Writ Appeal No.1111 of 2020

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 7[TH] DAY OF JUNE 2022 / 17TH JYAISHTA, 1944 WA NO. 1111 OF 2020** **AGAINST THE JUDGMENT 04.10.2017 IN WP(C) 19429/2008 OF** **HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 & 2 IN W.P.(C):** - **1 ASSISTANT EDUCATIONL OFFICER, IRIKOOR, KANNUR 670 593.** - **2 THE DEPUTY DIRECTOR OF EDUCATION, KANNUR-670 593.** - **ADV.A.J.VARGHESE SR. GOVERNMENT PLEADER** ## **RESPONDENTS/PETITIONERS & 3RD RESPONDENT IN W.P.(c):** - **1 K.P.MURALI, S/O GOPALAN NAMBIAR, ASSISTANT TEACHER, KAMALIYA MADRASSA A.U.P SCHOOL, IRIKOOR, KANNUR670 593.** - **2 K.V.SASIDHARAN, S/O.NARAYANAN, ASSISTANT TEACHER, KAMALIYA MADRASSA A.U.P.SCHOOL,IRIKOOR, KANNUR670 593.** - **3 K.K.KUNHIMAYAN, S/O ABDULLA, ARABIC ASSISTANT, KAMALIYA MADRASSA A.U.P.SCHOOL, IRIKOOR, KANNUR-670 593.** - **4 K.PRAKASHINI, S/O.KUMARAN, ASSISTANT TEACHER, KAMALIYA MADRASSA A.U.P.SCHOOL, IRIKOOR, KANNUR-670593** - **5 T.P.OMANA,** - **S/O.KUNHIRAMAN NAMBIAR, ASSISTANT TEACHER, KAMALIYA MADRASSA A.U.P.SCHOOL, IRIKOOR,, KANNUR-670 593.** 2 Writ Appeal No.1111 of 2020 - **6 MELCY ABRAHAM, S/O.ABRAHAM, ASSISTANT TEACHER, KAMALIYA MADRASSA A.U.P.SCHOOL, IRIKOOR, KANNUR-670 593.** - **7 T.K.VALSALA, S/O.KUNHIKANNAN NAMBIAR, ASSISTANT TEACHER, KAMALIYA MADRASSA A.U.P.SCHOOL, IRIKOOR,, KANNUR-670593** - **8 C.SREELATHA S/O.KUNHIKANNAN NAMBIAR, ASSISTANT TEACHER, KAMALIYA MADRASSA A.U.P.SCHOOL, IRIKOOR, KANNUR670593** - **9 A.PUSHPAVALLI, S/O.KUNHIKANNAN NAMBIAR, ASSISTANT TEACHER, KAMALIYA MADRASSA A.U.P.SCHOOL, IRIKOOR,, KANNUR-670593** - **10 K.P SHOBHANA, S/O.KUNHAPPA, ASSISTANT TEACHER, KAMALIYA MADRASSA A.U.P.SCHOOL, IRIKOOR, KANNUR-670593** - **11 A.K.VINODKUMAR S/O.PADMANABHAN NAMBIAR, PHYSICAL EDUCATION TEACHER, KAMALIYA MADRASSA A.U.P.SCHOOL, IRIKOOR, KANNUR-670 593.** - **12 PRASANNA K.K. S/O.GOPALAN, ASSISTANT TEACHER, KAMALIYA MADRASSA A.U.P.SCHOOL, IRIKOOR, KANNUR-670 593.** - **13 RAMANI P.V.** - **S/O.KUNHAPPA NAMBIAR, ASSISTANT TEACHER, KAMALIYA MADRASSA A.U.P.SCHOOL, IRIKOOR, KANNUR670593** - **14 T.K.GEETHA S/O.KUNHIKANNAN NAMBIAR, ASSISTANT TEACHER, KAMALIYA MADRASSA A.U.P.SCHOOL, IRIKOOR, KANNUR670 593** - **15 YESODA O, S/O.KUNHIRAMAN, ASSISTANT TEACHER, KAMALIYA MADRASSA A.U.P.SCHOOL, IRIKOOR, KANNUR-670 593** 3 Writ Appeal No.1111 of 2020 - **16 C.K.MUHAMMED, S/O.ABDULLA, ASSISTANT TEACHER, KAMALIYA MADRASSA A.U.P.SCHOOL, IRIKOOR, KANNUR-670 593** - **17 M.ABDUL SALAM, S/O.EBRAHIM, ARABIC ASSISTANT, KAMALIYA MADRASSA A.U.P.SCHOOL, IRIKOOR, KANNUR-670593** - **18 C.K. MUSTHAFA, S/O.ABOOBACKER, ARABIC TEACHER, KAMALIYA MADRASSA A.U.P.SCHOOL, IRIKOOR, KANNUR-670 593** - **19 PUSHPAM SCARIA, S/O.SCARIA, ASSISTANT TEACHER, KAMALIYA MADRASSA A.U.P.SCHOOL, IRIKOOR, KANNUR-670 593** - **20 HASEENA P.O. D/O.PARIYAYI, ASSISTANT TEACHER, KAMALIYA MADRASSA A.U.P.SCHOOL, IRIKOOR, KANNUR-670 593** - ***21 K.K.AMBUJAKSHI, S/O.NARAYANAN NAMBIAR, HINDI ASSISTANT, KAMALIYA MADRASSA A.U.P.SCHOOL, IRIKOOR, KANNUR-670 593. (EXPIRED).** - **22 P.AYUB, S/O MEMI, ASSISTANT TEACHER, KAMALIYA MADRASSA, A.U.P.SCHOOL, IRIKOOR, KANNUR-670593** - **23 K.LAKSHMANAN, S/O.KUMARAN NAMBIYAR, ASSISTANT TEACHER, KAMALIYA MADRASSA A.U.P.SCHOOL, IRIKOOR, KANNUR670593** - **24 V.RAMACHANDRAN,** - **S/O.GOVINDAN, ASSISTANT TEACHER, KAMALIYA MADRASSA A.U.P.SCHOOL, IRIKOOR, KANNU670593** - **25 T.K.PUSHPAVALLI, S/O.KUNHIKANNAN NAMBIYAR, ASSISTANT TEACHER, KAMALIYA MADRASSA A.U.P.SCHOOL, IRIKOOR, KANNUR670 593** - **26 K.MUHAMMAD HANEEFA,** - **S/O.MOOSA, URDU ASSISTANT, KAMALIYA, MADRASSA A.U.P.SCHOOL, IRIKOOR, KANNUR-670 593** 4 Writ Appeal No.1111 of 2020 - **27 THE HEADMISTRESS, KAMALIYA MADRASSA A.U.P.SCHOOL, IRIKOOR, KANNUR670 593.** - ***28 ADDL.R28.SRI.GOVINDAN T.K., (HUSBAND OF LATE K.K.AMBUJAKSHI), DWIVED BHAVAN, NAYATTUPARA, PATTANNUR P.O.. KANNUR, PH:7356416851 PIN-670 595.** - ***29 ADDL.R29.MS.DIVYA K.K., (D/O.LATE K.K.AMBUJAKSHI), 14/182, POOMBUGAR NAGAR, EDAYARPALAYAM, COIMBATORE, PIN641025.PH:8754920782.** - ***30 ADDL.R30.MS.VIDYA,** - **(D/O.LATE K.K.AMBUJAKSHI), KADAMBUR (TEACHER, KADAMBUR HS), DWIVED BHAVAN, NAYATTUPARA, PATTANNUR P.O., KANNUR,PIN-670595.** - ***31 ADDL.R31. DWIVED, (S/O.LATE K.K.AMBUJAKSHI), KADAMBUR, DWIVED BHAVAN, NAYATTUPARA, PATTANNUR P.O., KANNUR-670595, PH:6282759853, 9895257314.** ***ADDITIONAL RESPONDENTS R28-R31 ARE IMPLEADED AS PER ORDER DATED 23/2/2022 IN I.A.NO.1/2022 IN W.A.1111/2020.** **BY ADVS.** **SRI.M.MUHAMMED SHAFI SMT.T.RASINI SRI.M.SASINDRAN** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON** **07.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Writ Appeal No.1111 of 2020 5 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** ## **-----------------------------------------------** **Writ Appeal No.1111 of 2020** **----------------------------------------------Dated this the 7[th] day of June, 2022.** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** This writ appeal is directed against the judgment dated 04.10.2017 in W.P.(C) No.19429 of 2008. The appellants are respondents 1 and 2 in the writ petition. Parties and documents are referred to in this judgment, as they appear in the writ petition. 2. The petitioners are teachers of an aided school namely, Kamaliya Madrassa A.U.P.School, Irikoor, Kannur. The said school is situated within 1km by the shortest route from the boundary of Mattannur Municipality. According to the 6 Writ Appeal No.1111 of 2020 petitioners, Mattannur Municipality is a 'C' class city and since their school is situated within 1km from the boundary of Mattannur Municipality, they are also entitled to House Rent Allowance (HRA) applicable to 'C' class cities in terms of the pay revision order applicable to them viz, G.O.(P)No.3000/98/Fin. Dated 25.11.1998. Based on Ext.P1 certificate issued by the competent authority of the Public Works Department that the school of the petitioners is situated within 1km from the boundary line of Mattannur Municipality, they were being disbursed HRA at the rate applicable to 'C' class cities from 01.11.1998. Later, it has come to the notice of the Government that employees working in offices situated within 1km from municipal limits other than 'C' class cities are drawing HRA admissible to 'C' class cities. The Government has therefore issued Ext.P3 circular clarifying that employees working in offices situated within 1km from 'C' class cities alone are eligible for HRA at the higher rates. In the light of Ext.P3 circular, Ext.P6 order was issued by the first respondent, in Writ Appeal No.1111 of 2020 7 terms of which the excess HRA granted to the petitioners and others at higher rates as applicable to 'C' class cities was ordered to be recovered from their salary in instalments. The writ petition was instituted challenging Ext.P6 order. 3. A counter affidavit has been filed in the matter by the second respondent, mainly contending that Mattannur Municipality is not a 'C' class city; that it is only an unclassified Municipality and that the teachers who are working within 1 km from the boundary of an unclassified Municipality are not entitled to get HRA at higher rates as applicable to 'C' class cities. According to the second respondent, Ext.P6 order is therefore in order. 4. An identical writ petition filed by two other teachers of the very same school earlier as W.P.(C) No.18721 of 2008 was allowed by this Court setting aside Ext.P6 order insofar as it relates to the petitioners therein, as per the judgment dated 29.05.2017, on an incorrect premise that Mattannur Municipality is a 'C' class city. In the light of the said 8 Writ Appeal No.1111 of 2020 judgment, this court disposed of the subject writ petition also on the same lines in terms of the judgment impugned in the writ petition. The appellants are aggrieved by the said judgment. 5. Heard the learned Government Pleader for the appellants as also the learned counsel for the petitioners. 6. The short question is whether Mattannur Municipality is a 'C' class city. The said question has not been adjudicated by the learned Single Judge in the impugned judgment. The question has also not been adjudicated in the judgment in W.P.(C) No.18721 of 2008. The learned Government Pleader, placing reliance on the various office memorandums issued by the Ministry of Finance, Government of India, contended that Mattannur Municipality is never classified as a 'C' class city and the impugned judgment is liable to be set aside on that sole ground. 7. On a query from the court, the learned counsel for the petitioners conceded that Mattannur Municipality is not 9 Writ Appeal No.1111 of 2020 a 'C' class city. The case put forward by the learned counsel, however, was that in terms of Ext.P3 circular issued by the Government, the school of the petitioners being one situated within 1km from an unclassified city, they are entitled to HRA admissible to unclassified places. 8. Insofar as there is no dispute to the fact that Mattannur Municipality is not a 'C' class city, the payment of HRA at the higher rates applicable to 'C' class cities disbursed to the petitioners was unauthorised. Ext.P6 order issued by the competent authority for rectifying the said unauthorised action cannot be said to be illegal in any manner. The petitioners do not have a case that recovery of the excess HRA paid to them, which was ordered in terms of Ext.P6, is illegal on any other ground. The contention now raised that the petitioners are entitled to HRA at the rate applicable to unclassified places is not a contention that was raised in the writ petition. True, the impugned order has been set aside by this Court insofar as it relates to the petitioners in W.P.(C) No.18721 of 2008 are 10 Writ Appeal No.1111 of 2020 concerned. Insofar as it is found that the petitioners are not entitled to the said relief, we do not think that the said judgment is an impediment for this Court in taking a different view [See **Ekta Shakti Foundation v. Government of NCT of Delhi** , 2006 (3) KLT 601 (SC)]. The impugned judgment, in the circumstances, is liable to be set aside. In the result, the writ appeal is allowed, the impugned judgment is set aside and the writ petition is dismissed. Sd/- ## **P.B.SURESH KUMAR, JUDGE.** Sd/- ## **C.S.SUDHA, JUDGE.** YKB