K. RAVEENDRANATH v. STATE OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 8TH DAY OF JANUARY 2016/18TH POUSHA, 1937** **WP(C).No. 9238 of 2013 (D) ---------------------------** **PETITIONER:** **-----------** **K. RAVEENDRANATH AGED 50 YEARS HIGHER SECONDARY SCHOOL TEAHCER PRMK HIGHER SECONDARY SCHOOL, P.O.THUVAKUNNU RESIDING AT KUNIYIL, P.O.CHERUPARMABA KANNUR DISTRICT-670693.** **BY ADVS.SRI.P.M.PAREETH SRI.MOHAMMED SHAMEEL** **RESPONDENTS:** - **------------** **1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. DIRECTOR OF HIGHER SECONDARY EDUCATION HOUSING BOARD BUILDING, SHANTHI NAGAR THIRUVANANTHAPURAM.695001** **3. REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION KOZHIKODE-673001.** ## **4. MANAGER** **PRMK HIGHER SECONDARY SCHOOL, P.O.THUVAKUNNU KANNUR DISTRICT.673001** ## **SRI.G.GOPAKUMAR, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RKC** ## **WP(C).No. 9238 of 2013 (D) ---------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **---------------------** **EXHIBIT P1 : TRUE COPY OF THE APPROVAL ORDER NO.ACD.C2/18615/HSE/01 DT.25-7-2005.** **EXHIBIT P2 : TRUE COPY OF THE APPROVAL ORDER NO.ACD.C2/18615/HSE/01 DT.10-7-2007 ISSUED BY R2.** **EXHIBIT P3 : TRUE COPY OF THE GO(MS)NO.351/04/GEDN. DT.20-11-2004.** **EXHIBIT P3(A) : TRUE COPY OF THE JUDGMENT DT.30-3-1999 IN OP 11408/95.** **EXHIBIT P4 : TRUE COPY OF THE GO(MS)NO.162/98/GEDN.DT.13-5-1998.** **EXHIBIT P5 : TRUE COPY OF THE PAY FIXATION ORDER DT.29-12-2008 ISSUED BY THE PRINCIPAL, PRKMHSS.** **EXHIBIT P6 : TRUE COPY OF THE ORDER NO. ACD A4/18615/HSE/01(4) DT.8.6.2009.** **EXHIBIT P7 : TRUE COPY OF THE REPRESENTATION DT.24-10-2011 SUBMITTED BEFORE R1.** **EXHIBIT P8 : TRUE COPY OF THE REVIEW PETITION DT.7-3-2012 SUBMITTED BY THE PETITIONER BEFORE R2.** ## **RESPONDENTS' EXHIBITS: NIL** ## **RKC** **TRUE COPY** **PA TO JUDGE** **“CR”** ## **P.V.ASHA, J.** ## **W.P.(C) No.9238 of 2013** ## **Dated this the 8[th] day of January, 2016** ## **JUDGMENT** The petitioner who has been working as Higher Secondary School Teacher (hereinafter referred to as 'HSST' for short) in Economics since 4.7.2001 has filed this writ petition challenging Ext.P6 order dated 8.6.2009 by which the full time benefit which was given to him in the year 2007 with effect from 16.7.2001 was withdrawn and his pay was re-fixed in the scale of pay of Rs.5,500-9,075/-. 2. The petitioner commenced his service as High School Assistant (HSA) in PRMK Higher Secondary School, which is an aided school under the management of the 4[th] respondent, on 7.8.1991. He was appointed as HSST (Economics) in the same school with effect from 4.7.2001. As per Ext.P1, his appointment was approved as HSST(Jr.) in the scale of pay of Rs.5500-9075/from 28.6.2004 onwards. Later by Ext.P2 order dated 10.7.2007 the approval was ante-dated with effect from 16.7.2001 and he was granted full time scale of pay as applicable to HSST. The grant of full time scale ie Rs.6675-10550/- was granted in terms W.P.(C) No.9238 of 2013 **==> picture [14 x 10] intentionally omitted <==** of G.O.(Ms) No.351/04/G.Edn. dated 20.11.2004, which is produced as Ext.P3. Thereafter, by Ext.P6 order dated 8.6.2009, the Director of Higher Secondary Education reviewed the fixation of pay, in respect of the petitioner, saying that the petitioner's appointment was not under “by transfer” method, as there are only 23 sanctioned posts in the school and the number of by transfer appointment admissible in the school under 25% quota is only 6. Petitioner was the 8[th] teacher appointed by the Manager from among the HSAs under the 25% quota for the by transfer category. The full time benefit was granted only to the teachers appointed from among the HSAs in aided schools coming within the 25% quota for appointment by transfer. 3. This writ petition is filed, challenging Ext.P6 order, on the ground that the full time scale granted to him as per Ext.P2 cannot be withdrawn, as he was appointed while he was working as High School Assistant and that Ext.P3 does not distinguish the teachers who are appointed from the school, for the purpose of grant of full time benefit. 4. A counter affidavit is filed by the 2[nd] respondent saying that the Manager had appointed 11 teachers under the by W.P.(C) No.9238 of 2013 **==> picture [14 x 10] intentionally omitted <==** transfer category, as against the total number of 23 posts sanctioned in the school. In fact 25% of these 23 posts comes to only 6 and the petitioner being the 8[th] teacher, was not eligible for the benefit of the Government order issued on 20.11.2004, since he could have been treated only as one appointed by direct recruitment. It was stated that he became eligible for promotion as HSST on retirement of one Mr.K.P.Narayanan with effect from 31.3.2010. On detecting this mistake, Ext.P6 order was issued reviewing the fixation of pay. It is stated that the benefit received by the petitioner on the basis of Ext.P2 order is liable to be recovered. 5. I heard the learned counsel appearing for the petitioner as well as the learned Government Pleader. 6. The petitioner does not dispute that he is not a person coming under the 25% quota. At the same time, his contention is that, being a teacher appointed while working in the post of HSA in the year 2001, before the introduction of Chapter XXXII of KER relating to conditions of service of Higher Secondary School Teachers-, he is entitled to all the benefits available to the Higher Secondary School Teachers appointed from among HSAs. W.P.(C) No.9238 of 2013 **==> picture [14 x 10] intentionally omitted <==** 7. It is pertinent to note that the appointment to the posts of Higher Secondary School Teachers in the Government as well as aided Schools were being made on the basis of the executive orders till special Rules were issued/KER were amended incorporating chapter XXXII in it. Ext.P4 was the Government order which governed the appointment to the post of HSSTs till then. As per Ext.P4 Government order that is G.O.(Ms) No.162/98. G.Edn. Dated 13.5.1998, 25% vacancies were reserved for appointment from qualified High School Assistants and Primary School Teachers and remaining 75% were to be filled up by direct recruitment. Admittedly the petitioner does not come under the 25% category. At the same time, the learned counsel for the petitioner submits that all those who were appointed from the High School were to be treated as by transfer appointees and were eligible for the full time scale granted in Ext.P3 Government order. But Ext.P3 order was issued referring to the Government order dated 13.5.1998 (Ext.P4). Government had granted full time scale of pay to the Higher Secondary School Teachers of the Government schools, who were appointed from among the teachers of Government Schools, irrespective of W.P.(C) No.9238 of 2013 **==> picture [14 x 10] intentionally omitted <==** the number of hours they were teaching. The Higher Secondary School Teachers of aided Schools also claimed similar treatment and similar scale of pay. On the basis of the direction from this Court in several cases, Government issued Ext.P3 order granting the benefit of full time scale of pay to all the Aided Higher Secondary School teachers appointed by transfer from among qualified HSAs/UPSAs/LPSAs. It is pertinent to note that this benefit was confined to those appointed under the by transfer method i.e in the 25% quota. Operative portion of Ext.P3 Government order reads as follows: _“In the circumstances Government Order to grant the benefit of full time scale of pay to all the Aided Higher Secondary School Teachers appointed bv transfer from among qualified HSAS/UPSAs/LPSAs irrespective of the periods of teaching as in the case of Government Higher Secondary School Teachers as ordered in GO (MS) No. 162/98/G.Edn dated 13-5-1998. Government further clarify that this order will not be applicable to those who were appointed under the provisions of the Special Rules since 12 - 11 -2001. The arrears payable on account of this order will be credited to the PF accounts of the concerned teachers and withdrawal of this amount will not be permitted till 30[th] November, 2009 or till retirement_ W.P.(C) No.9238 of 2013 :6: _which ever is earlier._ _Government also order that in pursuance of the present decision the maximum work load of the teachers who have been granted full time scale of pay will be refixed as 25 periods per week. Consequently the staff strength in the concerned schools will be got re-fixed and the Director of Higher Secondary Education will reallocate the posts. All further appointments will be based on the above refixation only.”_ 8. In this context, it is necessary to have a look at the operative portion of G.O.(Ms) No 162/98. G. Edn. dated 13.5.1998, which governed the method of appointment to the post of HSST in Government and aided Higher Secondary Schools till the issuance of special rules/chapter XXXII of KER, which reads as follows: _“xxxxxxxThe above schools are sanctioned Higher Secondary courses on the subjects noted against the name of each school subject to the following conditions._ - _i. The schools will be permitted to open Standard XI during the academic year 199899._ - _ii. The last date for students to submit their application form will be 30th June 1998._ _2. The posts of Higher Secondary School teachers_ _in Government Higher Secondary Schools and Aided_ W.P.(C) No.9238 of 2013 :7: _Higher Secondary schools will be filled up as follows._ - _i . 25% vacancies will be reserved for appointment from qualified High School Assistants and Primary School Teachers._ _ii. The remaining 75% of posts in Government schools will be filled up by direct recruitment through the Public Service Commission. In the absence of select list with the Public Service Commission the vacancies will be filled up by candidates from Employment Exchange. Should there be shortage of suitable candidates from the Employment Exchange, Guest Lecturers may be appointed as is done in colleges. The selection of Employment Exchange candidate will be done by Director of Higher Secondary Education and that of Guest Lectures will be done by the concerned Deputy Director Education by constituting a selection committee consisting of the Principal, Deputy Director/ and President of the concerned PTA._ _iii. Appointments to the 75% vacancies earmarked for direct recruitment in the Aided Higher Secondary Schools will be done by the management. If qualified teachers are not available for appointment as mentioned in item (i) above, the management will fill up such vacancies also by direct recruitment. Selection of candidates for direct recruitment_ W.P.(C) No.9238 of 2013 :8: _in Aided Higher Secondary Schools will be done by a staff selection committee consisting of the Manager or his representative, the Principal of the school and a Government nominee from the panel of officers consisting of Deputy Director, Education, D. E. O.of the area and DIET Principal of the district. The management can select a nominee from among the above officers. The above officers are permitted to attend the staff selection committee meeting without further sanction._ _3. While making appointments the Manager will see that only Part -time teachers are appointed when the periods to be taught are less than 15 in a week. This procedure will be followed in Government schools also when direct recruitment is resorted to through Employment Exchange. But the teachers appointed from General Education Subordinate Service will be treated as appointment by promotion and they will be full-time teachers irrespective of the periods to be taught.”_ 9 _._ The appointment of the petitioner as HSST was at a time when Ext.P4 order dated 13.5.1998 was in force. When Ext.P2 order was issued in 2007 approving the appointment of the petitioner as HSST from 16.7.2001, he was granted the benefit of full time scale of pay also, treating him as one appointed by transfer from among HSAs in the 25% quota. Ext.P6 order was W.P.(C) No.9238 of 2013 **==> picture [14 x 10] intentionally omitted <==** passed when it was found that the petitioner was not coming under 25% quota. 10. According to the petitioner, there was no method of appointment as “by transfer” and he is entitled to be treated as in the case of any other HSA who got appointment as HSST as they are performing the very same duties; hence he cannot be deprived of the benefit of Ext.P3 Government order, appointed against a post, over and above the 25% quota. 11. It is pertinent to note that the benefit of Ext.P3 order was confined to those aided Higher Secondary School Teachers appointed by transfer in the 25% quota from among qualified HSAs/UPSAs/LPSAs. Therefore, the petitioner who is admittedly the 8[th] HSA appointed as HSST in a school having 23 posts cannot come under the 25% quota. 12. The next question to be considered is whether the petitioner is entitled to the full time benefit granted to him as per Ext.P2, since teachers appointed in the 25% quota are allowed that benefit, in terms of the principles of equal pay for equal work. A Division Bench of this Court has in the judgment _**State of Kerala v Jyothish kumar** : 2011(2) KLT 427_ considered the W.P.(C) No.9238 of 2013 **==> picture [20 x 10] intentionally omitted <==** claim of the Part Time HSSTs appointed under 75% quota for parity in pay with those appointed in the 25% quota from among qualified HSAs/UPSAs/LPSAs of aided schools on the basis of seniority, and repelled their claim reversing the judgment _**Jyothish Kumar v State of Kerala** : 2010(1)KLT 612_ , wherein similar contentions were raised. A perusal of the Government order Ext.P3 itself makes it clear that the benefit of full time scale is admissible only to those who were appointed by transfer in terms of the Government order issued on 13.5.1998. When the petitioner did not come within that 25% quota, he was not entitled to the benefit of full time scale, based on Ext.P3 Government order. The respondents have found out the mistake occurred and reviewed the same by Ext.P6 order dated 8.6.2009 within a period of 2 years from the date of Ext.P2 order. 13. Relying on the judgment of the Apex Court in _**State of Punjab Vs.Rafiq Masih (White Washer)** : 2015 (1) KLT 429 (SC),_ the learned counsel for the petitioner contended that the respondents cannot be permitted to effect recovery of any amount paid to him, as he was in no way responsible for granting the higher scale of pay and he has not contributed to the W.P.(C) No.9238 of 2013 **==> picture [19 x 10] intentionally omitted <==** mistake, if any, committed by the authorities. The Apex Court has in this case, after discussing various judgments hitherto rendered, in cases involving recovery from pay of employees, consolidated the conditions under which recovery is permissible, in paragraph 12 of the judgment. But the case of the petitioner does not come under any of those conditions. Of course Ext.P2 order was not issued on the basis of any fraud or misrepresentation committed by him. However, he was granted what was not admissible to him in accordance with law. In the above circumstances, I do not find any infirmity or illegality in Ext.P6 order. 14. In the circumstances of the case, since the amount to be recovered from the petitioner is huge, the respondents shall permit him to refund the same in easy instalments. Since the respondents have stated that the petitioner would have become eligible for a full time post in the year 2010, the respondents, while re-fixing the pay shall consider his eligibility for the full time scale with effect from appropriate date in accordance with law. The learned Counsel for the petitioner submits that petitioner is drawing his pay in the pre-revised scale, on account W.P.(C) No.9238 of 2013 **==> picture [20 x 10] intentionally omitted <==** of the pendency of this case. Therefore, the respondents shall, while re-fixing the pay based on Ext.P6, also grant him the benefit of the pay revision orders of 2006 and 2011, after getting option for the same from the petitioner, without any further delay. Accordingly the writ petition is dismissed with the above directions. Sd/- **P.V.ASHA, JUDGE.** rkc