Kerala High Court: In a petition challenging the order and judgment dated 7-11-2017 passed by the Kerala Administrative Tribunal (‘KAT’) allowing challenge against recovery of excess pay and holding that no recovery can be made, Alexander Thomas and C. Jayachandran*, JJ. upheld the said order and expressed that the respondent lacked any knowledge that the amount being paid to her was more than what she was entitled to.
In the instant matter, the respondent was appointed as PD teacher through order dated 2-01-2004. She applied for Leave Without Allowance (‘LWA’) on 8-06-2004 to join the course of Bachelor of Education (B.Ed) under Rule 91 of Part 1 of Kerala Service Rules (‘KSR’). The respondent secured admission to B.Ed from 15-06-2004 to 29-03-2005, but the LWA was allowed later through order dated 17-09-2004.
The authorities in the original application contended that the date of entry into service should be taken as 30-03-2005 when the respondent rejoined after completing her B.Ed course, forfeiting her earlier service. The same was challenged by the respondent before this Court and through judgment dated 7-03-2007, the State was directed to decide on her representation within 2 months, which was eventually rejected. The State found that the respondent had not completed the prescribed years of her service, and thus, was ineligible for LWA for 288 days for the period applied for under Rule 88/91 of KSR Part 1.
Meanwhile, the Government Order dated 28-04-2010 which provided that “an incumbent who availed Leave Without Allowance prior to 24-05-2005 to under B.Ed course is entitled to reckon his/her leave period for the purpose of increment.” And thus, the respondent was granted the benefit of increment, but an audit objection occurred in 2013 against such reckoning of respondent’s leave period for increment purpose.
Respondent’s representation against the said audit objection was rejected and proceedings dated 8-03-2016 directed initiation of steps for recovery of excess amount paid to the applicant. The KAT found the stand of authorities pertaining to respondent’s entitlement to benefit as correct and legally tenable. However, KAT relied on State of Punjab v. Rafiq Masih, (2015) 4 SCC 334 (White Washer’s Case) regarding recovery of excess payment and found that found the respondent’s case falling under the ambit of the specific clauses to hold that no recovery of excess amount paid to her could be made.
The Court in the instant matter observed that there was no controversy regarding entitlement of the respondent to the benefit of increment granted. The matter particularly revolved around the entitlement of the employer/government to recover the excess amount paid, which the respondent was not entitled to.
The Court commented that the legal position in State of Punjab v. Rafiq Masih, (2015) 4 SCC 334 followed by High Court of Punjab & Haryana v. Jagdev Singh, (2016) 14 SCC 267 was no longer a new point untouched/decided by law. The Court further listed catena of cases which discussed the two aforementioned cases and reiterated that the respondent lacked any knowledge that the amount being paid to her was more than what she was entitled to, and thus, she had no role in drawing the increment. It further clarified that it was the authorities who erroneously granted the said increment in terms of the Government Order while being careless and negligent, and that the respondent could not be faulted at all for their negligence.
The Court also noted that the order directing recovery of money paid was issued on 8-03-2016, more than 5 years after the respondent’s salary was refixed for increment on 28-04-2010.
The Court found no reason to interfere with the KAT’s order. It further left it open for the authorities to refix the respondent’s salary after doing away with the mistake prospectively, i.e., from 8-03-2016 and recover any excess amount paid after the said date which, the respondent had due notice of the fact that the salary she drew was in excess of what was legitimately due to her.
[State of Kerala v. Seena M., 2023 SCC OnLine Ker 4491, decided on 6-06-2023]
Judgment by: Justice C. Jayachandran
Advocates who appeared in this case :
For Petitioner: Senior Government Pleader Saiji Jacob Palatty;
For Respondent: Advocate Kaleeswaram Raj, Advocate Thulasi K. Raj, Advocate Aparna Narayan Menon, Advocate Chinnu Maria Antony.
