OP(KAT) Nos. 505/2019 & 487/2019, High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **MONDAY, THE 25[TH] DAY OF OCTOBER 2021 / 3RD KARTHIKA, 1943** ## **OP(KAT) NO. 505 OF 2019** **AGAINST THE JUDGMENT IN OA (EKM) NO. 810/2016 OF THE KERALA** ## **ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/PETITIONER IN THE O.A.:** **PRIJITHA P.M., AGED 49 YEARS,** **W/O.JACOB VARKEY, P.D.TEACHER, GLP SCHOOL, CHERIPARAMBA, VALIANCHERI P.O., MELATTUR, MALAPPURAM DISTRICT, RESIDING AT KARINTHAKARAKUNNEL HOUSE, UPPUKULAM P.O., ALANALLUR (VIA), PALAKKAD DISTRICT.** **BY ADVS. M/S. K.MOHANAKANNAN & T.S.NEJIMUDDIN** ## **RESPONDENTS/RESPONDENTS IN THE O.A.:** - **1 GOVERNMENT OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM-695 014.** - **3 DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM-676 505.** - **4 ASSISTANT EDUCATIONAL OFFICER, MELATTUR, MALAPPURAM DISTRICT-679 326.** - **5 HEADMASTER, GLP SCHOOL, CHERI PARAMBA, VALIANCHERI P.O., MELATTUR, MALAPPURAM-679 326.** - **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS OP9KERALA ADMINISTRATIVE TRIBUNAL) HAVING BEEN FINALLY HEARD** **ON 25.10.2021 ALONG WITH OP(KAT).NO.487/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **MONDAY, THE 25[TH] DAY OF OCTOBER 2021 / 3RD KARTHIKA, 1943** ## **OP(KAT) NO. 487 OF 2019** **AGAINST THE JUDGMENT IN OA.NO.802/2016 OF THE KERALA ADMINISTRATIVE** ## **TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/PETITIONER IN THE O.A.:** **PRASEEDA.M., AGED 43 YEARS, W/O.SADANANDAN.P.K., P.D.TEACHER, GLP SCHOOL,** **ARAKKUPARAMBA, ARAKKUPARAMBA.P.O., MALAPPURAM DIST.-679341, RESIDING AT MAJEERI HOUSE, MATTARAKKAL.P.O., MALAPPURAM DISTRICT-679341, NOW WORKING IN GLP SCHOOL, PALLIKKUNNU, ARAKKUPARAMBA, MALAPPURAM DIST.-679341.** **BY ADVS. M/S. K.MOHANAKANNAN & T.S.NEJIMUDDIN** ## **RESPONDENTS/RESPONDENTS IN THE O.A.:** - **1 GOVERNMENT OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM-695014.** - **3 DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM-676505.** - **4 ASST. EDUCATIONAL OFFICER, MELATTUR, MALAPPURAM DISTRICT-679505.** - **5 HEADMASTER, GLP SCHOOL, CHERIAPARAMBA, VALIANCHERY.P.O., MELATTUR, MALAPPURAM-679326.** **THIS OP(KERALA ADMINISTRATIVE TRIBUNAL) HAVING BEEN FINALLY HEARD** **ON 25.10.2021 ALONG WITH OP(KAT).NO.505/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(KAT) Nos. 505 & 487 of 2019 - : 3 :- ## ALEXANDER THOMAS & VIJU ABRAHAM, JJ. ## ============================================ OP(KAT) Nos. 505 & 487 of 2019 [ _arising out of impugned common final order dated 6.8.2019 in respective OA(Ekm) Nos. 810 & 802 of 2016 on the file of the KAT, Ernakulam Bench]_ ============================================= Dated this the 25[th] day of October, 2021 ## J U D G M E N T ## ALEXANDER THOMAS, J. Since both these cases arise out of impugned common final order rendered by the Tribunal in the aforementioned OAs and as the issues raised are identical, we are disposing both these cases on the basis of this common judgment. For the purpose of easy reference, OP(KAT) No.505/2019 is taken as the lead case. 2. Both the petitioners herein (original applicants) were granted Higher Grade in the post of Primary Departmental Teachers (PD Teachers) in government service by counting their prior service as Primary School Teachers in Aided schools. According to the department, the rules stipulated that in such cases the benefit of First Higher Grade can be granted only after the successful declaration of OP(KAT) Nos. 505 & 487 of 2019 **==> picture [30 x 9] intentionally omitted <==** probation of the incumbent in the post of Govt. PD Teacher. In both these cases, the higher grade was computed and benefit was given even on the basis of a date anterior to the date of declaration of probation in the post of PD Teacher. After a delay of more than about 13 long years in the first case and about 11 years in the second case, the departmental authorities have taken steps that the mistake in the grant of higher grade to these applicants on an anterior date prior to the declaration of probation in the post of Govt. PD Teachers is illegal and wrong, and the same has to be remedied and rectified. 3. The petitioners herein have approached the Tribunal by filing aforementioned OAs which has been dismissed by the Tribunal. Now, aggrieved by the impugned common verdict of the Tribunal in the above OAs, the unsuccessful original applicants have approached this Court by filing the instant Original Petitions under Articles 226 & 227 of the Constitution of India. The prayers in OP(KAT) No. 505 of 2019 are as follows: " - _a) To issue an order or direction to call for the records leading to Ext.P4 and quash the same;_ - _b) To grant such other relief as this Hon'ble Court deem fit to grant in the interest of justice."_ OP(KAT) Nos. 505 & 487 of 2019 - : 5 :- The prayers in OP(KAT) No.487 of 2019 are as follows: " - _a) To issue an appropriate order or direction to call for the records leading to Ext.P2 and quash the same;_ - _b) To grant such other relief as this Hon'ble Court deem fit to grant in the interest of justice."_ 4. Heard Sri.K.Mohanakannan, learned counsel appearing for the petitioners in the O.P.s/applicants in the O.A.s and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the official respondents in the O.P.s/respondents in the O.A.s. 5. We have heard both sides _in extenso_ . The learned Senior Government Pleader has opposed the pleas. After hearing both sides, we are of the view that Sri.K.Mohanakannan, learned counsel appearing for the petitioners in the O.P.s is right in contending that the matter in issue is covered in favour of the petitioners herein as per the judgment dated 19.11.2019 rendered in a similar case by the Division Bench of this Court OP(KAT) No.65/2014 _(arising out of final order dated 4.10.2013 in O.A. No. 2224/2013 on the file of the KAT, Thiruvananthapuram Bench)_ . 6. A copy of said judgment of the Division Bench in OP(KAT) No.65/2014 has been produced as Ext.P-5 along with the affidavit dated 19.9.2021 filed by the petitioner in OP(KAT) No. 505/2019. Moreover, it OP(KAT) Nos. 505 & 487 of 2019 - : 6 :- appears that the impugned action has been taken by the respondent departmental authorities without affording reasonable opportunity of being heard to the petitioners. 7. The Division Bench of this Court in OP(KAT) No.65/2014 was confronted with an identical issue invovling same alleged mistake in the case of grant of higher grade on an anterior basis to the petitioner therein/applicant in the O.A. who was a Primary Departmental Teacher in government service. As per Anx.A-1 therein, higher grade was granted to the incumbent therein on 2.4.2013 but, w.e.f 1.7.2004. The audit objections was communicated to the petitioner therein for the first time as per Anx.A-3 therein on 19.2.2010. The Division Bench held that there has been long and unexplained delay on the part of the respondent departmental authorities in initiating the proposed corrective action, and that therefore the impugned action for interfering with the grant of first higher grade to the incumbent will require judicial interdiction, and that the Tribunal went wrong in not granting the relief. Accordingly, the Division Bench of this Court as per the judgment referred to as OP(KAT) Nos. 505 & 487 of 2019 - : 7 :- Ext.P-5 supra, has interefered with the said impugned order in that case. However, the Division Bench has clarified in para 6 thereof that the petitioner therein would have to comply with the stipulations in the circular dated 10.9.1990 (referred to as Anx.A-6(b) therein), which appears to be the same as Anx.R-3(a) herein, and that since the declaration of probation in the post of Govt. PD Teacher in the case of petitioner therein was 16.2.2006. The second higher grade could be granted to him by taking into account that he has to complete 6 years from the date of declaration of probation in that case, etc. 8. In the instant case, Anx.A-6(b) circular dated 10.9.1990 referred to in OP(KAT) No.65/2014 is Anx.R-3(a) filed in these instant O.A.s before the Tribunal. The facts of the case would disclose that the first higher grade was granted to the petitioner in OP(KAT) No. 505/2019 on an anterior date prior to his date of declaration of probation in the PD Teacher post on 18.1.2000, whereas the audit objection has been communicated to that petitioner for the first time as per Anx.A-5 issued on 3.12.2013, and subsequently as per Anx.A-10 issued on 1.3.2016. Hence, the delay in this case is about 13 years and 11 OP(KAT) Nos. 505 & 487 of 2019 - : 8 :- months in the first O.P. whereas the delay involved in the case referred to as Ext.P-5 supra was about 7 years. 9. As far as OP(KAT) No.487/2019 is concerned, it is seen that the first higher grade was granted to the said petitioner on 19.11.2003, on an anterior basis prior to date of declaration of his probation in the post of PD Teacher. For the first time, audit objections has been raised as per Anx.A-7 in that case on 24.10.2014 and thereafter, the impugned orders have also been issued at Anxs.A-8, A-10 & A-11 produced in that case, issued on 17.7.2015, 7.1.2016 & 6.4.2016. In the second O.P., it is seen that the delay in taking remedial action was about 11 years. After hearing both sides, we are in full concurrence with the considered views rendered by the Division Bench of this Court in the judgment dated 19.11.2019 in OP(KAT) No. 65/2014. The ratio decidendi laid down by the Division Bench of this Court in the said judment would squarely apply in the instant case with equal force or even with greater force inasmuch as, the delay involved in this case is much more inordinate in these cases. Hence, it is ordered that Anxs.A-6, A-5 & A-10 issued in O.A.(Ekm) No. 810/2016 (which OP(KAT) Nos. 505 & 487 of 2019 **==> picture [30 x 9] intentionally omitted <==** is subject matter of OP(KAT) No. 505/2019) as well as the impugned proceedings at Anxs.A-7, A-8, A-10 & A-11 produced in O.A.(Ekm) No. 802/2016 (which is subject matter of OP(KAT) No. 487/2019) will stand quashed. 10. The counsel for the petitioners would point out that he is not fully aware as to whether the amounts have been duly recovered from the petitioners in pursuance of the impugned orders in these OAs before the stay orders have been passed by this Court in these OPs. We make it clear that in case the amounts in pursuance of abovesaid impugned orders which are now quashed in this judgment have already been recovered from the petitioners, then such recovered amounts as regards the first higher grade shall be duly refunded to the petitioners in the O.P. without much delay, preferably within a period of 2 months from the date of receipt of a copy of this judgment. 11. Sri.Saigi Jacob Palatty, learned Senior Government Pleader would submit that since this Court is following the dictum laid down by the Division Bench of this Court in aforementioned OP(KAT) Nos. 505 & 487 of 2019 **==> picture [36 x 9] intentionally omitted <==** OP(KAT) No. 65/2014, the findings made by the Division Bench therein in para 6 thereof in the matter of entitlement of second higher grade should also be made clear in these judgments. 12. Per contra, Sri.K.Mohanakannan, learned counsel appearing for the petitioners in the O.P.s would submit that in the instant case, the delay is much more inordinate as far as the issue of taking any remedical measures for the second higher grade is concerned, and therefore the main reasoning of the Division Bench in abovesaid judgment in OP(KAT) No. 65/2014, as well as the legal principles laid down by the Apex Court in the celebrated _**Whitewasher's case [State of Punjab v. Rafiq Masih**_ reported in _**(2015) 4 SCC 334, para 18]**_ as modified by _**The High Court of Haryana and Punjab v. Jagdev Singh**_ reported in _**AIR 2016 SC 3523**_ will squarely apply in this case. 13. After hearing both sides, we are of the view that said issue in the matter of entitlement of second higher grade need not be factually decided by us for reasons more than one. Firstly, we queried both sides as to whether the remedial measures if any, for correcting OP(KAT) Nos. 505 & 487 of 2019 **==> picture [36 x 9] intentionally omitted <==** the alleged mistake as far as the second higher grade has been duly completed by the respondent authorities, and if so, when. 14. Both sides are unable to satisfy this Court on those factual aspects. As of now, we are not sure as to whether remedial measures as far as the second higher grade for the petitioners in these cases have already been taken and completed, or whether no actio has been taken and is kept pending. Both the OAs in the instant case were dismissed by the Tribunal on 6.8.2019. Since, recovery proceedings were stayed in these OPs at the admission stage, we are not sure whether action for correction of second higher grade was already taken or has not been taken so far. If such corrective steps have already been taken by the departmental authorities in the matter of second higher grade, and if the same has been done without hearing the petitioners, then the petitioners will be at liberty to file representations and they should be heard, and their contentions based on the aspect of long and inordinate delay may be duly considered and appropriate decision may be taken thereof. So also, if such corrective action in the matter of second higher grade has OP(KAT) Nos. 505 & 487 of 2019 - : 12 :- not so far taken till now, and the respondent departmental authorities propose to take any such action in the light of the observations of the Division Bench of this Court made in para 6 of judgment in OP(KAT) No. 65/2014, then notices should be issued to the respective petitioners in these cases, and they should be afforded reasonable opportunity of being heard, and their submissions and objections, more particularly with the one with reference to the alleged long and inordinate delay should be duly considered and taken into account, and decision thereon and duly communicatd to the petitioners in the O.P. If thereafter, the petitioners have any legally justiciable grievances, it is for them to workout their remedies in the manner known to law. However, we make it clear that in the light of findings made by the Division Bench of this Court in para 6 of judgment in OP(KAT) No. 65/2014, the entitlement of second higher grade would occur after completion of 6 years from the date of declaration of probation in the post of PD Teacher in cases of this nature. 15. The abovesaid aspects have not been duly taken note of in the rendering of the impugned verdicts of the Tribunal. Accordingly, OP(KAT) Nos. 505 & 487 of 2019 **==> picture [36 x 9] intentionally omitted <==** the impugned common final order dated 6.8.2019 rendered by the Kerala Administrative Tribunal, Ernakulam Bench, in O.A.(Ekm) Nos.810 & 802 of 2016 will stand set aside. With these observations and directions, the above Original Petitions (KAT) wil stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE Sd/- VIJU ABRAHAM, JUDGE MMG OP(KAT) Nos. 505 & 487 of 2019 - : 14 :- ## **APPENDIX OF OP(KAT).NO.505/2019** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1** **TRUE COPY OF THE OA (EKM) 810/2016 ON THE FILE OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, ERNAKULAM.** **EXHIBIT P1(A1) TRUE COPY OF THE ORDER NO.A4/27473/99 DATED 13.12.1999 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P1(A2) TRUE COPY OF THE ORDER NO.D.DIS.C/193/2000 DATED 24.08.2000 ISSUED BY THE ASST.EDUCATION OFFICER, MANNARKKAD.** - **EXHIBIT P1(A3) A TRUE COPY OF THE PROCEEDING NO.49526/J1/85/G.EDN. DATED 19.01.1988 OF THE GOVERNMENT.** **EXHIBIT P1(A4) TRUE COPY OF THE ORDER NO.O & M(4)74739/09/DIP/K.DIS DATED 06.11.2009 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P1(A5) TRUE COPY OF THE PROCEEDING NO.C/2411/2013 DATED 03.12.2013 ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P1(A6)** **TRUE COPY OF THE RELEVANT PORTION OF THE OBJECTION RAISED AGAINST THE HIGHER GRADE SANCTIONED TO THE APPLICANT BY THE 3RD RESPONDENT ALONG WITH ANNEXURE A5.** **EXHIBIT P1(A7) TRUE COPY OF THE REPRESENTATION DATED 17.01.2015 SUBMITTED BY THE APPLICANT BEFORE THE 1ST RESPONDENT.** **EXHIBIT P1(A8)** **TRUE COPY OF THE PROCEEDINGS DATED 05.12.2015 ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P1(A9) TRUE COPY OF THE REPRESENTATION DATED 02.01.2016 SUBMITTED BY THE APPLICANT BEFORE THE 1ST RESPONDENT.** OP(KAT) Nos. 505 & 487 of 2019 - : 15 :- **EXHIBIT P1(A10) TRUE COPY OF THE ORDER NO.13570/B1/2015 G.EDN. DATED 01.03.2016 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 3RD RESPONDENT IN OA (EK) 810/2016. EXHIBIT P2(R3)(A) TRUE COPY OF THE GOVERNMENT LETTER NO.41730/J1/88/G.EDN. DATED 10TH SEPTEMBER, 1990 ADDRESSED TO DIRECTOR OF PUBLIC INSTRUCTION. EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 4TH RESPONDENT IN OA 810/2016. EXHIBIT P2(R3)(A) TRUE COPY OF THE GOVERNMENT LETTER NO.41730/J1/88/88/G.EDN DATED 10TH SEPTEMBER, 1990 ADDRESSED TO DIRECTOR OF PUBLIC INSTRUCTION. EXHIBIT P3(R4)(B) TRUE COPY OF THE CIRCULAR 46/2008 DATED 08.08.2008. EXHIBIT P4 COPY OF THE JUDGMENT IN OA(EKM)810/2016 DATED 06.08.2019. EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN OP(KAT) 65/2014 DATED 19/11/2019** OP(KAT) Nos. 505 & 487 of 2019 - : 16 :- ## **APPENDIX OF OP(KAT).NO.487/2019 PETITIONER'S EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE O.A.(EKM)802/2016 ON THE FILE OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL ERNAKULAM.** **EXHIBIT P1(A1) TRUE COPY OF THE ORDER NO.L.DIS.F/8077/04 DATED 4.12.2004** **ISSUED BY THE ASST. EDUCATION OFFICER, PATTAMBI.** **EXHIBIT P1(A2) TRUE COPY OF THE PROCEEDINGS NO.49526/J1/85/G.EDN. DATED 19.1.1988 ISSUED BY THE GOVERNMENT.** **EXHIBIT P1(A3) A TRUE COPY OF THE ORDER NO.O&M(4)74839/09/DPI/K.DIS DATED 6.11.2009 ISSUED BY THE COMPETENT AUTHORITY ATTACHED TO THE OFFICE OF THE 2ND RESPONDENT.** **EXHIBIT P1(A4) TRUE COPY OF THE ORDER OF THE NO.A4/29900/2006 DATED 13.12.2006 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P1(A5) TRUE COPY OF THE STATEMENT OF FIXATION OF PAY SUBMITTED BY THE APPLICANT ON 19.11.2003 AS PER GO(P)3000/9/FIN. DATED 26.11.1999.** **EXHIBIT P1(A6) TRUE COPY OF THE RELEVANT PAGES OF THE SERVICE BOOK OF THE APPLICANT.** **EXHIBIT P1(A7) TRUE COPY OF THE PROCEEDINGS DATED 24.10.2014 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P1(A8) TRUE COPY OF THE PROCEEDINGS NO.5034/B1/2015/G.EDN. DATED 17.7.2015 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P1(A9) TRUE COPY OF THE REPRESENTATION DATED 15.10.2015 SUBMITTED BY THE APPLICANT BEFORE THE HON'BLE MINISTER.** OP(KAT) Nos. 505 & 487 of 2019 - : 17 :- **EXHIBIT P1(A10) TRUE COPY OF THE PROCEEDINGS DATED 7.1.2016 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P1(A11) TRUE COPY OF THE PROCEEDINGS DATED 6.4.2016 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P2 COPY OF THE JUDGMENT IN OA(ERNAKULAM) 802/2016 DATED 6.8.2019.**