WP(C).32655/2016 & 40579 of 2016

**WP(C).32655/2016 & 40579 of 2016** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 16TH DAY OF DECEMBER 2019 / 25TH AGRAHAYANA, 1941** ## **WP(C).No.32655 OF 2016(F)** ## **PETITIONER:** **JOHN K.V** **AGED 55 YEARS, S/O VARKEY, CLERK, SMHS, VAZHAVARA, IDUKKI DISTRICT, RESIDING AT KALAPPURAKKAL HOUSE, VELLAYAMKUDY P.O, KATTAPPANA, IDUKKI DISTRICT.** **BY ADVS. SRI.LIJI.J.VADAKEDOM SMT.REXY ELIZABETH THOMAS SRI.RAJEEV JYOTHISH GEORGE** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2 THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM. 3 THE DEPUTY DIRECTOR OF EDUCATION OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, THODUPUZHA, IDUKKI DISTRICT 685 384. 4 THE DISTRICT EDUCATIONAL OFFICER KATTAPPANA, IDUKKI DISTRICT - 685001.** **BY SENIOR GOVERNMENT PLEADER SMT.MARY BEENA JOSEPH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.12.2019, ALONG WITH WP(C).40579/2016(V), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).32655/2016 & 40579 of 2016** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 16TH DAY OF DECEMBER 2019 / 25TH AGRAHAYANA, 1941** ## **WP(C).No.40579 OF 2016** ## **PETITIONER:** **MATHEW P.C** **AGED 55, CLERK, ST.THOMAS HIGHER SECONDARY SCHOOL, ERATTAYAR, IDUKKI DISTRICT.** **BY ADVS. SRI.LIJI.J.VADAKEDOM SMT.REXY ELIZABETH THOMAS SRI.RAJEEV JYOTHISH GEORGE SRI.TOM E. JACOB** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001. 2 THE DEPUTY DIRECTOR OF EDUCATION OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, THODUPUZHA, IDUKKI DISTRICT-685384. 3 THE DEPUTY DIRECTOR OF EDUCATION OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE-673004. 4 THE DISTRICT EDUCATIONAL OFFICER KATTAPPANA, IDUKKI DISTRICT-685384.** **BY SENIOR GOVERNMENT PLEADER SMT.MARY BEENA JOSEPH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.12.2019, ALONG WITH WP(C).32655/2016(F), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).32655/2016 & 40579 of 2016** **3** ## **JUDGMENT** These writ petitions are materially connected in respect of non-grant of higher grade and recovery initiated against the petitioners on the basis of alleged mistaken payment of amounts, and for other related and consequential reliefs. Therefore, I heard them together and propose to pass this common judgment. The facts and documents available from W.P.(C) No.32655/2016 are relied upon for the disposal of the writ petitions. 2. Petitioner is working as a Clerk in the SMHS, Vazhavara. According to the petitioner, he is aggrieved by the denial of higher grade scale of pay by computing the service in the entry cadre and promotion posts. This court as per Ext.P3 judgment in W.P.(C) No.13970/2004 dated 7.2.2013 directed the State Government to give higher grade scale of pay to similarly situated persons. On the basis of the said judgment, 1[st] respondent passed Ext.P6 order in favour of similarly situated persons. Petitioner **WP(C).32655/2016 & 40579 of 2016** **4** secured Ext.P7 judgment from this court in W.P.(C) No.26827/2013 along with others, whereby directions were issued to receive representation from the petitioner and consider the same in accordance with law, taking into account the judgment in W.P.(C) No.13970/2004 and the consequential Government Order. Accordingly Ext.P9 order has been passed by the 4[th] respondent, whereby higher grade was sanctioned to the petitioner, however, as per Ext.P10 proceedings, the Deputy Director of Education, Thodupuzha objected to the sanctioning of higher grade to the petitioner, which according to the petitioner, is overlooking the orders passed by the 1[st] respondent in this regard. Therefore, According to the petitioner, Ext.P10 order is illegal and arbitrary, liable to be interfered with by this court. 3. A counter affidavit is filed by the 3[rd] respondent, wherein it is submitted that, petitioner entered the service on 13.3.1990 as Full Time Menial and first higher grade has been allowed to him on 6.11.1999 on completion of 10 years of service **WP(C).32655/2016 & 40579 of 2016** **5** including broken service. Petitioner was promoted as Clerk on 14.2.2005 and fixation was allowed to him as per rule 28A of the KS&SSR. Again on 1.3.2006, higher grade in the clerical cadre was sanctioned to him reckoning the last grade service also. As petitioner got promotion as Clerk within the period prescribed for time bound higher grade, sanctioning of higher grade on 1.3.2006 in the clerical cadre is clear violation of the existing Rules i.e., Government Letter dated 2.11.2001 and therefore, 3[rd] respondent objected to the said pay fixation. 4. It is also pointed out that, every pay revision provides general provisions for sanctioning time bound higher grade to the employees. As per Government Letter bearing No.81820/PRCA3/2001/Fin dated 2.11.2001, it is clarified that, Clerks in aided schools promoted from last grade service can be sanctioned the second higher grade on completion of 10/8 years of service in the first promoted post or completion of 20/18 years of service in the post of last grade and clerk post together whichever is earlier. Based on the Government Letter specified **WP(C).32655/2016 & 40579 of 2016** **6** above, higher grade has been sanctioned to the petitioner on 1.6.2003. According to the 3[rd] respondent, there is clear illegality because he had already been benefited by promotion as clerk within the period prescribed for time bound higher grade and he had neither been completed 10/8 years service in the first promoted post while sanctioning higher grade on 1.6.2003 in the clerical cadre. Therefore, according to the 3[rd] respondent, the grade fixation is done against the existing rules because persons who are benefited by regular promotion to higher posts within the period prescribed for time bound higher grade will not be eligible for further time bound higher grade during that period as per Government Letter specified above. Therefore, according to the 3[rd] respondent, the impugned order viz., Ext.P10 dated 9.2.2015 is in accordance with law and there is no arbitrariness or illegality susceptible to be interfered with by this court under Article 226 of the Constitution of India. 5. In W.P.(C) No.40579/2016 also the situation **WP(C).32655/2016 & 40579 of 2016** **7** is identical and therefore, narration of separate facts is not required. 6. I have heard learned counsel for petitioners and learned Senior Government Pleader and perused the pleadings and documents on record. 7. The paramount contention put forth by learned counsel for petitioners is that, the Government has passed the order dated 14.1.2015 directing the Deputy Director of Education to take a decision in accordance with the directions contained in the said Government Order and therefore, the Deputy Director of Education did not have any other option than to pass orders granting higher grade to the petitioners. The State Government after assimilating the factual situation held that, the eligibility for time bound higher grade benefits in respect of aided school Clerks are governed by the provisions prescribed under the caption, “Time Bound Higher Grade Promotion Scheme” of respective pay revision orders. The non-teaching posts sanctioned in aided schools as per Rule 1 Chapter XXIV A KER are Part **WP(C).32655/2016 & 40579 of 2016** **8** Time Menial, Full Time Menial, Peon and Lower Division Clerk. There is no statutory provision in Kerala Education Rules for the Lower Division Clerks to enjoy promotion as Upper Division Clerk and Head Clerk. 8. It is also pointed out that, they have no opportunity for promotion as Upper Division clerk, Head Clerk or Junior Superintendent. Therefore, due to the absence of promotion posts, aided school clerks are only entitled to claim the table scales of respective pay revision orders as time bound higher grade on completion of 25 years of service. It was under the above circumstances, the Deputy Director of Education,Idukki and the District Educational Officer, Thodupuzha and Kattappana were directed to sanction higher grade to the petitioners as per Rules as mentioned above. 9. Anyhow the Deputy Director of Education has passed an order dated 9.12.2005, wherein it was found that petitioners who are benefited by regular promotion to higher posts within the period **WP(C).32655/2016 & 40579 of 2016** **9** prescribed for time bound higher grade will not be eligible for further time bound higher grade during that period and since the petitioners were promoted as Clerks within the time period, petitioners are not entitled to get higher grade. 10. In my considered opinion, the State Government has passed the orders specified above directing the concerned Educational Authorities to sanction higher grade to the petitioners as per Rules. It is an admitted fact that, once promotion is granted within the period, then the promoted persons are not entitled to get higher grade in the post. The higher grades are provided to the incumbents in office to tide over the situation of stagnation in a post. In that view of the matter, I find force in the contention advanced by learned Senior Government Pleader that since the petitioners were promoted to the post of Clerk, they are not entitled to get time bound higher grade. However, fact remains orders were issued to recover excess amount paid on 9.12.2015 to recover the amounts due **WP(C).32655/2016 & 40579 of 2016** **10** from the year 2006. The issue with respect to the belated recovery was considered by the Apex Court in **State of Punjab and others v. Rafiq Masih (White Washer) and others** [(2015)4 SCC 334] and issued the following directions: _(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service)._ _(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery._ _(iii) Recovery from the 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._ 11. So also a Division Bench of this Court had occasion to consider such an issue in **State of** **WP(C).32655/2016 & 40579 of 2016** **11** **Kerala and others v. Sreedevi. T.R.** [ **I.L.R 2019(4)** Kerala 791] taking into account other appropriate judgments on the point and held as follows in paragraph 9: “9. In this context it would be apposite to refer to the decision of the Honourable Supreme Court in **Syed Abdul Quadir** also, which, though earlier in point of time than **Rafiq Masih** and **Jagdev Singh** , was rendered by a Bench of superior strength. In **Syed Abdul Quadir** , Assistant Teachers of the Nationalised Schools in Bihar were granted the benefit of revision of pay scale as per decision dated 18.12.1989. Later, the pay fixation was found to be incorrect and was sought to be corrected by an order dated 20.2.1993, followed by order dated 16.11.2000. The matter went up to the Apex Court and the issue was finally settled in the following manner: " **58.** The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See _**Sahib Ram**_ **v.** _**State of Haryana**_ **,** _**Shyam Babu Verma**_ **v.** _**Union of India**_ **,** _**Union of India**_ **v.** _**M. Bhaskar**_ **,** _**V. Gangaram**_ **v.** _**Director**_ **,** _**Col. B.J. Akkara (Retd.)**_ **v.** _**Govt. of India**_ **,** _**Purshottam Lal Das**_ **v.** _**State of Bihar**_ **,** _**Punjab National Bank**_ **v.** _**Manjeet Singh**_ **and** _**Bihar SEB**_ **v.** _**Bijay Bhadur**_ . **59.** Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the **WP(C).32655/2016 & 40579 of 2016** **12** appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counteraffidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made." From the conspectus of the principles evolving from the decisions of the Apex Court, we find that the Tribunal had righly relied on proposition numbers (iii) and (v), for setting at naught the recovery initiated after 12½ years. That the applicant retired from service on 31.1.2019 is an added factor for rejecting the challenge against the impugned order of the Tribunal. In the result, the original petition is dismissed. No order as to costs." 12. In that view of the matter, even though petitioners were not entitled for the higher grade for the reasons stated above, the recovery is initiated only in the year 2015 to recover the amount paid in the year 2006. Therefore, the issue is guided by the aforequoted judgments and respondents are not entitled to recover the amounts **WP(C).32655/2016 & 40579 of 2016** **13** from the petitioners in view of entitlements fixed as per proposition Nos.(iii) and (v) of **Rafiq Masih** _(supra)_ . Therefore, there will be a direction to the respondents not to recover any amounts from the petitioners on account of the higher grade granted in the year 2006. Writ petitions are disposed of accordingly. **Sd/-** ## **SHAJI P.CHALY** Smv **JUDGE** 17.12.2019 **WP(C).32655/2016 & 40579 of 2016** **14** ## **APPENDIX OF WP(C) 32655/2016** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 13-03-1990 ISSUED BY THE CORPORATE EDUCATIONAL AGENCY, DIOCESE OF IDUKKI.** **EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS DATED 12-11-2001 ISSUED BY THE PRINCIPAL SECRETARY (FINANCE).** **EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 07-02-2013 IN WP(C) 13970/2004 OF THIS HONOURABLE COURT. EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS DATED 21-12-2002 ISSUED BY THE PRINCIPAL SECRETARY (FINANCE). EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS DATED 12-08-2003 ISSUED BY THE PRINCIPAL SECRETARY (FINANCE). EXHIBIT P6 TRUE COPY OF THE ORDER NO G.O (RT) 2116/13/G.EDN DATED 20-05-2013 OF THE 1ST RESPONDENT. EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 29-08-2014 IN WP(C) 26827/2013 OF THIS HONOURABLE COURT. EXHIBIT P8 TRUE COPY OF THE G.O(RT) NO 162/15/G.EDN DATED 14-01-2015 OF THE 1ST RESPONDENT. EXHIBIT P9 TRUE COPY OF THE ORDER NO B4/1107/2014 DATED 11-06-2015 OF THE 4TH RESPONDENT. EXHIBIT P10 TRUE COPY OF THE PROCEEDINGS NO E5/10940/2015 DATED 09-12-2015 OF THE 3RD RESPONDENT.** **WP(C).32655/2016 & 40579 of 2016** **15** ## **APPENDIX OF WP(C) 40579/2016** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS DATED 12-11-2001 ISSUED BY THE PRINCIPAL SECRETARY (FINANCE)** - **EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 7-2-2013 IN WPC 13970/2004 OF THIS HONOURABLE COURT.** - **EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS DATED 21-12-2002 ISSUED BY THE PRINCIPAL SECRETARY (FINANCE).** - **EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS DATED 12-8-2003 ISSUED BY THE PRINCIPAL SECRETARY (FINANCE).** - **EXHIBIT P5 TRUE COPY OF THE ORDER NO.G.O.(RT) 2116/13/G.EDN. DATED 20-5-2013 OF THE 1ST RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 11-2-2013 IN WPC 33621/2014 OF THIS HONOURABLE COURT.** - **EXHIBIT P7 TRUE COPY OF THE G.O.(RT)NO.162/15/G.EDN. DATED 14-1-2015 OF THE 1ST RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE ORDER NO.B4/71111/2013 DATED 6-1-2015 OF THE 4TH RESPONDENT.** **EXHIBIT P9 TRUE COPY OF THE RELEVANT EXTRACT OF THE PROCEEDINGS NO.E5/8137/2015 DATED 9-2-2016 OF THE 3RD RESPONDENT. EXHIBIT P10 TRUE COPY OF THE PROCEEDINGS NO.E5/9137/2015 DATED 21-10-2016 OF THE 3RD RESPONDENT. EXHIBIT P11 TRUE COPY OF THE ORDER DATED 7-10-2016 IN WPC 32655/2016 OF THIS HONOURABLE COURT.**