Happy V.B., Retired Lower Division Clerk, VRAMM Higher Secondary School, Thrissur v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **THURSDAY, THE 18TH DAY OF AUGUST 2016/27TH SRAVANA, 1938** **WP(C).No. 35011 of 2014 (B) ----------------------------** **PETITIONER(S): -------------** **HAPPY V.B LOWER DIVISION CLERK (RETIRED), V.R.A.M.M.HIGHER SECONDARY SCHOOL, P.O.BRAHMAKULAM-680104, RESIDING AT PANDARAN HOUSE, P.O.BRAHMAKULAM, THRISSUR-680104.** ## **BY ADV. SRI.P.M.PAREETH** **RESPONDENT(S): --------------** **1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. DEPUTY DIRECTOR OF EDUCATION, THRISSUR, THRISSUR DISTRICT-680001. 3. DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD- 680 506 4. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. -695001 R2 BY ADV. GOVERNMENT PLEADER SMT.BEENA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-08-2016, ALONG WITH WPC. 35120/2014AND CON.CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 35011 of 2014 (B)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------P1: A TRUE PHOTOCOPY OF THE G.O(MS)NO.96/73/SEDN. DATED 22.06.1973. P1(A): A TRUE PHOTOCOPY OF THE G.O(MS)NO.438/80/212 DATED 7.7.1980.** **P2: A TRUE PHOTOCOPY OF THE G.O.P.NO.939/80/(27)/FIN DATED 19.12.1980.** **P3:A TRUE PHOTOCOPY OF THE G.O(MS)NO.165/83/GEDN. DATED 3.9.1983.** **P4: A TRUE PHOTOCOPY OF THE G.O(MS)NO.1605/99/29/FIN DATED 20.07.1999.** **P4(A): A TRUE PHOTOCOPY OF THE GO(MS)NO.216/2014/(192)/FIN DATED 11.6.2014.** **P4(B): A TRUE PHOTOCOPY OF THE GO(P)NO.3000/98/FIN DATED 25.11.1998 WITH TIME BOUND HIGHER GRADE PROMOTIONS SCHEME.** **P4(C): A TRUE PHOTOCOPY OF THE ORDER G.O.M.S.NO.16/2010/G.EDN. DATED 18.1.2010.** **P4(C)(A): A TRUE ENGLISH TRANSLATION OF EXT.P4(C)** **P5: A TRUE PHOTOCOPY OF THE STATEMENT OF FIXATION OF PAY IN THE HIGHER GRADE AND THE ORDER DATED 28.10.06 SANCTIONING FIRST HIGHER GRADE BY THE 3RD RESPONDENT.** **P6: A TRUE PHOTOCOPY OF THE STATEMENT OF FIXATION OF PAY AND THE ORDER SANCTIONING SENIOR GRADE DATED 3.3.2007 ISSUED BY THE 3RD RESPONDENT.** **P7: A TRUE PHOTOCOPY OF THE ORDER DATED 3.2.2012 ISSUED BY THE THIRD RESPONDENT.** **P8: A TRUE PHOTOCOPY OF THE ENDT. ON KDIS/5807/2014/B6 DATED 13.8.2014 ISSUED BY THE THIRD RESPONDENT.** **P9: A TRUE PHOTOCOPY OF THE INTIMATION SLIP DATED 14.11.2014 OF PENSIONARY BENEFITS INCLUDING PENSION AND GRATUITY PAYMENT ORDER AND COMMUTATION PAYMENT ORDER.** **P10: A TRUE PHOTOCOPY OF THE CIRCULAR NO.64/2014/FIN DATED 21.06.2014.** **P10(A): A TRUE ENGLISH TRANSLATION OF EXHIBIT P10.** **P11: A TRUE PHOTOCOPY OF THE COVERING LETTER DATED 21.5.2014 SUBMITTED BY THE HEADMISTRESS BEFORE THE THIRD RESPONDENT.** **P12: A TRUE PHOTOCOPY OF THE APPOINTMENT ORDER DATED 3.6.85 ISSUED BY THE MANAGER VRAMM HIGH SCHOOL THAIKKAD SOUTH, P.O.BRAHMAKULAM** ## **WP(C).No. 35011 of 2014 (B)** ## **RESPONDENT(S)' EXHIBITS:** **-----------------------** **EXT.R2(A): PHOTOCOPY OF THE LETTER NO.70216/N2/12/G.EDN. DATED 06.02.2013** **EXT.R2(B):PHOTOCOPY OF THE LIABILITY CERTIFICATE IN RESPECT OF THE PETITIONER FURNISHED BY THE HEADMASTER OF THE SCHOOL** **EXT.R2(C): PHOTOCOPY OF THE COMMUNICATION ISSUED BY THE OFFICE OF THE 2ND APPLICANT TO THE SUB TREASURY OFFICER, CHAVAKKAD** **//TRUE COPY//** **P.A TO JUDGE** **A.K.JAYASANKARAN NAMBIAR, J. ............................................................. W.P.(C).No.35011 of 2014 W.P.(C).No.35120 of 2014 W.P.(C).No.33076 of 2014 W.P.(C).No.27304 of 2014 W.P.(C).No.30105 of 2014 & W.P.(C).No.26536 of 2014 ............................................................. Dated this the 18[th] day of August, 2016** ## **J U D G M E N T** As all these writ petitions involve a common issue, they are taken up together for consideration and disposed by this common judgment. For the sake of convenience, the reference to facts and exhibits is from W.P.(C).No.35011 of 2014. 2. The petitioners in all these writ petitions are persons who entered the service of an aided school either as L.D.Clerks or as Peons and have subsequently retired from the service of the said school while continuing as L.D.Clerks, and on attaining the age of superannuation. The dispute in all these cases revolves around the entitlement of the petitioners for the benefit of the 1[st] , 2[nd] and 3[rd] Time Bound Higher Grades that are due to L.D.Clerks on completion of 10 years, 16 years and 23 years of service as -2- **W.P.(C).No.35011 of 2014 & con.cases** L.D.Clerks. It is not in dispute that the petitioners stood entitled to the pay revision benefits, and the benefits of time bound higher grades, that were envisaged under the various Government orders issued from time to time, corresponding to the completion of 10 years, 16 years and 23 years of service by the petitioners as L.D.Clerks. In the said Government orders, the revised pay to which the petitioners were entitled, was enumerated in the table attached to the pay revision orders. The Government orders also dealt with the grant of the 1[st ] Higher Grade, 2[nd] Higher Grade and 3[rd] Higher Grade respectively to the petitioners and the applicable pay scales for the same. It is evident from a perusal of Ext.P4(b) Government order dated 25.11.1998, which governed the grant of 1[st ] Higher Grade to the petitioners, that the 1[st ] Higher Grade was to be granted on completion of 10 years service in the entry post and the scale of pay was as prescribed in the table attached to the Government order. The Government order also contained a Clause which stated that, if there is a promotion post in respect of the categories of entry posts coming under specified pay scales, and the scale of pay fixed for the said post is higher than the time bound Higher Grade proposed for the post of L.D.Clerk in the -3- **W.P.(C).No.35011 of 2014 & con.cases** Government order, then the qualified incumbent would be given the scale of pay of the promotion post in the direct line of promotion as time bound Higher Grade. In other words, the said Clause in the Government order indicated that, if a situation arose where the person who was entitled to a time bound Higher Grade scale of pay was getting a scale of pay that was below the scale of pay drawn by a person occupying a promotion post in the direct line of promotion in the establishment, the scale of pay of the promotion post would be extended to the person concerned as time bound Higher Grade scale of pay. The petitioners, it would appear, were granted the pay scales applicable to the promotion posts of U.D.Clerk, Head clerk and Junior Superintendent while extending the benefit of 1[st] , 2[nd] and 3[rd] Higher Grades to them. This was later objected to by the Audit Department, which took the view that, inasmuch as in the institutions where the petitioners were working, there was no promotion post of U.D.Clerk, Head Clerk or Junior Superintendent in the direct line of promotion, the petitioners would not be entitled to the scale of pay applicable to the said promotion posts, but would be entitled only for the scale of pay prescribed in the Government orders for the 1[st] , 2[nd] and 3[rd] -4- **W.P.(C).No.35011 of 2014 & con.cases** time bound Higher Grades respectively. The respondents on the basis of the audit objection recomputed the actual amounts that had to be paid to the petitioners based on the Government orders, and computed the excess amounts that were paid to the petitioners erroneously, and proposed a recovery of the said amounts from the pensionary benefits that were due and payable to the petitioners consequent to their retirement from the schools in question. It is at that stage that the petitioners approached this Court through these writ petitions. The writ petitions were admitted, and by interim orders passed in some cases, the petitioners were permitted to get the admitted pensionary benefits, after withholding the amounts that were said to be recoverable from them. 3. A counter affidavit has been filed on behalf of the respondents wherein it is stated that the petitioners have been erroneously extended the benefit of higher amounts by way of 1[st ] , 2[nd] and 3[rd] time bound Higher Grades scales of pay, and it was only on receiving the audit objection that the respondents realised that excess amounts have been paid to the petitioners than what -5- **W.P.(C).No.35011 of 2014 & con.cases** they were entitled to, and it was therefore that action was taken to recover the excess amounts from the petitioners. 4. I have heard the learned counsel appearing for the petitioners in all these writ petitions as also the learned Government Pleader appearing for the respondents in all these writ petitions. 5. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that, it cannot be in dispute that the entitlement of the petitioners for the benefit of 1[st ] , 2[nd] and 3[rd] time bound Higher Grades are traceable to the Government orders that were issued from time to time, and which were applicable during the period when the petitioners stood entitled to get the time bound Higher Grades on completion of 10 years, 16 years and 23 years respectively in the entry post of L.D.Clerk. Inasmuch as the entitlement of the petitioners to the 1[st] and 2[nd] Higher Grades are concerned, I note from the Government orders that were in force during the relevant time that, the said Government orders contemplated the extension of the scale of -6- **W.P.(C).No.35011 of 2014 & con.cases** U.D.Clerk and Head Clerk respectively, in lieu of the scale prescribed for 1[st ] and 2[nd] time bound Higher Grades, only in cases where the post of U.D.Clerk and Head Clerk existed in the establishment in question as a promotion post in the direct line of promotion for the petitioners. Inasmuch as it is not in dispute that in the establishment where the petitioners worked, there was no post of U.D.Clerk or Head Clerk, it would follow that the extension of the scale of pay applicable to U.D.Clerk and Head Clerk, to the petitioners was a mistaken one and not in accordance with the Government orders. The petitioners have therefore to be seen as persons who received excess amounts by way of 1[st] and 2[nd] time bound Higher Grades on completion of 10 years, 16 years of service. I find, however, that when it came to the extension of the 3[rd] time bound Higher Grade on completion of 23 years of service, by Ext.P4(a) Government order G.O.(MS)No.216/2014/(192)/Fin dated 11.06.2014, the Government had modified the earlier Government orders namely G.O.(P).No.85/2011/Fin dated 26.02.2011 and G.O.P No.143/2011/Fin dated 30.03.2011 by incorporating the following sentence in the Government order dated 26.02.2011:- -7- **W.P.(C).No.35011 of 2014 & con.cases** “The existing benefit of 3[rd] time bound Higher Grade in the scale of pay of Junior Superintendent allow to Lower Division Clerks in aided schools will continue.” It will be apparent from the said modification that, what was contemplated by the Government in the order dated 11.06.2014 was a continuation of the practice of extending the scale of pay of Junior Superintendent as 3[rd] time bound Higher Grade, to Lower Division clerks in aided schools notwithstanding the fact that in the aided schools there was no promotion post of Junior Superintendent. The said amendment was contemplated as a continuation of a similar clause that was already there in the earlier Government orders, and was meant to operate continuously till the new Government orders in connection with future pay revision were issued by the Government. I note from Ext.P4(a) Government order, however, that the order is stated to take effect from 01.07.2004 and 01.07.2009 for pay revision 2004 and pay revision 2009 respectively but the monetary benefits would be given only from 11.06.2014, the date of Ext.P4(a) order. -8- **W.P.(C).No.35011 of 2014 & con.cases** Responding to the apprehension of counsel for the petitioner that the said Government order therefore extends the benefit of the 3[rd] time bound Higher Grade in the scale of pay of Junior Superintendent to Lower Division Clerks in aided schools only with effect from 11.06.2014 and not to persons such as the petitioners herein who stood entitled to the benefit of 3[rd] time bound Higher Grade in 2011 itself, I find that such an interpretation of Ext.P4(a) Government order would lead to an unconstitutional result since there cannot be a discrimination effected in the matter of extension of 3[rd] time bound Higher Grade in a particular scale based solely on the date on which the clarification was effected by the Government. In other words, I am of the view that, the petitioners herein, who where the beneficiaries of the 2009 pay revision should also be entitled to the clarification in Ext.P4(a) order dated 11.06.2014 and the 3[rd] time bound Higher Grade applicable to the petitioners should be computed in the scale of pay of Junior Superintendent. Ext.P4(a) Government Order shall, therefore, be treated as granting the benefits aforementioned to the petitioners, and quashed to the extent it contemplates a denial of the benefits to those who became entitled to receive the Time -9- **W.P.(C).No.35011 of 2014 & con.cases** Bound Higher Grades prior to the date of the said order. As regards the further contention of counsel for the petitioners that the benefits of the higher scales of pay as applicable to the promotion posts of UDC and Head Clerk should apply to them also on the principle of equal pay for equal work, I am of the view that the said principle cannot apply in a situation where the denial of the higher scale of pay is solely for the reason that, unlike in the Government departments where the said promotion posts exist, in the establishment in which the petitioners were working, the said promotion posts do not exist. In the light of the aforesaid discussion, I am of the view that the respondents ought to recompute the entitlement of the petitioners herein to the benefit of the 1[st] , 2[nd] and 3[rd] time bound Higher Grades. The Deputy Director of Education concerned, who is arrayed as a respondent in all these writ petitions, shall effect a re-computation of the amounts payable to the petitioners by way of the 1[st] , 2[nd] and 3[rd] time bound Higher Grades based on the observations in this judgment, and thereafter, determine whether any excess amounts have been paid to the petitioners and if so -10- **W.P.(C).No.35011 of 2014 & con.cases** determine the amount, if any, that has been paid to the petitioners in excess for the purposes of recovery of the same from the retirement benefits that are due and payable to the petitioners. The Deputy Director of Education shall complete the exercise of re-computation as directed above within a period of two months from the date of receipt of a copy of this judgment after hearing the petitioners. I make it clear that, I have not expressed any opinion on the issue of whether recoveries can be effected at this distance of time from the petitioners in respect of amounts that were paid to them on various dates prior to their date of retirement from the establishment in question. ## W.P.(C).No.26536 of 2014: The petitioner herein entered service as Lower Division Clerk on 01.12.1994. She received the 1[st] Higher Grade on completion of 10 years of service on 01.12.2004 in the scale of U.D.Clerk. Thereafter on 11.12.2010, she was extended the 2[nd] Higher Grade in the scale of pay of Head Clerk. She retired from the school on attaining the age of superannuation on 31.03.2014 -11- **W.P.(C).No.35011 of 2014 & con.cases** before becoming entitled to the 3[rd] time bound Higher Grade. In the writ petition, the petitioner is aggrieved by the audit objection raised in Exts.P7, P8 and P10 documents whereby the alleged excess pay granted to her by way of 1[st] time bound Higher Grade in the scale of pay of U.D.Clerks is objected to, and the petitioner directed to refund the excess amount drawn by her. While, for reasons already stated in connection with the writ petitions referred above, I find that the objections raised in respect of the petitioner is legally sustainable since, the establishment where the petitioner was working did not have a post of U.D.Clerk as a promotion post to the post occupied by the petitioner, I find that, the objection with regard to the excess amounts paid to the petitioner in 2004, was raised only in 2014, much after the date of retirement of the petitioner from service. In this connection, I note that, it was not on account of any fault on the part of the petitioner that the fixation of pay in the higher scale of U.D.Clerk was effected and the petitioner could not have been in a position to know the erroneous nature of the fixation since the legal position itself was not very clear. Under the said circumstances, and relying on the decision of the Supreme Court in **State of Punjab** -12- **W.P.(C).No.35011 of 2014 & con.cases** ## **v. Rafiq Masih (While Washer) [2015 (1) KLT 429 (SC)],** I am of the view that, while the last drawn pay of the petitioner for the purposes of disbursement of pensionary benefits can be determined based on the corrected pay scale granted to the petitioner as time bound Higher Grade, the respondents shall not recover the excess amounts paid to the petitioner pursuant to Ext.P10 audit objection. The writ petition is, therefore, disposed by quashing Ext.P7, P8 and P10 and directing that the respondents can recompute the pensionary benefits due to the petitioner by taking the correct scale of pay applicable to the petitioner for the extension of 1[st] time bound Higher Grade, but shall not recover the excess amounts already paid to the petitioner. The writ petitions are disposed as above. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/18.08.16 -13- **W.P.(C).No.35011 of 2014 & con.cases**