Abdul Nazar K v. Kerala State Electricity Board Ltd

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 4TH DAY OF JANUARY 2018 / 14TH POUSHA, 1939** **WP(C).No. 16373 of 2015** **------------------------** ## **PETITIONER** **----------** **ABDUL NAZAR K, SUPERINTENDENT, TRANSMISSION CIRCLE, KERALA STATE ELECTRICITY BOARD LIMITED, MALAPPURAM, RESIDING AT KALITHODI HOUSE, MANKADAPALLIPPURAM, MALAPPURAM 679324.** **BY ADV.SRI.M.P.PRAKASH** ## **RESPONDENT(S):** **-------------** **1. KERALA STATE ELECTRICITY BOARD LTD, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, KERALA STATE ELECTRICITY BOARD LIMITED, VAIDHYUTHI BHAVANAM, PATTOM PLACE P.O., THIRUVANANTHAPURAM 695004.** ## **2. CHIEF INTERNAL AUDITOR,** **OFFICE OF THE CHIEF INTERNAL AUDITOR, KERALA STATE ELECTRICITY BOARD LIMITED, VAIDHYUTHI BHAVANAM, PATTOM PLACE P.O., THIRUVANANTHAPURAM 695004.** **3. DEPUTY CHIEF ENGINEER, TRANSMISSION CIRCLE, 110 KV SUB STATION COMPOUND, KERALA STATE ELECTRICITY BOARD LIMITED, MALAPPURAM 676509** **4. EXECUTIVE ENGINEER, TRANSMISSION CIRCLE, 110 KV SUB STATION COMPOUND, KERALA STATE ELECTRICITY BOARD LIMITED, MALAPPURAM 676509. BY ADVS. SMT ANEETHA A.G.SC SRI.K.S.ANIL, SC, SRI.JAICE JACOB,SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.V.** **WP(C).No. 16373 of 2015 (V) --------------------------** **APPENDIX** ## **PETITIONER(S)' EXHIBITS ------------------------** **EXT.P1 A TRUE COPY OF THE CIRCULAR DATED 17/10/1995 OF THE IST RESPONDENT EXT.P2 A TRUE COPY OF THE B.O DATED 25.07.1989 WITH COPY OF G.O.DATED 31.03.1987 EXT.P3 A TRUE COPY OF THE RELEVANT PAGES OF B.O DATED 12.03.1992** **E3XT.P4 A TRUE COPY OF THE RELEVANT PAGES OF B.O DATED 19.03.2007 EX5.P5 A TRUE COPY OF THE RELEVANT PAGES OF B.O DATED 24.12.2011** **EXT.P6 A TRUE COPY OF THE REPRESENTATION OF THE PETITIONER DATED 17.12.2014 EXT.P7 A TRUE COPY OF THE LETTER DATED 19.12.2014** **EXT.P8 A TRUE COPY OF THE AUDIT OBJECTION DATED 27.12.2014 OF THE 2ND RESPONDENT** **EXT.P9 A TRUE COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK OF THE PETITIONER** **EXT.P10 A TRUE COPY OF THE REPRESENTATION DATED 06.02.2015 OF THE PETITIONER EXT.P11 A TRUE COPY OF THE LETTER DATED 07.05.2015 OF THE 2ND RESPONDENT. EXT P12 A TRUE COPY OF THE RELEVANT PAGES OF B.O DATED 12.9.2007.** ## **RESPONDENTS EXHIBITS: NIL** **---------------------** **K.V. P.S.TO JUDGE** ## **P.V.ASHA, J.** ## **------------------------------------W.P.(C) No.16373 of 2015 -------------------------------------Dated this the 4[th] day of January, 2018** ## **JUDGMENT** The petitioner who is presently working as Superintendent under the Kerala State Electricity Board (herein after referred to as “the Board” for short) filed this writ petition challenging Exts.P8 and P11 orders by which his pay was fixed withdrawing the benefit of weightage granted to the aided school service rendered by him and his request to restore the same was rejected. 2. The petitioner entered service under the Board on 9.1.1996. He had worked as Upper Primary School Assistant in an aided school for the period from 15.7.1985 to 8.1.1996. On joining the Board his pay was fixed granting weightage reckoning the aided school service. Subsequently, consequent to the pay revision orderExt.P5 of the Board issued in the year 2011, the respondents revised and refixed the pay of the petitioner stating that aided school service cannot be reckoned for the purpose of weightage and the same was done by mistake. From Ext.P9, the relevant portion of the service book of the petitioner, it can be seen that the petitioner's pay which was fixed after reckoning the aided school W.P.(C) No.16373 of 2015 2 service was canceled saying that it was wrongly granted. Seeing that pay was reduced and proceedings for recovery were initiated, petitioner submitted Ext.P10 representation before the Chairman of the Board pointing out that he was entitled to get his pay as was already fixed reckoning the service rendered in aided school, as in the case of service under the Government. It was pointed out that Government was making payment to teachers in Government Schools as well as in aided Schools. But his representation was rejected as per Ext.P11 order saying that pay fixation granted to the petitioner was provisional after obtaining declarations from all employees to the effect that any amount drawn is found to be in excess later, due to wrong fixation of pay would be refunded in lump sum. It was also stated that the orders relied on by petitioner did not provide for reckoning service in aided schools. It was stated that orders issued by Government in the year 2011 were not adopted by Board and in the absence of order of the Board adopting Government orders, petitioner's service rendered in aided school cannot be reckoned. 3. Petitioner points out that the reduction of his pay as well as the recovery are illegal and arbitrary. Ext.P1 is a circular issued by W.P.(C) No.16373 of 2015 3 the respondent referring to Board order No.1818/95 PS(SD)/2747/93 dated 11.9.1995 and the memorandum of settlement dated 2.8.1999. Clause V therein relates to service that would count for weightage. Sub clause (vi) and (vii) of clause V reads as follows: - _(vi) Entire service in other Government departments in respect of the employees who entered service in the electrical departments of Travancore Cochin State and who joined before 1.4.1957._ - _(vii)Government service followed by Board service without break will be counted for the purpose of computing qualifying service for weightage. In case of doubt regarding reckoning of the service, the eligibility of service counted for weightage will be decided by the Financial Adviser and Chief Accounts Officer as per the B.O.Estt.IV/16033/87 dt.25.7.89 and B.O.424/92 Estt.IV/1960/91 dt.12.3.1992._ 4. As per Ext.P3 order, sanction was accorded for reckoning the service rendered by a Board employee in State Government Departments/Quasi-Government Organizations prior to his/her appointment/absorption in the Board as qualifying service to sanction pensionary benefits due to him/her in the Board. The Financial Adviser and Chief Accounts Officer was authorised to examine such requests from the Board employees, to obtain the documents in support of the claim on prior service and to take appropriate decisions on the requests after convincing the genuineness of such claims. Ext.P5 pay revision order issued on 24.12.2011 came into force with effect from 1.7.2009. Paragraph W.P.(C) No.16373 of 2015 4 4.4 of Ext.P5 deals with service counting for weightage. It starts saying “service up to 30.6.2008 that would count for weightage”. Clause (f) thereof is “Former Government service (both Central and State) followed by the Board service without break and reckoned by the Board”. Clause (j) provides “all service mentioned under para V of Circular LTS/93 dated 17.10.1995 of the FA & CAO other than above will be reckoned for computing qualifying service for wieghtage to this revision”. Ext.P1 circular dated 17.10.1995 provides for weightage for service in the State Government and Central Government service. In view of these orders petitioner submits that the aided school service was rightly reckoned for the purpose of wieghtage and his pay was fixed correctly in tune with the provisions contained in Ext.P1 as well as subsequent orders. 5. Respondents have filed counter affidavit stating that there is no provision in any of the Board orders which provides for reckoning of aided school service for the purpose of weightage. Even when Board decided to reckon the service for the purpose of pensionary benefits in the case of officers, no decision is taken for reckoning the same for weightage. Therefore the action of the respondents in revising the pay and cancelling the pay fixation W.P.(C) No.16373 of 2015 5 orders reckoning the aided school service was done correctly. More over the petitioner has submitted an undertaking at the time of each pay revision that excess pay if any found subsequently would be recovered. 6. The petitioner submits that recovery cannot be made on the basis of the undertaking which was submitted under compelling circumstances following which he would not have been able to draw his pay. The petitioner further submitted as follows in paragraph 11 of the writ petition: _It is submitted that Ext.PI, P4 and P5 stipulates that Government service (both central and State) followed by Board service without any break and reckoned by the Board and all service mentioned under Para V of circular LTS/93 dated 17.10.1995 of the FA &CAO will be reckoned for computing qualifying service for weightage while revising the pay. In case, an Upper Primary School Assistant (UPSA for short) in Government School joins the service of the Board, without any break, his/her service prior to joining of the Board will be reckoned for computing qualifying service for weightage while revising the pay. The only difference between a UPSA in Government school and a UPSA in Aided school is that the initial selection and appointment is made by the Manager of the educational institution, whereas a UPSA in Government school is selected by the Public Service Commission and appointed by the District Educational Officer. Appointment of UPSA in Aided School is required to be approved by the Educational Officer under the Government, salary of UPSA in aided schools is given by the Government. Further, education is a function of the State Government. Both aided and Government school UPSAs are governed by Kerala Service Rules. Therefore, a UPSA in Government school and a UPSA in aided school are similarly placed and there cannot be any discrimination among them in the matter of reckoning their prior school service for weightage for computing revision of pay under the Board. In Ext. P10 representation, the petitioner had pointed out that education_ W.P.(C) No.16373 of 2015 6 _being a State function and that the salary to an aided teacher is paid by the Government, the aided service is liable to be treated as Government service for the purpose of weightage. However, the 1[st] respondent failed to consider the above resulting discrimination between UPSA in Government School and UPSA in aided school. In the circumstances, the service of an aided upper primary school teacher prior to joining the service of the 1st respondent is liable to be declared as Government service, for the purpose of granting weightage while revising the pay._ 7. Considering the contentions on either side, it is seen that there is no specific provision contained in Ext.P1 Board order or any subsequent orders which provides that aided school service can be reckoned for weightage. At the same time even Ext.P1 order, issued on the basis of the Board order dated 11.9.1995, provides that the entire service in Government Departments can be computed as qualifying service if it is followed by Board service for weightage. Clause 1 (vii) of Ext.P1 in paragraph V also provided that in case of doubt regarding reckoning of service, the eligibility of service counted for wieghtage would be decided by Financial Adviser and Chief Accounts Officer. Therefore it has to be presumed that the Financial Adviser and Chief Accounts Officer had at the relevant time come to the conclusion that service rendered by the petitioner in the aided school was liable to be reckoned towards weightage. 8. Even otherwise it cannot be said that there is any substantial difference between the service rendered by the aided W.P.(C) No.16373 of 2015 7 school teacher and a Government school teacher. As rightly stated in paragraph 11 of the writ petition, Government school teachers as well as aided school teachers are performing the very same duties and they are paid by Government in the same scale of pay. Except for the fact that appointment is made by Managers in aided school, and there is no selection through Public Service Commission, service conditions of aided school teachers are similar. Therefore when service of the teachers in Government schools could be counted towards weightage, the grant of that benefit to the petitioner reckoning his service in aided school prior to his joining the Electricity Board cannot be said to erroneous. 9. At any rate considering the fact that petitioner was given the benefit of aided school service, for fixing his pay and that he enjoyed the benefits upto the year 2014, until the respondents found out the alleged mistake in fixing his pay, I am of the view that refixation of pay withdrawing the benefits given to him on the basis of the aided school service is unwarranted. 10. At any rate the respondents were not justified in directing recovery from the pay in the light of the judgment of the apex court in _**State of Punjad v. Rafiq Masih (White Washer) : 2015 (1)**_ W.P.(C) No.16373 of 2015 8 _**KLT 429 (SC)**_ wherein the apex court has laid down the parameters under which recovery can be effected. The petitioner submits that he was working as superintendent which is a group C post and therefore he comes under the purview of clause (i) of paragraph 12 of the judgment in which the apex court held that recovery from employees belonging to Class-III and IV service cannot be made. It is also directed therein that recovery cannot be made from employees when excess payment has been made for a period in excess of five years before the order of recovery is issued. Therefore respondents could not have effected any recovery going by the said judgment. 11. When there cannot be any recovery in the peculiar circumstances arising in the case where the respondents had already fixed the pay of the petitioner giving him weightage to the service in aided school, it is only just and proper that respondents restore the benefit to the petitioner, treating it as a special case without treating it as a precedent. In the above circumstances, refixation of the pay of petitioner ordered in Exts.P9 and the order Ext.P11 upholding the same are set aside. It is declared that aided school service rendered by the W.P.(C) No.16373 of 2015 9 petitioner followed by the Board service is liable to be reckoned towards weightage as well as for pension, in view of the peculiar circumstances arising in the case. The respondents are directed to restore the pay of the petitioner and grant him all consequential benefits within a period of two months from the date of receipt of a copy of the judgment. Writ petition is allowed of accordingly. Sd/- **P.V.ASHA JUDGE** rkc