Kerala High Court
V.N.Devaky vs The State Of Kerala on 16 February, 2021
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942
WP(C).No.25760 OF 2013(T)
PETITIONER:
V.N.DEVAKY, AGED 63 YEARS
WIFE OF M.N.RAJU, MAROTTIKAL HOUSE,
P.O CHETTUPUZHA, THRISSUR DISTRICT
(HEADMISTRESS(RETIRED),UPPER PRIMARY
SCHOOL,PERINCHERRY)
SRI.V.A.MUHAMMED
SRI.M.SAJJAD
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001
2 THE ASSISTANT EDUCATIONAL OFFICER
CHERPU,THRISSUR DISTRICT 680 561
SRI. P.M.MANOJ - SR.GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
16.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.25760 OF 2013(T)
2
JUDGMENT
Dated this the 16th day of February 2021 The petitioner says that she had retired as Headmistress from the Upper Primary School, Perincherry and that while she was so serving, she had availed Leave Without Allowance (LWA) from 06.02.1978 to 31.03.1978. She says that this period was correctly reckoned as qualifying service when she was awarded Selection Grade in the category of Upper Primary School Teacher, with effect from 01.07.1989; and that she had consequently, opted under the 1992 Pay Revision with effect from 01.07.1994.
2. The petitioner says that she was, thereafter, appointed as Headmistress with effect from 01.04.1995 and that she availed of her "Headmistress (Higher Grade)" with effect from the same day itself. She says that the Assistant Educational Officer, Cherpu, however, directed that her Selection Grade be regularised only after excluding the period when she spent on LWA and that she, therefore, preferred a request dated 01.02.2000, to permit her to re-opt under the 1992 Pay Revision with effect from 01.09.1994 and for the "Headmistress (Higher Grade)" with effect from 01.09.1995; WP(C).No.25760 OF 2013(T) 3 but that this was rejected by the Government for the reason that Rule 15, of the Rules for fixation as per the Government Order bearing No.G.O.(P)No.3000/98/Fin. dated 25.11.1998, such reoption can be allowed only if there is a court order or a retrospective promotion.
3. The petitioner says that she was, therefore, constrained to approach this Court by filing O.P.No.25974/2000, which was allowed, declaring that such reoption is permissible and thus directing the Authorities to allow her to do so, subject to her entitlement, with a definitive declaration that if any arrears of pay becomes payable, the same will be paid in cash from the date of option and further that the amounts which becomes entitled by way of higher emoluments, in between the date of option and the date of exercised option, will not be paid in cash but utilised to set off excess amount which has to be refunded on account of such reoption, so that the balance alone need be refunded to the Government.
4. The petitioner submits that pursuant to the said judgment, the Government considered her case and issued Ext.P9 order, wherein, her requests for reoption from 01.09.1994 - as far as 1992 Pay Revision is concerned - and WP(C).No.25760 OF 2013(T) 4 from 01.09.1995 - with respect to the "Headmistress (Higher Grade)' - were allowed, but that the amount of Rs.27,927/- recovered from her erroneously, without reckoning the period when she availed of LWA, has been refused to be returned solely for the reason that she retired from service on 31.03.1999 and therefore, that the refund of the amount in cash is not permissible as per the judgment of this Court in O.P. No.25974/2000. The petitioner says that Ext.P9 order to such extent, is in error and therefore, prays that the same be set aside.
5. Sri.P.M.Manoj - the learned Senior Government Pleader, in refutation of the above, submitted that in paragraph 9 of the counter affidavit filed on behalf of the first respondent it has been explained why the amounts recovered from the petitioner has been ordered not to be returned. He submitted that the excess amount paid to the petitioner, reckoning the period when she spent on LWA, was rejected soon after she retired on 31.03.1999 and therefore, that the Authorities were justified in recovering it from her. He, therefore, prayed that Ext.P9 be left uninterdicted and that this writ petition be dismissed.
6. I have examined Ext.P9 order. It is without doubt that WP(C).No.25760 OF 2013(T) 5 the petitioner's request for exercise of reoption as 01.09.1994 of 1992 Pay Revision; and as 01.09.1995 for the Higher Scale of Headmistress, has been granted in it. However, as far as the question of return of the recovered amount of Rs.27,927/- to the petitioner, this has been declined only because the Government has taken a view that the judgment of this Court in O.P.No.25974/2000 authorises such payment only if the petitioner was in service. According to the Government, since the petitioner retired from service on 31.03.1999, she is not eligible for any arrears in cash, as directed by this Court and therefore, Ext.P9 has been issued declining that request.
7. However, when I go through the judgment in O.P.No.25974/2000, it has been made clear therein that "the employees had got the right to opt the time bound higher grade from the date chosen by them" and that "if arrears of pay and allowances become payable to the employees on account of such re-option, the said arrears will be paid in cash only from the date of exercise of option" . These observations in the judgment had been interpreted by the Government to mean that the amounts recovered from the petitioner, namely Rs.27,927/-, while she was in service - on account of the fact that the period spent by her on LWA had been earlier reckoned WP(C).No.25760 OF 2013(T) 6 incorrectly - cannot be returned because she had retired from service on 31.03.1999. Ext.P9 order is dated 20.12.2012 and the Government, therefore, takes the stand that since the recovery from the petitioner was made immediately after she had retired in the year 1999, the same need not be returned, particularly because this Court had authorised such payment in cash only if the employee was in service.
8. I am afraid that I cannot find favour with the observations in Ext.P9, since it appears to have misinterpreted the judgment in O.P.No.25974/2000. I say this because, the right of an employee to obtain the Time Bound Higher Grade from the date chosen by him/her has been unequivocally found therein and in fact, Ext.P9 also accedes to this. The judgment further says that if arrears of pay and allowances become resultantly payable to the employee, the same will be paid in cash from the date of the said option. Obviously, this will apply even to the case where amounts had been recovered from an employee while he was in service, particularly when the said recovery was made on the basis of the fact that the earlier option made by him/her warranted it. Pertinently, when Ext.P9 order acceded to the petitioner's request for the change of dates - consequent to the re-option - both under the 1992 Pay WP(C).No.25760 OF 2013(T) 7 Revision and with respect to the Higher Scale for Headmasters, I fail to understand how they can now take the stand that the amount of Rs.27,927/- recovered from her cannot be returned, merely because she had retired from service.
In the afore circumstances, I order this writ petition and set aside Ext.P9 order to the extent to which the request of the petitioner for refund of Rs.27,927/- has been declined; with a consequential direction to the competent respondent to ensure that this amount is paid to the petitioner appropriately, as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. .
I further order that if this amount is not paid within the time frame granted in this judgment, the same will carry interest at the rate of 9% from the date of Ext.P9 order, until it is actually paid.
Sd/- DEVAN RAMACHANDRAN
Stu JUDGE
WP(C).No.25760 OF 2013(T)
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APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE LETTER OF THE ASSISTANT
EDUCATIONAL OFFICER DATED 20-07-1999
EXHIBIT P2 TRUE COPY OF THE G.O(P) NO 101/80/(167)
FIN.DATED 30-01-1980 OF THE GOVERNMENT
EXHIBIT P3 TRUE COPY OF THE PETITION SUBMITTED BEFORE
THE GOVERNMENT DATED 1-2-2000
EXHIBIT P4 TRUE COPY OF THE LETTER OF THE
HEADMISTRESS DATED 18-2-2000
EXHIBIT P5 TRUE COPY OF THE LETTER OF THE ASSISTANT
EDUCATIONAL OFFICER DATED 18-05-2000
EXHIBIT P6 TRUE COPY OF THE ORDER OF THE GOVERNMENT
DATED 10-07-2000
EXHIBIT P7 TRUE COPY OF THE G.O(RT) NO
2446/2000/FIN.DATED 10-04-2000 OF THE
GOVERNMENT
EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN O.P NO
12457/2001-G DATED 5-6-2003
EXHIBIT P9 TRUE COPY OF THE RODER OF THE GOVERNMENT
DATED 20-12-2012