KRISHNAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant whose date of birth is 15-7-1934 was to retire oh 31-7-1989. Desirous of getting a longer leave of 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. P1 judgment. Later the original petition was restored and Ext. P4 judgment was passed in which it was stated that the original petition had become infructuous because the appellant continued in service till 4-1-1995 and he could have continued in service only till 31-3-1995. It was also made clear that if the appellant was continuing in service till 4-1-1995, he would be entitled to get his pay and allowances for the said period, if he had not already received it.

(2.) 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.

(3.) According to Ext. P9 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 (2) 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.