High Court of KeralaDivision Bench2022-06-14Disposal: Original petitions disposed; petition...

OP(KAT) Nos.25 and 30 of 2017

Case / Petition Number:OP(KAT) Nos.25 and 30 of 2017

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.K. Jayasankaran Nambiar
Mohammed Nias C.P.
Judgment Date: 2022-06-14
Court Decision / Holding: The petitions are dismissed. The Government is directed to decide on the question of recovery in terms of the Supreme Court’s decision in Rafiq Masih after ascertaining the factual situation for the petitioners, within eight weeks from the date of receipt of a copy of this judgment. Interim stay against recovery is to continue until a final decision is taken.
Final Disposition: Disposal: Original petitions disposed; petitions dismissed; Government to decide on recovery in light of Rafiq Masih within eight weeks, after hearing petitioners; interim stay maintained until final decision.

Parties to the Case

Appellants / Petitioners

Mohan An P., S/O Kunhikrishnan Nair, High School Assistant (Mathematics), Government Higher Secondary School Beypore
E M Gireesh, Primary Departmental Teacher, Government Lower Primary School Kinassery, Pokkunu P.O., Kozhikode-673013
Purushothaman N.P., Primary Departmental Teacher, Government Upper Primary School, Thiruvannur, Thiruvannur Nada P.O., Kozhikode

Respondents

State of Kerala represented by Secretary to Government, General Education Department, Government Secretariat, Thiruvananthapuram-695001
Director of Public Instructions, Thiruvananthapuram-695001
Deputy Director of Education, Kozhikode-673001
Assistant Educational Officer, City Educational Sub District, Kozhikode-673001

Legal Representation & Advocates

Counsels for Petitioners

• Dr. George Abraham

Counsels for Respondents

• Binoy Chandran, Government Pleader

Case Synopsis & Summary

These original petitions challenge the Kerala Administrative Tribunal’s remand order concerning time-bound higher grade promotions for teachers who joined Government service after teaching in aided schools. The petitioners contend that the sanctioning of higher grades should be with effect from the date on which the prescribed period of service was completed, even if their probation had not yet been declared in Government service. They had objected to an audit objection that the first higher grade could not be granted prior to probation; representations against the audit objection were unsuccessful, prompting invocation of the Tribunal. The Tribunal held that the issue of entitlement to higher grade before probation had already been decided against the applicants in G. Kanakakumaran v. State of Kerala (2013 (2) KAT Reporter 246) and remanded to ascertain factual circumstances so that the Government could apply the Supreme Court’s decision in Rafiq Masih (State of Punjab and others v. Rafiq Masih, 2015 (4) SCC 334) on a case‑by‑case basis, particularly regarding recoveries. The High Court affirmed that the merits of the pre‑probation grant were not in dispute, and permitted limited remand to evaluate inequitable recoveries under Rafiq Masih. It dismissed the petitions and directed the Government to decide on recovery within eight weeks after hearing the petitioners, while preserving the interim stay.”

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners maintain that the time‑bound higher grade promotion should be admissible from the date on which the requisite years are completed, even if probation has not been declared, especially when prior service in aided schools is counted toward qualifying service. They challenge the audit objection and seek a declaration that recoveries must be treated equitably, citing the Supreme Court’s decision in Rafiq Masih for guidance in balancing recovery with equity. The remand is sought to enable factual ascertainment and to apply Rafiq Masih on a case‑by‑case basis after considering the impact of recoveries.

Contentions of Respondents

The respondents rely on the Tribunal’s prior ruling that a first time bound higher grade cannot be granted before probation is declared in Government service, as reflected in G. Kanakakumaran v. State of Kerala. They contend the Government is bound by established rules and circulars governing probation and higher grade fixation. They urge that recoveries arising from audit objections be considered under the principles of equity, but within the framework of statutory and administrative directives, pending the Government’s application of Rafiq Masih’s guidance.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
G.Kanakakumaran v. State of Kerala	2013 (2) KAT Reporter 246	Positive	Cited and relied upon by the Tribunal, and the High Court, to hold that the issue of entitlement to higher grade prior to probation had already been decided against the applicants.
State of Punjab and others v. Rafiq Masih	2015(4) SCC 334	Positive	Cited to guide the recovery principle; used to direct the Government to apply Rafiq Masih’s equity framework to determine whether recovery should be continued.

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Extracted Judgment Text

Exact text extracted from official judgment records.

OP(KAT)Nos.25 and 30 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.** **TUESDAY, THE 14[TH] DAY OF JUNE 2022 / 24TH JYAISHTA, 1944** **OP(KAT) NO. 25 OF 2017** **AGAINST THE ORDER IN OA NO.(EKM) 34/2013 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 28.09.2016** ## **PETITIONER:** MOHANAN.P, AGED 54 YEARS S/O.KUNHIKRISHNAN NAIR, HIGH SCHOOL ASSISTANT (MATHAMATICS), GOVERNMENT HIGHER SECONDARY SCHOOL BEYPORE-673105, RESIDING AT PRITHVIPRIYA, KURUVANGAD P O, KOYILANDY, KOZHIKODE 673620, (NOW WORKING AT GOVERNEMTN VOCATIONAL HIGHER SECONDARY SCHOOL, MEENCHANDA, CALICUT) BY DR.GEORGE ABRAHAM ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. OP(KAT)Nos.25 and 30 of 2017 **==> picture [7 x 9] intentionally omitted <==** 2 DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM-695010 3 DEPUTY DIRECTOR OF EDUCATION KOZHIKODE 673001. BY SRI.BINOY CHANDRAN, GOVERNMENT PLEADER THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ALONG WITH OP(KAT) 30 OF 2017 ON 14.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT)Nos.25 and 30 of 2017 3 ## **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.** **TUESDAY, THE 14[TH] DAY OF JUNE 2022 / 24TH JYAISHTA, 1944** **OP(KAT) NO. 30 OF 2017** **AGAINST THE ORDER IN TA 2729/2012 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS:** 1 E M GIREESH PRIMARY DEPARTMENTAL TEACHER, GOVERNMENT LOWER PRIMARY SCHOOL KINASSERY, POKKUNU.P.O., KOZHIKODE-673013 2 PURUSHOTHAMAN.N.P. PRIMARY DEPARTMENTAL TEACHER, GOVERNMENT UPPER PRIMARY SCHOOL, THIRUVANNUR, THIRUVANNUR NADA.P.O., KOZHIKODE BY ADV DR.GEORGE ABRAHAM ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001 2 DIREWCTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHPURAM- 695001 OP(KAT)Nos.25 and 30 of 2017 4 - 3 DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE- 673001 - 4 ASSISTANT EDUCATIONAL OFFICER CITY EDUCATIONAL SUB DISTRICT, KOZHIKODE-673001 BY SRI.BINOY CHANDRAN, GOVERNMENT PLEADER THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 14.06.2022 ALONG WITH OP(KAT) 25 OF 2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT)Nos.25 and 30 of 2017 5 ## **JUDGMENT** ## A.K.Jayasankaran Nambiar, J. As both these original petitions arise from a common order of the Kerala Administrative Tribunal, they are taken up together for consideration and disposed by this common judgment. The brief facts necessary for the disposal of the Original Petitions are as follows:- The petitioners before us, who were the applicants before the Administrative Tribunal, are teachers who after completion of various spells of teaching service in aided schools, joined Government schools in the State. It would appear that based on the Government Orders issued from time to time they were granted the time bound higher grade on the completion of 10 years, 18 years and 23 years, respectively. While reckoning the qualifying service for the time bound higher grade the period of service rendered in aided schools prior to their joining Government service was also taken into consideration. The provocation for approaching the Tribunal was an audit objection that was raised in connection with the sanctioning of the first higher grade on completion of 10 years of service with the Government taking the stand that the first higher grade promotion could not have been granted to the applicants prior to their probation being declared 6 OP(KAT)Nos.25 and 30 of 2017 in the Government school. The representations preferred by the applicants against the audit objection having met with no success, the applicants approached the Tribunal with a prayer to set aside the audit objections and the consequential orders passed by the Government, as well as for a declaration that in the case of a teacher who had entered Government service after putting in service as a teacher in aided schools, though the sanctioning of higher grade could await a declaration of satisfactory completion of the period of probation, such higher grade had to be given with effect from the date on which it actually fell due on completion of the prescribed number of years. 2. The Tribunal on a consideration of the matter found that the issue whether teachers in Government service, who had previous aided school service, will be entitled to higher grade without their probation being declared, had already been decided against the applicants by the order of the Tribunal in **G.Kanakakumaran v. State of Kerala** [2013 (2) KAT Reporter 246]. The Tribunal therefore found that this issue had to be decided against the applicants in the O.A. The Tribunal then went on to consider the contention regarding the inequitable nature of the recovery proceedings that followed pursuant to the audit objection of the Government. In that connection a reference was made by the Tribunal to the decision of the Supreme Court in **State of Punjab and others v. Rafiq Masih** [2015(4) SCC 334] and after extracting the relevant findings of the supreme court in OP(KAT)Nos.25 and 30 of 2017 7 that case the matter was relegated to the Government for its consideration as regards whether or not the recovery proposed needed to be continued against the applicants in view of the principles laid down by the supreme court in **Rafiq Masih** (supra). The Government was also directed to take a decision in the matter within a period of three moths from the date of receipt of a copy of the order. The interim stay against recovery that was granted by the Tribunal in the original applications was directed to be continued till a final decision was taken by the Government. 3. In the Original Petitions before us the challenge is essentially against the remand order of the Tribunal. The learned counsel for the petitioners' does not seriously contest the findings of the Tribunal on the merits of the issue as to whether the first time bound higher grade promotion could be granted only after the declaration of probation in Government service. He would confine his argument to the aspect of recovery and the applicability of the decision in the **Rafiq Masih** (supra) . 4. On a consideration of the submissions of the learned counsel for the petitioners we find that the issue of whether or not a recovery was permissible pursuant to a belated audit objection was actually considered and decided by the Tribunal in favour of the petitioners, by placing reliance on the decision in **Rafiq Masih** (supra). The remand in our view was for the limited purposes of OP(KAT)Nos.25 and 30 of 2017 8 ascertaining the factual situation in the individual cases before the Tribunal so that the Government could apply the decision in **Rafiq Masih** (supra) on a case to case basis after determining whether a recovery would be inequitable. While ordinarily the Government would have taken a decision as directed by the Tribunal within the time granted by the Tribunal, we note that it was solely on account of the pendency of these Original Petitions before this Court and the stay of further proceedings granted by this Court therein that, the Government could not complete the said exercise. Since it is a factual ascertainment that is contemplated, this Court cannot continue to do what the Government may directed to do. In the result, we dismiss these original petitions and direct the Government to forthwith take a decision on the question of recovery, in terms of the judgment of the Supreme Court in **Rafiq Masih** (supra) after ascertaining the factual situation pertaining to the petitioners herein. The Government shall pass orders in the matter after hearing the petitioners within an outer time limit of eight weeks' from the date of receipt of a copy of this judgment. These original petitions are disposed as above. **Sd/A.K.JAYASANKARAN NAMBIAR,** **JUDGE** **Sd/-** **MOHAMMED NIAS C.P.,** **JUDGE** dlk 15.6.2022 OP(KAT)Nos.25 and 30 of 2017 9 ## **APPENDIX OF OP(KAT) 25/2017** PETITIONER'S EXHIBITS & ANNEXURES - EXHIBIT P1 TRUE COPY OF O.A ALONG WITH ANNEXURES. ANNEXURE A1 TRUE COPY G.O.(MS)NO.74/68/EDN. DATED 24.02.1968 - ANNEXURE A2 TRUE COPY OF RELEVANT PORTIONS OF THE STATEMENT SHOWING THE FIXATION OF PAY OF THE APPLICANT IN THE FIRST HIGHER GRADE. - ANNEXURE A3 TRUE COPY OF THE GOVERNMENT CIRCULAR MEMORANDUM NO.26316/11/80/G.EDN DATED 23.03.1983 - ANNEXURE A4 TRUE COPY OF THE GOVERNMENT LETTER NO.49526/11/85/G.EDN DATED 19.1.1988 - ANNEXURE A5 TRUE COPY OF THE RELEVANT PORTION OF THE AUDIT REPORT - ANNEXURE A6 TRUE COPY OF THE OBJECTION SUBMITTED BY THE APPLICANT TO THE DEPUTY DIRECTOR, EDUCATION, KOZHIKODE ANNEXURE A7 TRUE COPY OF THE LETTER NO.G3/8421/13 DATED 28.01.2013 - ANNEXURE A8 TRUE COPY OF THE GOVERNMENT LETTER NO.21173/L1/09/G.EDN DATED 25.04.2009 - ANNEXURE A9 TRUE COPY OF GO(RT)NO.2689/2006/G.EDN DATED 29.06.2006 - ANNEXURE A10 TRUE COPY OF THE RELEVNT EXTRACT OF GOVERNMENT CIRCULAR NO.46/2008/FIN DATED 8.8.2008/G.EDN DATED 29.6.2008 - ANNEXURE A11 TRUE COPY OF THE GO(P) NO.62/81/(282)/FIN DATED 21.01.2981 OP(KAT)Nos.25 and 30 of 2017 10 |EXHIBIT P2|TRUE COPY OF THE REPLY STATEMENT FILED BY| |---|---| ||THE RESPONDENT| |EXHIBIT P3|TRUE COPY OF THE JUDGMENT IN OA| ||(EKM/34/2013.| |EXHIBIT P4|TRUE COPY OF CIRCULAR ISSUED BY THE| ||GOVERNMENT DATED 31/8/2019| OP(KAT)Nos.25 and 30 of 2017 11 ## **APPENDIX OF OP(KAT) 30/2017** PETITIONERS ANNEXURES ANNEXURE A TRUE COPY OF TA 2729/2012 ALONG WITH EXHIBITS. ANNEXURE B TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENT. ANNEXURE C TRUE COPY OF THE JUDGMENT IN TA 2729/2012 DATED 28TH SEPTEMBER, 2016. EXHIBIT P1 TRUE COPY OF G.O.(MS) NO.74/68/EDN. DATED 24.2.1968 EXHIBIT P2 TRUE COPY OF THE ORDER NO.G3/16170/08/L.DIS 22.11.2008 OF THE DEPUTY DIRECTOR(EDUCATION), KOZHIKODE EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE HON'BLE MINISTER OF EDUCATION EXHIBIT P4 TRUE COPY OF THE GOVERNMENT LETTER NO.27820/L1/09/G.EDN. DATED 30.5.2009 EXHIBIT P5 TRUE COPY OF THE RELEVANT EXTRACT OF THE ADULT OBJECTION EXHIBIT P6 TRUE COPY OF THE GOVERNMENT IN CIRCULAR MEMORANDUM NO.26316/J1/80/G.EDN. DATED 23.3.1983 EXHIBIT P7 TRUE COPY OF THE GOVERNMENT LETTER NO.49526/J1/85/G.EDN DATED 19.1.1988 EXHIBIT P8 TRUE COPY OF THE RELEVANT EXTRACT OF THE GOVERNMENT CIRCULAR NO.46/2008/FIN. DATED 8.8.2008 EXHIBIT P9 TRUE COPY OF GO(P) NO.62/81/(282)/FIN. DATED 20.1.1981 OP(KAT)Nos.25 and 30 of 2017 12 |EXHIBIT P10|TRUE COPY OF THE GOVERNMENT LETTER| |---|---| ||NO.41730/J1/88/G.EDN. DATED 10.9.1990| |EXHIBIT P11|TRUE COPY OF THE LETTER NO.OA(HQ)111992-| ||239/03-04/523 DATED 3.8.2005 OF THE| ||ACCOUNTANT GENERAL.|