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2025 Supreme(Ker) 1398
IN THE HIGH COURT OF KERALA AT ERNAKULAM
D. K. SINGH, J.
Deepa P., W/o. Bivoy C. - Petitioner
Versus
State Of Kerala, Represented By The Secretary To Government, General Education Department, Government Secretariat and Ors. – Respondents
WP(C) No. 468 Of 2024
Decided On : 20-05-2025
For the Petitioner: Poovamulle Parambil Abdulkareem, K.N. Kumaraswamy Sarma.
For the Respondents: P.M. Pareeth, Najeeb P.S., Najah Ebrahim V.P.
Other Present : Binoy Davis-GP.
Salary of retrenched teachers upon reappointment is protected under Rule 52; recovery of excess payments improperly made is generally not permissible for Class-III employees.
Headnote:(A) Kerala Education Act & Rules - Rule 52 of Chapter 14A - Salary fixation upon retrenchment and re-appointment - The petitioner was retrenched in 2010, reinstated in 2014, and erroneously awarded a higher salary of Rs.20740/-. Recovery notice issued for excess payment based on Rule 52 stating the entitlement should be the salary at retrenchment of Rs.19740/-. (Paras 5, 10)
(B) Public Sector Employment - Recovery of excess payment - In light of Rafiq Masih v. State of Punjab, recovery from a Class-III employee for a salary overpayment is not permissible unless the error is immediately noticed. (Paras 11)
Facts of the case:
The petitioner, initially a leave substitute, was retrenched due to post reduction and reinstated after post restoration; however, her salary was wrongly fixed at a higher amount.
Findings of Court:
The impugned recovery notice was set aside, confirming entitlement to the last drawn salary at retrenchment effective from 06.10.2023.
Issues: Whether the petitioner was entitled to the higher salary upon reinstatement and the validity of the recovery notice.
Ratio Decidendi: The court maintained that salary protection for returning teachers post-retrenchment is mandated by Rule 52 and recovery of excess payments must be justified, noting Supreme Court precedent restricting recovery from Class-III employees.
Result: The writ petition is disposed of with directions for recovery of excess payments to commence.
| Table of Content |
|---|
| 1. background of retrenchment and salary payment issues. (Para 1 , 2 , 3) |
| 2. arguments regarding salary fixation after re-appointment. (Para 4 , 5 , 6) |
| 3. court's analysis of rule 52 and salary protection. (Para 7 , 8 , 9 , 10) |
| 4. ratio stating no salary recovery for class-iii employees. (Para 11) |
JUDGMENT :
(D. K. SINGH, J.)
The petitioner entered into service as a leave substitute, H.S.A (Natural Science) w.e.f 14.09.1998 in Mambaram Higher Secondary School. She was taken on regular service w.e.f 05.06.2022. During the academic year 2010-2011, a post of H.S.A (Natural Science) was reduced due to the deduction of effective strength, and the petitioner was retrenched from service with effect from 14.07.2010. On the date of retrenchment, the petitioner was drawing a salary of Rs.19740/-.
2. Thereafter, a Teachers’ package was introduced, and the petitioner was also included in the package and posted to BRC as CRC Co-ordinator in the year 2012. After two years, the post of H.S.A (Natural Science) was restored in the school, and the petitioner was sent back to the said school vide the order dated 23.09.2014 and the petitioner’s salary was fixed at Rs.20740/-.
3. An audit objection was made regarding the payment of Rs.20740/- to the petitioner, as her salary at the time of retrenchment was only Rs.19740/-. Therefore, vide the impugned order dated 06.10.2024, the petitioner has been issued a notice for recovery of the excess amount paid to her.
4.The learned counsel for the petitioner submits that the petitioner was drawing a salary of Rs.20740/- as additional CRC co-ordinator and therefore her salary was fixed at Rs.20740/- after the post of H.S.A (Natural Science) was restored and she was sent back to the school. The learned counsel for the petitioner, therefore, submits that the impugned notice in Ext.P5 is illegal, unjustified, arbitrary and liable to be set aside.
5.On the other hand, Mr. Binoy Davis, the learned Government Pleader submits that as per Rule 52 of Chapter 14A of the KERALA EDUCATION ACT & Rules (KER), after retrenchment on re-appointment in the same school or in another school under the same management or a different management, a teacher would get same pay as he/ she was getting at the time of retrenchment.
6. At the time of retrenchment, the petitioner was getting a salary of Rs.19740/-. Therefore, on re-appointment w.e.f. 23.09.2014 in the same school on restoration of the post of H.S.A (Natural Science), she was entitled to a salary of Rs . 19740/- and not Rs.20740/-. He therefore submits that neither the notice is arbitrary nor illegal, but it is as per rule 52 of the aforesaid rules, and the writ petition is liable to be dismissed.
7.I have considered the submissions advanced by the learned counsel for the petitioner and the learned Government Pleader.
8.The facts are not in dispute that the petitioner was retrenched in the year 2010-2011, on account of the increase of effective strength of the post of H.S.A (Natural Science) in her school and said post was restored, and the petitioner was re-appointed w.e.f 23.09.2014. As per Rule 52 of Chapter 14A, the petitioner was entitled to get the payment of Rs.19740/-, which was the last drawn pay of the petitioner before retrenchment.
Rule 52 of Chapter 14A of KER would read as under:-
“52. (1)112[XXX] Teachers who are relieved on account of any reduction in the number of posts under orders of the department shall on reappointment in the same school or in another school under the same management or a different management start on the same pay as they were getting at the time of relief, whether the new appointment is permanent or not 113[XXX]].
114[(2)115[XXX] Teachers thrown out from service due to the withdrawal of recognition of schools by the Department shall also be eligible to draw the pay which they were getting at the time of withdrawal of recognition of the school on re-appointment in another school 116[XXX]].”
9.The plain reading of the provision of Ru
