Disposed

State of Kerala v. Bushara.M

Kerala HC16 Jun 2022WA/694/2022

Case brief

AI extract

What is this about?

The High Court upheld the Single Judge's view that recovering excess pay granted over a decade ago is impermissible. However, the court clarified that authorities may now fix the petitioner's pension based on the correct pay and ordered expedited release of benefits.

What did the court decide?

Excess pay recovery denied; authorities directed to fix pension based on correct pay and release benefits within three months.

State of Kerala Vs Bushara.M — Pension and Retirement Benefits | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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THE HONOURABLE MRS. JUSTICE C.S. SUDHA

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THURSDAY, THE 16^TH DAY OF JUNE 2022 / 26TH JYAISHTA, 1944

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WA NO. 694 OF 2022

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AGAINST THE JUDGMENT DATED 14.02.2022 IN WP(C) 3926/2021 OF HIGH

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COURT OF KERALA

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APPELLANTS/RESPONDENTS 1 TO 4 IN W.P(C):

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1 STATE OF KERALA

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REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION,GOVERNMENT SECRETARIATE,THIRUVANANTHAPURAM, PIN - 695001

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2 THE DIRECTOR OF GENERAL EDUCATION

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JAGATHY,THIRUVANANTHAPURAM, PIN - 695014

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3 THE DEPUTY DIRECTOR OF EDUCATION

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PALAKKAD, PIN - 680003

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4 THE ASSISTANT EDUCATIONAL OFFICER

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ALATHUR,PALAKKAD DISTRICT, PIN - 678541

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BY ADV SENIOR GOVERNMENT PLEADER SMT.V. VINITA

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RESPONDENT/PETITIONER IN W.P(C):

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BUSHARA.M AGED 55 YEARS W/O ABDU RAHIMAN,FULL TIME ARABIC TEACHER, ALP SCHOOL,KOTTARASSERY,PALAKKAD DISTRICT, RESIDING AT NOCHIPARAMBIL HOUSE,KONNAMCHERRY, AYAKKAD. P.O,PALAKKAD DISTRICT, PIN - 678683 BY ADV K.T.SHYAMKUMAR

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THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON 16.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Writ.Appeal No. 694 of 2022

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P.B.SURESH KUMAR & C.S.SUDHA, JJ.

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Writ.Appeal No. 694 of 2022

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----------------------------------------------------Dated this the 16^th day of June, 2022

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J U D G M E N T

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C.S.Sudha, J.

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This intra-court appeal has been filed under Section 5(i) of the Kerala High Court Act, 1958 by the State challenging the judgment dated 14/02/2022 in W.P.(C).No.3926/2021. The appellants herein are the respondents and the respondent herein, the petitioner in the writ petition. The parties in this appeal will be referred to as described in the writ petition.

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On 31/07/1989 the petitioner commenced service as a full time Arabic Teacher in the ALP School, Kottarassery in Palakkad District. Pursuant to the Government Order bringing in pay revision as per G.O.(P) No:145/2006/Fin. dated 25/03/2006, the petitioner's pay was fixed as per the pay revision order issued by the Head Master vide the statement of fixation of pay dated 19/05/2006, giving her the choice to

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Writ.Appeal No. 694 of 2022

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opt the revised scale on 01/07/2005 on completion of 16 years of service. The pay revision order was accepted by the authorities concerned also. After more than 16 years of sanction of the revised pay scale, and when the petitioner was on the verge of retirement, the 3^rd respondent issued Ext.P3 audit objection dated 12/08/2020, stating that on 01/07/2005, the date of option, the petitioner did not have service weightage of 16 years. So direction was issued by the 3^rd respondent to review the service book of the petitioner and also directed the petitioner to remit the excess amounts received by her. The petitioner contended that Ext.P3 is legally unsustainable in the light of the dictum in State of Punjab v. Rafiq Masih [(2015) 4 SCC 334] . Hence the writ petition.

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The respondents contended that the pay revision order dated 19/05/2006 had been issued violating the rules of fixation as provided in the aforesaid G.O. The Government had prescribed fixation method by allowing one increment for every four years of service as service weightage. Going by the same, the petitioner was eligible for 3 increments on the date of option, i.e., on 01/07/2005. Instead, four

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Writ.Appeal No. 694 of 2022

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increments have been granted. Therefore, the extra increment granted needs to be refunded.

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The learned Single Judge by the impugned judgment,

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allowed the writ petition by setting aside Ext.P3 Audit Objection and held that the respondents are neither entitled to re-fix the date of grant of pay-revision benefits to the petitioner at the belated stage nor can they be permitted to recover any amounts from the petitioner on the basis of the wrong fixation of pay. Aggrieved, the respondents have come up in appeal.

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Heard Smt. V.Vinita, the learned Senior Government Pleader

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for the appellants and Sri. K.T Shyamkumar, the learned counsel for the respondent.

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The fact that the pay had been wrongly fixed is admitted.

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The only case of the petitioner is that the excess amount(s) if at all received cannot be refunded or recovered from her in the light of the dictum in Rafiq Masih 's case ( Supra ). Admittedly Ext.P3 Audit Objection has been issued about 16 years after the pay fixation was

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Writ.Appeal No. 694 of 2022

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effected. Therefore, as rightly held by the learned Single Judge, the move for recovery of the excess payment made after a lapse of more than

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a decade is impermissible in the light of the dictum in Rafiq Masih 's case ( Supra ).

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However, there is certainly force in the argument that pensionary benefits cannot be allowed to be fixed on the basis of the incorrect fixation of pay as held in Administrator, Guruvayur Devaswom v. Aravindan P.C [2021 (6) KHC 200]. Therefore the competent authority will be at liberty to fix the pensionary benefits on the basis of the pay correctly fixed in accordance with the law and the rules. We make it clear that the excess amount(s) paid to the petitioner cannot be recovered at this point of time. However, the petitioner's pension will be fixed after a proper fixation of pay.

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It is submitted that though the petitioner has retired in 2021,

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she has not been sanctioned any pension and that the pensionary benefits have been withheld and no payments made till date. We make it clear that the authorities concerned shall expedite the matter and issue

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Writ.Appeal No. 694 of 2022

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necessary orders and release the pensionary benefits to the petitioner

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within a period of three months from the date of receipt of a copy of this

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judgment.

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The Writ Appe al is disposed of as indicated above.

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Sd/-

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P.B. SURESH KUMAR JUDGE

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Sd/-

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C.S.SUDHA JUDGE

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Jms/16.06

State of Kerala v. Bushara.M

Case brief

What is this about?

What did the court decide?

State of Kerala v. Bushara.M

Case brief

What is this about?

What did the court decide?

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