Sajitha P.M. and M. Suresh Kumar v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **FRIDAY, THE 20TH DAY OF JUNE 2014/30TH JYAISHTA, 1936** ## **WP(C).No. 11846 of 2012 (E)** ## **---------------------------------------** ## **PETITIONER(S):** - **----------------------** **1. SAJITHA P.M, AGED 50 YEARS, CRAFT TEACHER, CHELIYA SCHOOL, P.O. CHELIA, KOZHIKODE DISTRICT.** **2. M. SURESH KUMAR,** - **CRAFT TEACHER, MEPPAYIL EAST SENIOR BASIC SCHOOL, VATAKARA, KOZHIKODE DISTRICT.** **BY ADV. SRI.R.K.MURALEEDHARAN** ## **RESPONDENT(S):** **-------------------------** **1. THE STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM - 695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM - 695 001.** **3. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE-1.** **4. THE ASSISTANT EDUCATIONAL OFFICER, KOYILANDY, KOZHIKODE-1.** **5. THE ASSISTANT EDUCATIONAL OFFICER, VATAKARA, KOZHIKODE-1.** **BY GOVERNMENT PLEADER SRI.P.V.ELIAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 11846 of 2012 (E)** **---------------------------------------** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **-------------------------------------** **EXHIBIT-P1TRUE COPY OF THE APPOINTMENT ORDER IN FORM NO. 27 DATED 18/01/1989 AND THE PROCEEDINGS OF THE 4TH RESPONDENT DATED 25/01/1992** **EXHIBIT-P2TRUE COPY OF THE APPOINTMENT ORDER IN FORM 27 DATED 10/08/1988 AND THE PROCEEDINGS OF THE 5TH RESPONDENT APPROVING THE APPOINTMENT IN JUNE 1991** - **EXHIBIT-P3TRUE COPY OF THE STATEMENT OF FIXATION** **EXHIBIT-P3(A)-TRUE COPY OF THE RELEVANT PAGES OF THE SERVICE BOOK** **EXHIBIT-P4TRUE COPY OF THE STATEMENT OF FIXATION OF THE IST PETITIONER.** - **EXHIBIT-P4(A)-TRUE COPY OF THE FORM OF OPTION SUBMITTED BY THE 2ND PETITIONER.** **EXHIBIT-P5TRUE COPY OF THE PAGE 21 OF THE SERVICE BOOK OF IST PETITIONER.** - **EXHIBIT-P6TRUE COPY OF THE EXTRACT OF THE OBJECTION BY THE 3RD RESPONDENT.** - **EXHIBIT-P7TRUE COPY OF THE OBJECTION BY THE 3RD RESPONDENT INTIMATED TO THE 5TH RESPONDENT WITH A COPY TO HEADMASTER OF THE SCHOOL DATED 25/01/2012** - **EXHIBIT-P8TRUE COPY OF THE LETTER NO. 62830/J1/07/G.DN. DATED 19/08/2009 OF THE IST RESPONDENT.** - **EXHIBIT-P9TRUE COPY OF THE G.O (MS) 257/09/G.EDN. DATED 31/12/2009** - **EXHIBIT-P10- TRUE COPY OF THE G.O (MS) 187/2011/G.EDN. DATED 05/09/2011** - **EXHIBIT-P11TRUE COPY OF THE ORDER OF THE 4TH RESPONDENT DATED 07/03/2011** - **EXHIBIT-P12- TRUE COPY OF THE ORDER DATED 26/12/2011 ISSUED BY THE 5TH RESPONDENT.** ## **PJ** **...2/-** **..2..** ## **WP(C).No. 11846 of 2012 (E)** **---------------------------------------** **EXHIBIT-P13- TRUE COPY OF THE ORDER DATED 13/12/2009 ISSUED BY AEO, MUKKOM.** **RESPONDENTS' EXHIBITS** **-------------------------------------** **NIL.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **A.V.RAMAKRISHNA PILLAI, J.** = = = = = = = = = = = = = = = W.P(C) No.11846 of 2012 = = = = = = = = = = = = = = = = Dated this the 20[th] day of June, 2014 ## **JUDGMENT** Exts.P6, P7, P11 and P12 orders are under challenge. 2. The petitioners are working as part time Craft Teachers from 1989 and 1988 respectively. They exercised 1997 pay revision counting part time service for weightage and the same was accepted and their pay was fixed accordingly. The petitioners allege that as per Exts.P4 and P4(a) they exercised 2004 pay revision and options were accepted in 2006 and accordingly, pay was fixed. 3. The grievance of the petitioners is that during the annual audit by the third respondent, pay fixation was objected to stating that part time service cannot be counted for weightage as per Exts.P6 and P7. The petitioners allege that Exts.P6 and P7 objections are illegal and consequential recovery ordered by re-fixing the pay is also illegal. 4. Their further grievance is that though the first respondent as per Ext.P9 ordered to grant full time benefits to specialist teachers who have completed 15 years as on the date of the Government Order dated 31.12.2009, respondents 2 to 5 omitted to include the petitioners in the list WP(C).11846/12 ## **-:2:-** of teachers to whom the benefit has to be extended. However, later the Government extended the benefit as per Ext.P10 order, but respondents 4 and 5 as per Exts.P11 and P12 order granted the same from 5.9.2011 only, instead of from 31.12.2009. This also is illegal according to the petitioners. It is with this background, the petitioners have come up before this Court. 5. In the counter affidavit filed by the State, the stand taken by them is that the service of part time Teachers under the General Education Department cannot be counted as their service for allowing weightage while changing over to the revised scale of pay of pay revision, 2004. 6. However, the State would admit that the petitioners have completed 15 years of service as part time teachers even before the issue of Ext.P9 Government Order. They would further admit that the petitioners' name were included in G.O(MS) 187/11/G.Edn. dated 5.9.2011 and, therefore, they were granted full time service only with effect the date of the Government Order. They would also state that the date of effect of full time benefit was not mentioned specifically in the order, and, therefore, in such cases the date of the order has to be reckoned for granting the benefit. 7. Arguments have been heard. 8. It was argued by the learned counsel for the petitioners that Exts.P6 and P7 objections raised by the third respondent that part time WP(C).11846/12 ## **-:3:-** service would not be counted for weightage are illegal. They exercised the option in 2006, the options were accepted and pay was fixed accordingly. It was argued that Exts.P6 an P7 objections raised in 2012 is highly time barred and, therefore, they are liable to be quashed. 9. The learned Government Pleader, per contra, maintained the stand that the benefit cannot be extended to the petitioners as they are part time teachers. In this context, the learned counsel for the petitioners invited my attention to the decision of this Court in **Sarojini** v. **State of Kerala** [2012 (2) KLT 110] wherein this Court considered the objection of counting part time service for weightage in 2004 pay revision and ruled that part time service can be reckoned for service weightage. It is also submitted that the said judgment was confirmed in W.A No.428 of 2012. Therefore, Exts.P6 and P7 objections raised by respondents 4 and 5 were illegal and the same are liable to be quashed. I see valid force in the said submission. 10. The consequential recovery order also should go in the light of the decision of the Apex Court in **ITC Ltd.** , v. **State of UP** [2011 (3) KLT SN 57] wherein it was ruled that recovery of excess payment to an employee cannot be recovered if the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee. The re-option exercised by the petitioners were accepted in 2006 and accordingly, their pay WP(C).11846/12 ## **-:4:-** was fixed. Moreover, it is evident from Exts.P3 and P3(a) that part time service was accepted in 1997 pay revision for weightage. Therefore, the consequential recovery order has to go. 11. The further case of the petitioners is that similarly situated specialist teachers were given the benefit of full time by the first respondent from 31.12.2009 onwards as per Ext.P9 and as they have also completed 15 years before 31.12.2009, they are entitled to the said benefit. The fact that the petitioners have completed 15 years before 31.12.2009 is admitted by the State in their counter affidavit. However, for no fault of the petitioners, their names were not forwarded by respondents 2 to 5 for inclusion in Ext.P9 order. 12. It is relevant to note that subsequently, Ext.P10 order was issued extending the benefit to the petitioners, but Ext.P13 would go to show that the teachers who were included in Ext.P10 were given the benefit from 31.12.2009. However, respondents 4 and 5 issued Exts.P11 and P12 granting full time benefit to the petitioners only with effect from 5.9.2011. This also is liable to be corrected. In the result, the writ petition is allowed. Exts.P6, P7, P11 and P12 are quashed. The respondents are directed to release all the benefits which are withheld pursuant to Exts.P6 and P7 by the third respondent. Respondents 4 WP(C).11846/12 ## **-:5:-** and 5 are directed to grant full time benefits to the petitioners with effect from 31.12.2009. Formal orders to this effect shall be issued within a period of three months from the date of receipt of a copy of this judgment. To facilitate early action, it shall be open to the petitioners to produce this judgment before the respondent concerned within a period of one month from today. Sd/- **A.V.RAMAKRISHNA PILLAI JUDGE** krj