1. Petitioner, who is working as Lower Primary School Teacher (LPST), seeks to call for the records leading to Ext.P2 audit objection and to set aside the same to the extent it directs to refund the alleged excess drawal of salary due to irregular fixation at the time of the grant of first Time Bound Higher Grade by issuing a writ of certiorari.

2. The petitioner states that she was appointed as LPST in St. Antony's Upper Primary School, Malapallippuram, Thrissur with effect from 08.06.1993. The petitioner was granted first Time Bound Higher Grade in the year 2003. On completion of 16 years of service, the petitioner was granted Senior Grade and thereafter, on completion of 22 years of service, she was granted Selection Grade.

3. There were no complaints on the fixation pursuant to grant of Higher Grades and Pay Revision Orders till now. However, when the pension papers of the petitioner was being processed, the 3rd respondent-Deputy Director of Education found that the petitioner was irregularly granted first Time Bound Higher Grade, reckoning 8 days of Leave Without Allowance taken by the petitioner from 18.03.1998 to 25.03.1998. The 3rd respondent ordered to cancel the Time Bound Higher Grades granted to the petitioner and to re-fix the salary.

4. The Headmistress of the School intimated the petitioner about Ext.P2 audit objection. The audit objection was made for the very first time after 20 years of the grant of fist Time Bound Higher Grade.  The petitioner submitted Ext.P3 revised fixation statement excluding 8 days of LWA, since the petitioner is on the verge of retirement. Then the petitioner was informed that she will have to refund an amount of about ₹2,40,000/- which is the alleged excess drawal of salary.

5. The petitioner states that such recovery will be in gross violation of the judgment of the Hon’ble Apex Court in State of Punjab v. Rafiq Masih (White washer) [2015 (1) KLT 429 (SC)] and in High Court of Punjab and Haryana v. Jagdev Singh [2016 (3) KLT OnLine 2063 (SC)]. Ext.P2 is therefore liable to be quashed, contends the petitioner.

6. The 3rd respondent filed a counter affidavit. The 3rd respondent stated that the petitioner had availed Leave Without Allowance from 18.03.1998 to 25.03.1998. Erroneously, this period was reckoned for grant of Time Bound Higher Grades. The petitioner submitted option for Pay Revision 2004 on 11.05.2005 and three increments were sanctioned as weightage of service. While granting these three increments also, the 8 days LWA was accounted. Therefore, fixation of pay and Time Bound Higher Grade which are already sanctioned to the petitioner are liable to be revised.

7. The Time Bound Higher Grades and Pay Revision 2004, 2009, 2014 and 2019 already granted to the petitioner has been revised and re-fixed. But, the excess amount of ₹2,21,952/- drawn by the petitioner has not been refunded yet. The writ petition is therefore without any merit and is to be dismissed, contended the 3rd respondent.

8. I have heard the learned counsel for the petitioner and the learned Senior Government Pleader representing the respondents.

9. The facts are not in serious dispute. The petitioner was appointed as LPST on 08.06.1993 and was granted Time Bound Higher Grades on completion of 8 years, 16 years and 22 years of service.  The first Time Bound Higher Grade was granted to the petitioner in the year 2003. While granting the said first Time Bound Higher Grade, an error crept in inasmuch as 8 days LWA availed by the petitioner was treated as service for the purpose of grant of Higher Grade.

10. This error which occurred more than 20 years ago was not detected in time. Now, when the petitioner is on the verge of retirement, an audit objection has been raised and the petitioner's salary is sought to be revised and excess pay is sought to be recovered. As the petitioner is on the verge of retirement, the petitioner agreed for submitting a revised fixation ignoring the 8 days LWA. It is submitted by either side that pension papers are being processed after correcting the mistake.

11. The question remaining is about the alleged recovery of excess pay. As stated earlier, the error in the fixation of Higher Grade of the petitioner occurred more than 22 years ago. It was for no fault of the petitioner. Had audits been done promptly, the error could have been detected much earlier. For the fault of the respondents, it will be inequitable to recover huge amounts from the retirement benefits of the petitioner alleging excess pay, at this distance of time.

12. In the judgment in Rafiq Masih (White Washer) (supra), the Hon’ble Apex Court has held that even excess payment due to wrong understanding of law cannot be recovered unless the employee has contributed to the mistakes and that recovery shall not be done from employees belonging to Group C and Group D and also from employees who are to retire within one year.

13. In the facts of the case, I am of the firm view that taking into consideration the spirit of the judgments delivered by the Hon’ble Apex Court in the matter of recovery, Ext.P2 audit objection to the extent it contemplates recovery from the petitioner is liable to be quashed.

                  The writ petition is therefore disposed of setting aside Ext.P2 audit objection to the extent it directs to refund the alleged excess drawal of salary from the petitioner. The 3rd respondent is directed to process the pension proposal of the petitioner in the light of Ext.P3 statement of revised fixation of pay, if the proposal is still pending.