George Mathew M. v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 16[TH] DAY OF AUGUST 2022 / 25TH SRAVANA, 1944`** ## **`WP(C) NO. 33450 OF 2018`** ## **`PETITIONER/S:`** ``` GEORGE MATHEW M., CLERK, ST.MARY'S HIGH SCHOOL, CHENGALAM, CHENGALA P.O., PONKUNNAM VIA, KOTTAYAM DISTRICT. THE WORD 'ST.MARY'S HIGH SCHOOL', OCCURRING IN THE CAUSE TITLE OF THE PETITIONER IN WP(C) 33450/2018 IS DELETED AND ADDED THE WORD 'ST.ANTONY'S HIGH SCHOOL', AS PER THE ORDER DATED 06.10.2021 IN IA NO.1/2021 IN WP(C) 33450/2018. ``` ``` BY ADVS. SHAJI THOMAS JEN JAISON ``` ## **`RESPONDENTS:`** ``` 1THE STATE OF KERALA, REP. BY THE SECRETARY TO GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM-695014. 3THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM-686101. ``` ``` 4THE DISTRICT EDUCATIONAL OFFICER, KOTTAYAM-686001. ``` W.P. (C) No.33450 of 2018 2 ``` 5THE HEADMASTER, ST.MARY'S HIGH SCHOOL, CHENGALAM, CHENGALAM P.O., PONKUNNAM VIA, KOTTAYAM DISTRICT-686585. ``` ``` THE WORD 'ST.MARY'S HIGH SCHOOL', OCCURRING IN THE CAUSE TITLE OF THE 5TH RESPONDENT IN WP(C) 33450/2018 IS DELETED AND ADDED THE WORD 'ST.ANTONY'S HIGH SCHOOL', AS PER THE ORDER DATED DATED 06.10.2021 IN IA NO.1/2021 IN WP(C) 33450/2018. ``` ``` SRI JIBU T.S GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P. (C) No.33450 of 2018 3 ## **JUDGMENT** The petitioner has approached this Court challenging the action initiated by the respondents to refix the scale of pay granted to the petitioner on the premise that the 1st Time Bound Higher Grade (“TBHG” for short) granted to the petitioner on the completion of 10 years of service as a clerk is irregular. The petitioner has also sought a declaration that the 10 years TBHG granted to the petitioner with effect from 13/7/1994 in the post of clerk in the entry post is legally valid and also for quashing the proceedings for recovery initiated by the respondents. 2. Brief facts are as under. After having worked as a part-time contingent menial at St. Mary’s High school, Chengalam for the period from 02/01/1984 to 12/07/1984, the petitioner entered regular service as Clerk on 13/07/1984 in the Holy Family High School, Inchiany. On 13/07/1994, the petitioner was granted 10 years TBHG in the post of clerk. The scale of pay granted to the petitioner at that stage was in parity with that of the scale of pay of an Upper Division Clerk. An audit objection ensued for the reason that the initial appointment of the petitioner being in the category of part-time sweeper, a last grade service, the W.P. (C) No.33450 of 2018 4 petitioner was entitled only to claim the table scales of the respective pay revision orders as TBHG on completion of 23 years of service. The petitioner states that the objection raised cannot be sustained as the entry of the petitioner in service was in the post of clerk and that he had not worked in any full-time post prior to his appointment as a clerk. Being aggrieved, the petitioner submitted Exhibit P3 representation before the 2nd respondent. By Exhibit P4 communication issued by the 2nd respondent, the objection raised by the petitioner was rejected. Immediately thereafter, the 3rd respondent issued Exhibit P5 intimation directing the 5th respondent to refix the pay of the petitioner with effect from 01/07/1997 and to recover the excess amount drawn by him. According to the petitioner, he had not worked in any full-time contingent post prior to his appointment to the post of clerk, and he is to be treated as one appointed to the post of clerk directly. It is in the afore circumstances that the petitioner is before this court seeking the following reliefs: i. Call for the records leading to Ext.P1, P4 and P5 and to quash the same by issuing a Writ of Certiorari. ii. Declare that 10 years Time-Bound Higher Grade granted to the petitioner with effect from 13.07.1994 in the post of clerk being his entry post, is legally valid and that he is entitled for all consequential benefits; W.P. (C) No.33450 of 2018 5 iii. To issue a Writ of Mandamus or any other appropriate writ, order or direction directing the respondents not to implement Ext.P1, P4 and P5, which are legally unsustainable as per the relevant rules and orders. 3. In the counter affidavit filed by the third respondent, it is stated that prior to the petitioner entering service as a clerk on 13/07/1984, he had worked as a part-time sweeper from 02/01/1984 to 12/07/1984 with approved service. As the petitioner was later promoted as a lower division clerk after the initial appointment in the category of a part-time sweeper, he was entitled to claim the table scale of respective pay revision orders as TBHG. It is further stated that the scale of pay of a head clerk can be claimed as grade scales only if there exists a regular promotion post. There is no statutory provision in KER that enables a lower division clerk to enjoy promotion as UDC or Head Clerk. In view of the above, aided school clerks are not entitled to get TBHG in the scale of UDC and Head Clerk at par with scales being allowed to the clerks in Government schools. 4. Sri Shaji Thomas, the learned counsel appearing for the petitioner, submitted that the 1st Time-Bound Higher Grade was granted on 13.07.1994 after completion of 10 years of service in the cadre of Clerk. By the impugned order, passed on 08.02.2018, the respondents initiated steps to W.P. (C) No.33450 of 2018 6 refix the salary and recover the alleged excess amounts paid to the petitioner. Relying on the principles laid down in **State of Punjab v. Rafiq Masih** (White Washer) [(2014) 8 SCC 883], as clarified in **High Court of Punjab and Haryana and Ors. v. Jagdev Singh** [(2016) 14 SCC 267], it is contended that it would be iniquitous to permit recovery of excess payment made to an employee like the petitioner herein, particularly when the amounts were disbursed strictly in tune with the Government Orders. The learned counsel would then refer to Ext.P9 clarification letter dated 21.12.2002, issued by the Principal Secretary of Government (Finance Department), and it was argued that those clerks working in aided schools who had acquired test qualifications are entitled to grant of grades as in the case of clerks in the Government service. Placing reliance on Ext.P8 Government Order, it is contended that the Government has ordered that even in cases where a particular category of post in the normal hierarchy of promotion post is not available in a department, the scale of pay of the normal promotion post only will be allowed as the higher grade. Reliance is also placed on Ext.P12 pay revision order, which is dated 10.2.2021, wherein it is stated that the non-teaching staff in aided schools, private colleges, and polytechnics which come under the scheme of direct payment of salary by the W.P. (C) No.33450 of 2018 7 Government, will be eligible for Time-Bound Higher Grade promotion in the scales provided in the tables concerned. However, the clerk in those institutions will be eligible for the scale of pay applicable to the post of Senior Clerk, Head Clerk, Junior Superintendent, and Junior Superintendent (HG) on 1st, 2nd, 3rd and 4th TBHG subject to the general conditions. 5. Smt. Nisha Bose, the learned senior Government Pleader, reiterated the contentions in the counter affidavit. Placing reliance on a judgment dated 16.12.2016 of this Court in W.A.No.1987/2016, it is argued that only if a post of UD Clerk is available can a higher grade be sanctioned in the pay scale of UD Clerk. The Government Pleader contended in view of the judgment of the Apex Court in **High Court of Punjab and Haryana and Ors. v. Jagdev Singh** [(2016) 14 SCC 267], that the respondents have every authority to effect recovery from the employee. It is also submitted that the reliance placed by the petitioner on Ext.P12 pay revision order dated 10.02.2021 is unsustainable as the revised Time-Bound Higher Grade scheme will have effect only from 01.04.2021. 6. I have considered the submissions advanced and have perused the records. The question to be considered is whether Exhibit P1 directing refixation of salary and grades granted to the petitioner with effect from W.P. (C) No.33450 of 2018 8 13.07.1994 can be sustained under law and whether the respondents can be permitted to recover the alleged excess amounts received by the petitioner. 7. Ext.P7 is an order passed by the Government on 07.07.1980 based on representations made by service organizations of the employees of the Aided Schools, Private Colleges, etc. seeking extension of benefits to the non-teaching staff of Aided Schools, Private Colleges, etc. In paragraph No. 2 of the order, it is stated thus: 2. Government, after examining the question in detail, are pleased to order that the benefit of higher grade promotion granted to government employees on completion of 13 years of service in the entry grade as per the Government Orders read above, shall be extended to the non teaching staff of the corresponding grades in Aided schools, Private Colleges and Private Polytechnics, who come under scheme of direct payment of salary by the Government, on the same terms and conditions specified therein. 8. It is thus evident from Ext.P7 that the benefit of higher grade promotion granted to Government employees in the stated circumstances has been extended to the non-teaching staff of the corresponding grades in the aided schools. 9. In Ext.P8 Government Order, which is dated 25.11.1998 issued based on recommendations made by the pay revision committee, it is W.P. (C) No.33450 of 2018 9 unequivocally stated that non-teaching staff in Aided Schools, Private colleges and Polytechnics who falls under the scheme of direct payments of salary by the Government are also eligible for time-bound grade promotion subject to the conditions stated in the order. 10. Ext.P9 is a letter issued by the Principal Secretary to the DEO, Kothamangalam, on 21.12.2002, clarifying the grant of TBHG to the clerks in Aided schools. Paragraph No. (iii) of Ext.P9 reads as follows: (iii) Since the post of L.D. Clerk in aided schools are filled up by promoting qualified last grade servants as per provision in the Kerala Education Rules, the entry grade of clerk promoted from Last grade Servants is Last Grade Servant and not clerk. Their eligibility for time bound Higher grade and its scale of pay is fixed with reference to Last Grade Servants. Thus the regular promotion post of Last Grade Servant is L.D. Clerk, U.D. Clerk, Head Clerk, Junior Superintendent etc. Thus the first promotion as L.D. Clerk within 10 years’ service in the Grade Service is equal to the first higher grade of Last Grade Servant and the second higher Grade granted in the scale of pay of U.D. Clerk on completion of 10/8 years’ service in the first promoted post of L.D. Clerk or 20/18 years’ service as Last Grade service and clerk together whichever is earlier is treated as second higher grade. The third higher grade on completion of 23 years service as Last Grade servant and clerk together is admissible in the scale of pay of Head Clerk only and not in the scale of pay of Junior Superintendent as claimed by the Association. 11. The above clarification shows that the last grade servants on W.P. (C) No.33450 of 2018 10 getting promotion as Clerk and when they complete 10 years of service are entitled for the scale of pay granted to the petitioner. The said order also emphasizes that the post of L.D.Clerk, U.D.Clerk, Head Clerk and Junior Superintendent are regular promotion posts of last grade servants. 12. At this juncture, it would be relevant to take note of Ext.P10 Government Order which is dated 25.3.2006, issued based on the report of the 8th Pay Revision Commission. In paragraph 14 of the order, it is stated thus: 14. Non-teaching staff in aided schools, Colleges and Polytechnics who under the scheme of direct payment of salary by Government are also eligible for time bound grade promotion, subject to these conditions. 13. These orders clearly go against the stand taken by the 3rd respondent in the counter that aided school clerks are only entitled to table scales of respective pay revision and not entitled to the TBHG of promotion posts. 14. Ext.P12 Government Order issued based on the recommendations of the 11th Pay Revision Commission also supports the case of the petitioner. True, its application in the facts of the instant case is W.P. (C) No.33450 of 2018 11 vehemently challenged by the learned Government Pleader on the ground that the said order became effective only from 01.04.2021. It would be apposite to consider paragraph No. 16 of the order. “16. Non-teaching staff in Aided Schools, Private Colleges and Polytechnics who come under the scheme of direct payment of salary by Government will be eligible for Time Bound Higher Grade promotions in the scales provided in the Tables concerned. However, Clerks in these institutions will be eligible for the scale of pay applicable to the posts of Senior Clerks, Head Clerks, Junior Superintendent and Junior Superintendent (HG) on 1st, 2nd, 3rd and 4th Time Bound Higher Grade, subject to the general conditions.” 15. A perusal of the order would reveal that even without the sanctioned post of U.D. Clerk, Head Clerk, Junior Superintendent and Junior Superintendent (HG), the pay scales applicable to the said post can be granted to aided school clerks on the basis of the earlier Government Orders. 16. Even otherwise, I am of the considered opinion that recovery of amounts paid in excess about two decades back and thereafter would be grossly iniquitous. In the case on hand, the petitioner had entered service on 13.07.1984. 17. In **Rafiq Masih** (Supra), the Apex Court had occasion to postulate the situations of hardship that would govern employees on the issue W.P. (C) No.33450 of 2018 12 of recovery, where payments have mistakenly been made by the employer in excess of his entitlement. After balancing the conflicting claims and the hardship that is likely to be caused, the Hon’ble Supreme Court summarised the situations wherein recovery of the amounts by the employers would be impermissible under law. It was held as follows in paragraph No. 18 of the judgment. 18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover. 18. There is no dispute that the petitioner falls in the lower rung of W.P. (C) No.33450 of 2018 13 the service and the recovery is being effected for the excess payment made initially about two decades back and thereafter. This is not a case wherein the petitioner had knowledge that the payment received was in excess of what was due. There is no case that there was any misrepresentation or fraud on the part of the petitioner. As held by the Apex Court, when payments have been made for a long duration of time, the logic of recovery of the excess amount paid would be iniquitous, arbitrary and violative of Article 14 of the Constitution of India. There cannot be any doubt that it would be next to impossible for a person such as the petitioner to bear the financial burden of a refund of payment received wrongfully for a long span of time as he would have spent the emoluments that he would have received for the upkeep of his family under the bonafide belief that he is entitled to the said amount. 19. The next question is whether, at the time of grant of first-Time Bound Higher Grade in the scale of UDC on 13.07.1994, any undertaking was given by the petitioner. No documents are produced before this Court to substantiate that any such undertaking was given by the petitioner. A Division Bench of this Court in **State of Kerala and Ors v. Vinod Kumar C.R.** [2020 (4) KLT 230], relying on **Syed Abdul Qadir & ors. v. State of Bihar & ors.** [(2009) 3 SCC 475], **Rafiq Masih** (supra) and a judgment of another W.P. (C) No.33450 of 2018 14 Division Bench of this Court in **Kasaragod District Co-operative Bank Ltd. and another v. Radha K.A** [2006 (1) KHC 260] had occasion to observe the failure of the respondents to communicate the objections as regards excess payment within a reasonable time after the grant of benefits would be iniquitous. The very same view has been taken by a Division Bench of this Court in the judgment dated 08.08.2022 in WA No.65 of 2022 as well. In view of the discussion above, the petitioner is entitled to succeed. This writ petition will stand allowed. Exts.P1, P4, and P5 will stand quashed, and it is held that the 10 years TBHG granted to the petitioner with effect from 13.07.1994 is in order. The respondents are interdicted from initiating any steps to refix the salary or effect any recovery on the basis of Exhibit P1, P4 and P5. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** sru W.P. (C) No.33450 of 2018 15 ## **`APPENDIX OF WP(C) 33450/2018`** ``` PETITIONER’S EXHIBITS: ``` ``` EXHIBIT P1TRUE COPY OF THE RELEVANT PAGE OF THE SAID AUDIT OBJECTION OF THE 3RD RESPONDENT ``` - `EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER DATED 4.6.1984 ISSUED BY THE MANAGER` - `EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 29.8.2016 SUBMITTED BY THE PETITIONER` - `EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DATED 20.6.2017 OF THE 2ND RESPONDENT` - `EXHIBIT P5 TRUE COPY OF THE INTIMATION DATED 8.2.2018 OF THE 3RD RESPONDENT THROUGH THE 5TH RESPONDENT` - `EXHIBIT P6 TRUE COPY OF THE GO(MS) NO.165/1983/G.EDN. DATED 3.9.1983` - `EXHIBIT P7 TRUE COPY OF THE GO(P) NO.438/1980/FIN. DATED 7.7.1980` ``` Exhibit P8THE RELEVANT EXTRACT OF THE G.O.(P)NO.3000/98/FIN. DATED 25.11.1998 ISSUED BY THE GOVERNMENT OF KERALA. ``` ``` Exhibit P9TYPED COPY OF THE CLARIFICATION LETTER NO.92248/PRC.A.3/02/FIN, DATED 21.12.2002 ISSUED BY THE PRINCIPAL ``` W.P. (C) No.33450 of 2018 16 ``` SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT. ``` ``` Exhibit P10TRUE PHOTOCOPY OF THE G.O.(P) NO.145/2006/FIN.DATED 25.3.2006 ISSUED BY THE SECRETARY TO GOVERNMENT. ``` ``` Exhibit P11TRUE PHOTOCOPY OF THE G.O.(MS) NO.216/14 (192)/FIN. DATED 11.6.2014 ISSUED BY THE FINANCE DEPARTMENT, GOVERNMENT OF KERALA. ``` ``` Exhibit P12TRUE PHOTOCOPY OF THE RELEVANT EXTRACT OF G.O(P) NO.27/2021/FIN DATED 10.2.2021 ISSUED BY THE FINANCE DEPARTMENT, GOVERNMENT OF KERALA. ``` ``` Exhibit P13TRUE PHOTOCOPY OF THE JUDGMENT DATED 28.10.2021 IN WPC.NO. 9292/2021 OF THIS HON'BLE COURT. ```