P. Bijo Davies v State of Kerala and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 14TH DAY OF JUNE 2018 / 24TH JYAISHTA, 1940** **WA.No. 246 of 2016** **AGAINST THE JUDGMENT IN WP(C) 1835/2012 DATED 30.11.2015** **---------------** ## **APPELLANT/PETITIONER** **P.BIJO DAVIES, SON OF P.A. DAVIES, AGED 41 YEARS, HIGH SCHOOL ASSISTANT (MATHS) ST. ANONY'S HIGHER SECONDARY SCHOOL PUTHUKKAD, THRISSUR DISTRICT.** **BY ADVS.SRI.V.A.MUHAMMED SRI.M.SAJJAD** ## **RESPONDENTS/RESPONDENTS:** **1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, ATHIRUVANANTHAPURM-695014.** **3. THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR AT AYYANTHOLE-680003.** **4. THE DISTRICT EDUCATIONAL OFFICER, THRISSUR-680001.** **5. THE ASSISTANT EDUCATIONAL OFFICER, WADAKKANCHERRY, THRISSUR DISTRICT-680582.** **6. THE ASSISTANT EDUCATIONAL OFFICER, THRISSUR EAST-680005.** **7. THE CORPORATE MANAGER, CORPORATE EDUCATIONAL AGENCY, ARCHDIOCESE OF THRISSUR THRISSUR-680001.** **WA.No. 246 of 2016** **8. THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD, THRISSUR DISTRICT-680506.** **R1 TO R6, R8 BY GOVERNMENT PLEADER SRI.E.S. ASHARAF R7 BY ADV. SRI.KURIAN GEORGE KANNANTHANAM SENIOR ADVOCATE SRI.TONY GEORGE KANNANTHANAM** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sdr/-** **3.7.18** ## **WA.No. 246 of 2016** ## **APPENDIX** ## **PETITIONERS ANNEXURES** **ANNEXURE 1 TRUE COPY OF THE JUDGMENT IN W.P. C. NO. 20010 OF 2012 -A DATED 16.01.2017** ## **RESPONDENTS ANNEXURES** ## **NIL** **/TRUE COPY/** **PA TO JUDGE** **sdr/3.7.18** ## **P.R.RAMACHANDRA MENON &** ## **DEVAN RAMACHANDRAN, JJ.** ============================ W.A.No.246 of 2016 ============================ Dated this the 14[th] day of June, 2018 ## **JUDGMENT** ## **Devan Ramachandran, J.** This appeal impugns the judgment of the learned single Judge in W.P(C)No.1835 of 2012. This writ petition was filed by the appellant challenging the order issued by the Government, cancelling the approval of his appointment as UPSA, in a school under the control of the 7[th] respondent /Manager on the ground that he was appointed only on daily wage basis and that the grant of regular scale of pay to the petitioner was improper and incorrect. 2. From the pleadings available, it appears that the petitioner was appointed on daily wages through Exts.P1 and P2 by the manager, and that the contention of the appellant is that if the approval of his appointment had not been cancelled through the order impugned in the writ petition, namely Ext.P6, he would have obtained a right under Rule 51A of Chapter XIV of the Kerala Education Rules, 1959 ( KER) and thus would have W.A.No.246 of 2016 2 ## been entitled to a subsequently arising vacancy. 3. The learned single Judge, after considering the materials on record and the submissions made by the learned counsel at the Bar, concluded, on the basis of the fact that even though Ext.P6 order had been issued as early as on 22.05.2012, the petitioner had not chosen to challenge the same until the year 2015, when this writ petition was filed, that he is, therefore, not entitled to seek that the said order be now set aside. The learned single Judge has further found that the benefit of approval of the appellant's service for the period when he had served on daily wages, viz., during the periods from 25.07.2007 to 31.03.2008 and 17.06.2008 to 31.03.2009, was given to him solely under the mandate of the Government Order, namely, G.O. (P)No.56/11/G.Edn dated 26.02.0211, but that the said order had been later clarified by a subsequent order dated 20.11.2011, that it had only prospective operation. Since the petitioner's spells of service on daily wages were prior to the Government Order, dated 26.02.2011, the learned single Judge concluded that the benefit of that order should not have been made available to him and therefore, that Ext.P6 order is valid and credible in law. W.A.No.246 of 2016 3 4. The petitioner impugns the judgment of the learned single Judge on the ground that, even if it is conceded that the benefits under the Government Order, dated 26.02.2011, is only prospective in its nature, the petitioner is still entitled for approval for the periods served by him in the years 2007 and 2009 on daily wage basis, since those vacancies were, in fact, of more than one year duration and he asserts that the action of the Manager in having limited it only to the period of the appointment and not to the whole academic year is illegal and unlawful. 5. We have heard Sri.V.Rajasekharan Nair, the learned counsel appearing for the petitioner; Sri.Tony George Kannanthanam, the learned counsel appearing for the 7[th] respondent - Corporate Manager and the learned Government Pleader appearing for respondents 1 to 6 and 8. 6. When we assess the claim of the petitioner in this case, we are required to first see whether Ext.P6 can garner support in law, as has been concluded by the learned single Judge. Ext.P6 order was issued by the Government cancelling the earlier approval granted to the petitioner for his appointment W.A.No.246 of 2016 4 during the period from 25.07.2007 to 31.03.2008 and from 17.06.2008 to 31.03.2009, when he was appointed on daily wages stating that the aforementioned Government Order, dated 26.02.2011, under which the approval was granted, had been clarified to be prospective in nature, by the subsequent Government Order, dated 20.11.2011. We also notice from Ext.P6 that this order does not relate to the petitioner alone but to several other teachers whose appointments were approved under the strength of the Government Order, dated 26.02.2011, by converting the daily wage scale to a regular scale of pay. It is contended on behalf of the official respondents that on account of the subsequent clarificatory order, dated 20.11.2011, such conversion prior to 26.02.2011 is illegal and untenable because the effect of the Government order, dated 26.02.2011, can only be held to be prospective. We have no other option but to accept this contention because the petitioner does not challenge the Government order, dated 20.11.2011, but has chosen to challenge only Ext.P6, which is based on that order and consequentially, it is obvious that such a challenge cannot be found tenable. W.A.No.246 of 2016 5 7. Once we thus find that Ext.P6 order has been issued by the authority in exercise of valid jurisdiction, we have to consequentially hold that the claims of the petitioner under Rule 51A of the KER, based on the spells served by him during the period from 2007 to 2009 and his request to have his subsequent appointments regularised would become untenable. This is pertinently because he was thereafter appointed in two spells in the years 2009-10 and 2010-11, which is evident from Exts.P1 and P2, which are also on daily wage basis. Since his earlier spells of service in the years 2007 and 2009 were obviously prior to the Government Order, dated 26.02.2011, which, in the absence of any challenge to it, can only be seen to be prospective in its effect, we cannot grant the reliefs, as has been sought for by the appellant to have his appointment, made through Exts.P1 and P2, to be approved on a regular scale of pay. 8. That being said, the surviving issue is whether the directions in Ext.P5 order, to recover the difference of salary between the daily wage scale and the regular scale of pay enjoyed by the petitioner for the period from 25.07.2007 to 31.03.2008 and 17.06.2008 to 31.03.2009, can be recovered. W.A.No.246 of 2016 6 9. We notice from Ext.P6 that the reason why this recovery has been ordered is solely because the Government has concluded that the approval of the appointment of the appellant in regular scale of pay is contrary to the Government Order, dated 20.11.2011. However, the fact remains that the petitioner was granted that scale and he was permitted to draw the salary and allowances not on account of any fault that can be attributed to him but on the strength of a valid approval order that was issued earlier by the competent authorities at that time. The earlier order of approval was indubitably granted to him on the strength of the Government Order, dated 26.02.2011, without the concerned authorities noticing that there was a clarificatory order, dated 20.11.2011, which made the benefits applicable under the former order to be only prospective in its nature. It, therefore, becomes luculent that the petitioner cannot be faulted in any manner for having received the pay and allowances in the regular scale of pay and no one has a case that he did not work during those periods either. When this is virtually an admitted position, we will then be guided by the ratio of the judgment in **State of Punjab v. Rafiq Masih (White Washer)** [2015 (1) W.A.No.246 of 2016 7 KLT 429] which interdicts such recovery when it is clear that the payments were made not on account of any fault attributable to the petitioner and when such payments were made under the then prevailing orders of approval. The payments were made when the order of approval was still in force, since the cancellation of the said order was made through Ext.P6 much later. 10. In any event of the matter, it is now over eight years after such payments were made to the petitioner and since he had worked in the position of the HSA without any complaint being ascribed to him by any of the official respondents in this case, we deem it appropriate to extend the benefit of the ratio in **Rafiq Masih** (supra) to the case of the petitioner also. We make it clear that this benefit is being extended to the petitioner in the rather peculiar facts of this case and that we are not declaring this would be as a general rule. 11. Since the petitioner, in our view, is entitled to the benefit of the **Rafiq Masih** (supra), we deem it appropriate to allow this appeal to such limited extent, while confirming all the other conclusions and directions by the learned single Judge W.A.No.246 of 2016 8 ## recorded in the impugned judgment. 12. In the above circumstances, we allow this appeal and set aside Ext.P6 order to the extent to which it directed that steps be taken against the appellant to recover the excess amounts drawn by him, being the difference between the daily wage scale and the regular scale of pay for the period from 25.07.2007 to 31.03.2008 and 17.06.2008 to 31.03.2009. All the other directions and conclusions in the judgment impugned before us will continue to hold effect. This appeal is thus disposed of. ## Sd/- **P.R.RAMACHANDRA MENON JUDGE** stu ## Sd/- **DEVAN RAMACHANDRAN JUDGE**