Merly A and others v. State of Kerala and Others

OP(KAT)9 of 2017 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** ## **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. WEDNESDAY, THE 15[TH] DAY OF JUNE 2022 / 25TH JYAISHTA, 1944 OP(KAT) NO. 9 OF 2017** **AGAINST THE ORDER/JUDGMENT IN TA 5072/2012 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/APPLICANTS:** 1 MERLY A PRIMARY DEPARTMENT TEACHER, GOVERNMENT UP SCHOOL, BILATHIKULAM, WEST HILL PO, KOZHIKODE DISTRICT 2 E.K. SASIDHARAN PRIMARY DEPARTMENT TEACHER, GOVERNMENT HIGHER SECONDARY SCHOOL, KATTILANGADI, TANU PO, MALAPPURAM DISTRICT 3 JOY. A.V PRIMARY DEPARTMENTAL TEACHER, GOVERNMENT UP SCHOOL, MUNDOTHUPARAMBA, OTHUKKUNGAL PO, MALAPPURAM DISTRICT OP(KAT)9 of 2017 2 4 JITHESH.M. PRIMARY DEPARTMENTAL TEACHER, GOVERNMENT LP. SCHOOL, KAPPAIKKAL, KOZHIKODE DISTRICT, FORMERLY ON DEPUTATION AS BLOCK RESOURCE CENTRE TRAINER, BRC VADAKARA, KOZHIKODE DISTRICT, NOW WORKING AS PRIMARY DEPARTMENT TEACHER, GOVERNMENT UP SCHOOL, NADAPURAM, NADAPURAM PO BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SMT.L.ANNAPOORNA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SMT.K.N.REMYA SMT.N.SANTHA SRI.V.VARGHESE ## **RESPONDENTS:** - 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN 695001 - 2 DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM, PIN 695010 - 3 DEPUTY DIRECTOR OF EDUCATION KOZHIKODE, PIN 673001 - 4 DEPUTY DIRECTOR OF EDUCATION MALAPPURAM, PIN 676505 - 5 ASSISTANT EDUCATIONAL OFFICER CITY EDUCATIONAL SUB DISTRICT, KOZHIKODE, PIN 673573 OP(KAT)9 of 2017 3 6 ASSISTANT EDUCATIONAL OFFICER VENGARA, MALAPPURAM DISTRICT, PIN 676304 ## BY SRI.BIJOY CHANDRAN, GOVERNMENT PLEADER THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 15.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT)9 of 2017 4 ## **JUDGMENT** ## A.K.Jayasankaran Nambiar, J The petitioners in the OP(KAT) were the applicants before the Kerala Administrative Tribunal (KAT), Thiruvananthapuram, in T.A.No.5072 of 2012, and are aggrieved by the order dated 28.09.2016 in the said T.A. The brief fact necessary for the disposal of the OP(KAT) are as follows:- The petitioners are Primary Department Teachers working in various Government schools in Kozhikode and Malappuram Districts. The service details of the petitioners and dates on which they became eligible for the time bound higher grade of pay are indicated in the following chart produced along with the OP(KAT). |Petitioner|Period of Aided<br>School Service|Date of joining<br>Government<br>service as PD<br>Teacher|Date<br>of<br>completion of<br>probation|Date<br>of<br>eligibility for<br>higher grade|Date from<br>which<br>higher<br>grade was<br>granted| |---|---|---|---|---|---| |1stpetitioner|9<br>years,<br>8<br>months and 19<br>days|22/10/97|22/10/99|02/02/98|02/02/98| |2ndpetitioner|12 years and 29<br>days|12/08/99|12/08/01|12/08/99|12/08/99| |3rdpetitioner|10 years and 14<br>days|30/07/98|30/07/00|30/07/98|30/07/98| |4thpetitioner|11 years and 3<br>months and 2<br>days|07/10/04|08/10/04|30/07/00|30/07/00| OP(KAT)9 of 2017 5 2. The case of the petitioners before the KAT was that for the purposes of sanctioning the time bound higher grade, the various Government Orders in force contemplated that the period of prior service rendered as aided school teachers could also be included in the computation of the qualifying service. They were accordingly sanctioned the time bound higher grade while in Government service, by counting their prior service rendered in aided schools, at a time when they were undergoing their probation in Government service. Much later, however, pursuant to an audit objection raised in relation to the second petitioner, and queries raised in respect of the other petitioners, steps were taken for recovering the amounts paid to the petitioners since according to the Government, their entitlement to the time bound higher grade on completion of 10 year service became due and payable only on the date of their successful completion of probation in the Government service. The petitioners therefore approached the Tribunal impugning the various orders issued to them seeking recovery/adjustment of the amounts already paid to them, as also Exts.P10 and P12 Government circulars/letters which contemplated that the benefit of time bound higher grade would be due and payable only on successful completion of probation in the Government service. OP(KAT)9 of 2017 6 3. The Tribunal on a consideration of the submissions, took note of the order dated 30.07.2013 of the KAT in TA No.4461 of 2012 (produced as Ext.P3 along with this OP(KAT)), to find that the teachers in Government service who had previous aided school service would be entitled to higher grade, by counting the said prior aided school service, only on successful declaration of their probation. Thereafter, on the issue of inequity of the recovery attempted from the petitioners years after the grant of benefit, the Tribunal relied on the judgment of the Supreme Court in **State of Punjab and others v. Rafiq Masih** [2015(4) SCC 334] and directed the Government to consider the case of the applicants before it and take a decision in the light of the principles laid down by the Supreme Court in **Rafiq Masih** (supra). It is aggrieved by the said order of the Tribunal that the petitioners are before us in this OP(KAT). 4. We have heard Sri.Peter Jose Christo, the learned counsel appearing for the petitioners and Sri.Bijoy Chandran, the learned Government Pleader for the respondents. 5. On a consideration of the rival submissions, we are of the view that the finding of the Tribunal based on its own earlier order produced as Ext.P3 in the OP(KAT) cannot be faulted. While it may be a fact that the Government had issued Ext.P6 circular and Ext.P7 letter clarifying that while a new entrant in Government service OP(KAT)9 of 2017 7 would have to await the satisfactorily completion of probation for the sanctioning of higher grade, the higher grade itself could be given with effect from the date it actually fell due on completion of the prescribed number of years, we find that the Government itself by a subsequent communication dated 10.09.1990 (produced as Ext.P12 in the OP(KAT)) clarified in the case of aided school teachers appointed in Government school that the question of sanctioning higher grade would have to wait till the declaration of completion of probation in the Government school. It was further clarified that on declaration of completion of probation, the teacher would be granted higher grade reckoning both aided school service and Government school service from that date and monetary benefits allowed from that date. In other words, the last mentioned letter of the Government clearly states that in the case of aided school teachers joining Government service and undergoing probation therein, the entitlement for time bound higher grade will accrue only with effect from the date of successful completion of probation in the school and not before that. In the case of the petitioners therefore, it would follow that even if they had 10 years or more of prior aided school service, at the time of joining the Government school, they had to wait for the successful completion of probation in Government service for becoming entitled to the time bound higher grade in question. We find the said stand of the Government to be unassailable inasmuch as probation is insisted in a service to assess the suitability of the employee to hold the post in OP(KAT)9 of 2017 8 question. If the contention of the petitioners is to be accepted, and the time bound higher grade sanctioned with effect from the date of joining Government service, it wold result in the anomalous situation where time bound higher grade is sanctioned to a person taking note of his/her past service in aided school, at a time when he/she has not yet been found suitable to hold the post in which he/she is claiming the higher grade. In our view, that could not have been the intention of the Government while sanctioning a time bound higher grade which is essentially a monetary benefit intended to compensate a person who has been stagnating in a post without further avenues for career growth. We therefore, find ourselves unable to accept the contention of the learned counsel for the petitioners that the time bound higher grade should be sanctioned immediately on completion of the prescribed length of service. 6. This takes to us to the other issue with regard the recovery of amounts from the petitioners. As already noticed the Tribunal while dismissing the O.As had already directed the Government to take a decision in the matter of recovery of amounts from the petitioners in the light of the directions issued by the Supreme Court in **Rafiq Masih** (supra). Since this is a factual exercise to be done by the Government based on the facts and circumstances in the individual cases, we direct the Government to consider the case of the petitioners herein as directed by the Tribunal in the order impugned in this OP(KAT) and take a decision within eight weeks' from the date of receipt of this judgment, taking note of the time that has OP(KAT)9 of 2017 9 already elapsed due to the pendency of this OP(KAT) before this Court. The stay against recovery granted by this Court in the present O.P. shall continue to remain in force till such time as the Government takes a decision in the matter, after hearing the petitioners. The Original Petition (KAT) is dismissed. Sd/- ## **A.K.JAYASANKARAN NAMBIAR,** **JUDGE** Sd/- **MOHAMMED NIAS C.P., JUDGE** dlk 15.6.2022 OP(KAT)9 of 2017 ## 10 ## **APPENDIX OF OP(KAT) 9/2017** PETITIONERS EXHIBITS ANNEXURE A1 TRUE COPY OF THE TA NO.5072/2012 FILED BY THE PETITINERS BEFORE THE KERLA ADMINIST' TRIBUNAL, THIRUVANANTHAPURAM EXHIBIT P1 TRUE COPY OF THE GOVERNMENT ORDER NO. 74/68/EDN. DATED 24.02.1968 EXHIBIT P2 TRUE COPY OF THE STATEMENT SHOWING FIXATION OF PAY IN TEH HIGHER GRADE OF 1ST PETITIONER EXHIBIT P3 TRUE COPY OF THE STATEMENT SHOWING FIXATION OF PAY IN TEH HIGHER GRADE OF 2ND PETITIONER EXHIBIT P4 TRUE COPY OF THE STATEMENT SHOWING FIXATION OF PAY IN TEH HIGHER GRADE OF 3RD PETITIONER EXHIBIT P5 TRUE COPY OF THE STATEMENT SHOWING FIXATION OF PAY IN TEH HIGHER GRADE OF 4TH PETITIONER EXHIBTI P6 TRUE COPY OF THE GOVT. CIRCULAR MEMORANDUM NO. 26316/J1/80/G.EDN DATED 23.03.1983 EXHIBIT P7 TRUE COPY OF THE GOVERNMENT LETTER NO. 49526/J185/EDN DATED 19.01.1988 EXHIBIT P8 TRUE COPY OF THE LETTER NO. B.1133/06/L.DIS DATED 19.06.2006 EXHIBIT P9 TRUE COPY OF THE LETTER NO. G.325175/07/L.DIS DATED 29.11.2007 EXHIBIT P10 TRUE COPY OF THE GO (RT)NO. 2689/06/G.EDN DATED 29.06.2006 EXHIBIT P11 TRUE COPY OF THE REPRESENTATION BY THE 1ST PETITIONER DATED 10.09.2008 OP(KAT)9 of 2017 11 EXHIBIT P12 TRUE COPY OF THE GOVERNMENT LETTER NO. 41730/J1/88/G.EDN EXHIBIT P13 TRUE COPY OF THE GOVENMENT LETTER NO. 21173/L1/09/G.EDN DATED 25.04.2009 EXHIBIT P14 TRUE COPY OF THE AUDIT REPORT NO. G2/2340/05/DDE DATED 02.02.2005 EXHIBIT P15 TRUE COPY OF THE LETTER NO. G2/2340/05 DATED 01.09.2006 - EXHIBIT P16 TRUE COPY OF THE APPEAL PETITION SUBMITTED BY THE 2ND PETITIONER TO THE DPI EXHIBIT P17 TRUE COPY OF THE LETTER NO. R3/4819/2007/DPI DATED 06.032.2007 - EXHIBIT P18 TRUE COPY OF THE PETITION SUBMITTED BY THE 2ND PETITIONER TO THE GOVERNMENT - EXHIBIT P19 TRUE COPY OF THE GOVERNMENT LETTER NO. 31134/B1/07/G.EDN DATED 07.08.2009 - EXHIBIT P20 TRUE COPY OF THE LETTER NO. 26/06-07 DATED 05.07.2006 - EXHIBIT P21 TRUE COPY OF THE GOVERNMENT LETTER NO.8568/B1/09/G.EDN DATED 28.05.2009 - EXHIBIT P22 TRUE COPY OF THE LETTER NO. C.1797/07 DATED 03.11.2007 - EXHIBIT P23 TRUE COPY OF THE GOVERNMENT CIRCULAR NO. 46/2008/FIN DATED 08.08.2008 - EXHIBIT P24 TRUE COPY OF THE GO (P) NO. 62/81/(282)/FIN DATED 20.01.1981 - ANNEXURE A2 TRUE COPY OF THE ORDER DATED 28.09.2016 IN T.A.5072/2012 OF THE HON'BLE KAT. 12 OP(KAT)9 of 2017 ANNEXURE A3 TRUE COPY OF THE ORDER OF THE KAT REPORTED IN G.KANAKAKUMARAN V. STATE OF KERALAAND OTHERS MENTIONED IN EXT.P2