Ansa Mathew v State of Kerala & Others (W.A. No. 1717 of 2022)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA THURSDAY, THE 15[TH] DAY OF DECEMBER 2022 / 24TH AGRAHAYANA,** ## **1944** ## **WA NO. 1717 OF 2022** **WP(C) 926/2021 OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 TO 4 IN WPC** 1 THE STATE OF KERALA REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT ANNEX II, THIRUVANANTHAPURAM, PIN - 695001 2 THE ACCOUNTANT GENERAL (A & E) AG'S OFFICE COMPLEX, CANTONMENT STATION ROAD, STATUE, PALAYAM, THIRUVANANTHAPURAM, PIN - 695001 3 THE DEPUTY DIRECTOR OF EDUCATION CIVIL STATION, KAKKANAD P.O, ERNAKULAM, PIN - 682030 4 THE DISTRICT EDUCATIONAL OFFICER ERNAKULAM, KOCHI, PIN - 682011 BY GOVERNMENT PLEADER SRI.A.J.VARGHESE (Sr.) ## **RESPONDENTS/PETITIONERS & 5TH RESPONDENT IN WPC** 1 ANSA MATHEW, AGED 55 YEARS, W/O KURIAKOSE, THALAYACHIRA HOUSE, IRIMBANAM, P.O., TRIPUNITHURA, ERNAKULAM D,LISTRICT,WORKING AS HIGH SCHOOL ASSISTANT, VOCATIONAL HIGHER SECONDARY SCHOOL, IRIMBANAM, TRIPUNITHURA, ERNAKULAM - 682309 CORRECTED ANSA MATHEW,AGED 55 YEARS,W/O KURIAKOSE THALAYACHIRA HOUSE, IRIMBANAM P.O, TRIPUNITHURA, ERNAKULAM DISTRICT,WORKING AS UPPER PRIMARY W.A.1717/2022 2 SCHOOL ASSISTANT, VOCATIONAL HIGHER SECONDARY SCHOOL, IRIMBANAM,TRIPUNITHURA,ERNAKULAM, PIN – 682309 CORRECTED AS PER ORDER DATED 27.1.2021 IN I.A.1/2021 IN WPC 926/2021 2 THE PRINCIPAL, VOCATIONAL HIGHER SECONDARY SCHOOL, IRIMBANAM, TRIPUNITHURA, ERNAKULAM - 682309 CORRECTED THE HEDMISTRESS,VOCATIONAL HIGHER SECONDARY SCHOOL,IRIMBANAM,TRIPUNITHURA,ERNAKULAM, PIN – 682309 CORRECTED AS PER ORDER DATED 27.1.2021 IN I.A.1/2021 IN WPC 926/2021 SRI.K.MOHANAKANNAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.1717/2022 3 P.B.SURESH KUMAR & C.S.SUDHA. JJ. ----------------------------------------------------W.A.1717 OF 2022 ----------------------Dated : 15[th] December, 2022 ## JUDGMENT ## C.S.Sudha, J. This intra-court appeal under Section 5 of the Kerala High Court Act, 1958, is against the judgment dated 14.6.2022 in W.P.(C).926 of 2021. The appellants are respondent No.1 to 4 in the writ petition. The respondents herein are the petitioner and respondent No.5 in the writ petition. The parties and the documents will be referred to as described in the writ petition. 2. According to the writ petitioner, she was appointed on 7.6.1994 as UPSA in a regular vacancy in the 5[th] respondent School. While continuing so, on 1.6.1998 she was promoted as High School Assistant under Rule 43, Chapter XIVA of Kerala Education Rules, 1959, (KER), as the petitioner was fully qualified for the post. Accordingly her pay in the post of HSA was fixed as per Rule 28A of Part-I, KSR. On completion of eight years service in the post of HSA, on 7.6.2006 the petitioner was granted First Time Bound Higher Grade. This was approved by the District Educational Officer, Ernakulam, by Ext.P1 order W.A.1717/2022 4 dated 7.6.2006. During 2007-2008 at the time of staff fixation, there was reduction of posts of HSA in the school. Consequently, the Manager, the 5[th] respondent, reverted the petitioner and accommodated her in the regular vacant post of UPST w.e.f. 15.07.2007. The pay of the petitioner in the post of HSA was protected and the pay was fixed in the UPST by the 4[th] respondent, the District Educational Officer w.e.f. 15.7.2007. The copy of the pay fixation statement counter signed by the 4[th] respondent is Ext.P2. Ext.P3 is the relevant pages of the service book of the petitioner duly signed by the District Educational Officer. As per the report of the 3[rd] respondent dated 26.8.2013, certain objections were raised by the internal audit party regarding pay fixation of the petitioner. Ext.P4 is the copy of the objection of the internal auditor dated 26.10.2013. However, as per Ext.P5 dated 24.8.2015 of the Deputy Director of Education, Ernakulam, the objections were over-ruled. Thereafter, the very same objections were again raised by the 3[rd] respondent regarding the admissibility of protection of last pay of HSA drawn at the time of reversion to the post of UPST consequent to the petitioner being posted as LPST. These objections were raised by the 3[rd] respondent by way of Ext.P6 order dated 1.6.2020. The objections raised as per Ext.P6 by the 3[rd] respondent was replied to by the 5[th] respondent vide Ext.P7 reply dated 14.10.2020. However, instead of W.A.1717/2022 5 accepting and dropping the objections, the 3[rd] respondent vide Ext.P8 letter dated 13.11.2020 has directed the Principal to revise the pay already fixed w.e.f. 15.7.2007 in the scale of pay of UPST and regularize the pay fixation in the post accordingly. The 5[Th] respondent has also been directed to recover the excess amount paid to the petitioner and to remit the same in the Government account. The petitioner is a Class-III employee who is due to retire from service on 31.5.2021. Recovery is proposed to be made in respect of a fixation done on 15.7.2007, that is, after a lapse of more than 13 years and that too when the petitioner is about to retire. Such recovery is impermissible in law. Ext.P8 is arbitrary and unsustainable in law. Hence, the writ petition seeking quashing of Ext.P8 order and also for issuance of a writ of mandaums to the respondents to forward the pension proposal of the petitioner to the Accountant General and for a direction to the respondents to sanction and release the terminal benefits to the petitioner in terms of the original fixation of pay ignoring Ext.P8 objections raised by the 3[rd] respondent. 3. A counter affidavit has been filed by the 3[rd] respondent in the writ petition in which it is contended that during the staff fixation for the period 2007-2008, due to reduction of post of HSA, petitioner had been thrown out from service w.e.f 15.7.2007. Thereafter, the manager of the W.A.1717/2022 6 school reverted the petitioner as UPSA w.e.f 15.7.2007 in the same scale. Though the petitioner was reverted to the post of UPSA, she continued to draw the salary of HSA. As per the fixation statement issued by the District Educational Officer it is stated that the petitioner's pay has been fixed as per Rule 28A. The fixation of pay as per Ext.P2 by the District Educational Officer is erroneous. Rule 28A is not applicable to the petitioner since she has been reverted to the post of UPSA. The District Educational Officer is not the final sanctioning authority. Sanction has to be verified by the Deputy Director of Education in the case of of aided school teachers. It is the Deputy Director of education who is the competent authority to verify and admit the pay fixation of the aided school teachers. It was when the office of the Deputy Director verified the service book of the petitioner prior to her retirement, anomalies were found out and hence objections were raised with regard to the irregular pay protection granted to the petitioner vide Ext.P6 letter. The reply given by the petitioner was unsustainable and hence the same has been rejected. The claim of the petitioner that she is eligible for protection in terms of G.O.dated 28.6.2022 is incorrect because the Government has already issued orders dealing with the guidelines relating to deployment of excess teachers included in the list prepared on the basis of G.O(p).56/2002/Fin. W.A.1717/2022 7 Dated 16.1.2002, which is not relevant in this case. More over, if pay protection is to be allowed, it could only be allowed on a personal scale. However, the Government has stopped granting personal scale to teachers vide G.O(P).145/2006 dated 25.3.2005 and hence pay protection in the category of HSA cannot be granted. Further, as per G.O.No.1237/J1/2012/G.Edn dated 18.2.2012, it has been clarified that teachers are not eligible for pay protection in higher scale of pay if the reappointment is in the lower category. Petitioner has been reverted from higher category to lower category and therefore, she is not eligible for pay protection as claimed by her. 4. The learned single Judge by the impugned judgment allowed the writ petition. Aggrieved, respondents 1 to 4 have come up in appeal. 5. Heard Sri.A.J.Varghese, the learned Senior Government Pleader for the appellants and Sri.K.Mohanakannan, the learned counsel for the respondents. 6. The claim of the petitioner that she is governed by Rule 52 of Chapter XIVA of KER has been accepted by the learned single Judge, who rejected the contention of the respondents that the said rule has been clarified by the Government vide Circular dated 18.2.2012. This Circular namely, G.O.No.1237/J1/2012/G.Edn dated 18.2.2012, was issued as it W.A.1717/2022 8 came to the notice of the Government that Rule 52(1) of Chapter XIVA, KER, was not being interpreted properly and that pay protection was being granted to teachers on the strength of the aforesaid rule even in cases where they were reappointed in a lower category. This, according to the Government, created huge financial liability to the Government. Therefore, it has been clarified by the said Circular that Rule 52 is intended for granting pay protection to retrenched teachers on reappointment in the same cadre and in the same scale of pay. In case of reappointment to the lower category, the Rule is need not be made applicable for pay protection in a higher scale of pay. Therefore, the clarification is to the effect that, teachers are not eligible for pay protection in the higher scale of pay if their reappointment is in the lower category. All the Educational Officers were directed to strictly comply with the direction in the Circular. According to the learned single Judge, the aforesaid G.O cannot be taken into account because in the event of a conflict between executive instructions and rules made in exercise of legislative powers, the Rules will have to prevail. 7. Here, we refer to Anneuxre-A judgment of a Division Bench of this Court in W.A.2157/2018, wherein an identical issue had come up for consideration. Referring to the aforesaid G.O. it has been held that, W.A.1717/2022 9 once Rule 52 has been clarified to indicate that the teacher on getting a posting in a lower category will only get the pay fixed based on the scale of pay available to the said category, then a higher scale of pay cannot be claimed. 8. The petitioner also relies on Ext.P7 G.O., dated 28.6.2002. Reference is made to clause (iii) of the said G.O. which says that protected teachers under various management shall be appointed in the schools under the respective managements, against the existing/arising vacancies in the categories of HSA/UPSA/LPSA/Language teacher by protecting their salary in the original posts. They shall be absorbed in their original post as and when vacancies arise in those categories. Ext.P7 Government order cannot have any application to the facts of the present case, as the same is an order issued by the Government framing guidelines for redeployment of teachers in furtherance to G.O.(P).56/02/Fin. dated 16.0.1.2002 referred to therein. However, it is admitted that the petitioner herein is not a protected teacher as referred to in clause (iii) of Ext.P7 G.O. That being the position, we find that the petitioner is not eligible for pay protection in the higher scale of pay as her re-appointment has been in the lower category. However, in the light of the dictum laid down by the Apex Court in **State of Punjab v. Rafiq Masih (WhiteWasher case)** W.A.1717/2022 10 ## **(2015 (1) KLT 429)** , no recovery shall be effected from the petitioner. In the result, the Writ Appeal is allowed and the impugned judgment is set aside. The pay and pensionary benefits of the petitioner shall be fixed as per her entitlement as stated above. As the petitioner retired from service on 31.05.2021, the pension and the terminal benefits of the petitioner, after the fixation, shall be released within a period of one month from the date of receipt of a copy of this judgment. Sd/- P.B.SURESH KUMAR, Judge Sd/- C.S.SUDHA, Judge Mrcs W.A.1717/2022 11 ## **APPENDIX OF WA 1717/2022** PETITIONER ANNEXURE Annexure A TRUE COPY OF THE JUDGMENT IN WA 2157/2018