Administrative Tribunal, Thiruvananthapuram (the
'Tribunal' in short) filed this original petition invoking the
supervisory jurisdiction of this Court under Article 227 of the
Constitution of India, challenging Ext.P4 order dated 28.07.2017
passed by the Tribunal in that original application.
2. The respondent herein filed the original application
under Section 19 of the Administrative Tribunals Act, 1985, before
the Tribunal seeking the following reliefs:
"(i) call for the relevant records leading to the orders in
Annexure A5 and to quash the same in the interest of
justice.
(ii) declare that the applicant is duly eligible for her re-
option to the higher grade sanctioned to her on completion
of 10 years service.
(iii) quash the recovery proceedings of the excess amount
said to have been drawn by the applicant, on consideration
of the vicarious liability of the Government and also on the
consideration of its non-sustainability of such recovery at
OP(KAT)No.155 of 2018 2025:KER:80104
the fag end of the service".
3. Going by the averments in the original application, the
respondent is now working as a High School Assistant (Physical
Science) in the Government Higher Secondary School, Arattukara,
at Mananthavady. She had been sanctioned higher grade on
completion of 10 years service in the post of P.D.Teacher, and she
opted for higher grade on the date of completion of 10 years i.e.,
on 12.04.2002, as the same was more beneficial to her, as per the
conditions prevailed at that period. But subsequently, by the order
No.A3.9577/2014/L.Dis. dated 02.12.2014 of the Deputy Director
of Education, she was allowed a junior-senior anomaly of 1997 Pay
Revision orders. But the benefit of the said anomaly was allowed
only up to the date of her higher grade availed on completion of
10 years service in the post of P.D. Teacher. By the above action,
there occurred a change in the date of annual increment, and the
increment falls due on 1st January of each year was changed to
the 1st June of each year. The respondent is eligible for a re-option
on her higher grade, as the rectification of junior-senior anomaly
was allowed only on a subsequent date of her option for higher
OP(KAT)No.155 of 2018 2025:KER:80104
grade. In the meantime, the 3rd petitioner objected her fixation of
the pay revision ordered in 2004, and directed to recover the
excess pay drawn by the erroneous pay fixation made on the
strength of the option submitted by the respondent. As per the
orders then existing in the pay revision, the option for the revised
pay should not go beyond the date of subsequent promotion if àny.
But the respondent, being a teacher, had no knowledge of such
pay revision rules at that time, and it happened on the advice of
her co-teachers working along with her. The A.E.O./DEO
concerned, who is expected to know all such rules, should not
have approved her erroneous pay fixation as per rules. If the
D.E.O. had objected the same as per rules, of course, she would
have given a changed option as per rules, and the present
contingency would not have been occurred. But the same did not
happen only because of the inaction on the part of the D.E.O., whọ
is the countersigning authority of the pay fixation of the H.S.As.
Therefore, the departmental officials were also at fault for the
erroneous pay fixation, and they are also liable for the excess
OP(KAT)No.155 of 2018 2025:KER:80104
amount drawn by the respondent. In such a situation, the
Government is vicariously liable for the actions of its employees
legally, and hence there is no legal justification for ordering such
a huge amount by way of recovery of excess pay drawn after a
long period and that too at the fag end of her superannuation. The
respondent submitted a representation to the 1 st petitioner
showing all the aspects narrated above for redressal of her
grievances, but in vain. Therefore, the respondent approached the
Tribunal for redressal of her grievances.
4. In the original application on behalf of the 1st petitioner
herein, a reply statement was filed, producing therewith
Annexures R1(a) to R1(f) documents. On behalf of the 3 rd
petitioner herein, a reply statement was filed before the Tribunal
opposing the relief sought in the original application.
5. After hearing both sides and on appreciation of
materials on record, the Tribunal allowed the original application
by the impugned order. Paragraphs 11, 12 and the last paragraph
of that order read thus:
OP(KAT)No.155 of 2018 2025:KER:80104
"11. The applicant relies on the decision of the Hon'ble
Supreme Court in State of Punjab and others v. Rafiq
Masih (White Washer) [(2015) 4 SCC 334], wherein the
Hon'ble Supreme Court has provided a ready reference of
the situation where recoveries from an employee are
impermissible. It has been provided in paragraph 12(iii) of
the said judgment that "recovery from employees when the
excess payment has been made for a period in excess of five
years, before the order of recovery is issued". In the case of
the applicant Annexure A3 notice was issued to her only on
24.07.2013 objecting to the 2004 pay revision. In view of
the above decision, the applicant is not liable to repay the
amounts already drawn, as directed in Annexure A3.
12. In view of what has been stated above, the following
directions are issued:
(1) Annexures A3 and A5 orders are set aside, and (2)The
applicant shall be allowed to exercise a fresh option in
respect of her first Higher Grade. Respondents 1 and 2 are
directed to issue necessary orders within а period of three
months accepting such option.
The Original Application is allowed to the above extent."
6. Heard the learned Senior Government Pleader for the
petitioners and the learned counsel for the respondent.
7. The learned Senior Government Pleader would submit
that as far as the direction not to recover excess payment made
OP(KAT)No.155 of 2018 2025:KER:80104
to the respondent is concerned, the petitioners have no serious
grievance, since it was based on the judgment of the Apex Court
in Whitewasher [(2015) 4 SCC 334], the Tribunal reached to
that finding. But the direction in Ext.P4 order permitting the
respondent to exercise a fresh option in respect of her first higher
grade is concerned, the said direction is against the settled
position of law discernible from Ext.R1(c) order and Exts.R1(d) to
R1(f) judgments. Option once exercised for time-bound higher
grade is final, and re-option cannot be allowed as per paragraph
11 of Circular No.46/08/Fin dated 08.08.2008. The Tribunal failed
to consider this aspect while passing the impugned order. The
respondent ought to have exercised the right to option judiciously,
and after non-judicious exercise of the option, she cannot have
further grievances in the matter.
8. On the other hand, the learned counsel for the
respondent would submit that the Tribunal correctly analysed the
materials on record and reached to the right conclusion. Hence,
no interference is needed by this Court by exercising supervisory
OP(KAT)No.155 of 2018 2025:KER:80104
jurisdiction under Article 227 of the Constitution of India.
9. The respondent herein was working as an HSA
(Physical Science) in the Government Higher Secondary School,
Arattukara, at Mananthavady in Wayanad district. She was
drawing the salary in the post of P.D. Teacher (Higher Grade) until
31.03.2004. She was promoted as HSA with effect from
01.11.2004, and her pay was fixed accordingly. Her pay in HSA
grade was refixed as on 01.04.2005, being her date of increment
in the earlier post. On revision of scale, she had opted to come
over to the revised scale with effect from 01.04.2005, and her pay
was fixed with three increments as service weightage for 12 years
of qualifying service. She opted for the 2009 pay revision with
effect from 01.04.2010, and her pay was revised accordingly.
With effect from 01.04.2012, she was granted 1st higher grade in
the HSA post, and the pay was fixed accordingly. According to the
petitioners, the option exercised by the respondent for 2004 pay
revision with effect from 01.04.2005 is not in order in view of Rule
7(3) of Annexure II pay revision order G.O.(P) No.145/06/Fin.
OP(KAT)No.155 of 2018 2025:KER:80104
dated 25.03.2006, which says that employees who have been
promoted on or after 01.07.2004 are not allowed to exercise the
option to continue in the pre-revised scale of lower post beyond
the date of such promotion. Therefore, the fixation was objected
to in the audit report dated 28.06.2013 of the local audit. When
the respondent submitted a representation before the 1 st
petitioner and moved the Tribunal by filing O.A.No.1431 of 2015,
the Tribunal, by the order dated 19.08.2015, directed the 1st
petitioner to consider the representation submitted by the
respondent before the 1st petitioner, after affording an opportunity
of being heard. Accordingly, Annexure A5 final order dated
08.12.2015, was passed by the 1st petitioner rejecting her claim.
In that order, it was found that the respondent had non judiciously
opted the due date of promotion for the time-bound higher grade,
and only because of that reason, she was deprived of the benefits
enjoyed by her juniors, who had judiciously opted for their higher
grade with effect from their date of increment. It was found in that
order that before sanctioning 10 years time-bound higher grade
OP(KAT)No.155 of 2018 2025:KER:80104
with effect from 12.04.2002, the increment date of the respondent
in the lower post was January every year. Instead of opting the
due date, that is, 12.04.2002, if the respondent had opted the
same with effect from the date of next increment in the P.D.
Teacher post with effect from 01.01.2003, she could have drawn
higher pay than the junior even without rectification of junior
senior anomaly accorded vide proceedings No.A3-9577/14/L.Dis
dated 02.12.2014 of the Deputy Director of Education, Wayanad.
It was further held in Annexure A5 order that the claim of the
respondent can be examined only in the light of paragraph 11 of
the circular No.46/08/Fin. dated 08.08.2008, which instructs that
option once exercised for time-bound higher grade promotion shall
be final and no re-option will be granted for grade promotion.
10. As rightly submitted by the learned Senior Government
Pleader, the rectification of junior-senior anomaly in the case of
the respondent, in view of Annexure R1(a) G.O.(P)
No.495/90/Fin. dated 06.10.1990, which says that any claim for
rectification of scales of pay, grade, etc, will automatically lapse if
OP(KAT)No.155 of 2018 2025:KER:80104
not sanctioned within five years from the date of such claims or
two years from the date of any subsequent general pay revision
orders issued by the Government, whichever is earlier. Even then,
the Government has taken a lenient view in not having reviewed
the proceedings of the Deputy Director of Education for
rectification of junior-senior anomaly, for which the respondent
made an application only on 22.08.2014.
11. From the reading of para 11 of the circular 46/08/Fin
dated 08.08.2008, it is clear that the option once exercised for
time-bound higher grade is final and re-option cannot be
permitted. In such circumstances, the finding of the Tribunal that
the respondent ought to have been permitted to exercise a fresh
option in respect of her first higher grade is incorrect. At the same
time, the finding of the Tribunal, based on the judgment of the
Apex Court in Whitewasher [(2015) 4 SCC 334], that recovery
cannot be ordered from the respondent, is not liable to be
interfered with.
Having considered the pleadings and materials on record and
OP(KAT)No.155 of 2018 2025:KER:80104
the submissions made at the Bar, and in the light of the discussions
made in the preceding paragraph, we allow the original petition in
part by setting aside the impugned order of the Tribunal only to
the extent it permits the respondent to make a fresh option for
the first time bound higher grade.
Sd/-
ANIL K.NARENDRAN, JUDGE
Sd/-
sks MURALEE KRISHNA S., JUDGE
OP(KAT)No.155 of 2018 2025:KER:80104
APPENDIX OF OP(KAT) 155/2018
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION ALONG WITH
ANNEXURES
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 1ST
RESPONDENT WITH ANNEXURES
EXHIBIT P3 THE TRUE COPY OF THE REPLY STATEMENT FILED ON
BEHALF OF THE 3RD RESPONDENT
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 28-07-2017 IN O.A NO
Annexure A1 TRUE COPIES OF ORDER NO. A3. 9577-2014/L.DIST.
DATED 02.12.2014 OF THE 2ND RESPONDENT ALLOWING
RECTIFICATION OF JUNIOR-SENIOR ANOMALY.
Annexure A2 TRUE COPY OF STATEMENT OF FIXATION OF PAY IN
RESPECT OF SRI. E. RAVEENDRAN, P.D TEACHER
RECTIFYING SENIOR-JUNIOR ANOMALY.
Annexure A3 TRUE COPY OF LETTER NO. A28.182(1) 2013-14 DATED
24.07.2013 OF THE HEADMISTRESS ENCLOSING COPY OF
THE AUDIT OBJECTION OF THE ACCOUNTANT GENERAL,
KERALA.
Annexure A4 TRUE COPY OF STATE OF PAY FIXATION ON HIGHER
GRADE. IN RESPECT OF THE APPLICANT BY CHANGING
OPTION AS ON 01.06.2002.
Annexure A5 TRUE COPY OF G.O (RT) NO. 10607/2015/ FIN. DATED
08.12.2015 OF THE 1ST RESPONDENT REJECTING THE
REQUEST OF THE APPLICANT.
Annexure R1(a) TRUE COPY OF THE G.O(P) NO. 495/90/FIN. DATED
06.10.1990.
Annexure R1(b) TRUE COPY OF THE SERVICE DETAILS OF THE APPLICANT
AND HER JUNIOR.
Annexure R1(c) TRUE COPY OF THE ORDER DATED 13.09.2012 OF THE
HONOURABLE KAT IN T.A NO. 3868/12.
Annexure R1(d) TRUE COPY OF THE HONOURABLE HIGH COURT JUDGMENT
DATED 04.12.2012 IN O.P(KAT) 4104/2012.
Annexure R1(e) TRUE COPY OF THE JUDGMENT DATED 03.01.2012 IN
W.P.(C) NO 2387/05.
Annexure R1(f) TRUE COPY OF THE JUDGMENT DATED 24.06.2009 IN W.A
NO. 1209/2009.
