Krishnan Nair vs State of Kerala and Others

C.S. Rajan, J.—The Appellant whose date of birth is 15th July 1934 was to retire on 31st July 1989. Desirous of getting a longer lease official career, he filed O.P. No. 2025/89 for a declaration that his age of retirement on superannuation is 60 years. Originally the Original Petition was dismissed for default as per Ext. P-1 judgment. Later the Original Petition was restored and Ext. P-4 judgment was passed in which it was stated that the Original Petition had become infructuous because the Appellant continued in service till 4th January 1995 and he could have continued in service only till 31st March 1995. It was also made clear that if the Appellant was continuing in service till 4th January 1995, he would be entitled to get his pay and allowances for the said period, if he had not already received it.

The Appellant filed the Original Petition from which the present appeal arises for a declaration that no liability is outstanding against him and for a direction to issue non-liability certificate and also to disburse his death-cum-retirement gratuity, arrears of Dearness Allowance, House Rent allowance, onam bonus for the year 1995 and any other amount due to him with penal interest. According to the Counsel for the Appellant, he had been subsequently directed to refund the amount representing the enhanced Dearness Allowance and Increments which he had drawn during the period while he was continuing on the strength of the order of stay passed by this Court. According to the Counsel for the Appellant, he is entitled to get the pay and allowances for the said period taking into consideration the enhancement in Dearness Allowance, House Rent Allowance, etc., and also the periodical increments.

According to Ext. P-9 circular, the period of retention beyond the normal date of superannuation in all cases covered by Court orders will be treated as period spent on duty for the limited purpose of claiming pay and allowances restricted to what he was entitled to on the normal date of his superannuation and his pensionary claims will be settled reckoning service emoluments upto the normal date of superannuation. It was further clarified in the above circular that the officer will not be eligible for further increments, promotion, increases on account of pay revision, etc. Learned Counsel for the Appellant pressed into service three rulings of this Court in support of his argument that Appellant is entitled to all the benefits of enhancement in Dearness Allowance, House Rent Allowance and increments. In the ruling reported in Aleyamma v. Deputy Director, Education, Ernakulam ILR 1982 Ker 509 this Court held that it is unjust and wrong to call upon an officer to refund amounts paid in terms of an order made by a competent officer, particularly after the lapse of several years. In the above case the Petitioner therein was requested to refund the excess amount received by her on the basis of the fixation of her pay in the higher grade with effect from 28th January, 1973. The order directing to recover the excess amount was passed after 7 years, on 8th December, 1980. Under these circumstances this Court took the view that such a recovery ordered after the lapse of several years will cause hardship. In the above ruling this Court also clarified that a refund can be ordered in appropriate cases where amounts have been paid in excess of what is legally due or have been irregularly paid. The facts of the above case is entirely different from the case in hand.

The next ruling relied on by the Appellant is Kochu Kunju and Ors. v. State of Kerala and Ors. 1986 KLT 1281. In the above ruling this Court held that in cases where the officers were permitted to continue in service on the strength of the interim orders made during the pendency of the cases, they were entitled to be paid their salary during the actual period during which they worked on the strength of the interim orders of this Court. The above ruling also does not improve the case of the Appellant because in the above case this Court was not called upon to decide the question whether the persons continued on the strength of the interim orders are entitled to get the benefit of higher D.A., increments, etc.

Yet Anr. ruling relied on by the Counsel for the Appellant is Usuvathunnisa v. Assistant Educational Officer 1990 (2) KLT 530. That was the case of a teacher whose appointment was once approved but whose sanction for appointment was later reviewed and set aside. When the salary drawn by the teacher was ordered to be recovered on the ground that the appointment was wrong, this Court held that it cannot be done. The reasoning of this Court was that when the teachers have worked in a particular grade and the benefit of that work has gone to the school, it cannot be said that they did so at their own peril with liability to refund the salary in case it was found in any subsequent collateral proceedings that the sanctioning of their post was not legal or proper.

In this case the Appellant continued in service from 31st July 1989 to 4th January 1995 on the strength of the interim order passed by this Court in O.P. No. 2025/89. He has been paid pay and allowances for the said period taking into consideration the enhancement in Dearness Allowance, House Rent Allowance and increments also. In fact the payment of the above amount is a mistake. Even if the Appellant continued till 31st March 1990 enjoying the benefit of continuance for the whole academic year in accordance with rules, he would have got only the salary which he was drawing as on 31st July 1989. The Counsel for the Appellant also did not dispute the above fact. Therefore it is impossible to hold that the Appellant will be getting a more beneficial payment on the strength of the orders passed by this Court. It is an accepted legal principle that a Court will not pass any order which goes against any existing law, rules or orders on the subject. If really the Appellant is not entitled to get the benefit of periodical enhancement in various allowances and increments, this Court''s order can never be pressed into service to claim those unmerited advantages. Ext.P-9 circular deals with the cases of Government servants who continued beyond their normal date of superannuation on the basis of interim orders of Court, wrong interpretation of rules or by mistake committed by the departmental officers. In such cases, the period of service after the due date of superannuation has to be treated as one of re-employment. Therefore the view of the Government as expressed in Ext. P-9 that the period of retention beyond the normal date of superannuation in such cases will be treated as the period spent on duty for the limited purpose of claiming pay and allowances restricted to what he was entitled to on the normal date of his superannuation seems to be quite legal and proper. Therefore we do not find any illegality or impropriety in rejecting the claim of the Appellant for enhancement of various allowances and increments paid during the period after his due date of retirement. We cannot also see any illegality in ordering refund of any such excess amount drawn by the Appellant during the above period. Under these circumstances we are in respectful agreement with the judgment rendered by the learned Single Judge. We therefore dismiss the appeal.