Mohammed Iqbal K.M. v. State of Kerala and others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anu Sivaraman
Judgment Date: 2017-03-22
Court Decision / Holding: Ext.P7 is set aside. No recovery shall be made from the petitioner’s salary and the petitioner shall be entitled to the benefits of pay fixation effected in the ten years higher grade with effect from 16.01.1993 and 20 years higher grade with effect from 01.09.1995. Any due payments shall be calculated and disbursed within three months from receipt of a copy of this judgment.
Final Disposition: Writ petition allowed; Ext.P7 set aside; no recovery ordered; pay fixation benefits to be disbursed within three months.

Parties to the Case

Appellants / Petitioners

Mohammed Iqbal K.M.

Respondents

State of Kerala, represented by Secretary to Government, Finance Department, Government Secretariat, Thiruvananthapuram
The Deputy Director of Education, Malappuram
The Head Master, M.I. Higher Secondary School, Ponnani

Legal Representation & Advocates

Counsels for Petitioners

• V. M. Kurian
• K. T. Thomas

Counsels for Respondents

• Suresh Babu (Special Govt Pleader)
• K. M. Firoz
• M. Shajna

Case Synopsis & Summary

Petitioner Mohammed Iqbal K.M., employed since 1975 in an aided school, rose from a full-time menial to a L.D. Clerk, and was granted a ten-year higher grade in 1993 and a twenty-year higher grade from 1995 after counting his earlier service. He retired voluntarily with effect from 30.09.2008. By Ext.P4 (27.09.2008) the Deputy Director of Education informed him that exemptions granted to L.D. Clerks appointed before 19.11.1994 had been withdrawn, rendering his pay fixation irregular. This Court earlier directed relief under Ext.P6 (2010) and quashed proposals for recovery. Following Ext.P6, the 29.03.2010 communication proposed recovery of amounts, despite the petitioner’s representation; an interim stay of recovery was granted. The petitioner argued that pay fixation and the higher-grade benefits had been accorded lawfully under government orders then in force, including consideration of his prior service, and that retrospective withdrawal would be impermissible; he relied on State of Punjab v. Rafiq Masih (White Washer). Respondents contended the fixation was irregular and subject to correction in light of later government letters/circulars (2002, 2007). The High Court held that the earlier fixation had been made in accordance with in-force orders and that those orders had no retrospective effect. Ext.P7 was set aside; no recovery shall be made and the petitioner shall receive the pay benefits within three months.

Submissions & Arguments

Contentions of Appellants / Petitioners

Petitioner contends that fixation of pay and the grant of 10 years higher grade from 1993 and 20 years higher grade from 1995 were in accordance with government orders then in force, and that actions to recover amounts based on later directives (2002, 2007) and the 2010 recovery proposal are retroactive and unlawful, particularly after voluntary retirement; cites State of Punjab v. Rafiq Masih to support protection against retrospective recovery.

Contentions of Respondents

Respondents argue that the fixation was irregular in light of government letters relying on 2002 and 2007 directives; contend that the fixation must be corrected and recovery is permissible; rely on Ext.R1(a) and Ext.R1(b) to justify the non-entitlement and the need to fix pay as per newer rules.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
State of Punjab v. Rafiq Masih (White Washer)	2015 (1) KLT 429(SC)	Mentioned Only	Petitioner’s counsel relied on the Supreme Court decision; the High Court does not seem to apply or distinguish its reasoning, but merely cites it in argument.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 22ND DAY OF MARCH 2017/1ST CHAITHRA, 1939** **WP(C).No. 17188 of 2010 (W) ---------------------------** - **PETITIONER: -----------** **MOHAMMED IQBAL K.M., SAYANS HOUSE, PONNANI P.O., PINCODE - 679 577.** **BY ADVS.SRI.V.M.KURIAN SRI.K.T.THOMAS** **RESPONDENTS:** - **------------** **1. STATE OF KERALA, REP.BY SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM.** **3. THE HEAD MASTER, M.I.HIGHER SECONDARY SCHOOL, PONNANI.** **R1 & R2 BY SPECIAL GOVT. PLEADER SRI.SURESH BABU R3 BY ADVS.SRI.K.M.FIROZ SMT.M.SHAJNA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 17188 of 2010 (W) ---------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** |**EXT.P1-**|**TRUE COPY OF THE RELEVANT EXTRACT OF SERVICE**| |---|---| ||**BOOK OF PETITIONER SANCTIONING SENIOR GRADE.**| |**EXT.P2-**|**TRUE COPY OF ORDER DATED 4.7.2008 ISSUED BY THE DEO,**| ||**TIRUR.**| |**EXT.P3-**|**TRUE COPY OF THE STATEMENT REGARDING OLD SCALE OF PAY**| ||**AND REFIXED SCALE OF PAY OF THE PETITIONER.**| |**EXT.P4-**|**TRUE COPY OF THE ORDER DATED 27.9.2008 ISSUED BY**| ||**3RD RESPONDENT TO THE HEADMASTER.**| |**EXT.P5-**|**TRUE COPY OF THE ORDER DATED 18.1.2010 PASSED BY THE**| ||**1ST RESPONDENT.**| |**EXT.P6-**|**TRUE COPY OF THE JUDGMENT DATED 19.2.2010 IN**| ||**WPC.NO.10498/2009.**| |**EXT.P7-**|**TRUE COPY OF THE ORDER DATED 29.3.2010 PASSED BY THE**| ||**2ND RESPONDENT.**| |**EXT.P8-**|**TRUE COPY OF THE OBJECTION DATED 9.4.2010 SUBMITTED BY**| ||**THE PETITIONER.**| |**EXT.P9-**|**TRUE COPY OF THE ORDER DATED 12.11.2001 ISSUED BY THE**| ||**GOVERNMENT.**| |**RESPONDENTS' EXHIBITS**<br>**:**|| |**EXT.R1A-**|**TRUE COPY OF THE LETTER DATED 21.12.2002.**| |**EXT.R1B-**|**TRUE COPY OF THE CIRCULAR NO.34378/J3/07/G.EDN.**| ||**DATED 26.12.2007.**| |**EXT.R1C-**|**TRUE COPY OF THE JUDGMENT DATED 24.6.2009 IN WRIT**| ||**APPEAL NO.1209/2009.**| ||**//TRUE COPY//**| ||**P.S. TO JUDGE**| |**mbr/**|| ## **ANU SIVARAMAN, J.** ----------------------------------- ## W.P.(C) No.17188 of 2010 ------------------------------------ Dated this the 22[nd] day of March, 2017 ## **J U D G M E N T** The prayers in this writ petition are as follows: - a) To issue a writ of certiorari or other appropriate writ, order or direction quashing Ext.P7 order issued by the 2[nd] respondent. - b) To issue a writ of mandamus or other appropriate writ, order or direction directing the 2[nd] respondent to disburse the pensionary benefits due to the petitioner immediately. 2. The petitioner was appointed as full time menial in an aided school on 01.09.1975. He was promoted as L.D Clerk in 1983. On completion of ten years of service as L.D Clerk, he was granted ten years higher grade on 16.01.1993. Later, taking note of the earlier service rendered as full time menial as well, he was granted 20 years higher grade as L.D Clerk from 01.09.1995. On 30.09.2008, the petitioner availed voluntary retirement from service and was permitted to retire from service **W.P.(C) No.17188/2010** **2** with effect from that date. By Ext.P4 dated 27.09.2008, a communication was issued by the Deputy Director of Education, Malappuram informing the petitioner that the exemption granted to L.D Clerks appointed before 19.11.1994 had been withdrawn by the Government and therefore, fixation of the petitioner's pay was irregular. The said notice had been challenged by the petitioner before this Court and by Ext.P6 judgment dated 19.02.2010, the respondents were directed to grant the petitioner the reliefs as contemplated in Ext.P15 Government Order produced therein. The proposals for recovery made against the petitioner were also quashed. 3. Pursuant to Ext.P6, on 29.03.2010, a communication was issued by the Deputy Director of Education to the Headmaster of the school in which the petitioner had been working stating that, on verification of the petitioner's service book, it was found that the petitioner was entitled to fixation of pay in the scale of Rs.1200-2040 only with effect from 16.01.1993 and that he was not entitled to fixation of pay in the scale of Rs.1400-2300 from 01.09.1995. In the above circumstances, recovery was proposed against the petitioner. Though the petitioner preferred Ext.P8 representation, no orders **W.P.(C) No.17188/2010** **3** were passed thereon and the petitioner had approached this Court filing this writ petition and an interim stay of recovery was ordered on 03.06.2010 which was extended until further orders. 4. Learned counsel for the petitioner would submit that the petitioner's pay had been fixed and he had been granted the benefit of ten years higher grade in the post of L.D Clerk with effect from 16.01.1993. He had been granted 20 years higher grade taking into account his service in the post of full time menial and L.D Clerk, with effect from 01.09.1995. This fixation of pay was done taking note of the provisions of the Government Orders which were in existence at the relevant time. It is submitted that long after the petitioner had drawn all the benefits consequent on the fixation of his pay, which was counter checked by the educational officers and also after he had been permitted to voluntarily retire from service, proposals now made to recover amounts from him on account of errors in fixation of pay are not permissible in law. Learned counsel placed reliance on the decision of the Apex Court in _**State of Punjab** vs._ _**Rafiq Masih (White Washer)**_ (2015 (1) KLT 429(SC)). 5. A counter affidavit has been filed on behalf of the 1[st] respondent contending that the petitioner had entered service as **W.P.(C) No.17188/2010** **4** full time menial on 01.09.1975 and was promoted as L.D Clerk initially on 15.01.1983 and reverted with effect from 30.07.1983 and again promoted on 01.08.1983. He was granted first higher grade in the post of L.D Clerk with effect from 16.01.1993, on completion of ten years of service, and 20 years higher grade with effect from 01.09.1995. It is stated that the grant of 20 years higher grade considering his service as full time menial also was found irregular in view of the instructions given in the Government letter dated 21.12.2002. It is therefore contended that going by Ext.R1(a) Government letter dated 21.12.2002 and Ext.R1(b) Government circular dated 26.12.2007, the petitioner was not entitled to 20 years higher grade counting the service put in by him as full time menial as well. 6. I have considered the contentions advanced. It is clear that the petitioner had been granted 10 years higher grade in the post of L.D Clerk with effect from 16.01.1993. He had also been granted the benefit of 20 years higher grade taking note of his earlier service rendered as full time menial as well, with effect from 01.09.1995. These benefits had been granted to the petitioner evidently on the basis of Government Orders and Circulars in force at the relevant time. It is contended in the **W.P.(C) No.17188/2010** **5** counter affidavit that the benefits are not available in view of the Government letter and circular of the years 2002 and 2007 respectively. Since the petitioner was a person who had drawn the benefits with effect from 1993 and 1995 and the orders relied on to contend that those benefits are not available are of the years 2002 and 2007 respectively, I am of the view that the benefits drawn by the petitioners could not have been recalled by giving retrospective operation of the Government Orders relied on by the respondents. 7. From a reading of Exts.R1(a) and R1(b), it is clear that no retrospective operation is intended for those orders which are evidently orders passed in respect of pay revisions effected subsequently. 8. In the above view of the matter, I am of the opinion that the objections raised to the fixation of the petitioner's pay with effect from 16.01.1993 and 20 years higher grade with effect from 01.09.1995 cannot be sustained at this late date, especially after the petitioner had been permitted to voluntarily retire from service. This is more so in view of the fact that the post held by the petitioner was L.D Clerk and that the pay fixation had been long effected and the benefits enjoyed by the petitioner. **W.P.(C) No.17188/2010** **6** In the above view of the matter, Ext.P7 is set aside. It is directed that no recovery shall be made from the petitioner's salary and the petitioner shall be entitled to the benefits of pay fixation effected in the ten years higher grade with effect from 16.01.1993 and 20 years higher grade with effect from 01.09.1995. If any payments are due to the petitioner, the same shall be calculated and disbursed to him within a period of three months from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. Sd/- **ANU SIVARAMAN JUDGE** smp