Judgment:
Balakrishnan Nair, J.
1. The respondents in the Writ Petition are the appellants. The respondent herein was the writ petitioner. The brief facts of the case are the following:
The respondent was appointed as a P.D. Teacher from 13.6.1975 to 31.3.1976. Thereafter, she was appointed on a regular basis on 1.6.1976. She was an untrained P.D. Teacher. Therefore, she was deputed for Teachers' Training Course from 1.2.1977 to 31.12.1978. She passed the Teachers' Training Course on 30.8.1979. When her salary was fixed, the apprentice period, i.e. from 13.6.1975 to 31.3.1976 was also reckoned. The same was against Ext. P2 circular issued by the Government on 11.7.1984. This was realised only in 2001. Immediately, she was served with Ext. P3 show cause notice dated 3.11.2001 proposing to re-fix her salary excluding her apprentice service period from 13.6.1975 to 31.3.1976. Thereafter, by Ext. P4 order dated 7.9.2002, the proposal under Ext. P3 was affirmed. In the light of Exts. P3 and P4, the Assistant Educational Officer, Arakulam, re-fixed her salary by Ext. P5 proceedings dated 5.12.2002. Aggrieved, the respondent/petitioner preferred Exts. P6 and P7 representations before the Government. Those representations were rejected by Ext. P10 and she has been saddled with a liability of Rs. 1,19,765/- as per Exts. P11 and P12. The respondent herein filed the Writ Petition challenging Exts. P4, P5, P10, P11 and P12. The Government resisted the reliefs sought, relying on Ext. P2. But, the learned Single Judge, overruled the contention of the appellants herein and allowed the Writ Petition, relying on Ext. P1, which is a Government Order dealing with the benefits to be granted to untrained teachers, i.e. those P.D. Teachers who joined service without T.T.C. qualification and acquired the said qualification while in service. Feeling aggrieved by the said judgment, this appeal is preferred.
2. We heard the learned Government Pleader Smt. R. Bindu and Sri. K.K. Chandran Pillai, who appeared for the respondent.
3. We notice that Ext. P1 Government Order, which deals with reckoning untrained service to P.D. Teachers, has no application to the facts of this case. The point in dispute between the parties was whether the period of apprenticeship from 13.6.1975 to 31.5.1976 could be reckoned for various service benefits. By virtue of Ext. P2, it cannot be reckoned. The finding in the judgment under appeal that the respondent was not an appointee under half a million jobs programme is untenable, since, during 1975-1976, the apprentices were appointed in Government service only under the said scheme. Therefore, her service as an apprentice has been wrongly reckoned. So, the State is entitled to correct the mistake.
4. Now, the next point to be considered is, whether the State should be allowed to recover the excess salary paid by mistake to the respondent. She submits that she was in no way responsible for the wrong fixation. She was a low paid employee and has expended the amounts received by her, thinking that the amounts received were legitimately due to her. Now, at this distance of time, if she is required to repay the amounts received in excess, she will be put to irreparable injury and hardship. In support of her submission, the learned Counsel for the respondent relied on the decision of the Apex Court in Registrar of Co-operative Societies v. Israil Khan 2009 (4) KLT 61 (Case No. 53) SC, wherein it was held as follows:.Such relief, restraining recovery back of excess payment is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion, to relieve the employees, from the hardship that will be caused if recovery is implemented. A Government servant, particularly one in the lower rungs of service would spend whatever emoluments he received for the upkeep of his family. If he receives an excess payment for a long period, he would spend it genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, Courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery. What is important is recovery of excess payments from employees is refused only where the excess payment is made by the employer by applying a wrong method or principle for calculating the pay/allowance, or on a particular interpretation of the applicable rules which is subsequently found to be erroneous. But where the excess payment is made as a result of any misrepresentation, fraud or collusion, courts will not use their discretion to deny the right to recover the excess payment.
5. We notice that the respondent is a member of the Scheduled Caste. She has already retired from service during the pendency of the Writ Petition. If she is called upon to pay the entire excess amount paid from 1979 onwards, the same will cause very serious hardship to her. But, she cannot escape from the liability to refund the excess amount received from the date of Ext. P3. i.e. 3.11.2001.
6. In the result, the judgment under appeal is reversed. The impugned orders are restored. The re-fixation of the salary of the respondent is also upheld. But, it is made clear that the excess amount paid to her up to 3.11.2001 shall not be recovered from her. Any excess amount paid thereafter to the respondent can be recovered by the appellants.
The Writ Appeal is disposed of as above.