P. Abdul Azeez v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **WEDNESDAY, THE 1[ST] DAY OF MARCH 2023 / 10TH PHALGUNA, 1944** ## **WP(C) NO. 32409 OF 2009** ## **PETITIONER/S:** P.ABDUL AZEEZ, AGED 54 YEARS S/O. P.MOIDEEN, HIGH SCHOOL ASSISTANT (URDU), DARUL ULOOM HIGHER SECONDARY SCHOOL, THOOTHA, MALAPPURAM DISTRICT BY ADVS. SRI.V.A.MUHAMMED SRI.K.E.HAMZA 1 THE STATE OF KERALA AND OTHERS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2 THE ACCOUNTANT GENERAL A&E KERALA, THIRUVANANTHAPURAM. 3 THE DEPUTY DIRECTOR OF EDUCATION MALAPPURAM DISTRICT. 4 THE DISTRICT EDUCATIONAL OFFICER MALAPPURAM. 5 THE PRINCIPAL, DARUL ULOOM HIGHER SECONDARY SCHOOL, THOOTHA, MALAPPURAM DISTRICT. ## **RESPONDENT/S:** ## **OTHER PRESENT:** SR GP SRI JUSTIN JACOB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 32409 OF 2009** **2** ## **JUDGMENT** The present writ petition is directed against the orders Ext.P12 and P16 dated 18.11.2008 and 25.9.2009 respectively. 2. Petitioner entered into service as Primary School Teacher on 1.7.1980 and thereafter was promoted as High School Assistant (Urdu) on 15.7.1996. On completion of the total period of 18 years of service was granted Senior grade in Primary cadre with effect from 18.4.1999. Government vide order G.O (Ms.) No. 134/86/G.Edn. dated 7.8.1986 ordered that a Primary School Teacher including language Teacher in the Primary Section on being appointed or promoted to High School after having put in more than 10 years of service in the Primary Section will be given Grade I in the High School on completion of a total service of 20 years and Senior Grade in the High School on completion of a total service of 30 years, Ext.P1. The above grade was ordered to be 10 and 18 years as per the 1997 Pay Revision vide order dated 25.11.1998, Ext.P2. In 1991 vide Government order No. 57/91/ (89)/Fin dated 18.1.1991, it was ordered that High School Assistant promotees having Primary service will be allowed Selection Grade in Primary Cadre. In other words, the Primary Teachers who are promoted as High School Assistant will be eligible for Higher Grade **WP(C) NO. 32409 OF 2009** **3** in the Primary cadre. 3. Learned counsel for the petitioner submitted that the Full Bench of this Court in the decision reported in 1993 (2) KLT 1058 (Krishna Panicker v. State of Kerala) held that for granting Senior Grade to promote High School Assistant, a service in the lower category as P.D Teacher or L.P School Teacher or UP School Teacher is not to be taken into account which was clarified by the Supreme Court not to recover the amount already paid. Pursuant to the decision of the Supreme Court, Government vide order dated 12.9.1997 declared that recovery need to be effected in case of teachers who were granted Higher Grade counting Primary School service and who were paid arrears upto 18.11.1993. 4. Learned counsel appearing on behalf of the petitioner submitted that as per Ext.P3, Primary Teachers appointed as High School Assistant were allowed Grade reckoning both primary and high school services together in the scale of primary teacher. The said benefit was granted by the Government considering the peculiar circumstances, that a primary school teacher appointed/promoted as High School Assistant after having 10 or 12 years of services in the Primary Section will not get the benefit of Selection Grade either of the Primary Section or of the High School Section Section. Petitioner approached this Court for claiming **WP(C) NO. 32409 OF 2009** **4** such relief since Since the benefits given to the petitioner vide orders dated 6.9.2003 and 28.8.2009, and the benefits granted vide order dated 18.1.1991, Ext.P3 was withdrawn and excess amount paid was sought to be withdrawn. But thereafter these orders were withdrawn and Ext.P3 was restored. It is in these circumstances, petitioner approached this Court in O P NO. 7348 of 2003 and connected matters. This Court vide judgment dated 11.7.2003, Ext.P9 quashed the order of the withdrawal of the benefits if any, or recovery of excess salary paid and the benefits granted to the petitioner under Ext.P3 was ordered to be restored within three months from the date of receipt of the certified copy of the judgment. Liberty was granted to the Government to pass appropriate orders afresh in accordance with law. However, vide Ext.P12, the order was passed but in the penultimate paragraph, Deputy Director, Education, Malappuram ordered that fixation of the pay of the petitioner on completion of 20 years of service in the grade of HSA scale of pay as per the Government order dated 7.8.1986 which was substituted vide order dated 18.1.1991, Ext.P3. It is in these circumstances, petitioner preferred a revision petition resulting into dismissal of the same, vide Ext.P16. It is a case of total harassment much less contemptuous act on behalf of the respondents in not implementing the directions contained in **WP(C) NO. 32409 OF 2009** **5** the judgment dated 11.7.2003, Ext.P9. Petitioner had approached this Court vide another W.P.(C) No.2426 of 2005 and this Court vide judgment dated 28.8.2008, Ext.P11 disposed of the writ petition with a directions to the competent authority to take appropriate action in accordance with law, if not already taken, as the matter is covered in favour of the petitioner by Ext.P8 judgment referred to in Ext.P11. Even against Ext.P12, petitioner had filed a writ petition for issuance of directions to the respondent to decide the case expeditiously. It is in these circumstances, Ext.P16 has been passed. 5. On the other hand, learned Government Pleader submitted that the since petitioner was promoted as HSA (Urdu) from 15.7.1996, was not entitled for the time bound grade scheme of Primary teachers but only for the scheme of HSA only. The order is wholly justified and based upon the examination of all the Government orders and dealt with the objections in extenso and therefore there cannot be any interdiction while exercising the power of judicial review under Article 226 of the Constitution of India. 6. I have heard the learned counsel for the parties and appraised the paperbook. 7. The facts noticed above would reveal that the petitioner **WP(C) NO. 32409 OF 2009** **6** had to, time and again approach this Court for vindication of the grievances and was successful in getting an order of this Court dated 11.7.2003, Ext.P9, the same reads as under: Since the very same point is raised for decision in all these cause, they are heard and disposed of by a common Judgment. The exhibits mentioned in this judgment are those referred in 0.P.No 24426/2002. 2. The petitioners in those original petitions are High School Assistants working in Government/Private schools. All of them commenced their service as Primary Teachers. Thereafter, they were promoted as H.S.A. When higher grades were granted in the post of H.S.A their primary service was also reckoned. This was done on the strength of Government Order No.G.O. (Ms)134/86/G.Edn. 7.8.1986 (Ext.P3) and G.O. (Ms)57/91/ (89)/Fin dated 18.1.1991 (Ext.P4). By those orders, the benefits granted to the petitioners as per the Pay Revision Government Order dated 16.9.1985 were further enhanced. 2. Later this Court in Krishna Panicker V State of Kerala (1993(2) KLT 1058) interpreted clause 10(1) of G.O(P) No.515/35/Fin dated 16.9.1985 (Pay Revision Government Order) and held that the primary service of a High School Assistant cannot be counted while sanctioning higher grads in terms of the above said clause of the said Government Order. Based on that decision the Government issued G.O.(P)No.347/2000/G.Edn. dated 19.10.2000 (Ext.P10) withdrawing the benefits granted under G.0.(Ms) 134/86/G.Ed. dated 7.8.1986 (Ext.P3). Still later, G.O.(P)NO.938/2001/Fin. dated 31.7.2001 (Ext.P11) was issued withdrawing G.D. (Ms) No 57/91/(89)/Fin, dated 18.1.1991 (Ext.P4). Based on these two orders (Ext. P10 and P11), the benefits already granted to the petitioners are sought to be recovered. Therefore, they challenge those Government Orders and the consequential steps taken based on them. The point raised by the petitioners is covered in their favour by the decision of this court in 0.P.No.7348/2003 and connected cases. Accordingly, these original petitions are allowed. G.0.(P)No.347/2000/G.Edn. dated 19.10.2000 (Ext.P10) and 6.0.(P)No.938/2001/Fin. dated 31.7.2001 (Ext.P11) are quashed. The consequential orders issued in individual cases of the petitioners based on those two orders are also quashed. The withdrawal of benefits, if any, or recovery of excess salary paid, if any, shall stand quashed. Those benefits granted under Exts.P3 and P4 if withdrawn shall **WP(C) NO. 32409 OF 2009** **7** be restored to the petitioners within three months from the date of receipt of a copy of this judgment by the respective controlling officers. 3. The liberty given to the Government to pass appropriate orders afresh in accordance with law in the judgment in O.P No.7348 of 2003 is granted in these cases also. The original petitions are disposed of as above. 8. On perusal of the same, the respondents were required to comply with the order but having failed, had approached this Court as noticed above and vide order dated 28.8.2008, Ext.P11 the following observations were recorded by this Court. This writ petition is filed with the following prayer: Issue a writ of mandamus or other appropriate writ, order or direction commanding respondents 3 to 5 to grant Increments due to the petitioner in the Senior Grade and also Selection Grade for 23 years of Service in the Primary cadre. It is submitted that the matter is covered in favour of the petitioner by Exhibit P8 judgment. There will be a direction to respondents 2 and 5 to take appropriate action in accordance with law in the case of the petitioner also, if not already taken, in the light of Exhibit P8 judgment, within a period of three months from the date of production of a copy of this judgment. This writ petition is disposed of as above. 9. It is in these circumstances, Ext.P12 was passed. The same reads as under: Sub: WP (C) No.2426/05 filed by Sri.Abdul Azeez, HSA Implementation of judgment - Orders issued. Read:1.High Court Judgment dated 28.8.09. 2. Lt. No.B3/2491/08 dated 31.10.08 of DEO Malappuram. ORDER NO: F5/33456/08 DATED: 18.11.08 Sri.P.Abdul Azees, HSA, DUHES Thootha had filed WP(C) No.15782/03 against the audit objection raised by the **WP(C) NO. 32409 OF 2009** **8** Accountant General against granting of higher grades reckoning the services in both Primary and high school together. The objections were raised by Accountant General at a time when the scheme for allowing such grade itself was not in force due to a decision of full bench of Hon'ble High Court on 18.11.93 and consequent orders of Government. In G.O (MS) 347/00 G.Edn. dated 9.10.00 and GO(P) 938/01 Fin. dated 31.7.01. Judgment dated 11.7.03 in WP(C) 15782/03 had quashed these two government orders. Thus, the original orders in Go (MS) 134/86 G.Edn. dated 7.8.86 and GO (P) 57/81 Fin dated 18.1.91 was restored. Accountant General had withdrew the objection with direction to fix the pay in accordance with the restored Government orders. Sri.P.Abdul Azeez had filed another WP(C) with No.2426/05 stating that the objection was not dropped in favour of him. Actually the judgment in WP (C) 15782/03 was already implemented. In the reference 1) cited, it was directed to take appropriate action in accordance with law if not already taken. Therefore, it is reiterated that the audit objection in fixing the pay of the petitioner after reckoning services in primary and High School sections together are stand withdrawn. The District educational Officer, Malappuram is directed to fix the pay of the petitioner on completion of total 20 years of service in the Grade HSA scale of pay as provided in GO (MS) 134/86 G.Fin. Dated 7.8.86. 10. Petitioner is aggrieved of the operative part of the order whereby his twenty (20) years of service in the Grade of HSA scale has been ordered to be considered in view of the Government order dated 134/86 G.Edn dated 7.8.1986 which prima facie is against the judgment Ext.P9 and a contemptuous act. The petitioner had no other choice but to avail the remedy of revision. The revisional authority has also abdicated in not appreciating the order Ext.P9 and upheld the order Ext.P12. I am afraid that the authorities at the helm of affairs are required to abide by the direction and judgment of this Court having attained finality and prohibited to **WP(C) NO. 32409 OF 2009** **9** introduce their own opinion as has been done in order Ext.P12. It is a blatant case of a harassment and humiliation to the petitioner who has not been able to enjoy the fruits of a service career and even retied and waiting for the benefits since 2009 when the matter was admitted. Once the Government had already given the benefits vide order dated 18.1.1991, Ext.P3, there was no occasion for the respondents to incorporate the erstwhile order dated 7.8.1986, Ext.P1 which was no longer in force. For the reason aforementioned, Ext.P12 and P16 are quashed. The writ petition is allowed. Petitioner is granted damages to the tune of Rs.2 lakhs (Rupees two lakhs) to be paid by the respondents for the harassment and humiliation he had to undergo in the manner as noticed above. Let the cost of Rs.two lakhs to be paid to the petitioner within a period of two months from the date of receipt of a copy of this judgment. ## **Sd/-** sab **AMIT RAWAL JUDGE** **WP(C) NO. 32409 OF 2009** **10** PETITIONER'S EXHIBITS: Exhibit P-1 true copy of the GLO (Ms) No. 134/86/G.Edn. of the Government 07-08-1986 Exhibit P.2 true copy of the G.O. (P) No. 3000 / 98/fin. Of the Government 25-11-1998 Exhibit P-3 true copy of the G.O. (Ms.) No. 57/91/(89)/Fin Of the Government 18-01-1991 Exhibit P-4 true copy of the G.O. (Ms.) No. 347/2000 G.Edn Of the Government 19-10-2000 Exhibit P-5 true copy of the G.O. (P) No. 938/2001/Fin Of the Government 31-07-2001 Exhibit P-6 true copy of the G.O. (Ms.) No. 552/2004/Fin. Of the Government 25-11-2004 Exhibit P-7 true copy of the Order No.K.Dis.B3/83.889/05 Of the Dist. Edl. Officer 05-02-2005 Exhibit P-8 true copy of the Order of the 4" Respondent 06-11-2001 Exhibit P-9 true copy of the Judgment of this Hon'ble Court W.P. No. 15782/2003-D 11-07-2003 Exhibit P-10 true copy of the Letter No G5/27371/03 of the Deputy Director of Education 06-09-2003 **WP(C) NO. 32409 OF 2009** **11** Exhibit P-10 (a) true copy of the Order of the 4[th] Respondent 06-10-2003 Exhibit P-10 (b) true copy of the Order No: B6/13101/2003 of-do17-11-2003 Exhibit P-10 (c) true copy of the Order No. B3/8165/99 of-do20-12-2004 Exhibit P-11 true copy of the Judgment of this Hon'ble Court W.P. No. 2426/2005-L 28-08-2008 Exhibit P-12 true copy of the Order No. F6/33456/08 of the Deputy Director of Education 18-11-2008 Exhibit P-13 true copy of the Appeal Petition filed before The Government 03-01-2009 Exhibit P-14 true copy of the Judgment of this Hon'ble Court In W.P. No. 6759/2009-L Exhibit P-15 true copy of the Argument Notes of the Petitioner 8.5.2009 Exhibit P-16 true copy of the G.O. (RL.) No. 4032/09/G.Edn. Of the Government 25-09-2009