Rathy A. d/o Balakrishnapillai v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 9[TH] DAY OF FEBRUARY 2023 / 20TH MAGHA, 1944** ## **WP(C) NO. 9510 OF 2019** ## **PETITIONER:** RATHY.A D/O. BALAKRISHNAPILLAI, LPST, ALPS, VELLANY THRISSUR 680 701, RESIDING AT VADASSERY HOUSE, THANISSERY P.O., THRISUR - 680 701. BY ADVS. T.T.MUHAMOOD SRI.A.RENJIT SRI.V.E.ABDUL GAFOOR SRI.A.MOHAMMED SAVAD SRI.C.Y.VINOD KUMAR SRI.JAYENDRAN KOCHOTH ## **RESPONDENTS:** 1 THE STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE DIRECTOR OF PUBLIC INSTRUCTION, OFFICE OF THE DPI, JAGATHY, THIRUVANANTHAPURAM - 695 001. 3 THE DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DDE, THRISSUR - 680 003. 4 THE ASSISTANT EDUCATIONAL OFFICER, OFFICE OF THE AEO, IRINJALAKKUDA - 680 125. 5 THE ASSISTANT EDUCATIONAL OFFICER, OFFICE OF THE AEO, KODUNGALLUR - 680 664. 6 THE MANAGER, WP(C) NO. 9510 OF 2019 **==> picture [9 x 9] intentionally omitted <==** ALPS, VELLANY, THRISSUR - 680 701. BY ADV GOVERNMENT PLEADER SRI.K.M. FAIZAL, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 9510 OF 2019 3 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------W.P.(C)No. 9510 of 2019 ---------------------------------------------Dated this the 09[th] day of February, 2023** ## **JUDGMENT** The above writ petition is filed with the following prayers: _“(i) Issue a writ of certiorari or any other appropriate writ, order or direction, quashing Ext:P2 order issued by the 3rd respondent._ _(ii) Issue a writ of mandamus or any other appropriate order or direction, declaring that the broken service rendered by the petitioner is to be reckoned for granting weightage of 2009 and 2014 pay revision orders.”[SIC]_ 2. The petitioner was working as LPST in ALPS, Vellany, an aided school under the jurisdiction of the AEO, Irinjalakuda. She entered in service as LPSA on regular basis on 11.01.1999 and her appointment was approved. Ext.P1 is the Government order. It is the case of the petitioner that prior to her entry in regular service, she served as LPSA as follows; WP(C) NO. 9510 OF 2019 4 ||Period|Year|Month|days| |---|---|---|---|---| |12.11. 1990 to|22.01.1991|0|2|11| |20.06.1991 to|14.07.1992|1|0|25| |05.01.1994 to|15.03.1994|0|2|11| |01.07.1994 to|31.08.1994|0|2|0| |24.06.1996 to|23.08.96|0|2|0| |26.09.1996 to|22.11.1996|0|1|28| |4.12.1998 to|10.01.1999|0|1|7| The scale of pay of government employees and teachers, including aided school teachers were revised w.e.f 01.07.2009 as per G.O (P) No. 85/2011/Fin dated 26.02.2011. Pursuant to the same, the petitioner opted to come over to the revised scale of pay of Rs. 14,620 - 25,280 w.e.f 01.02.2010 and accordingly the petitioner's pay was fixed at Rs.17,420/- w.e.f 01.02.2010. Thereafter, the scale of pay was again revised w.e.f 01.07.2014 as per G.O (P) No.7/2016/Fin dated 20.01.2016. The petitioner's pay was fixed pursuant to the aforesaid Government Order. Therefore, the petitioner's pay was fixed in the revised WP(C) NO. 9510 OF 2019 5 scale of 2009 and 2014 pay revisions, granting weightage to the service including broken period of service. However while conducting audit enquiry, the fixation of pay of the petitioner as per 2009 and 2014 pay revision was objected by the DDE as per Ext.P2. The main objection is with regard to the reckoning of the broken spell of regular service for granting weightage. The petitioner submitted Ext.P3 representation before the 3[rd] respondent. Thereafter, Ext.P4 order was issued returning the service book of the petitioner and directing the Assistant Educational Officer, Irinjalakkuda to get an assurance that the excess salary is not obtained by the petitioner. After filing the writ petition, the petitioner retired from service. The grievance of the petitioner is that, a portion of the DCRG is withheld because of Ext.P2 objection. Hence this writ petition is filed. 3. Heard counsel appearing for the petitioner and the learned Government Pleader. WP(C) NO. 9510 OF 2019 6 4. Counsel for the petitioner submitted that the objection raised in Ext.P2 will not stand in the light of Note to Rule 4 of 2009 pay revision order and the Note to Rule 6 of 2014 pay revision order. The counsel also relies on the judgment of this Court in _**Lilly V.A. v. State of Kerala and others**_ [2016 KHC 414] and also the Apex Court judgment in _**State of Punjab and others v. Rafiq Masih (White Washer)**_ [2015 (4) SCC 334]. The counsel also relied on Rule 61 (4) of Chapter XIV (A) KER and submitted that there is nothing wrong in counting the broken period also for the purpose of weightage. The Government Pleader on the other hand relied on paragraph 4 of the counter affidavit filed by the 4[th] respondent. 5. This Court considered the contentions of the petitioner and the Government Pleader. As per the Note to Rule 4 of 2009 pay revision, it is clear that the service for the purpose of this rule means service including broken periods of service qualifying for WP(C) NO. 9510 OF 2019 7 normal increments in the scale of pay. Rule 4 says about fitment benefit and service weightage. Similarly Note to Rule 6 of 2014 pay revision says that, service for the purpose of this rule means full time regular service including broken periods of service qualifying for normal increments in the scale of pay. Rule 6 says about fitment benefit and service weightage. Similarly, Rule 61 (4) of Chapter XIV (A) KER says that, all duty in a post on a time scale whether continuous or interrupted shall count for increment in that time scale. This Court in _**Lilly V.A'**_ s case (supra) considered a similar point. It will be better to extract paragraph 20 of the judgment: _“20. The broken periods of service, in leave vacancy or otherwise, in aided schools is recognised by the KER for all purposes and it also gives rise to a claim for appointment to a regular vacancy, arising under R.51A. The period would be treated as qualifying service for pension and would be reckoned for increment. In such circumstance, though the Full Bench had not considered the issue of whether a temporary appointment could be reckoned for determining the first appointment under sub-rule (2) of R.37, the recognition_ WP(C) NO. 9510 OF 2019 8 _of such period of service for all purposes by the KER would persuade this Court to take a view that the same can be considered for the purpose of determining the first appointment. Sufficient reliance can be garnered for the said proposition from the decision in Saramma Joseph (supra). The 5[th] respondent, by virtue of her earlier service in the same school under a different cadre, is entitled to be considered senior to the petitioner in the cadre of HSST (Junior).”_ 6. In the light of the above discussion, I think the objection raised by the 3[rd] respondent in Ext.P2 will not stand. The Government Pleader takes me through paragraph 4 of the counter affidavit filed by the 4[th] respondent, which is extracted hereunder: _“4. It is submitted that prior to the regular service, petitioner has got short spell of approved appointments in the temporary vacancies in ALPS Vellany. Petitioner also has got temporary/regular appointment as LPST in HUPS Poylingaparambu, an aided school under the jurisdiction of respondent No.5 (AEO, Kodungalloor). The petitioner's regular service from 20.06.1991 un HUPS Poylingaparambu was upto 14.07.1992. She was thrown out for want of student strength. The probation of aided school teachers are declared as per rule 6 Chapter XIV A KER. As per this rule, the teacher who was appointed in an aided school_ WP(C) NO. 9510 OF 2019 9 _shall be on probation for a total period of one year on duty with in a continuous period of two years. It is also clarified that the broken periods of duty within a continuous period of two years can be reckoned for calculating the one year duty period. As the manager being the appointing authority, he is the responsible person for declaring the probation. The petitioner entering in regular service and on completing the probation period including the broken spell of service, the 6[th] respondent manager, declared the probation and consequently increments were sanctioned. The petitioner's service with the other management cannot be reckoned for the declaration of probation with the new management as provided in Rule 6 Chapter XIV A KER. Thus the broken/thrown out regular spell of service was not counted for granting increments in the pay revisions 2009 & 2014. Only the service which qualify for normal increments are counted for weightage.”_ 7. It is an admitted fact that Ext.P2 was issued on 09.05.2018. The petitioner retired from service on 31.05.2019. If that is the case, _**White Washer**_ 's case _(supra)_ is squirely applicable. Paragraph 12 of the abve judgment is extracted hereunder: _“12. It is not possible to postulate all situations of hardship, which would govern employees on the issue_ WP(C) NO. 9510 OF 2019 10 _of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:_ _(i) Recovery from employees belonging to ClassIII and Class-IV service (or Group 'C' and Group 'D' service)._ _(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery._ _(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued._ _(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post._ _(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.”_ The petitioner will come within the four corners of Clauses (ii) and (iii) of paragraph 12 of the above WP(C) NO. 9510 OF 2019 11 judgment. On that ground also, the recovery against the petitioner will not stand. Therefore, this writ petition is allowed in the following manner: i. Ext.P2 is set aside. ii. It is declared that the broken service rendered by the petitioner is to be reckoned for granting weightage of 2009 and 2014 pay revision orders. iii. Respondents 3 and 4 are directed to disburse the amount, if any due to the petitioner towards the DCRG, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. Sd/- **P.V.KUNHIKRISHNAN JUDGE** DM WP(C) NO. 9510 OF 2019 12 ## **APPENDIX OF WP(C) 9510/2019** ## PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF GOVERNMENT LR.NO. 14950/B2/2010 /G.EDN. DATED 15.3.2014. ORDERING THE REGULARIZATION OF PETITIONERS SERVICE FROM 11.1.1999. EXHIBIT P2 TRUE COPY OF LR. NO. E3-14216/17 DATED 9.5.2018 ISSUED BY THE 3RD RESPONDENT WITH TYPED COPY. EXHIBIT P3 TRUE COPY OF REPRESENTATION DATED 5.7.2018 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P4 TRUE COPY OF LR. NO. E- 3/14216/2017/K.DIS DATED 5.11.2018 SENT BY THE DDE, THRISSUR TO AEO, IRINJALAKKUDA. RESPONDENT EXHIBITS EXHIBIT R4(a) TRUE COPY OF THE DECLARATION SUBMITTED BY THE PETITIONER. //TRUE COPY// PA TO JUDGE