The Deputy Director of Education, Kozhikode and Others vs V.P. Chandran and Others

C.N. Ramachandran Nair. J.

Writ Appeal is filed, by the State challenging the judgment of the learned Single Judge prohibiting recovery of excess salary drawn by respondents based on 1998 pay revision orders. We have heard Senior Government Pleader for appellants and counsel appearing for respondents. The contention raised by learned Government Pleader is that the learned Single Judge, though accepted the claim of the appellants that by a wrong pay fixation excess amount was drawn by the respondents, still recovery was prohibited inspite of specific rule authorising it based on two decisions of the Supreme Court in Registrar of Cooperative Societies v. Israil Khan, 2009 (4) KLT SN 61 (SC) and Syed Abdul Qadir and Others Vs. State of Bihar and Others, . Rule 3C of Part-III K.S.R. relied on by the Government Pleader does not as such apply to the respondents because the said Rule provides that recovery of excess amount paid during four years prior to the retirement and recovery authorised is within four years after retirement. In this case, three of the respondents are retired while two respondents are still in service. There is nothing on record to indicate whether Rule 3C of Part-III K.S.R. strictly applies in respect of retired persons. So far as the remaining two respondents in service, Rule 3C referred to above does not apply at all. In any case, what we notice is that based on the two decisions of the Supreme Court, recovery of excess paid is not permissible. The only question to be considered is whether in view of express rule providing for recovery of excess salary drawn, the Supreme Court decision stands in the way. The Supreme Court has not interdicted recovery of excess paid if rule specifically authorises it. However, in this case, what we notice is that the amount involved in the case of each of the respondent is less than Rs. 10000/- and payment made is sometime as back as 14 years which again is based on weightage claimed for the service rendered in aided school prior to joining the Government school.

Admittedly, respondents have not mislead the government but the mistake happened by making a wrong fixation of pay based on pay revision. We, therefore, do not think there is any ground to interfere with the discretion exercised by the learned Single Judge in favour of the respondents. Therefore, while dismissing writ appeal, we make it clear that the decisions relied on cannot be taken as law when there is express rule authorising recovery subject to such rules. This is because the Government visualises possibility of excess payment to Government employees and that is the reason why specific provision is made in the service rules for recovery. Employees are bound by the rules and so much so in principle the recovery of excess paid is also possible in accordance with Rules.

Writ Appeal is dismissed with the above observation.