Karnataka High Court
K S Banuprakash vs State Of Karnataka on 10 November, 2020
Equivalent citations: AIRONLINE 2020 KAR 2444
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE M.NAGAPRASANNA
WRIT PETITION No.12733/2018 (S-RES)
BETWEEN:
1. K S BANUPRAKASH
S/O SIDDANAYAK,
AGED ABOUT 33 YEARS,
R/O KURADAHALLI VILLAGE,
JAVAGAL HOBLI,
ARSIKERE TALUK,
HASSAN DISTRICT-573125
2. SMT. PRAMILA M S
D/O SHIVAYYA,
AGED ABOUT 38 YEARS,
R/A PARTHA KUTIRA,
BEHIND MINI VIDHANA SOUDHA,
ARASIKERE TOWN,
HASSAN DISTRICT-7573103
BOTH THE PETITIONERS ARE
WORKING AS ASSISTANT HIGH
SCHOOL TEACHERS,
SRI LAKSHMISHA COMPOSITE P.U.COLLEGE,
DEVANUR, KADUR TALUK,
CHIKKAMAGALURU DISTRICT-577 175.
... PETITIONERS
(BY SRI LOKESH BOOVANAHALLI, ADVOCATE (VIDEO
CONFERENCING)
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AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
DEPT.OF EDUCATION (SECONDARY EDUCATION)
VIKASA SOUDHA, BENGALURU-560 001.
2. THE COMMISSIONER
DEPT. OF PUBLIC INSTRUCTION,
K.R.CIRCLE, NRUPATHUNGA ROAD,
BANGALORE-560 001.
3. DEPUTY DIRECTOR OF PUBLIC INSTRUCTION
CHIKKAMAGALORE DISTRICT-577 101..
CHIKKAMAGALORE.
4. BLOCK EDUCATION OFFICER
DEPT OF PUBLIC INSTRUCTION,
BIRUR DIVISION, KADUR TALUK,
CHIKKAMAGALURU DISTRICT-577 548.
5. THE HEAD MASTER
SRI LAKSMISHA COMPOSITE PU COLLEGE/HIGH
SCHOOL, DEVANUR, KADUR TALUK,
CHIKKAMAGALORE DISTRICT-577 175.
... RESPONDENTS
(BY SRI SRINIVASAGOUDA, AGA FOR R1 TO R4 (PHYSICAL HEARING
R5 IS SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
SET ASIDE THE 4TH RESPONDENT
MEMORANDUM/ORDER BNO.A2/DPI/V/Bha/Report.
407/2017-18 DT.20.11.2017 AT ANNEXURE-A
CONSEQUENTLY ISSUE DIRECTION DIRECTING THE
REPSONDENTS TO CONTINUE TO PAY THE SPECIAL
ALLOWANCE OF RS.400/P.M AS PER G.O. DT.9/05/12
ISSUED BY THE 1ST RESPONDENT AT ANNEXURE-H AND
ETC.,
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THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioners in this writ petition have called in question the order dated 20.11.2017, by which, the special allowance that was granted to the petitioners is sought to be withdrawn with retrospective effect from 01.08.2008 and a consequent recovery is sought to be made.
2. The brief facts leading to the present petition are that the petitioners are working as teachers in respondent No.5-Institution. By order dated 29.08.2008 the Government in respect of Primary School teachers who were appointed prior to 01.08.2008 sanctioned special allowance of Rs.200/- per month with effect from 01.04.2006. Accordingly, the petitioners who were working as teachers in an aided educational institution were also granted enhancement of special allowance 4 from Rs.200/- to Rs.400/- as was made in the case of a Government Teachers.
3. The State Government has issued a Corrigendum to the Government order dated 29.08.2008 on 28.07.2014 seeking to correct the entitlement of the Secondary School Teachers and PUC Lecturers who were appointed prior to 01.08.2008 holding that they are not entitled to special allowance of Rs.200/- in terms of the earlier Government order. Owing to the Corrigendum dated 28.07.2014 the special allowance that was paid to the petitioners herein was withdrawn by order dated 20.11.2017 and a direction to recover the amount that was paid to the teachers was also passed. The petitioners have called in question the said order of withdrawal of special allowance and subsequent recovery made in terms of the order dated 20.11.2017 in this writ petition.
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4. Heard Sri Lokesh Boovanahalli, learned counsel appearing for the petitioners and Sri Srinivasagouda, learned AGA for respondent Nos.1 to 4.
5. Admittedly, the petitioners are High School Teachers who were granted special allowance from Rs.200/- to Rs.400/- in terms of the Government order, which was applicable to the Government High School Teachers and have been paid the same for about six years from 29.08.2008 upto 28.07.2014 i.e., the date on which the Corrigendum was issued and sought to recover the same from the hands of the petitioners. The Hon'ble Apex Court in the case of State Of Punjab & Ors vs Rafiq Masih (White Washer) reported in (2015) 4 SCC 334, has held as follows:
"18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions 6 referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh 7 the equitable balance of the employer's right to recover."
In the light of the law laid down by the Hon'ble Apex Court, recovery from the hands of the petitioners is impermissible. However, the petitioners would not be entitled to payment of special allowance.
The writ petition is disposed with the aforesaid observation.
Sd/-
JUDGE PB