E. Vimalambika John L.P.S.A. Little Flower High School, Anthiyorkonam v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 8TH DAY OF AUGUST 2018 / 17TH SRAVANA, 1940** **WP(C).No. 2501 of 2014** ## **PETITIONER:** **E.VIMALAMBIKA JOHN L.P.S.A. LITTLE FLOWER HIGH SCHOOL, ANTHIYOORKONAM, KOLLODE P.O., THIRUVANANTHAPURAM-695571.** **BY ADV.SRI.S.MOHANDAS** ## **RESPONDENT(S):** ## **1. STATE OF KERALA** **REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-695001.** **2. DEPUTY DIRECTOR OF EDUCATION, KILLIPALAM, THIRUVANANTHAPURAM-695021.** ## **3. HEADMISTRESS,** **LITTLE FLOWER HIGH SCHOOL, ANTHIYOORKONAM, KOLLODE P.O., THIRUVANANTHAPURAM-695571.** **4. ACCOUNTANT GENERAL (AUDIT) KERALA, THIRUVANANTHAPURAM-695001.** **R3 BY ADVS. SRI.RAM MOHAN.G.** **SRI.G.P.SHINOD SRI.MANU V.** **SRI.GOVIND PADMANAABHAN BY GOVERNMENT PLEADER SMT.MARY BEENA JOSEPH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 2501 of 2014 (K)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **EXHIBIT P1: COPY OF AUDIT NOTE (EXTRACTS) FOR 2003-04 & 2004-05 IN RESPECT OF ST.ANNA'S L.P.SCHOOL KALLIKADU, TRIVANDRUM ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P2: COPY OF GOVT. CIRCULAR DATED 6.3.1998 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P3: COPY OF REPRESENTATION DATED 16.12.2012 SUBMITTED BY THE PETITIONER TO 3RD RESPONDENT. EXHIBIT P4: COPY OF REPRESENTATION DATED 20.8.2013 SUBMITTED BY THE PETITIONER TO 2ND RESPONDENT. EXHIBIT P5: COPY OF APEX COURT JUDGMENT DT.5.7.2011 IN CA NO.4561 OF 2008.** **EXHIBIT P6: COPY OF LETTER NO.E4/5187/2012 DT.9.12.2013 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P7: COPY OF LETTER NO.669/13 DT.30.12.2013 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** ## **RESPONDENT'S EXHIBITS: NIL** **/TRUE COPY/** **P.A.TO JUDGE** ## **AS** **'CR'** ## **P.V.ASHA J.** ## **-----------------------------------W.P.(C).No.2501 of 2014** **-------------------------------------** Dated this the 8[th] day of August, 2018 ## **J U D G M E N T** Petitioner, who is an LPSA, is aggrieved by the proceedings initiated for recovery from her pay on account of erroneous fixation on grant of higher grade, reckoning Government service prior to aided School service. 2. Petitioner entered service LPSA in St.Anna's L.P.School, Kallikodu, which is an aided School on 01.06.1989. Prior to that she had worked in a Government School for the period from 15.09.1987 to 30.03.1988 and from 01.07.1988 to 31.03.1989. She was granted the first higher grade on 16.02.1998, reckoning her provisional service. While petitioner had been drawing her pay on the basis of such higher grade, an audit objection was raised as per Ext.P1 against the grant of higher grade reckoning 2 spells W.P.(C).No.2501 of 2014 2 of provisional service and it was directed to review the grant of higher grade. On coming to know about Ext.P1 objection, petitioner submitted Ext.P3 representation before the Headmistress requesting to take steps to submit explanation to the audit objections and not to revise her pay fixation, pointing out that the pay was fixed in accordance with rules which were in force at the relevant time. Petitioner had also submitted Ext.P4 representation before the Deputy Director of Education, pointing out that the fixation of her pay was as per rules and requesting him to drop the proceedings for refixation of her pay, on the basis of the audit report. 3. As per Ext.P6 order, the Deputy Director of Education-the second respondent requested the Headmistress of the School to withhold the salary of the petitioner or else to take steps to rectify the objections raised in Ext.P1 audit report. By Ext.P7 W.P.(C).No.2501 of 2014 3 letter, the Headmistress informed the petitioner about the direction to withhold her salary. Petitioner approached this Court at that stage. 4. Petitioner has relied on Ext.P2 Government Order, which provides for fixing pay reckoning the provisional service rendered before 30.09.1994. Petitioner therefore, claims that her provisional service was rendered much prior to 1994 and therefore it was liable to be reckoned for the purpose of grade promotion and for her fixation of pay. 5. Learned counsel for the petitioner also relied on the judgment in **I.T.C Limited v. State of U.P** [2011 (3) KLT SN 57 (SC) (C.56)] and argued that there was no contribution or misrepresentation from the part of the petitioner in order to fix her pay reckoning the provisional service and therefore no recovery is permissible in such circumstances. 6. Respondents 1 and 2 have filed separate counter affidavits. According to them, the petitioner W.P.(C).No.2501 of 2014 4 had rendered service in a Government School, before she joined the aided School. It is stated that the Government, had, as early as in 1979, as per G.O. (P).No.1041/79(142)/Fin dated 27.11.1979, ordered to count provisional service for the purpose of grade promotion, subject to the restrictions contained in Government decision No.2 under Rule 33 Part I KSR. According to the respondents, the conditions in Note 2 are not satisfied in the case of petitioner. Therefore, it is the contention of the respondents that they are entitled to correct the mistake which occurred in fixing the pay of the teacher and when it was found that the petitioner has enjoyed the benefit of illegal fixation of pay and has drawn excess pay they are entitled to recover it. Respondents have also stated that the petitioner had submitted an undertaking at the time of fixation of her pay to the effect that she would re-fund the excess amount if any found subsequently, drawn on account of any W.P.(C).No.2501 of 2014 5 erroneous fixation of pay. Therefore, it is stated that the conditions mentioned in Ext.P2 are not satisfied in the case of petitioner. 7. I heard the learned counsel for the petitioner and the learned Government Pleader. 8. Smt.Mary Beena Joseph, the learned Senior Government Pleader argued that the conditions under Decision No.2 under Rule 33 Part I KSR are not satisfied in the case of the petitioner as the provisional service rendered by petitioner was in Government School and therefore the appointment of petitioner before and after her entry in aided School was not in the same service. She also argued that though qualification and scale of pay in the case of teachers in Government and aided Schools are the same, the method of appointment in Government School is through Public Service Commission whereas in the aided Schools it is by the Manager without conducting any selection as done by Public Service commission. W.P.(C).No.2501 of 2014 6 Regarding the recovery from pay, she pointed out the undertaking furnished by petitioner to refund excess pay in the event of detection of any mistake and argued that the respondents are entitled to recover the excess pay in the light of the judgment of the Apex Court in **High Court of Punjab & Haryana v. Jagdev Singh** [(2016) 14 SCC 267], when an undertaking is obtained from the employee recovery can be made as and when the mistake is detected. 9. The learned counsel for the petitioner submitted that petitioner was in no way responsible for fixation of her pay reckoning the provisional service, in case it was contrary to rules and therefore the excess pay drawn by her is not liable to be recovered especially when it was being granted from 1998 onwards and that proceedings initiated against the petitioner based on an audit objection raised in the year 2005, cannot be permitted. 10. But I find force in the contention raised by W.P.(C).No.2501 of 2014 7 the learned Government Pleader in as much as the appointment of a teacher in an aided school and that in a Government School cannot be said to be in the same service. Though the method of appointment is direct recruitment, the method adopted for direct recruitment in aided School and Government School are uncomparable. Therefore, petitioner's case does not come under Note 3 to Rule 33 Part I KSR. Decision No.2 under Rule 33 Part I KSR provides that the provisional service which is followed by a regular appointment in the same category of the post would be treated as officiating service for the purpose of granting increment. It further provides for the following 3 conditions to be satisfied: - “(i) The posts should carry the same or identical scale of pay, - (ii) The qualification and method of appointment should be the same and - (iii) The post should fall in the same service.” W.P.(C).No.2501 of 2014 8 11. In this case petitioner's provisional service was in Government School, the condition No. (i) satisfies because the post of LP School Teacher carry the same scale in aided School as well as Government School. The second condition is qualification and method of appointment, qualification in both aided and Government Schools are also the same. However the method of appointment though is direct recruitment, appointments in Government Schools are made through PSC, whereas it is made by the Managers without the intervention of any agency and without undertaking a process of selection as done by PSC. The 3[rd] condition is that the post should fall in the same service. The post of LP School Teacher in aided school is governed by the provisions contained in the Kerala Education Rules, 1959 (KER). The conditions of service of teachers in the Government School are not governed by KER. Hence, no reliance can be made on Ext.P2. It is also W.P.(C).No.2501 of 2014 9 pertinent to note what is Note 2, before going into the conditions mentioned in Note 2 below Rule 33. ## Note 2 below Rule 33 reads as follows: “Provisional service on regularisation with or without break in the same category of post will be treated as officiating service ab initio for the limited purpose of granting increments. The term 'same category' of post for the purpose denotes posts satisfying the following conditions:xxx.” 12. There are three conditions mentioned above. Therefore before going into the fulfilment of the conditions, it is necessary to examine the nature of provisional service which can be reckoned for increments. From a reading of the first sentence in the note, it is clear that only a provisional service which is regularised alone can be reckoned for increment. In this case, it is not the provisional service in Government that is regularised in the case of petitioner, when she got regular appointment in aided School. Therefore as held by this Court in W.P.(C).No.2501 of 2014 10 ## **Satyapalan Vs Deputy Director of Education** [1998(1) KLT 399], the aided School teacher is not eligible to get her pay fixed or get her higher grade reckoning her provisional service under the Government. 13. However the dictum laid down in that case on recovery cannot be followed, in view of the jdgment of the apex court in **Jagdev Singh'** s case (supra), where the Apex Court after analysing the judgment in **State of Punjab V Rafiq Masih (White Washer)** [(2015) 4 SCC 334], held that proposition (ii) relating to recovery from those who are due to retire and those who retired, in para 18 of that judgment cannot be applied, in a case where the payment was made to an officer in the first instance placing notice on him, that any payment found to have been made in excess would be required to be refunded. It was held that the officer who furnished an undertaking while opting for the revised pay scale, is bound by the 11 W.P.(C).No.2501 of 2014 undertaking. 14. The contention raised by the learned counsel for the petitioner that Ext.P2 is an order issued in 1998, issued subsequent to the grant of higher grade to petitioner and hence it is not applicable to her, especially when the provisional service rendered by the petitioner was in 1989 and it was reckoned for the purpose of higher grade in February 1998 and when her pay was fixed in 1998, respondents cannot rely on Ext.P3 order, which is issued on a subsequent date, etc are also unsustainable. As pointed out by the learned Government Pleader, Ext.P2 is a Circular providing for clarification after referring to various orders starting from 27.11.1979 regarding reckoning of provisional service for time bound Grade/Increment. Therefore though Ext.P2 Circular was issued 06.03.1998, clarification is with respect to orders which were already in existence even before the first appointment of petitioner. The conditions W.P.(C).No.2501 of 2014 12 to be fulfilled for reckoning provisional service were given in Note 2 to Rule 33 Part I KSR and those conditions were directed to be observed for the purpose of considering a spell of provisional service for the purpose of increment. 15. Even though the learned counsel for the petitioner relied on the judgment of the Apex Court produced as Ext.P5, I find that it cannot be accepted in view of **Jaghdev** 's case (supra) where the Apex Court after considering the parameters laid down in **Rafiq Masih** 's case [ **State of Punjab v Rafiq Masih (White Washer)]** held even in the case of those who retired from service the parameters laid down in No. (ii) in para 18 of the judgment would not apply, where an undertaking is submitted by the employee. Therefore in this case when petitioner has furnished an undertaking the respondents cannot be restrained from acting upon it. Moreover when there are 2 judgments of the Apex Court of co-ordinate W.P.(C).No.2501 of 2014 13 jurisdiction the subsequent judgment has to be relied on, as held by the Full Bench of this Court in **Raman Gopi V Kunhu Raman uthaman** [2011(4) KLT 458]. In the above circumstances, I do not find any reason to interfere with the impugned action of the respondents. In the above circumstances, the writ petition is dismissed. Sd/- **P.V.ASHA, JUDGE.** AS