M.C. Valsala and Baby Stella K. v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 05TH DAY OF NOVEMBER 2019 / 14TH KARTHIKA, 1941** **OP(KAT).No.4562 OF 2013(Z)** **AGAINST THE ORDER IN OA NO.2471/2013 DATED 05-11-2013 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/APPLICANTS:** **1 M.C VALSALA, HIGH SCHOOL ASSISTANT (PHYSICAL SCIENCE), GOVERNMENT HIGHER SECONDARY SCHOOL, AVITTANALLUR P.O., KOZHIKODE-673583, RESIDING AT VISHNU PRIYA, PANANGAD P.O., KOZHIKODE-673612. 2 BABY STELLA K., HIGH SCHOOL ASSISTANT (SOCIAL STUDIES), GOVERNMENT HIGHER SECONDARY SCHOOL, AVITTANALLUR P.O., KOZHIKODE-673583, RESIDING AT URUMBIL HOUSE, KOORACHUNDU P.O., ATHIODI, KOZHIKODE-673527.** ## **BY ADV. SRI.P.C.SASIDHARAN** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (R) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE PRINCIPAL ACCOUNTANT GENERAL [CIVIL & COMML AUDIT] BRANCH OFFICE, KARUNAKARAN NAMBIAR ROAD, THRISSUR-680020.** - **3 THE DEPUTY DIRECTOR OF EDUCATION KOZHIKODE-673001.** **R1-3 BY SR.GP SRI.ANTONY MUKKATH** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 05.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(KAT).No.4562 OF 2013(Z) 2 ## **JUDGMENT** ## **K. Vinod Chandran, J.** **The dispute is with respect to a refund ordered from the applicants before the Tribunal. The applicants were working as Teachers in an aided School, which aided School was surrendered and taken over by the Government. The staff working in the said School were absorbed in Government service, which included the applicants also. The applicants had about four years' service in the aided institution, when they were absorbed into Government service.** **2. The controversy arose when the 2004 Pay Revision was implemented. The Pay Revision did not reckon the past service in the aided institution for fixation in the corresponding revised scales. However, without noticing this, the applicants were granted Pay Revision reckoning the past service in** OP(KAT).No.4562 OF 2013(Z) 3 **the aided institution. An audit objection was raised, against which a representation was filed before the Government. On considering the representation, the Government by Annexure-A5 order accepted the contentions of the applicants and ordered that the pay was fixed correctly. Later, by Annexure-A6, Annexure-A5 was recalled, which was challenged in the Original Application.** **3. Before the Tribunal, the applicants submitted that they were Class-III employees and they had utilised the amounts paid to them as salary, thinking that the same was rightly paid. They were not responsible for such excess payment and hence they may be absolved from the liability to refund the above said amount. A judgment of a learned Single Judge of this Court was also relied upon.** **4. The Tribunal, noticed** _**Santhakumar v. State of Kerala [2005 (4) KLT 649]**_ **, which found** OP(KAT).No.4562 OF 2013(Z) 4 **that when public money has been paid contrary to the legal provision, necessarily refund has to be effected by the Government and there is no scope for a sympathetic consideration. It was also found that all the applicants were well-paid employees and they would not suffer any untold hardship by the refund ordered. The OA was dismissed.** **5. Sri.P.C. Sasidharan, learned Counsel for the petitioner, before us, contended that being Class-III employees the case of the applicants is squarely covered by the decision of the Hon'ble Supreme Court in** _**State of Punjab & Others v. Rafiq Masih (White Washer) [(2015) 4 SCC 334]**_ **. Reliance is also placed on** _**State of Orissa & Another v. N.N. Swamy & Others [(1977) 2 SCC 508]**_ **to contend that when the Government takes over an aided School, the service rendered in the aided School cannot be effaced merely for the reason that the Pay Revision order did not reckon the aided School service for** OP(KAT).No.4562 OF 2013(Z) 5 **the purpose of Pay Revision.** **6. The learned Senior Government Pleader would rely on** _**High Court of Punjab and Haryana v. Jagdev Singh [AIR 2016 SC 3523]**_ **, which considered** _**Rafiq Masih**_ **[supra] and drew a distinction in instances where there is an undertaking by the employee agreeing to the refund, if excess payment is detected. There is definitely an undertaking by the employee herein, since the Pay Revisions are implemented only on such undertaking given by the employee. It is also submitted that if the applicants' claims are allowed, it would create a wrong precedent.** **7. We perfectly agree with the learned Government Pleader that** _**Rafiq Masih**_ **does not have any application, especially since there is an undertaking. The Tribunal also, rightly found that the applicants, though Class-III employees, it cannot be said that Teachers in a Government School** OP(KAT).No.4562 OF 2013(Z) 6 **are low paid employees.** **8. Be that as it may, we are persuaded to hold against the refund going through the decision in** _**N.N. Swamy**_ **[supra]. Therein a private College, which was running well and which had a reputation, was taken over by the Government by a formal agreement. The staff also were taken over, thus regularising them as government servants. The Government, however treated similarly placed persons differently on the ground that their emoluments, before take over, were lesser than those drawn in equivalent posts in Government. The Hon'ble Supreme Court found that there can be no pay parity found in a private college and government run colleges. Hence such a condition results in denial of equal opportunity to the respondents in the matter of employment under the Government, which is violative of Article 16 of the Constitution of India. We also notice paragraph 18** OP(KAT).No.4562 OF 2013(Z) 7 ## **of the aforesaid judgment, which is extracted herein below:** _**“18. When a fairly well-recognised institution, as in this case, run for more than a century, is completely taken over by the Government for management, it is not merely takingover the land and buildings, tables and chairs. It has to tackle, at the same time, a human problem, that is to say, the fate of the teachers and the staff serving that institution. The institution, with which we are concerned, was takenover, by consent, as a going educational concern and it goes without saying that it must be administered on sound lines having regard to quality, efficiency and progress in all respects. It is understandable that the employees had to join the new service under the Government, for the first time, and so could be, in that sense, fresh entrants. But to say that the teaching experience of the Readers in the private institution is completely effaced to the extent that they will not be even eligible, on the plea of absence of teaching experience in government service, for consideration for appointment as Readers is a seriously grim issue. We feel assured that such an argument had not been canvassed by the State**_ OP(KAT).No.4562 OF 2013(Z) 8 _**in the High Court on the basis of the Rules of July 19, 1971, since these Rules came into force after the takeover for which a separate circular had already been issued to take care of the special exigency. Action under the Government circular of March 23, 1971, alone, was in controversy in the High Court. The said circular took recognition of the service in the private college in the case of two Readers (9 and 10 in Annexure I). The only differentia was, therefore, the salary drawn by the Readers on the date of takeover. That action based on the salary aspect under the said circular had to stand the test of Article 16 in the High Court, as well as, before us. The argument in favour of complete erasion of the past teaching experience in the private college, first time presented before us, fails to take note of the distinction between eligibility and suitability. Eight years’ teaching experience in a college and the fulfilment of other requisite qualifications make a person eligible for appointment as a Reader, but whether he is suitable for selection for the post is an entirely different matter.”**_ **9. We have to notice that if the aided institution had continued as such, there was no** OP(KAT).No.4562 OF 2013(Z) 9 **impediment in reckoning the four year service, which the applicant had. In the present case, it is not a mere case of reckoning of service in an aided institution, when a fresh appointment is obtained in a government school. The aided institution was taken over by the Government along with the staff members. In such circumstances, the Government has the obligation to consider the service weightage and as has been held in** _**N.N. Swamy**_ **, the experience and the period they served as Teachers in the aided institution cannot be completely erased.** **10. We also notice Annexure-A5 order which decided to grant the benefit to the applicants, despite the audit objection, since all other benefits including leave, increment etc. would be entitled to the applicants for the said period. We hence set aside the order of the Tribunal and direct that there shall be no revision made as per Annexure A6, which is set aside and the refund** OP(KAT).No.4562 OF 2013(Z) 10 **demanded from the applicants is also interdicted. The original petition is allowed and so is the O.A. There is no order as to costs.** **Sd/-** **K. VINOD CHANDRAN, JUDGE.** **Sd/-** **V.G. ARUN, JUDGE.** **sp/05/11/19** //True Copy// P.A. To Judge OP(KAT).No.4562 OF 2013(Z) 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE ORDER DATED 17/2/1992 OF THE 1ST RESPONDENT. ANNEXURE A2 TRUE COPY OF THE ORDER DATED 25/10/1997 OF THE 1ST RESPONDENT ANNEXURE A3 TRUE COPY OF THE AUDIT OBJECTION. ANNEXURE A4 TRUE COPY OF THE LETTER DATED 21.11.2011 OF THE HEADMASTER, GHSS AVITANALLUR ANNEXURE A5 TRUE COPY OF THE ORDER DATED 08.10.2012 OF THE 1ST RESPONDENT. ANNEXURE A5(A) TRUE ENGLISH TRANSLATION OF ANNEXURE-A5. ANNEXURE A6 TRUE COPY OF THE ORDER DATED 13.09.2013 OF THE 1ST RESPONDENT. ANNEXURE A6(A) TRUE ENGLISH TRANSLATION OF ANNEXURE-A6. ANNEXURE A7 TRUE COPY OF THE RULES FOR FIXATION OF PAY OF G.O.DATED 16/12/1978. ANNEXURE A8 TRUE COPY OF THE RULES FOR FIXATION OF PAY OF G.O. DATED 25.3.2006. ANNEXURE A9 TRUE COPY OF THE RUELS FOR FIXATION OF PAY OF G.O.DATED 26/2/2011. ANNEXURE A10 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.17325/2010 DATED 4/8/2011. EXHIBIT P1 TRUE COPY OF THE INTERIM ORDER DATED 09/06/1997 IN O.P.NO.9745/1995. EXHIBIT P2 TRUE COPY OF THE O.A.NO.2471/2013 WITH ANNEXURES.** OP(KAT).No.4562 OF 2013(Z) 12 **EXHIBIT P3 TRUE COPY M.A WITH ANNEXURES. EXHIBIT P4 TRUE COPY OF THE FINAL ORDER IN OA NO 2471/2013**