E. P. Sankaran Nair v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **TUESDAY, THE 31ST DAY OF JANUARY 2017/11TH MAGHA, 1938** **OP(KAT).No. 28 of 2017 (Z) ---------------------------** **AGAINST THE ORDER IN TA 5235/2012 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 28-09-2016** **PETITIONER/APPLICANT:** **-----------------------** **E.P.SANKARAN NAIR AGED 75 YEARS, RETD. HIGHER SECONDARY TEACHER, G.H.S.S., MANATHANA, RESIDING AT PERUL SOUTH, M.M.BAZAR P.O., KANNUR - 670 306.** **BY ADVS.SRI.KALEESWARAM RAJ SRI.VARUN C.VIJAY** ## **RESPONDENTS/RESPONDENTS:** **--------------------------** **1. STATE OF KERALA** **REPRESENTED BY SECRETARY TO GOVT., DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM -695 001.** **2. DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM, KERALA - 695 001.** **3. ACCOUNTANT GENERAL (A & E)** **OFFICE OF THE ACCOUNTANT GENERAL (A & E), KERALA, M.G.ROAD, P.B.NO.5607, THIRUVANANTHAPURAM - 695 039.** ## **BY GOVERNMENT PLEADER SMT.PRINCY XAVIER** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 31-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(KAT).No. 28 of 2017 (Z)** **---------------------------** ## **APPENDIX** **PETITIONER'S EXHIBITS** **ANNEXURE 1 A COPY OF THE ORDER DATED 28.09.2016** **ANNEXURE II A COPY OF THE MEMORANDUM OF WRIT PETITION/T.A.** **EXHIBIT-P1: TRUE COPY OF THE FORMAL APPLICATION FOR SANCTION OF PENSION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** **EXHIBIT-P2: TRUE COPY OF THE PENSION PAYMENT ORDER DATED 24.08.2008.** **EXHIBIT-P3: TRUE COPY OF THE REPRESENTATION DATED 09.10.2008 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** **EXHIBIT-P4: TRUE COPY OF THE MEMO DATED 08.07.2009.** **ANNEXURE III A COPY OF THE REPLY STATEMENT FILED BY RESPONDENTS 1 TO 3** **ANNEXURE IV A COPY OF THE RELEVANT PART OF THE SERVICE BOOK OF THE PETITIONER.** **/TRUE COPY/** **PS TO JUDGE** ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **O.P.(KAT)No.28 OF 2017** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31[st] day of January, 2017 ## **JUDGMENT** ## Ravikumar, J. The original petition is filed against the order dated 28.09.2016 passed by the Kerala Administrative Tribunal, Ernakulam Bench in T.A.No.5235/2012. The prayer of the petitioner for revision of pensionary benefits by treating him as a retired Higher Secondary School Teacher, was virtually declined by the said order. The circumstances, that constrained the petitioner to file W.P.(C) No.3612/2011 which was later transferred to the Tribunal after its constitution and renumbered as T.A.No.5235/2012, read thus :- The applicant entered in service as Part Time Hindi Teacher on 18/03/1963. He became a full time junior Hindi teacher and thereafter, got promoted as High School Assistant (Hindi) on 14.08.1969. While working so, the petitioner was put in additional charge of Higher Secondary School Teacher from 01.11.1991 after the commencement of O.P.(KAT)No.28/2017 2 the Plus Two courses,. Admittedly, he was being given a special pay of Rs.250/- as charge allowance. He retired from service on 31.05.1996. The contention of the petitioner is that taking into account the services rendered by him by way of additional charge as Higher Secondary School Teacher from 01.11.1991 to 31.05.1996, he should have been treated as a retiree from the post of Higher Secondary School Teacher on 31.05.1996 and his pensionary benefits ought to have been calculated accordingly. 2. We have heard the learned counsel for the petitioner and also the learned Government Pleader. 3. On the basic facts, there is no dispute. On being recruited through PSC the petitioner was appointed as a Part Time Hindi Teacher on 18.3.1963 and later, he became a full time Junior Teacher on 25.10.1996. The petitioner was promoted to the post of High School Assistant (Hindi) on 14.08.1969. There is no case for the petitioner that thereafter he was promoted/appointed as Higher Secondary School Teacher on commencement of Plus Two courses. Nonetheless, he got a case that from 01.11.1991 till 31.5.1996 he was made to discharge the O.P.(KAT)No.28/2017 3 function of Higher Secondary School Teacher on payment of a special pay of Rs.250/- as charge allowance. In other words, he was made to teach in the higher secondary section of the school. On 31.05.1996, he retired from the post of High School Assistant (Hindi). 4. Evidently, the contention of the petitioner is that since he was made to take classes in the higher secondary section of the school on payment of special pay of Rs.250/- as charge allowance from 01.11.1991 to 31.05.1996, he should have been treated as a retiree from the post of Higher Secondary School Teacher and pensionary benefits ought to have been calculated accordingly. The Tribunal considered the said contention of the petitioner. The Tribunal found that the petitioner was only given additional charge with a special allowance of Rs.250/- for taking classes in the higher secondary section. The very fact that he was given only additional charge would make it clear that the petitioner was then actually working only as a High School Assistant (Hindi) and it is only by way of additional charge that he had occasion to take classes in the higher secondary school section till his retirement on 31.05.1996. He was neither promoted nor given any O.P.(KAT)No.28/2017 4 appointment as Higher Secondary School Teacher. The grievance of the petitioner that as per G.O.(MS)No.312/2004/G.Edn. dated 11.10.2004, persons working as Higher Secondary School teacher appointed prior to 13.05.1998 and qualified to be appointed as Higher Secondary School Teacher were given regularization taking into account their uninterrupted continuance in the said post. According to the petitioner, it amounts to fixation of a cut of date and there is no reason for fixing the cut of date as 13.05.1998. By fixing such a cut of date the respondents have virtually discriminated the petitioner and similarly situated persons. All such contentions have been repelled by the Tribunal. 5. The learned counsel for the petitioner relied on the decision of the Hon'ble Apex Court in **Union of India and another v. Sps Vains ( Retd) and Others ( 2008 (9) SCC 125)** to assail the said action on the part of the respondents. In fact, the said decision was also cited before the Tribunal and the Tribunal had considered the contentions based on the said decision and ultimately found that in view of the factual position obtained in this case, the said decision is O.P.(KAT)No.28/2017 5 totally inapplicable. The said decision deals with discrimination creating disparity within the same rank. The petitioner got no case that he was promoted or appointed to the post of Higher Secondary School Teacher. Therefore, the petitioner cannot canvass the position that applying the ratio of the decision he should also be granted pension reckoning his period during which he took classes in the section of the school. The very admitted position he was given addition charge of Rs.250/- for taking classes in the higher secondary section of the school itself would go to show that he was performing only an additional function besides his normal duties as High School Assistant ( Hindi). In such circumstances, we do not find any reason to hold that the finding of the Tribunal that the said decision is totally inapplicable warrants interference. 6. As already noticed, the indisputable factual position obtained in this case is that the petitioner was working as High School Assistant (Hindi) at the time of his retirement and he retired from the said post. True that from 01.11.1991 onwards till his retirement on being given a special pay of Rs.250/- as charge allowance for taking 6 O.P.(KAT)No.28/2017 classes in the higher secondary section of the school. Giving such a charge arrangement cannot be equated to a regular appointment or a promotion to the post of Higher Secondary School Teacher. It is pending formulation of the special rules for the appointment of Higher Secondary School Teachers such arrangements were made. True that at a later point of time, taking note of the fact that certain persons were continuing to work as Higher Secondary School Teacher from 13.05.1998 and they were also possessing the prescribed qualification for appointment to the post of Higher Secondary School Teachers they were regularized. There is no dispute with respect to the fact that the petitioner had retired from the service much prior to 13.05.1998. As noticed earlier, he retired from the post of HSA ( Hindi) on 31.5.1996. In such circumstances, the petitioner cannot challenge the said order only on the ground of discrimination in fixing 13.05.1998 as the cut of date. The petitioner cannot be heard to contend that there is invidious discrimination when he was not in service as on that date and persons who are in service on that day and continued uninterruptedly for a certain period and possessed the qualification for 7 O.P.(KAT)No.28/2017 appointment to the post, were regularized. The view taken by the Tribunal cannot be held as perverse or illegal in such circumstances. Hence, we do not find any merit in the challenge against the order passed by the Tribunal. Accordingly, this writ petition is liable to fail and it is accordingly dismissed. ## **C.T.RAVIKUMAR, JUDGE** **K.P.JYOTHINDRANATH, JUDGE** sv. 31/01/2017