Mary Thomas v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **WEDNESDAY, THE 19TH DAY OF JUNE 2013/29TH JYAISHTA 1935** ## **WP(C).No. 19404 of 2010 (A)** **----------------------------** ## **PETITIONER(S):** **--------------------------** **MARY THOMAS, U.P.S.A. ST. PHILOMINA'S HIGH SCHOOL, THIRUVANIYOOR. P.O., ERNAKULAM DISTRICT.** ## **BY ADV. SRI.KALEESWARAM RAJ.** ## **RESPONDENT(S):** - **----------------------------** ## **1. STATE OF KERALA,** ## **REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM.** **2. DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM.** ## **3. DISTRICT EDUCATIONAL OFFICER,** - **ALUVA, ERNAKULAM DISTRICT.** ## **4. ACCOUNTANT GENERAL (A&E),** - **THIRUVANANTHAPURAM, OFFICE OF THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM.** *** ADDL. R5 & R6 IMPLEADED** **5. HEADMISTRESS, ST. PHILOMINA'S HIGH SCHOOL, THIRUVANIYOOR P.O., ERNAKULAM.** **6. CORPORATE MANAGER, DIOCESAN CENTRE, CATHOLIC DIOCESE OF MUVATTUPUZHA, KEZHILLAM P.O., ERNAKULAM-683 541.** - **ADDL. R5 & R6 ARE IMPLEADED AS PER ORDER DATED 19/06/2013 IN I.A. NO.12524/2011.** **R1 TO R4 BY GOVT. PLEADER MR.RAMPRASAD UNNI. ADDL.R5 & R6 BY SRI.KURIAN GEORGE KANNANTHANAM, SR. ADVOCATE ADVS. SRI.TONY GEORGE KANNANTHANAM, SRI.MATHEW K. SIMON.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** **WP(C).No. 19404 of 2010 (A)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **EXT.P1 COPY OF THE RELEVANT PAGES OF THE SERVICE BOOK TOGETHER WITH RELEVANT PAGES OF THE STATEMENT OF FIXATION OF OPTIONS DECLARATION ETC.** - **EXT.P2 COPY OF THE OBJECTION BY THE ACCOUNTS OFFICE IN THE OFFICE OF DDE, ERNAKULAM.** - **EXT.P3 COPY OF THE LETTER DATED 04/06/2009 ISSUED BY DDE, ERNAKULAM.** - **EXT.P4 COPY OF THE LETTER DATED 11/11/2009.** - **EXT.P5 COPY OF THE REVISION PETITION DATED 07/07/2009.** - **EXT.P6 COPY OF THE LETTER DATED 22/03/2010.** - **EXT.P7 COPY OF THE LETTER DATED 02/06/2010.** - **EXT.P8 COPY OF THE G.O.(MS) NO.47/71 DATED 21/04/1991.** ## **RESPONDENT'S EXHIBITS:-** - **EXT.R5A COPY OF THE REQUEST DATED 11/12/2009 FROM THE PETITIONER TO THE 5TH RESPONDENT.** - **EXT.R5B COPY OF THE REQUEST DATED 02/12/2010 TO THE 5TH RESPONDENT.** - **EXT.R5C COPY OF THE LETTER DATED 19/06/2009 FROM THE D.E.O.** - **EXT.R5D COPY OF THE LETTER DATED 15/07/2009 FROM THE 5TH RESPONDENT.** - **EXT.R5E COPY OF THE LETTER DATED 15/07/2009 TO THE D.E.O.** - **EXT.R5F COPY OF THE FORM OF OPTION AND DECLARATION SUBMITTED BY PETITIONER BEFORE THE GOVERNMENT.** - **EXT.R5G COPY OF THE LETTER DATED 15/11/2011 ISSUED BY THE DISTRICT EDUCATIONAL OFFICER, ALUVA.** ## **//TRUE COPY//** **P.S. TO JUDGE.** **rs.** A.M.SHAFFIQUE, J. ---------------------------------------------------W.P.(C) No. 19404 of 2010-A --------------------------------------------------Dated this the 19[th] June, 2013 **J U D G M E N T** The petitioner challenges Exts.P2, P3, P4, P6 and P7. Ext.P2 is a communication by the Accounts Officer in respect of an objection raised regarding the A grade granted to the petitioner. In Ext.P2, it is indicated that there was irregularity in the pay fixed to the petitioner in the 2004 pay revision. Hence the pay has to be recalculated excluding the service prior to resignation and excess pay drawn shall be recovered. The other impugned orders were passed by the educational authority confirming the above view. W.P.(C) No. 19404 of 2010-A **==> picture [7 x 9] intentionally omitted <==** 2. The facts involved in the case would disclose that the petitioner joined ALP School, Chittathupara as an LPSA on 6.9.1982 and she worked there till 30.9.1987. She resigned from the said post and joined at St.Philomina's High School, Thiruvaniyoor at Ernakulam in a leave from 19.10.1987 to 18.12.1987. vacancy Thereafter, she got regular appointment in the said school from 6.6.1988. She was due to retire on 31.3.2013. She was granted 10 years higher grade with effect from 1.7.1993, 18 years senior grade with effect from 1.7.2001 and 23 years selection grade with effect from 1.7.2006. It is at this point of time that Ext.P2 came to be issued. It is stated that the grant of higher grade was erroneous as the period during which the W.P.(C) No. 19404 of 2010-A 3 petitioner had worked at A.L.P.School could not have been considered for the purpose of reckoning her services and her appointment at St.Philomina's High School, Thiruvaniyoor cannot be treated as a continuous service. 3. According to the petitioner in terms of Rule 29 read with Ext.P8 Government notification, the petitioner is entitled for continuity in service despite the fact that she had resigned as there is no substantial break in her service. According to the petitioner, she resigned with effect from 30.9.1987 and St.Philomina's School on joined High 19.10.1987 in the leave vacancy where she continued till 18.12.1987. The same was approved by the educational authorities. Later she was appointed on a regular vacancy on 6.6.1988. W.P.(C) No. 19404 of 2010-A 4 Therefore, according to the petitioner, the five years service she had in the A.L.P School qualifies for the grant of higher grade and therefore it is wrong to treat her service otherwise. It is also contended that the benefits which she had received cannot be taken away, as the same was granted by the authorities after verifying her records and there was no fault on her part. 4. Still further it is contended that the Government as per Rule 39 of Part II K.S. and S.S.R has to consider the grievance of the petitioner and pass orders which are just and equitable. 5. Counter affidavit is filed by the 1[st] respondent inter alia contending that the petitioner while working in A.L.P. School had 5 W.P.(C) No. 19404 of 2010-A obtained leave without allowance on medical ground from 1.10.1987 to 18.1.1988. In between, she joined St.Philomina's High School in 19.10.1987 in a leave vacancy until 18.12.1987. Thereafter, she submitted her resignation from A.L.P School with effect from 30.9.1987. The resignation was accepted on 23.10.1987. She was appointed in St.Philomina's High School in a leave vacancy till 18.12.1987. Thereafter, she was appointed in a regular vacancy only from 6.6.1988. According to the 1[st] respondent there was break in service. Therefore, the petitioner cannot claim continuous service in the school as it commenced only on 6.6.1988. According to the 1[st] respondent, Ext.P8 notification does not apply to the petitioner and going by Note 2 of Rule 29 of Part III of K.S.R. the W.P.(C) No. 19404 of 2010-A **==> picture [7 x 10] intentionally omitted <==** break in service to join another school under the service rules is only one month. It was also contended that the claim for refund of the amount is not acceptable as held by the various judgments of this court. 6. Counter affidavit is filed by additional respondents 5 and 6 supporting the stand taken by the Government. They have also produced materials to show that the petitioner had voluntarily agreed to repay any amount which was received in excess of what has been fixed at the time when the higher grade was granted. Ext.R5 (f) is one such document produced wherein the petitioner has given a declaration opting to get higher grade with effect from 1.7.1992 apparently taking into consideration the continuity in service W.P.(C) No. 19404 of 2010-A 7 from the A.L.P.School. 7. Heard the learned counsel for the petitioner, the learned Government Pleader and the learned counsel appearing for the additional respondents. 8. The eligibility of the petitioner to get continuity in service is in terms of Rule 29 of Part III K.S.R., which reads as under: “Resignation and Dismissals.(a) of the Public Service or Resignation dismissal or removal from it, entails forfeiture of past service. (b) Resignation of an appointment to take up another appointment the service in which counts is not resignation from public service”. 9. The petitioner relies upon Ext.P8 Government order dated 21.4.1971. Paragraph 3 of the said Government reads as under: W.P.(C) No. 19404 of 2010-A 8 “In the circumstances Government are pleased to order in continuation of the orders issued in the G.O. cited that in the case of teachers who resign from one aided school to join service in another aided school, the service will be counted for sanctioning higher scales of pay on the condition that the service should be approved and continuous and there should not be a break of more than a month between leaving the service from the aided school and joining service in another aided school. The controlling officers should satisfy that the resignation was to joining another school and not for any other purpose”. 10. On a perusal of the impugned orders, it is clear that the reason by which the educational authorities and the Government had directed recalculation of the salary and higher grade of W.P.(C) No. 19404 of 2010-A **==> picture [7 x 10] intentionally omitted <==** the petitioner was on account of the fact that her service from 6.9.1982 cannot be considered as a regular service to qualify for the purpose of higher grade. In terms of Rule 29(a) it is clear that resignation of the public service entails, forfeiture of past service. Admittedly, the petitioner had resigned from A.L.P.School. Therefore, Rule 29(a) squarely applies. But there is an exception provided in terms of sub-rule (b) which indicates that if the resignation is to take up another appointment and the service of which counts, it will not amount to resignation of the public service. Apparently, the authorities have proceeded on the basis that since the past services was in an aided school, if the petitioner had continued in services in terms of sub-rule (b) the benefit should have W.P.(C) No. 19404 of 2010-A 10 been given especially in the light of Ext.P8 notification. But in the present case it could be seen that the authorities have taken a view that after the petitioner resigning from A.L.P School on 30.9.1987 she was not appointed in a regular vacancy in the St. Philomina's School whereas she was appointed in the leave vacancy on 19.10.1987 and that too and that too only till 18.12.1987. The said appointment though approved, terminated on 18.12.1987. Thereafter she was appointed in a regular vacancy only on 6.6.1988. Apparently, there is a break in service and therefore Rule 29(b) does not automatically apply as it cannot be said that the petitioner resigned to take up another appointment in the service “which counts”. W.P.(C) No. 19404 of 2010-A **==> picture [13 x 9] intentionally omitted <==** 11. Consequently, going by Ext.P8 it is indicated that service will be counted for sanctioning higher grade of pay on condition that service should be approved continuous and there should not be a break of more than a month between leaving the service from one aided school and joining another aided school. In the present case, petitioner had joined the aided school within another one month, but it was on a leave vacancy. It got terminated on 18.12.1987. Thereafter she joined in a regular vacancy only on 6.6.1988. Therefore Ext.P8 Circular will not come to the aid of the petitioner. In that view of the matter, I do not think that there is anything wrong in the Department in raising objection regarding refixation of the higher grade granted to the 12 W.P.(C) No. 19404 of 2010-A petitioner by virtue of earlier orders. 12. The next question to be considered is whether there is any justification in recovering the amounts already paid to the petitioner by giving higher grade on 1.7.1993, 1.7.2001 and 1.7.2006. 13. The learned Government Pleader relies upon the declaration given by the petitioner at Ext. R5(f) claiming the higher grade in a scale of pay with effect from 1.7.1993. No doubt, it is based on a declaration given by the petitioner that the higher grade is fixed. This is based on the service particulars of the petitioner. Ext.P1 is the service book particulars which were available for inspection by various authorities during the relevant time and it was only by Ext.P2 i.e. in the year 2009 that this mistake was brought to the W.P.(C) No. 19404 of 2010-A **==> picture [13 x 10] intentionally omitted <==** notice. Learned counsel for the petitioner relies upon the Division Bench judgment of this Court in **Narayanan** v. **State of Kerala** 2008(3) KLT 188, the judgment of the Supreme Court in **State of Bihar** v. **Pandey Jagdishwar Prasad** [2009(3) SCC 117] to argue for the proposition that since the higher grades were granted to the petitioner after verifying the records by the educational authorities, if the entire amounts are now recovered back, it will cause serious loss and hardship to the petitioner and it is not equitable to recover the entire amount back from the petitioner. Learned Government Pleader relies upon the Division Bench judgment of this Court in **Chandrasenan** v. **State of Kerala** (1999 (3) KLT 357 in order to indicate that if a member of a W.P.(C) No. 19404 of 2010-A 14 service shall, if he resigns his appointment, forfeit not only the service rendered by him in the particular post held by him at the time of resignation but all his previous service under the Government. Therefore any benefit linked with and relatable to the past service is automatically denied. On this basis it is claimed that, in so far as the petitioner is concerned, since she cannot ask for computing the period of service, she had worked upto 6.6.1988 for the purpose of higher grade and having claimed the same, it is clearly illegal and therefore the refixation has to be done on the basis of the audit objection. 14. It is true that the petitioner was granted higher grade on three occasions based on the declaration made by her. But then the educational 15 W.P.(C) No. 19404 of 2010-A authorities had the opportunity to verify whether the higher grade ought to have been granted or not during the relevant time. There was substantial delay on the part of the auditors to verify the service book and to come to a particulars conclusion. When the petitioner made a claim, it has to be understood that the claim is made on the basis that she is legally entitled for the same, but if the same is not found to be correct, the educational authorities had an opportunity to correct the mistake at an earlier point of time. The delay in making such corrections has resulted in a situation that the petitioner will be called upon to refund a substantial amount from her retirement benefits. This situation will cause substantial prejudice to the petitioner. It is not in dispute that 16 W.P.(C) No. 19404 of 2010-A there is a mistake in granting higher grade during the relevant time, it is open for the Government to correct the same in terms with Ext.P2 audit objection. But I do not think that there will be any justification in recovering the payments already made. In that view of the matter, I am of the view that though the respondent authorities can refix the grade and scale of pay of the petitioner with reference to Ext.P2, the recovery if any on that basis has to be cancelled. 15. The petitioner has also a case that the Government has the authority to pass just and equitable order on the basis of Rule 39 of Part II of K.S and S.S.R. But it is relevant to note that petitioner has not made any claim in that regard so far. I do not think that there will be any W.P.(C) No. 19404 of 2010-A **==> picture [13 x 10] intentionally omitted <==** justification to consider the same, at this point of time. 16. In the result, this writ petition is partly allowed as follows: i) The direction to refix the higher grade and consequential scale of pay/increment is upheld. ii However, there shall be a direction not to recover the amount already paid to the petitioner on the basis of wrong calculation upto the date of audit report. Sd/- **A.M.SHAFFIQUE, JUDGE.** rka /true copy/