Jyolsna G. v. State of Kerala and Others; Sreevidya P.V. v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 8[TH] DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944 WP(C) NO. 18402 OF 2021 ``` ## **`PETITIONER/S:`** ``` JYOLSNA.G, AGED 31 YEARS W/O. BIJUL K, UPPER PRIMARY SCHOOL TEACHER, MOOTHEDATH HIGHER SECONDARY SCHOOL TALIPARAMBA, TALIPARAMBA P.O., KANNUR DISTRICT, PIN-670141 RESIDING AT KONGINI HOUSE, ADIKKUMPARA P.O., TALIPARAMBA, KANNUR DISTRICT-670 141. ``` ``` BY ADV MURALI PALLATH ``` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVT., GENERAL EDUCATION DEPARTMENT, GOVT. SECRETARIAT (ANNEX II), THIRUVANANTHAPURAM, PIN-695 001.` - `2 THE PRINCIPAL SECRETARY TO GOVT. FINANCE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAURAM, PIN-695 001.` - `3 THE DIRECTOR OF GENERAL EDUCATION JAGATHY P.O., THIRUVANANTHAPURAM, PIN-695 014.` - `4 THE DEPUTY DIRECTOR OF EDUCATION KANNUR THANA P.O., KANNUR DISTRICT, PIN-670 002.` - `5 THE DISTRICT EDUCATIONAL OFFICER TALIPARAMBA, MINI CIVIL STATION, TALIPARAMBA, KANNUR DISTRICT, PIN-670 141.` - `6 THE HEADMASTER MOOTHEDATH HIGHER SECONDARY SCHOOL TALIPARAMBA, TALIPARAMBA P.O., KANNUR DISTRICT, PIN-670 141.` - `Addl.7 THE SUB TREASURY OFFICER, THALIPARAMBA IS SUO MOTU IMPLEADED AS PER ORDER DATED 8.2.2023 BY ADVS. ADVOCATE GENERAL OFFICE KERALA U.BALAGANGADHARAN` -2- W.P.(C) Nos. 18402 & 18576 of 2021 ``` SMT.M.R.SREELETHA, SPL.GOVERNMENT PLEADER(GP-31) ``` ## **`OTHER PRESENT:`** ``` SRI.K.M.FAISAL, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.02.2023, ALONG WITH WP(C).18576/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -3- W.P.(C) Nos. 18402 & 18576 of 2021 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 8[TH] DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944 ``` ## **`WP(C) NO. 18576 OF 2021`** ## **`PETITIONER/S:`** ``` SREEVIDYA P.V. AGED 34 YEARS W/O.GANESH A.V., HIGH SCHOOL TEACHER (MALAYALAM), MOOTHEDATH HIGHER SECONDARY SCHOOL TALIPARAMBA, TALIPARAMBA P.O., KANNUR DIST., PIN - 670 141 RESIDING AT 'THATHWAMASI', CHELERI P.O., KANNADIPARAMBA VIA., KANNUR DIST., PIN - 670 604. BY ADV MURALI PALLATH ``` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVT., GOVT. SECRETARIAT, THIRUVANANTHAPURM, PIN - 695 001.` - `2 THE SECRETARY GOVT. GENERAL EDUCATION DEPARTMENT, GOVT. SECRETARIAT (ANNEX II), THIRUVANANTHAPURAM, PIN - 695 001.` - `3 THE PRINCIPAL SECRETARY TO GOVT. FINANCE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.` - `4 THE DIRECTOR OF GENERAL EDUCATION JAGATHY, THYCAUD P.O., THIRUVANANTHAPURAM, PIN - 695 014.` - `5 THE DEPUTY DIRECTOR OF EDUCATION KANNUR THANA P.O., KANNUR DIST., PIN - 670 002.` - `6 THE DISTRICT EDUCATIONAL OFFICER TALIPARAMBA, MINI CIVIL STATION, TALIPARAMBA, KANNUR DIST., PIN - 670 141.` - `7 THE HEADMASTER` -4- W.P.(C) Nos. 18402 & 18576 of 2021 ``` MOOTHEDATH HIGHER SECONDARY SCHOOL TALIPARAMBA, TALIPARAMBA P.O., KANNUR DIST., PIN - 670 141. ``` ``` Addl.8THE SUB TREASURY OFFICER, THALIPARAMBA IS SUO MOTU IMPLEADED AS PER ORDER DATED 8.2.2023 BY ADV U.BALAGANGADHARAN ``` ## **`OTHER PRESENT:`** ``` SRI.K.M.FAISAL, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.02.2023, ALONG WITH WP(C).18402/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -5- W.P.(C) Nos. 18402 & 18576 of 2021 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== W.P.(C) Nos. 18402 & 18576 of 2021 ============================================================= Dated this the 8[th ] day of February, 2023 ## **JUDGMENT** These two writ petitions are connected and therefore, I am disposing of these two writ petitions by a common judgment. The prayers in these writ petitions are as follows: ## W.P.(C) No. 18402 of 2021 _“i. orders to set aside Ext.P4 circular to the extent to which it stands against disbursing arrear salary to the petitioner in cash._ _ii. Orders declaring that the petitioner is entitled for arrear salary for the period from 01.06.2018 to 31.05.2021 to be paid in cash except the statutory deductions._ _iii. issue a writ of mandamus commanding the 5th respondent to sanction the bill claiming arrear salary in respect of the petitioner without insisting for merging the entire salary and allowances into KASEPF account._ _iv. Orders commanding the respondents No.1 to 5 to pay the interest @ 9% to the petitioner for delayed payment of Rs.1144980/-(Rupees eleven lakh forty four thousand nine_ -6- W.P.(C) Nos. 18402 & 18576 of 2021 _hundred and eighty only) from 10.08.2021 (date of return of the bill by the 5th respondent) to the actual date of payment._ _v. any other writ or order that this Hon'ble court may deem fit in this case.”(sic)_ ## W.P.(C) No.18576 of 2021 _“i. Orders to set aside Ext. P4 circular to the extent to which it stands against disbursing arrear salary to the petitioner in cash._ _ii. Orders declaring that the petitioner is entitled for arrear salary for the period from 06.07.2019 to 31.05.2021 to be paid in cash except the statutory deductions._ _iii. Issue a writ of mandamus commanding the 6th respondent to sanction the bill claiming arrear salary in respect of the petitioner without insisting for merging the entire salary and allowances into KASEPF account._ _iv. Orders commanding the respondents No. 1 to 6 to pay the interest @9% to the petitioner for delayed payment of Rs. 854436/- (Rupees eight lakh fifty four thousand four hundred and thirty six only) from 10.08.2021 (date of return of the bill by the 6th respondent) to the actual date of payment._ _v. any other writ or order that this Hon'ble court may deem fit in this case.” (sic)_ -7- W.P.(C) Nos. 18402 & 18576 of 2021 2. When these writ petitions came up for consideration, the counsel for the petitioners submitted that the point raised is found in favour of the petitioners in judgment dated 05.01.2023 in WP(C) No.17115 of 2022 and the judgment dated 18.01.2023 in WP(C) No.19124 of 2022. This Court perused the above judgments. It will be better to extract paragraphs 10 to 24 in the judgment dated 05.01.2023 in WP(C) No.17115 of 2022. _“10. In Exhibit P12, after referring to G.O.(P) No. 29/2016, it is stated that in case of grant of approval being granted to aided school teachers/non-teaching staff with retrospective dates, the salary arrears for the period has to be deposited in their PF Account and the amount can be withdrawn only after 5 years from the date of the order granting approval._ _11. In this context, it would be relevant to note the context under which G.O.(P) No.29/2016 happened to be issued. In the year 2005, the Government in continuation to the earlier orders had ordered that the restriction on appointment on additional vacancies in Aided Schools shall continue from 2006-2007 onwards. However, in spite of the orders of the ban on appointments issued as above, some of the Aided School Managers appointed teachers and non-teaching staff in additional division vacancies. The Government by G.O. (P). No.10/10/G.Edn. dated 12.01.2010 lifted the ban and_ -8- W.P.(C) Nos. 18402 & 18576 of 2021 _permitted approval on conditions. Appointments made during the ban period were permitted to be approved provided they were in accordance with KER and on condition of the Managers of such schools appointing one protected teacher as against each such appointment approved. It also provided for all future appointments to be on a ratio of 1:1, by direct recruitment and by appointment of a protected teacher. The challenges made in respect of some of the conditions were laid to rest by a Division Bench of this Court in_ _**Nair Service Society v. Government of Kerala[1]** ._ _12. While so, the Government, taking note of the large number of litigations concerning approval and staff fixation orders, wanted to fix the anomaly and rectify the sad plight faced by the teachers. The Government came out with G.O. (P) No.199/2011/G.Edn. dated 01.10.2011 with the avowed objective of rectifying the anomalies. A Teacher’s Package was put in place as per which aggrieved teachers could be given regular appointments by ensuring that the pupilteacher ratio was as per the norms prescribed under the Right of Children to Free and Compulsory Education Act, 2009, and the Rules framed thereunder. The Government Orders were challenged before this Court, and a learned Single Judge took the view that the orders issued were beyond the executive powers of the Government. It appears that the Government accepted the observations and findings and brought out certain amendments to the KER itself. This action of the Government was challenged before this Court in W.P.(C) No.19008/2013. A Division Bench of this Court, after a meticulous analysis of the events which led to the_ 1 [2015 (2) KHC 725 (DB)] -9- W.P.(C) Nos. 18402 & 18576 of 2021 _amendment, disposed of the matter by issuing certain directions. It is in terms of the directions issued by this Court that G.O.(P) No. 29/2016 dated 29.1.2016 was issued by the Government. Direction No. II of G.O.(P) No. 29/2016 deals with staff fixation and grant of approval. Clauses (1), (2), (3), and (6) of Direction No.II is of some relevance, and the same is extracted herein below for easy reference._ II. തസിക നിർണയം, നിയമനാംഗീകാരം - (1) തസ്തിക നിർണ്ണയം, നിയമനാംഗീകാരം എന്നിവ ബഹു. ഹൈ ക്ക ോടതി വിധി അനുസരിച്ചു താഴെപ്പറയുന്ന ഖണ്ഡികകളിലെ നിർദ്ദേശങ്ങളുടെ അടിസ്ഥാനത്തിൽ നടത്തേണ്ടതാണ്. - (2) 2011 -12 വർഷം രാജി, മരണം, റിട്ടയർമെനറ, പ്രൊമമോഷൻ, സ്ഥലമാറ്റം എന്നീ ഒഴിവുകളിൽ നിയമിക്കപ്പെട്ടവർക്കു എൽ.പി യിൽ 1:30 ഉം യു;പിയിൽ 1:35 ഉം ഹൈ സ്കൂളിൽ 1:45 ഉം അനുപാതമനുസരിച്ചു തസ്തികകൾ ലഭ്യമാണെ ങ്കിൽ അംഗീകാരം നൽകാം. 2012-13, 2013-14, 2014-15, 2015-16 വർഷങ്ങളിൽ നടത്തിയ നിയമനങ്ങൾകക ക ോടതി വിധിക്കു അനുസൃതമായി (1 മുതൽ 5 വരെ ക്ലാസ്സുകൾകക 1:30, 6 മുതൽ 8 വരെ ക്ലാസ്സുകൾക 1:35, 9,10 ക്ലാസ്സുകളിൽ 1:45 എന്ന മുറയക്ക അംഗീകാരം നൽകേ ണ്ടതാണ്. - (3) 2011-12 വർഷം അധിക തസ്തികകളിൽ നിയമിക്കപ്പെട്ടവർക്കു കെ .ഇ.ആർ വ്യവസ്ഥ പ്രകാരം 1:45 അനുപാതത്തിൽ കുട്ടികൾ . - ലഭ്യമാണെ ങ്കിൽ മാത്രമേ അംഗീകാരം നൽകേ ണ്ടതുള്ളൂ പിന്നീടുള്ള വർഷങ്ങളിൽ ക ോടതി വിധിക്കു അനുസൃതമായി(1 -10- W.P.(C) Nos. 18402 & 18576 of 2021 മുതൽ 5 വരെ ക്ലാസ്സുകൾകക 1:30, 6 മുതൽ 8 വരെ ക്ലാസ്സുകൾക 1:35, 9, 10 ക്ലാസ്സുകളിൽ 1:45 എന്ന മുറയക്ക) അംഗീകാരം നൽകേ ണ്ടതാണ്. 2015 -16 മുതൽ അധിക തസ്തികകൾക കെ .ഇ.ആർ അധ്യായം XXIII ചട്ടം 12 ൽ വരുത്തിയ ഭേദഗതി അനുസരിച്ചു തസ്തിക നിർണ്ണയ തീയതി മുതൽ മാത്രമേ പ്രാബല്യം ഉണ്ടായിരിക് യുള്ളൂ. അധിക തസ്തികകൾ അനുവദിക്കുന്നതിന് കേ രളാ വിദ്യാഭ്യാസ ചട്ടങ്ങളിൽ നിഷ്കർഷിക്കുന്ന ഭൗതിക സാഹചര്യങ്ങൾ ഉണ്ടെന്നു AEO/DEO മാർ ഉറപ്പു വരുത്തേണ്ടതാണ്. ## XXXXX XXXXXX XXXXX - (6) അധ്യാപകർകക മേൽ ഉപ ഖണ്ഡിക (2), (3) എന്നിവ പ്രകാരം അംഗീകാരം നൽകുമ്പ ോൾ ഈ ഉത്തരവ് തീയതി വരെയുള്ള ശമ്പളവും അലവൻസുകളും അവരുടെ പ്ര ോവിഡനറ ഫണ ആരംഭിയ്ക്കുന്ന മുറയക്ക അതിൽ നിക്ഷേ പിക്കുന്നതാണ്. ഇപ്രകാരം പ്ര ോവിഡനറ ഫണ്ടിൽ നിക്ഷേ പിക്കുന്ന തുകയിൽ നിന ഷം - അഡ്വാൻസ് തുക പിൻവലിക്കുന്നതിന് 2020-21 നു ശേ മാത്രമേ അനുവദിക്കാവൂ. _13. What is stated in the above Government Order is that in the case of those vacancies that arose during the academic year 2011-2012 consequent to resignation, death, retirement, promotion, and transfer, approval can be granted on posts being available by maintaining a teacher-pupil ratio 1:30 for the LP Section, 1:35 for UP Section and 1:45 for the High School Section. It is also mentioned that insofar as appointments that were effected during 2012-2013, 2013-_ -11- W.P.(C) Nos. 18402 & 18576 of 2021 _2014, 2014-2015, and 2015-2016 are concerned, approval can be granted by ensuring that the above teacher-pupil ratio is maintained and available. In clause (6), it is mentioned that in respect of those teachers who are covered under clauses (2) and (3), salary and other allowances are to be deposited as and when their respective Provident Fund Account is opened, and the same can only be withdrawn after 2020-2021._ _14. Circular No. 6/2018/Fin. dated 10.1.2018, which is also referred to in Ext.P12 Circular, provides that the implications of G.O.(P) No. 29/2016 would not be applicable to teachers/non-teaching staff, who have already attained pensionable age/and are not liable to be included in the Provident Fund. A careful reading of G.O.(P) No.29/2016 and Circular No. 6/2018 would make it emphatically clear that the Government Order is applicable only to the specific category of appointees covered under Direction No. (II) (2) and (3) of G.O.(P) No.29/2016._ _15. Now the question is whether the Government, by means of a Circular issued by an Additional Secretary of the Finance Department, could have provided for the deferment of salaries and other allowances without recourse to law. In this context, it would be relevant to note that as per Section 9 of the Kerala Education Act, the Government is required to pay the salary of all teachers in Aided Schools directly or through the Headmaster of the school. The said provision also provides that the salary of the persons appointed in the non-teaching establishments in accordance with the rules so prescribed shall be paid by the Government. Section 12 of the Act provides that the conditions of service of teachers in Aided Schools, including conditions relating to pay, pension,_ -12- W.P.(C) Nos. 18402 & 18576 of 2021 _provident fund, insurance, and age of retirement, shall be such as may be prescribed by the Government. As per the Kerala Financial Code Vol.I, Chapter-IV, the salary of employees, including Full-Time and Part-Time Contingent Employees and establishment staff for a month, will be disbursed during the first three working days of the succeeding month according to the schedule prescribed therein. In the case on hand, the RDD had issued orders for approval of the appointment of the petitioner with effect from 30.08.2013. It is undisputed that the petitioner had been working as HSST (Political Science) from the day on which approval has been granted._ _16. This Court, in_ _**Sunil John Mathew v. Lency K.L.[2] ,** has held that a Circular issued by the General Education Department cannot interpret the order issued by the Government invoking its executive powers. It was further held that the Circular can, at best, be considered as an understanding of the officer in the General Education Department, and it would not inure to the benefit of the Government._ _17. G.O.(P) No. 29/2016 was issued by the Government in the name of the Governor to comply with the directions issued by this Court in W.P.(C) No.19008/2013. The said Government Order, while granting approval to a certain category of teachers, had also imposed certain conditions with regard to the deposit of arrears of salary in the Provident Fund Account of the teacher concerned. The petitioner herein, admittedly, is not covered under the Government Order, and his approval was not granted on the strength of the same. The impugned Circular issued by the_ 2 [2019 KHC 3534] -13- W.P.(C) Nos. 18402 & 18576 of 2021 _Additional Secretary travels much beyond the scope of the Original Government Order and imposes restrictions which were not even been contemplated by the Government. In other words, the Circular issued by the Additional Secretary imposes restrictions on the payment of salary and other allowances, to which a teacher like the petitioner is entitled, in terms of the provisions of the Kerala Education Act and the Rules framed thereunder, on being granted approval. The said right cannot be curtained, cabined, or limited by a Circular issued by a Secretary by riding on a Government order, which is intended to apply to appointees falling in a different category._ _18. Smt. Nisha Bose, the learned Government Pleader, would argue by relying on_ _**Sudheer C.B. v. State of Kerala[3]** that an Additional Secretary can take a decision on behalf of the Government, and according to her, a Government Order issued in the name of the Governor can be clarified or modified by a Government letter. As per the provisions of the Act and the Rules and also the Kerala Financial Code, the petitioner is entitled to salary from the date of grant of approval. As held by this Court in_ _**Daisy** (supra), it is not proper and fair on the part of the respondents to refuse the disbursal of the salary due to the teacher after extracting service from him, be it on account of financial constraints or any other reason._ _19. The petitioner has raised a contention that the withholding of salary for the period he had worked would be violative of the rights guaranteed to him under Articles 21 and 300-A of the Constitution of India. In_ _**Dinavahi**_ 3 [2010 (1) KHC 39] -14- W.P.(C) Nos. 18402 & 18576 of 2021 _**Lakshmi Kameshwari v. State of Andhra Pradesh[4]** , the question before the Division Bench of the High Court of Andhra Pradesh was whether deferment of part of salary to the Government servants for the months of March and April 2020 and deferment of part of the pension to the retired Government servants for the month of March 2020, is permitted by any authority of law and whether it would be violative of Articles 21 and 300-A of the Constitution of India. The State, faced with the economic consequences of the lockdown and the cessation of revenue inflows, and the extra burden imposed on the State resources, had ordered the deferment of salaries/ wages/ remuneration/ honorarium/ pension by following a pattern. While ordering to pay the deferred salary/pension and other emoluments with interest @ 12% per annum, it was observed as follows in paragraph Nos. 42 to 45 and 48 to 60 of the judgment:_ 42. The word ‘salary’ is not defined in any enactment, but salary is a fixed regular payment, typically paid on a monthly basis but often expressed as an annual sum, made by an employer to an employee. Thus, salary is a form of payment from an employer to an employee, which may be specified in an employment contract. It is contrasted with piece wages, where each job, hour, or other unit is paid separately, rather than on a periodic basis. In accounting, salaries are recorded on payroll accounts. Though the word ‘salary’ was not specifically defined under any statute, the Court may fall back on the law laid down by the Apex Court in various judgments and dictionary meaning of salary. 43. According to Cambridge dictionary, “salary” is - 4 [2020 SCC Online AP 600] -15- W.P.(C) Nos. 18402 & 18576 of 2021 defined as the total amount of money that an employee is paid every year to do their job, or one of the payments they receive each month as part of the job. 44. In Collins dictionary, “salary” is the money that someone is paid each month by their employer. 45. The word ‘property’ is inclusive of both movable and immovable property, both pension and salary payable to an employee can be said to be part of the property, as held by the Apex Court in Madhav Rao Scindia v. Union of India17, where the Apex Court opined that that Prievy Purse payable to exrulers is property. In K. Nagraj v. State of A.P (AIR 1985 SC 553), Apex Court opined that right of person to his livelihood is property which is subject to rules of retirement. In State of Kerala v. Padmanabhan (AIR 1985 SC 356) the Apex Court opined that right of pension is property under the Government service Rules, In Madhav Rao Scindia v. State of M.P (AIR 1971 SC 530) and State of M.P. v. Ranojirao (AIR 1968 SC 1053) the Apex Court opined that property in the context of Article 300A includes ‘money’, salary accrued pension, and cash grants annually payable by the Government; pension due under Government Service Rules; a right to bonus and other sums due to employees under statute. xxxxxxx xxxxxxxx xxxxxxx xxxxxxxx 48. Payment of salary or pension to the employees is only to eke out their livelihood during their service by way of salary and after retirement by way of pension. If, whole or part of the salary or pension is deferred, it amounts to denial of right to life -16- W.P.(C) Nos. 18402 & 18576 of 2021 guaranteed under Article 21 of the Constitution of India. Initially, right to livelihood was not recognized as fundamental right under Article 21 of the Constitution of India. But, later it was recognized as Fundamental Right by judicial interpretation to Article 21 of the Constitution of India. 49. Article 21 of the Constitution of India guarantees right to life. The right to life includes the right to livelihood. Time and again the Courts in India held that Article 21 is one of the great silences of the Constitution. The right to livelihood cannot be subjected to individual fancies of the persons in authority. The sweep of the right to life conferred by Article 21 is wide and far reaching. An important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. 50. In Re: Sant Ram (AIR 1960 SC 932) a case which arose before “Maneka Gandhi v. Union of India” (AIR 1978 SC 597), the Supreme Court ruled that the right to livelihood would not fall within the expression “life” in Article 21. The Court observed: - “The argument that the word “life” in Article 21 of the Constitution includes “livelihood” has only to be rejected. The question of livelihood has not in terms been dealt with by Article 21.” 51. In “Olga Tellis v. Bombay Municipal Corporation24” -17- W.P.(C) Nos. 18402 & 18576 of 2021 the Apex Court held as follows: “If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21.” 52. The right to live with human dignity, free from exploitation is enshrined in Article 21 and derives its life breadth from the Directive Principles of State Policy and particularly Clauses (e) and (f) of Article 39 and Articles 41 and 42 and at least, therefore, it must include the right to live with human dignity, the right to take any action which will deprive a person of enjoyment of basic right to live with dignity as an integral part of the constitutional right guaranteed under Article 21 of the Constitution of India. 53. In “Delhi Transport Corporation v. D.T.C. Mazdoor Congress25”, the Supreme Court while reiterating the principle observed that the right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. Income is the foundation of many fundamental rights. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them. -18- W.P.(C) Nos. 18402 & 18576 of 2021 54. The Apex Court in various judgments interpreted the right to livelihood is a part of right to life under Article 21 of the Constitution of India and it is relevant to refer the principle in “M. Paul Anthony v. Bharat Gold Mines Limited26, the Apex Court held that when a government servant or one in a public undertaking is suspended pending a departmental disciplinary inquiry against him, subsistence allowance must be paid to him. The Court has emphasized that a government servant does not loose his right to life. However, if a person is deprived of such a right according to the procedure established by law which must be fair, just and reasonable and which is in the larger interest of people, the plea of deprivation of the right to livelihood under Article 21 is unsustainable. 55. Thus, in view of the law laid down by the Apex Court in various judgments (referred supra), widening the meaning of word ‘right to life’ includes ‘right to livelihood’, right to livelihood is a fundamental right, and it is an integral part of right to life guaranteed under Article 21 of the Constitution of India. Therefore, non-payment of part of eligible salary and pension to the employees in service and to the employees retired from service by issuing G.O. Ms. No. 26 dated 31.03.2020 and G.O. Ms. No. 37 dated 26.04.2020 is violative of Article 21 of the Constitution of India. 56. The major contention of the petitioner from the beginning is that, deferment of part of salary and non-payment of pension as stated above, is contravention of Article 300 of the Constitution of India. No doubt, as per Article 300-A of the -19- W.P.(C) Nos. 18402 & 18576 of 2021 Constitution of India, no citizen of India be deprived of his/her right to property, except by authority of law. As salary and pension form part of property of an individual to attract Article 300-A of the Constitution of India, such right cannot be taken away except by authority of law. 57. On a bare look at Article 300-A of the Constitution of India, any citizen of India cannot be deprived of their right to property, except by authority under law. That means a property of any citizen of India cannot be taken unless the State is authorized to do so. In Shapoor M. Mehra v. Allahabad Bank (2013) 3 Mah LJ 126, wherein Bombay High Court opined that retiral benefits including pension and gratuity constitute a valuable right in property. 58. In Deoki Nandan Prasad v. State of Bihar (1971) 2 SCC 330, the Apex Court held as follows: - “(i) The right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no powers to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by sub-article (5) of Article 19. Therefore, it follows that the order denying the petitioner right to receive pension affects the fundamental right of the petitioner under Article 19(1)(f) and 31(1) of the Constitution and as such the writ petition under Article 32 is maintainable.” - (ii) In the light of aforesaid legal position, it is crystal clear that right to get the aforesaid benefits is constitutional right. Gratuity or retiral dues can be withheld or reduced only as per provision made under M.P. Civil -20- W.P.(C) Nos. 18402 & 18576 of 2021 Services (Pension) Rules, 1976. In the present case, there is no material on record to show that respondents have taken any action in invoking the said rules to stop or withhold gratuity or other dues…” 59. Thus, both salary and pension payable to the employees in service or retired from service falls within the definition of property under Article 300A of the Constitution of India. 60. Though the Constitution of India permits the State to deprive any person's right in property by authority of law, the respondents were unable to show any provision which authorized the State to defer payment of part of salary/pension to the employees in service or retired from service. In the absence of any statute governing deferment of salary or pension, deprivation of right to property by employees in service or retired employees would amount to violation of constitutional right guaranteed under Article 300A of the Constitution of India. _20. Their Lordships held that the non-payment of the part of eligible salary and pension to the employees in service and to the employees retired from service by issuing Government Orders would be violative of Article 21 of the Constitution of India. It was also held that under Article 300-A of the Constitution of India, no citizen of India be deprived of his/her right to property, except by authority of law. As salary forms part of the property of an individual to attract Article 300-A of the Constitution of India, such right cannot be taken away except by authority of law. By issuance of a mere executive order, the State had no powers_ -21- W.P.(C) Nos. 18402 & 18576 of 2021 _to withhold the same. The Apex Court in_ _**Bishambhar Dayal Chandra Mohan v. State of Uttar Pradesh[5]** , while deciding the issue with reference to Article 300-A of the Constitution of India, defined the word “authority of law,” and it was held that Article 300-A provides that no person shall be deprived of his property save by authority of law. The State Government cannot, while taking recourse to the executive power of the State under Article 162, deprive a person of his property. Such power can be exercised only by the authority of law and not by a mere executive fiat or order. Article 162, as is clear from the opening words, is subject to other provisions of the Constitution. It is, therefore, necessarily subject to Article 300-A. The word ‘law’ in the context of Article 300-A must mean an Act of Parliament or of a State Legislature, a rule, or a statutory order; having the force of law, that is, positive or State-made law. The respondents have not been able to refer to any law enacted by the legislature enabling them to defer the salary of the petitioner or to credit the same to the PF Account and permitting him to obtain the same only after five years._ _21. The above judgment rendered by the High Court was taken up in appeal before the Hon’ble Supreme Court by the State. In_ _**State of Andhra Pradesh and Another v. Smt. Dinavahi Lakshmi Kameswari** (Judgment 08.02.2021 in Civil Appeal No. 399/2021), the Apex Court, while dismissing the appeal observed as follows in paragraph Nos. 14 and 15 of the judgment._ 14. The direction for the payment of the deferred portions of the salaries and pensions is unexceptionable. Salaries are due to the employees 5 [AIR 1982 SC 33] -22- W.P.(C) Nos. 18402 & 18576 of 2021 of the State for services rendered. Salaries in other words constitute the rightful entitlement of the employees and are payable in accordance with law. Likewise, it is well settled that the payment of pension is for years of past service rendered by the pensioners to the State. Pensions are hence a matter of a rightful entitlement recognised by the applicable rules and regulations which govern the service of the employees of the State. The State Government has complied with the directions of this Court for the payment of the outstanding dues in two tranches. Insofar as the interest is concerned, we are of the view that the rate of 12% per annum which has been fixed by the High Court should be suitably scaled down. While learned counsel for the respondents submits that the award of interest was on account of the action of the Government which was contrary to law, we are of the view that the payment of interest cannot be used as a means to penalize the State Government. There can be no gainsaying the fact that the Government which has delayed the payment of salaries and pensions should be directed to pay interest at an appropriate rate. 15. We accordingly order and direct that in substitution of the interest rate of 12% per annum which has been awarded by the High Court, the Government of Andhra Pradesh shall pay simple interest computed at the rate of 6% per annum on account of deferred -23- W.P.(C) Nos. 18402 & 18576 of 2021 salaries and pensions within a period of thirty days from today. This direction shall, however in the facts and circumstances, be confined to categories 3, 4, 5 and 6 of GOMs No 26 dated 31 March 2020. We clarify that interest shall be paid to all pensioners of the State at the rate of 6% per annum on the deferred portion, for the period of delay. Having regard to the prevailing bank interest, the rate of 12% per annum which has been fixed by the High Court, would need to be and is accordingly reduced. 22. The Hon’ble Supreme Court refused to interfere with the well-reasoned and erudite judgment rendered by the Division Bench of the High Court of Andhra Pradesh. I am of the view that the findings and observations would equally apply in the facts and circumstances of the instant case. 23. I find that a learned Single Judge of this Court by Ext.P13 judgment had occasion to direct the respondents to disburse the salary and other allowance after accepting the contention of the petitioner therein that Ext.P12 circular would apply only to those persons who were granted approval on the strength of G.O.(P) No. 29/2016. Furthermore, by Ext.P7 judgment dated 09.03.2021, this Court had directed the RDD, Kozhikode, to take up the proposal for approval of the appointment of the petitioner with effect from 30.08.2013 and had also ordered to disburse all the consequent benefits, including salary. _24. I fail to understand the reasoning behind the contention in the counter affidavit filed by the respondents that the arrears are not withheld or deferred but are being_ -24- W.P.(C) Nos. 18402 & 18576 of 2021 _credited to their own PF Account and that the teachers would obtain interest for the same and therefore, the grievances projected by them have no basis. The specific case of the petitioner in the instant case is that being qualified to be appointed as HSST (Political Science), the petitioner had been taking classes from the academic year 2011-2012. The post was sanctioned by the Government by Exhibit P2 order dated 15.07.2013. Finally, it was by Exhibit P8 that approval was finally granted with effect from 30.08.2013. The sanctioning order issued by the Principal of the School would reveal that the petitioner had actually rendered service from 01.09.2013 onwards, and approval was only granted on 04.08.2021. It would seem that the respondents have not contemplated how difficult and tough it would have been for the petitioner to work almost eight years without pay. The learned counsel for the petitioner has stated that the petitioner is 44 years old and has a family to provide for. For teachers like the petitioner, who have families to support and other fixed costs like rent, loan, or mortgage, going without pay can be extremely difficult. If teachers are made to work for many years without pay, it would be, without any doubt, quite disheartening for them. The teachers’ morale and drive would plummet, and this would reflect in his/her classroom performance. He or she will be under a lot of pressure, worrying about where and when they will get the money to take care of their family. It will be an uphill battle for the teacher to provide for his/her family throughout his/her life, and he/she won't be able to afford medical treatment or insurance during his/her prime earning years. Such a stressful life can also lead to mental and physical health issues. The respondents appear to have_ -25- W.P.(C) Nos. 18402 & 18576 of 2021 _been oblivious to all these considerations when they came up with the impugned order._ 3. In the light of the same, I think the prayers in these writ petitions are to be allowed. The counsel for the petitioners submitted that in these writ petitions, the Headmaster submitted the bill before the District Educational Officer and the District Educational Officer returned the same in the light of Ext.P4 circular. Now, in the light of the judgment of this Court, the District Educational Officer has to consider the arrear bill and sanction the same if it is otherwise in order and the treasury officer will disburse the amount also in accordance with law. Therefore, these writ petitions are disposed of in the following manner: 1. The Headmaster of the school is directed to submit the bill for arrears of salary to the District Educational Officer, Taliparamba as expeditiously as possible, at any rate within two weeks from the date of receipt of a copy of this judgment. -26- W.P.(C) Nos. 18402 & 18576 of 2021 2. The District Educational Officer, Taliparamba will take appropriate steps and sanction the bill and the Sub Treasury Officer, Thaliparamba will disburse the amount, as expeditiously as possible, at any rate within three months from the date of receipt of the bill from the Headmaster. 3. The question of payment of interest is left open and the petitioner is free to take appropriate steps in accordance with law. **sd/-** ## **P.V.KUNHIKRISHNAN JUDGE** das -27- W.P.(C) Nos. 18402 & 18576 of 2021 ## **`APPENDIX OF WP(C) 18576/2021`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF APPOINTMENT ORDER DATED 06/06/2019. Exhibit P2TRUE COPY OF ORDER NO.B1/11683/19 DATED 30/03/2021. Exhibit P3TRUE COPY OF FIRST PAGE OF THE BILL BEARING THE ENDORSEMENT DATED 10/08/2021. Exhibit P4TRUE COPY OF CIRCULAR NO.7/2021/FIN. DATED 27/01/2021. Exhibit P5TRUE COPY OF CIRCULAR NO.06/2018/FIN. DATED 10/01/2018. ``` -28- W.P.(C) Nos. 18402 & 18576 of 2021 ## **`APPENDIX OF WP(C) 18402/2021`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF APPOINTMENT ORDER DATED 1.6.2018. Exhibit P2TRUE COPY OF ORDER NO.B1/22225/2021 DATED 21.4.2021. Exhibit P3TRUE COPY OF FIRST PAGE OF THE BILL BEARING THE ENDORSEMENT DATED 10.8.2021. Exhibit P4TRUE COPY OF CIRCULAR NO.7/2021/FIN. DATED 27.1.2021. Exhibit P5TRUE COPY OF CIRCULAR NO.06/2018/FIN. DATED 10.1.2018. ```