K. Pankajakshan v State of Kerala and Others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Devan Ramachandran
Judgment Date: 2021-02-16
Court Decision / Holding: Writ petition partly allowed; Exts.P7 and P11 quashed and no recovery of the higher grade payments will be effected; liberty granted to the petitioner to approach the Government for parity relief in Government vs. aided service, to be considered by the competent authority within one month from receipt of the judgment, without undue delay.
Final Disposition: Writ petition allowed in part; Exts.P7 and P11 quashed; no recovery; liberty to seek parity relief from Government within one month, if pursued.

Parties to the Case

Appellants / Petitioners

K. Pankajakshan

Respondents

State of Kerala
Deputy Director of Education, Kannur
District Educational Officer, Kannur
Director of General Education
Headmistress, Anjarakandy Higher Secondary School

Legal Representation & Advocates

Counsels for Petitioners

• P. M. Pareeth (Advocate)

Counsels for Respondents

• Divya C. Balan, Government Pleader

Case Synopsis & Summary

The petitioner, a Lower Division Clerk appointed by transfer in 1995 at Anjarakandy Higher Secondary School, claimed that he had been improperly granted higher grades (Upper Division Clerk, Head Clerk, Junior Superintendent) on completion of the required service period. About fourteen years later, Audit objections asserted that there were no authorized avenues for such promotions in aided schools, so the higher grades could not be retained. The petitioner invoked the principle of equal pay for equal work, noting that Government employees in similar posts receive promotional benefits and that subsequent pay orders continued these benefits, unlike in aided schools. Based on these contentions, Exts.P7 and P11 were issued seeking recovery of the excess amounts paid. The Government Pleader argued that the promotions were unauthorized and recoverable, and that parity with Government service for aided schools is a policy decision beyond the court’s reach. The Court acknowledged two core issues: (i) recovery of excess payments made more than five years prior, relying on Rafiq Masih to permit no recovery in such circumstances, and (ii) the policy-laden question of parity between Government and aided services, which lies outside judicial compulsion and requires executive decisions. The Court quashed Exts.P7 and P11, preventing recovery, while granting liberty to pursue parity relief through proper governmental channels within a month, if desired.

Provisions of Law Cited

Kerala Education Act and Rules

Legal Doctrines & Maxims

Equal pay for equal work
Parity between Government and aided service is a policy decision of the Government

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that recovery of the excess payments is impermissible under the ratio in State of Punjab and Others v. Rafiq Masih (White Washer) (2015) 4 SCC 334; equal pay for equal work requires parity with government employees who receive promotional grades; the earlier promotions were based on established schemes and, after 14 years, cannot be nullified retroactively without violating legitimate expectations; the respondent authorities acted beyond legal bounds in recovering the amounts, and the court should direct non-recovery and consider parity within law.

Contentions of Respondents

The respondents submit that the higher grades were granted without legal authorization and that recovery is legally permissible; parity with government schools is a policy issue, not a legal entitlement enforceable by judicial mandate; the court should dismiss the petition or refrain from issuing directions that encroach on executive domain.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
State of Punjab and Others v. Rafiq Masih (White Washer)	2015(4) SCC 334	Positive	Used to support the proposition that recoveries of excess payments beyond a five-year window are impermissible; applied to quash recovery in the present case.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942** ## **WP(C).No.28466 OF 2019(G)** ## **PETITIONER:** **K.PANKAJAKSHAN, AGED 52 YEARS LOWER DIVISION CLERK, ANJARAKANDY HIGHER SECONDARY SCHOOL, P.O.ANJARAKANDY, KANNUR DISTRICT-670612.** **BY ADV. SRI.P.M.PAREETH** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY SECRETARY TO GOVERNMENT,**| ||**FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695 001.**| |**2**|**DEPUTY DIRECTOR OF EDUCATION,**| ||**KANNUR, KANNUR DISTRICT-670 001.**| |**3**|**DISTRICT EDUCATIONAL OFFICER,**| ||**KANNUR, KANNUR DISTRICT-670 001.**| |**4**|**DIRECTOR OF GENERAL EDUCATION,**| ||**THIRUVANANTHAPURAM-695 014.**| |**5**|**HEADMISTRESS,**| ||**ANJARAKANDY HIGHER SECONDARY SCHOOL,**| ||**P.O.ANJARAKANDY, KANNUR DISTRICT-670612.**| ||**R1-4 SMT. DIVYA C. BALAN,GOVERNMENT PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.28466 OF 2019(G)** **2** ## **JUDGMENT** The petitioner says that he was appointed by transfer as Lower Division Clerk with effect from 02.05.1995 and that he had been granted higher grades in the scales of pay of Upper Division Clerk, Head Clerk and Junior Superintendent, on completion of the prescribed period of service. He says that however, nearly 14 years after he had been given these benefits, objections were raised by the Audit on the ground that there are no promotional avenues for Lower Division Clerks as Upper Division Clerk or Head Clerk in aided schools and therefore, that the only scale of pay, as the applicable pay revision, could have been granted. The petitioner asserts that this in violation of the principles of equal pay for equal work, because in the Government service, such promotional avenues have been provided and that, even in the subsequent pay ordersincluding the latest one, such benefits have been given to the employees of the Government schools, but not to those **WP(C).No.28466 OF 2019(G)** **3** working in aided schools. The petitioner further submits that, based on the Audit objection raised as afore, steps have now been taken to recover amounts from him, alleging that grant of Higher Grade was irregular; and he contends that this is wholly illegal, going by the judgment of the Hon'ble Supreme Court in **State of Punjab and Others v. Rafiq Masih (White Washer) [2015(4) SCC 334]** . He thus assails Ext.P7 and Ext.P11 and prays that the same be set aside. In response to the afore submissions made by the learned counsel for the petitioner -Sri.P.M.Pareeth, the learned Government Pleader-Smt.Divya C. Balan submitted that the orders of recovery against the petitioner, made through Exts.P7 and Ext.P11, are irreproachable, since it is evident that the grades granted to him in the posts of Upper Division Clerk, Head Clerk and Junior Superintendent have been done unauthorizedly, since he was not entitled to the same as per law. She submitted that since the said benefits had been granted to the petitioner illegally, the competent **WP(C).No.28466 OF 2019(G)** **4** Authorities were competent to recover the same as per law. On the aspect of parity between Government service and aided service, as sought for by the petitioner, the learned Government Pleader submitted that this is not something that he can seek as a matter of right and is in the realm of “policy decision making” of Government and therefore, that this Court may not pass any affirmative direction on this. He therefore, prayed that this writ petition be dismissed. It is obvious from the assessment of the rival submissions above, that there are two broad contentions impelled by the petitioner, namely: a) that amounts were already paid to him, based on the earlier grant of grades, cannot be recovered after a period of more than 14 years, going by the ratio in **Rafiq Masih** (supra) and (b) that no such recovery is possible because the staff of aided schools are also entitled to parity with the service condition in Government schools, on the principle of equal pay for equal work. **WP(C).No.28466 OF 2019(G)** **5** 4. On the first aspect, I find favour with the petitioner because, when one reads paragraph 12(iii) of **Rafiq Masih** (supra), the Hon'ble Supreme Court has made it very clear that recoveries from employees would be impermissible in law where the excess payment has been made for a period in excess of five years before the said order of recovery is issued. In the case at hand, it is without doubt that the petitioner had been given the benefit of Higher Grade Pay for valid and without any fault that can be attributed to him. Further, the payment now sought to be recovered was paid to the petitioner more than 14 years ago and obviously, therefore, **Rafiq Masih** (supra) applies in full force to the facts of this case. 5. That said, as regards the second issue, I cannot find favour with the petitioner because this Court is jurisdictionally incompetent to direct that service condition in the aided schools should be granted full parity with that of Government schools, even when it is admitted that the applicable Rules and Regulations do not provide for such. The **WP(C).No.28466 OF 2019(G)** **6** service conditions of the Aided school teachers are governed exclusively by the provisions of the Kerala Education Act and Rules; and as long as the Government does not take a decision which is within their policy decision making realm- to equate these two categories of services, it would be impermissible for this Court to make an affirmative declaration on it. 6. In a litigation of this nature, I can, at the best, only leave liberty to the petitioner to approach the competent authority of the Government for such relief, if he is so interested. 7. In the afore circumstances, I order this writ petition and quash Exts.P7 and P11, thus ordering that no recovery will be made against the petitioner with respect to the Higher Grades that were granted to him more than 14 years ago in the posts of Upper Division Clerk, Head Clerk and Junior Superintendent. As regards the petitioner's claim for parity between Government service and aided services is concerned, I leave **WP(C).No.28466 OF 2019(G)** **7** liberty to him to approach the Government with an appropriate representation, if he so is interested; and if this is done within a period of one month from the date of receipt of a copy of this judgment, its competent authority will consider the same in terms of law without any avoidable delay. ## **Sd/-** ## **DEVAN RAMACHANDRAN** **JUDGE** **LEK** **WP(C).No.28466 OF 2019(G)** **8** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE PHOTOCOPY OF THE GO(MS) NO 96/73/SEDN DATED 22.6.1973.** **EXHIBIT P1(a) A TRUE PHOTOCOPY OF THE GO(MS) NO 438/80/212 DATED 7.7.1980.** **EXHIBIT P2 A TRUE PHOTOCOPY OF THE GOP NO 939/80/ (270) FIN DATED 19.12.1980. EXHIBIT P3 A TRUE PHOTOCOPY OF THE GO (MS) NO 165/83/G EDN DATED 3.9.1983. EXHIBIT P4 A TRUE PHOTOCOPY OF THE GO (MS) NO 1605/99/29/FIN DATED 20.7.1999** - **EXHIBIT P4(a) A TRUE PHOTOCOPY OF THE GO(MS) NO 216/2014/(192) FIN DATED 11.6.2014** - **EXHIBIT P4(b) A TRUE PHOTOCOPY OF THE RELEVANT PAGE GO(P) NO 3000/98/FIN DATED 25.11.1998 WITH TIME BOUND HIGHER GRADE PROMOTIONS SCHEME** - **EXHIBIT P4(c) A TRUE PHOTOCOPY OF THE SECOND PAGE OF SERVICE BOOK OF THE PETITIONER** - **EXHIBIT P5 A TRUE PHOTOCOPY OF THE STATEMENT OF FIXATION OF PAY IN THE HIGHER GRADE DATED 2.5.2005 AND THE ORDER SANCTIONING HIGHER GRADE DATED 12.5.2005 ISSUED BY THE 3RD RESPONDENT** - **EXHIBIT P5(a) A TRUE PHOTOCOPY OF THE STATEMENT OF FIXATION OF PAY IN THE REVISED SCALE OF THE FIRST HIGHER GRADE DATED 22.8.2006 INTRODUCING 2006 PAY REVISION** **EXHIBIT P5(b) A TRUE PHOTOCOPY OF THE STATEMENT OF FIXATION OF PAY IN THE SENIOR GRADE DATED 30.11.2011 AND THE ORDER** ## **WP(C).No.28466 OF 2019(G)** **9** **SANCTIONING HIGHER GRADE DATED 30.11.2011 ISSUED BY THE 3RD RESPONDENT EXHIBIT P5(c) A TRUE PHOTOCOPY OF THE STATEMENT OF FIXATION OF PAY IN THE REVISED PAY SCALE SANCTIONED IN THE PAY REVISION GO(P) NO 85/2011/FIN DATED 26.2.2011 R/W GO (P) NO 143/2011 FIN DATED 30.3.2011 EXHIBIT P5(d) A TRUE PHOTOCOPY OF THE STATEMENT OF FIXATION OF PAY IN THE REVISED PAY SCALE SANCTIONED IN THE PAY REVISION OG (P) NO 7/2016/FIN DATED 20.1.2016 EXHIBIT P6 A TRUE PHOTOCOPY OF THE STATEMENT OF FIXATION OF PAY IN THE 3RD HIGHER GRADE DATED 28.11.2017 AND THE ORDER SANCTIONING SELECTION GRADE DATED 28.11.2017 ISSUED BY THE 3RD RESPONDENT EXHIBIT P7 A TRUE PHOTOCOPY OF THE AUDIT OBJECTION DATED 8.2.2018 FORWARDED BY THE 3RD RESPONDENT AS PER LETTER DATED 6.3.2018 EXHIBIT P8 A TRUE PHOTOCOPY OF THE REPLY DATED 27.4.2018 SUBMITTED BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT EXHIBIT P9 A TRUE PHOTO COPY OF THE REPRESENTATION DATED 28.1.2019 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT EXHIBIT P10 A TRUE PHOTO COPY OF THE JUDGMENT DATED 5.2.2019 IN WP(C) NO 3401/2019 EXHIBIT P11 A TRUE PHOTO COPY OF THE GOVERNMENT LETTER NO 1100742/PRCA3/19/FINANCE DATED 18.7.2019 EXHIBIT P12 A TRUE PHOTO COPY OF THE GO(MS) NO 16/2010/GEDN DATED 18.1.2010**