2025:KER:22634 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON MONDAY, THE 17TH DAY OF MARCH 2025 / 26TH PHALGUNA, 1946 WP(C) NO. 19429 OF 2019 PETITIONER: ANTAPPAN P.A., AGED 56 YEARS, S/O.ANTONY, CLERK (RETIRED), C.R.H.S, KUTTIPUZHA, ERNAKULAM RESIDING AT PUTHUSSERY (PANDARAM PARAMBIL), KUNNUKARA.P.O., ERNAKULAM-683578. BY ADVS. SRI.P.NANDAKUMAR SRI.S.ANEESH RESPONDENTS: 1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATIONAL DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695014. 3 THE DEPUTY DIRECTOR OF EDUCATION, CIVIL STATION, ERNAKULAM-682030. 4 DISTRICT EDUCATIONAL OFFICER, ALUVA, ERNAKULAM-683101. W.P.(C)No.19429 of 2019 2 2025:KER:22634 OTHER PRESENT: SRI. E G GORDEN SR GP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.19429 of 2019 3 2025:KER:22634 JUDGMENT The petitioner who was working as a Clerk in an aided school and superannuated on 31.05.2015, has filed the captioned writ petition seeking to challenge Exts.P5 and P6, by which certain Time Bound Higher Grade already extended to him, is found to be not eligible to be extended and seeking realisation of various amounts in the matter. 2. I have heard Sri.P.Nandamumar, the learned counsel for the petitioner and Sri.E.G.Gorden, the learned Senior Government Pleader. 3. Sri.P.Nandamumar, fairly points out that as regards the entitlement for the Time Bound Higher Grades (upon completion of 10 years/18 years/23 years of service) was not entitled to the petitioner, in view of the judgment of this Court in W.A.No.1469 of 2016 dated 06.10.2012. 4. Even, on the face of the afore judgment, Sri.P.Nandamumar would contend that, insofar as, admittedly the petitioner was serving as a Clerk, the principles laid down by the Apex Court in State of Punjab and Others v. Rafiq W.P.(C)No.19429 of 2019 4 2025:KER:22634 Masih (White Washer) [(2014) 8 SCC 883] would apply the facts and circumstances of the case at hand. He would also invite the attention of this Court to the judgment of a learned Single Judge of this Court dated 28.10.2021 in W.P.(C)No.9292 of 2021, wherein, after making reference to the judgment of the Division Bench of this Court in W.A.No.1469 of 2016, this Court has applied the principles in White Washer (supra). 5. I perused the judgment of the Division Bench of this Court as well as the judgment of the learned Single Judge in W.P.(C)No.9292 of 2021 and in W.P.(C)No.33450 of 2018. 6. Having considered the rival submissions, I notice that, in the light of the judgment of the Division Bench of this Court noticed earlier, the petitioner, may not be entitled for the Time Bound Higher Grades claimed by him. At the same time, applying the principles laid down by the Apex Court in White Washer (supra), this Court in W.P.(C)No.9292 of 2021, had found as under: W.P.(C)No.19429 of 2019 5 2025:KER:22634 “26. There is not dispute that the petitioner falls in the lower rung of the service and the recovery is being effected for excess payment made initially about two decades back and thereafter. This is not a case wherein the petitioner had knowledge that the payment received was in excess of what was due . There is no case that there was any misrepresentation or fraud on the part of the petitioner. S held by the Apex Court, when payments have been made for a long duration of time, the logic of recovery of the excess amount paid would be iniquitous, arbitrary, violative of Article 14 of the Constitution of India. There cannot be any doubt that it would be next to impossible for a person such as the petitioner to bear the financial burden of a refund of payment received wrongfully for a long span of time as he would have spent the emoluments that he would have received for the upkeep of his family under the bonafide belief that he is entitled to the said amount. In that view of the matter, recovery of amounts ordered as per Ext.P6 at this point of time after the petitioner has retired from service would result in extremely harsh consequences. 27. The reliance placed by the learned Government Pleader on law laid down in Jagdev Singh (supra), has to fail as even according to the respondents, what was issued by the petitioner as Annexure R3(c) is an undertaking as per G.O.(P)No.169/2019/FIN dated 13.12.2019 and the same is dated 22.06.2020. The learned Government Pleader has filed a memo producing the undertakings given by the petitioner and contends that those undertakings were given at the W.P.(C)No.19429 of 2019 6 2025:KER:22634 time of grant of higher grades and pay revisions. The question essentially is whether at the time of grant of first time bound higher grade in the scale of UDC on 13.08.1999, any undertaking was given by the petitioner. None of the documents produced by the learned Government Pleader would enable the court to come to a conclusion that such an undertaking was given. A Division Bench of this Court in State of Kerala and Ors v. Vinod Kumar C.R. [2020 (4) KLT 230], relying on Syed Abdul Qadir & Ors. v. State of Bihar & Ors. [(2009) 3 SCC 475], Rafiq Masih (supra) and a judgment of another Division Bench of this Court in Kasaragod District Co-operative Bank Ltd. And another v. Radha K.A [2006 (1) KHC 260] had occasion to observe the failure of the respondents to communicate the objections as regards excess payment within a reasonable time after the grant of benefits would be iniquitous. Resultantly, this writ petition will stand allowed. Ext.P6 will stand quashed and it is held that the scale of Rs.4,000-6,090 granted to the petitioner with effect from 13.08.1999 at the time of 1st Time Bound Higher Grade is in order. The 3rd respondent is directed to sanction the terminal benefits due to the petitioner by adverting to the salary last drawn by the petitioner and forward the same to the Accountant General for approval. The respondents are interdicted from initiating any steps to recover the alleged excess receipt of salary as a pre-condition for sanctioning the regular pension and other terminal benefits.” W.P.(C)No.19429 of 2019 7 2025:KER:22634 7. I am of the opinion that the petitioner would also entitled for the afore benefits. 8. Resultantly, this writ petition would stand disposed of, holding that no recovery proceedings can be initiated against the petitioner on the basis of Exts.P5 and P6 as in this writ petition. The petitioner to file an appropriate representation in the light of the principles laid down by this judgment seeking the benefits available to him, within a period of three weeks from today. If such a representation is filed by the competent among the respondent to consider the same and pass appropriate orders, within a period of eight weeks thereafter. Sd/- HARISANKAR V. MENON JUDGE ANA W.P.(C)No.19429 of 2019 8 2025:KER:22634 APPENDIX OF WP(C) 19429/2019 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF LETTER DATED 18.08.2014 ISSUED BY THE 3RD RESPONDENT EXHIBIT P2 TRUE COPY OF LETTER NO.PEN.124/HM/14 DATED 16.11.2014 SUBMITTED TO THE 3RD RESPONDENT EXHIBIT P3 TRUE COPY OF LETTER NO.D3/13686/2014 DATED 22.12.2014 ISSUED BY THE 3RD RESPONDENT EXHIBIT P4 TRUE COPY OF REPRESENTATION DATED 11.02.2015 SUBMITTED BY THE APPLICANT TO THE 1ST RESPONDENT EXHIBIT P5 TRUE COPY OF ORDER NO.11521/N2/15/G.EDN DATED 01.08.2015 ISSUED BY THE 1ST RESPONDENT EXHIBIT P6 TRUE COPY OF LETTER NO.B2-1031/14 DATED 26.08.2015 ISSUED BY THE 4TH RESPONDENT EXHIBIT P7 TRUE COPY OF JUDGMENT DATED 23.06.2016 IN WP(C)NO.4361/2012