Writ Appeal Nos. 754 & 1627 of 2023

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 12[TH] DAY OF FEBRUARY 2024 / 23RD MAGHA, 1945** **WA NO. 754 OF 2023** **AGAINST THE JUDGMENT DATED 20/03/2023 IN WP(C) NO.28342 OF 2018** **OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **SEEMA C.L., AGED 43 YEARS, W/O. HARISH, ACCOUNTS CLERK, KERALA INSTITUTE OF TOURISM AND TRAVEL STUDIES, S.R.M. ROAD, COCHIN-682 012, RESIDING AT CHAKKANATTUPADIKKAL HOUSE, THAREBHAGAM, PALLURUTHY, COCHIN - 682006** **BY ADVS. ELVIN PETER P.J. K.R.GANESH** ## **RESPONDENTS/RESPONDENTS & ADDL. R4:** - **1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF TOURISM, SECRETARIAT, THIRUVANANTHAPURAM – 695 001.** - **2 THE KERALA INSTITUTE OF TOURISM & TRAVEL STUDIES, REPRESENTED BY ITS DIRECTOR, RESIDENCY COMPOUND, THYCAUD, THIRUVANANTHAPURAM – 695 014.** **3 THE DIRECTOR, KERALA INSTITUTE OF TOURISM & TRAVEL STUDIES, RESIDENCY COMPOUND, THYCAUD, THIRUVANANTHAPURAM – 695 014.** **4 INDULEKHA S., ACCOUNTANT, KERALA INSTITUTE OF TOURISM AND TRAVELS STUDIES (KITTS),THIRUVANATHAPURAM. RESIDING AT ANAMAYAM, TC 8/167, PARACODE,CHEMPUZHANTHI P.O., THIRUVANANTHAPURAM, PIN – 695 587.** **BY ADVS. GOVERNMENT PLEADER S. P. ARAVINDAKSHAN PILLAY N.SANTHA(S-176) V.VARGHESE(K/514/1996)** **W.A.Nos.754 & 1627 of 2023** 2 **PETER JOSE CHRISTO(K/1216/2004) S.A.ANAND(K/1216/2006) K.N.REMYA(K/712/2010) L.ANNAPOORNA(K/952/2013) VISHNU V.K.(K/001396/2018) ABHIRAMI K. UDAY(K/001426/2018)** **THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON 12.02.2024, ALONG WITH WA.1627/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.A.Nos.754 & 1627 of 2023** 3 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 12[TH] DAY OF FEBRUARY 2024 / 23RD MAGHA, 1945** **WA NO. 1627 OF 2023** **AGAINST THE JUDGMENT DATED 20/03/2023 IN WP(C)NO.23061/2020** **OF HIGH COURT OF KERALA** ## **APPELLANT/4TH RESPONDENT IN THE W.P.(C):** **SEEMA C.L., AGED 43 YEARS, W/O. HARISH, ACCOUNTS CLERK, KERALA INSTITUTE OF TOURISM AND TRAVEL STUDIES, S.R.M. ROAD, COCHIN-682 012, RESIDING AT CHAKKANATTUPADIKKAL HOUSE, THAREBHAGAM, PALLURUTHY, COCHIN – 682 006.** **BY ADVS. ELVIN PETER P.J. K.R.GANESH** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3:** - **1 INDULEKHA S., ACCOUNTANT, KERALA INSTITUTE OF TOURISM AND TRAVELS STUDIES (KITTS), THYCAUD, THIRUVANANTHAPURAM – 695 014.** - **2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF TOURISM, SECRETARIAT, THIRUVANANTHAPURAM -695 001.** - **3 THE KERALA INSTITUTE OF TOURISM & TRAVELS STUDIES, REPRESENTED BY ITS DIRECTOR, RESIDENCY COMPOUND, THYCAUD, THIRUVANANTHAPURAM – 695 014.** - **4 THE DIRECTOR, KERALA INSTITUTE OF TOURISM & TRAVELS STUDIES, RESIDENCY COMPOUND, THYCAUD,** **W.A.Nos.754 & 1627 of 2023** 4 ## **THIRUVANANTHAPURAM – 695 014.** **BY ADVS. S.P.ARAVINDAKSHAN PILLAY N.SANTHA(S-176) V.VARGHESE(K/514/1996) PETER JOSE CHRISTO(K/1216/2004) S.A.ANAND(K/1216/2006) K.N.REMYA(K/712/2010) L.ANNAPOORNA(K/952/2013) VISHNU V.K.(K/001396/2018) ABHIRAMI K. UDAY(K/001426/2018)** **SR.GP-SRI.T.K.VIPINDAS** **THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON 12.02.2024, ALONG WITH WA.754/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.A.Nos.754 & 1627 of 2023** 5 ## **AMIT RAWAL & C.S.SUDHA, JJ.** **------------------------------------------------------------------------Writ Appeal Nos.754 and 1627 of 2023 ------------------------------------------------------------------------Dated this the 12[th] day of February 2024** ## **J U D G M E N T** ## **Amit Rawal, J.** These two _intra_ court appeals have been filed challenging the common judgment dated 20/03/2023 whereby W.P.(C).No.28342/2018 filed by Smt.Seema C.L. challenging Ext.P5 order dated 17/08/2018 reducing her scale of pay has been dismissed and W.P. (C).No.23061/2020 filed by Smt.Indulekha S. challenging Ext.P18 proceedings dated 11/07/2018 rejecting her prayer for equal pay with Smt.Seema has been allowed. Both appeals are filed by Smt.Seema C.L.; W.A.No.754/2023 arises out of the judgment in W.P. (C).No.28342 of 2018 and W.A.No.1627/2023, out of the judgment in W.P.(C).No.23061/2020 wherein she is the 4[th] respondent. 2. Smt.Seema is hereby referred to as the first petitioner and Smt.Indulekha as the second petitioner. 3. First petitioner (Seema) on the basis of an advertisement caused **W.A.Nos.754 & 1627 of 2023** 6 in the daily newspaper by the Kerala Institute of Tourism and Travel Studies (hereinafter called as 'KITTS') seeking appointment of a Clerk, submitted application and was offered appointment as Clerk on contract basis _vide_ Ext.P1 order dated 18/10/2010. The said order clarified that the appointment to the post of Clerk is on a c ontract basis at a consolidated pay of ₹6000/- for a period of one year. 4. Prior thereto the Government of Kerala _vide_ order dated 17/01/2006, in Kerala Institute of Hospitality Management Studies (KIHMS, Malayattoor) which was imparting courses on the request of the department, created a post of Accounts Clerk in the pay scale of ₹4600-8000/-. It was made clear that the said post was only meant for the institution and shall be only for a period of 3 years on contract basis with a condition that any change in pay, allowances and service conditions in future will be sanctioned only with the prior approval of the Government. On the basis of that order in existence, first petitioner had been appointed as Clerk on contract basis. KITTS _vide_ order dated 23/11/2010 Ext.P3 regularised the service of the first petitioner as accounts clerk in a pay scale of ₹7990-12930/-. Thereafter, in 2017, the benefit of the revised pay scale was also accorded in the proceedings **W.A.Nos.754 & 1627 of 2023** 7 of the KITTS held on the said date, under the revised scale of ₹1390024040/-. 5. The second petitioner (Indulekha) had sought the indulgence of this court to challenge Ext.P18 order dated 11/07/2018 whereby the request for granting the same pay scale as granted to Seema was rejected. 6. _Vide_ Ext.P5 in the first petition, a letter dated 17/08/2018, it was informed that KITTS, in the Executive Committee meeting held on 04.8.2018 had decided to comply with the directions of the Government _vide_ letters dated 4/10/2016, 23/10/2017, 11/07/18, to correct a mistake in granting the pay scale to the accounts clerk of ₹7990-12930/- where it should have been ₹6680-10790/- and therefore salary of the first petitioner was fixed as ₹13900/- on the scale of ₹11620-20240/- with effect from 01/08/2018. In other words, she was brought in a lower scale, that is, ₹6680-10790/- as the last pay scale was the revised one. 7. The said order was assailed in the first petition on various grounds including the non compliance of the principles of natural justice. However during the pendency of W.A.754/2023, a document **W.A.Nos.754 & 1627 of 2023** 8 Annexure A4 has been placed on record showing the existing scales of pay and revised pay scale, whereas the existing pay scale of accounts clerk as per the sanction by the Government on 17/01/2006 was 46007125 and the revised scale ₹7990-12930/-. The process of appointment of the first petitioner had undergone competition, amongest 545 applications and 470 candidates called for the written test, she was found first. In the first writ petition, the second petitioner Indulekha vide separate application sought impleadment, which was allowed and was arrayed as fourth respondent. In the writ petition filed by the second petitioner Indulekha, the first petitioner Seema was impleaded as additional fourth respondent. 8. The pay scale of the accounts clerk Indulekha, second writ petitioner was ₹6680-10790/-. Since she was on a higher post, had sought _vide_ representation parity in the pay scale by removing the anomaly claiming the pay scale of ₹7990-12930/- as has been granted to the first writ petitioner. 9. The stand of the Government in W.P(C).28342/2018 was that though the Government _vide_ order dated 22/11/2007 revised the scales of pay and allowances in accordance with the recommendation **W.A.Nos.754 & 1627 of 2023** 9 of 8[th] pay revision, the revised scales of pay and other benefits sanctioned as per the government were not applicable to the employees of KIHMS, Malayattoor and on account of implementation of 9[th] pay revision _vide_ order dated 31/07/2013 revised the pay and allowances of regular employees of KITTS excluding all contract posts of Malayattoor, which include the post of accounts clerk. Therefore the claim of the first petitioner Seema, that the revision of pay scale by the second respondent was on the basis of the order of government, was erroneous and relies that there was a mistake by the KITTS to grant the higher pay scale whereas it should have been ₹6680-10790/-. The order of regularization did not have the accord and sanction of the Government and therefore the pay scale referred to therein was not under the approval of the Government. 10. Learned Single Judge noticing all the contentions _vide_ common judgment, allowed the second writ petition W.P(C). 23061/2020 and dismissed the first writ petition 28342/2018 and without raising any challenge to the orders of regularization of the first petitioner, set aside the order of regularization and directed KITTS to gave the pay scales to Indulekha at par with the pay scale of first **W.A.Nos.754 & 1627 of 2023** 10 petitioner Seema. It is in that background two writ appeals have been preferred by Seema, the first petitioner. 11. Mr.K.R.Ganesh, learned counsel appearing on behalf of the appellant/first petitioner in support of the contentions submitted that the learned Single Bench ought not to have set aside the order of regularization as there was no challenge in the writ petition preferred by the second petitioner Indulekha. In support of the contention reliance has been laid to the decision rendered by the Full Bench in **Pavithran v. State of Kerala, 2009 (4) KLT 20** , wherein while noticing all the case laws and contentions, it was held that any adverse order passed against a person, unless it is challenged even if it is an illegal order would be valid and binding. In such circumstances, the learned Single Bench ought not to have set aside the regularization order. 12. Ext.P5 order dated 17/08/2018 has been passed at the back of the petitioner without affording any principle of natural justice. The reasoning assigned by the learned Single Bench for not accepting the aforementioned contentions cannot be sustained, as the Court found that Ext.P3 regularization order dated 23/11/2010 could not have been **W.A.Nos.754 & 1627 of 2023** 11 passed by the KITTS, thus there is fallacy and illegality. The reasoning assigned that the appointments were only on contractual basis even for the post of accounts clerk, the question remained was of the pay scale. The Court was under the impression that the appointment of Seema was on contractual basis but failed to notice that the post of accounts clerk is one sanctioned _vide_ order dated 17/01/2006 and carried a pay scale of Rs.4600-8000. 13. On the other hand, Mr.Varghese, learned counsel appearing on behalf of the second petitioner Indulekha submitted that the claim in the writ petition as per the prayer was to set aside the order dated Ext.P18, whereby the respondents have rejected to grant pay scale of ₹7990-12930/- granted to Seema while discharging duties of accounts clerk and candidly admitted that there was no challenge to the regularization. The cause of action to Indulekha arose only when the higher pay scale was granted to the first petitioner as the post of accounts clerk was lower than the post of accountant. 14. In support of the contention relied upon the judgment of Supreme Court in **Shekhar Ghosh v. Union of India, 2007 KHC 3014: 2007 (1) SCC 331** to contend that rectifiable mistakes are **W.A.Nos.754 & 1627 of 2023** 12 required to be corrected with promptitude but not after a gap of eight years. 15. We have heard counsel for the parties and appraised the paper books. 16. Before dealing with the rival contentions, it would be expedient to extract Ext.P5 impugned order dated 17/08/2018 in the first petition as well as Ext.P18 order dated 11/07/2018 in the second petition: ## **Ext.P5** _“The Executive Committee decided to Comply with the directions of Government vide letter No.04.10.2016, 23.10.2017 and 11.07.2018 to correct and forward a proposal to Government to reduce the scale of pay of Rs.7990-12930 sanctioned to the post of Accounts Clerk in KIHMS to Rs.6680-10790 which is the scale of pay sanctioned to the Accountant post of KITTS Head Quarters._ _In the light of the above decision, Executive Committee also decided to revise the present scale of pay of Rs.13900-24040 to Smt.Seema C.L. Accounts Clerk which was sanctioned by the 46[th] Executive Committee to Rs.11620-20240 (which is the corresponding scale of Rs.6680-10790 under 9[th] pay revision) and fix salary accordingly to comply with the Government directions vide letter No.04.10.2016, 23.10.2017 and 11.07.2018 and this_ **W.A.Nos.754 & 1627 of 2023** 13 _shall be with effect from 01.08.2018._ _Under the circumstances, orders are issued for the reduction of scale of pay of Accounts Clerk (7990-12930) sanctioned to Smt.Seema C.L. to 6680-10790 which is the scale of pay sanctioned to the Accountant post of KITTS Head Quarters._ _In the above circumstances as decided by the Executive Committee, the present revised scale of pay Rs.13900-24040 which was sanctioned to Smt.Seema C.L., Accounts Clerk by the 46[th] Executive Committee is reduced to Rs.11620-20240 (which is the corresponding scale of Rs.6680-10790 under 9[th] pay revision in compliance of Government directions vide letter No.04.10.2016, 23.10.2017 and 11.07.2018 and this shall be with effect from 01.08.2018._ _In the above circumstances, salary of Smt.Seema C.L., Accounts Clerk is fixed at Rs.13900 on the scale of pay of Rs.11620-20240 w.e.f. 01.08.2018”_ ## **Ext.P18** _“Your attention is invited to the reference. The permanent post of Accountant held by you in KITS has been sanctioned the pay scale approved by the Finance Department. Any changes made would lead to audit objection. The Government has asked the Director to rectify the mistake in sanctioning the pay scale of Rs.799012930/- to the post of Accountants Clerk while the pay scale of Accountant is Rs.6680-10790/-. In the above circumstances, it is informed that your request to grant the pay scale equivalent to the irregular pay scale fixed by the_ **W.A.Nos.754 & 1627 of 2023** 14 _Director payable to Smt. Seema cannot be allowed.”_ 17. It is found that the second petitioner had only a claim with regard to the parity in the pay scale. In pursuance to the advertisement caused by the KITTS, first petitioner on stiff and tough competition was able to secure first position and was appointed as per Ext.P1 appointment order on a contractual basis with a consolidated pay of ₹6000/-. On assuming charge, acquired the knowledge of creation of a post of accounts clerk in the KITTS department on approval by the Government _vide_ order dated 17/01/2006 and the same reads as under: _“The Kerala Institute of Hospitality Management Studies (KIHMS), Malayattoor, Ernakulam, District which is a chapter of the Kerala Institute of Tourism and Travel Studies (KITTS), Thiruvananthapuram is conducting the following Course._ _1. Masseurs training Programme_ _2. Hotel reception and House keeping_ _3. Food and Beverage Service._ _2. To cope with the requirements for the conduct of the above courses, the 24[th] executive Committee meeting of the Kerala Institute of Tourism and Travel Studies decided to request Government to create the following posts._ Posts Scale of Pay 1. Principal 10000-300-10600-325-15150 2. Lecture cum instructor 7200-200-7800-225-11400 (Food and beverage Services) 3. Lecture cum Instructor 7200-200-7800-225-11400 (Front Office Management) **W.A.Nos.754 & 1627 of 2023** 15 |4.|Lecture cum Instructor|7200-200-7800-225-11400| |---|---|---| ||(House Keeping)|| |5.|Lecturer (Travel & Tourism)|6675-10550| |6.|Accounts Clerk|4600-8000| |7.|Peon|2610-3680| |8.|Sweeper|2610-3680| _3. The Director, Kerala Institute of Tourism and Travel Studies in his letter read above accordingly requested Government to sanction the above posts for the smooth conduct of the courses. 4.Government have examined the above proposal in detail and measured to sanction the following posts with the scale of pay noted against each for the successful conduct of the courses at Kerala Institute of the Hospitality Management Studies Malayattoor._ |_Malayattoor._||| |---|---|---| |_Posts_|_Scale of Pay_|_No. of Posts_| |_1. Principal_|_10000-300-10600-325-15150_|_1_| |_2. lecture (Tourism and_<br>_Travel Studies)_|_6675-10550_|_1_| |_3.lecturer_<br>_(Hospitality_<br>_Management Studies)_|_6675-10550_|_2_| |_4. accounts Clerk_|_4600-8000_|_1_| |_5. Peon_|_2610-3680_|_1_| |_6. Part time Sweeper_||_1_| _5. The creation of the above posts are subject to the connection that the appointments will be made only on contract basis for a period of 3 years at a stretch. No person whether on temporary or casual or on daily wages and above the sanctioned strength, if any being engaged now will be adjusted against the above posts of their services discontinued forth with Any change in pay and allowances and service conditions in future will be sanctioned only with_ **W.A.Nos.754 & 1627 of 2023** 16 _the prior approval of the Government.”_ 18. The post of accounts clerk relevant, for the adjudication of the present writ appeal, carried a pay scale of ₹4600-8000/- (prerevised). The said pay scale post-revision as per the Annexure A4 was ₹7990-12930/-. Thereafter, further revised to ₹13900-24040/- which is evident from the order dated 18/08/2017 Ext.P4, the same reads as under: _“The 46th Executive Committee which met on 20.07.2017 decided to revise the scale of pay of Smt.Seema C.L., Accounts Clerk, Ernakulam Centre, in tune with the scale of pay of Accounts Clerk recommended in the 9th Pay Commission._ _The regular staff of KITTS are getting salary as per the Pay Revision rates as per G.O. (MS) No. 227/2013/TSM di 31.07.2013. The 9th Pay Revision came into effect from 01.07.2009 onwards. Since the date of appointment Smt. Seema C.L., is after 01.07.2009 (i.e., 4.11.2010), she is eligible at the minimum of the scale revised in the 9 Pay Revision as given below:_ ||_Sl.No._|_Sl.No._|_Name_|_Name_|_Present_<br>_scale_|_Present_<br>_scale_|_Present_<br>_scale_|_Appointment_<br>_date_|_Appointment_<br>_date_|_Appointment_<br>_date_|_Revised scale_|_Revised scale_|_Revised scale_|_Basic Pay_|_Basic Pay_| |---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---| |||_1_|_Smt.Seema_<br>_C.L._<br>_Accounts Clerk_||_7990-12930 _|||_04.11.2010_|||_13900-24040_|||_13900_|| ||||||||||||||||| |_Sl._<br>_No._||_Name_||_Appointment_<br>_date_||_Revised_<br>_scale_|_Basic_<br>_Pay_||_Pay on_<br>_1 Inc_|_Pay_<br>_on_<br>_2 Inc_||_Pay_<br>_on_<br>_3 Inc_|_Pay on_<br>_4 Inc_|_Pay on_<br>_5 Inc_|_Pay on_<br>_6 Inc_| |_1_||_Smt.Seema C.L._<br>_Accounts_<br>_Clerk_||_04.11.2010_||_13900-_<br>_24040_|_13900_||_14260_|_14260_||_14980_|_15380_|_15780_|_16180_| _In the above circumstances, the pay of Smt. Seema CL., Accounts_ **W.A.Nos.754 & 1627 of 2023** 17 _Clerk is fixed at Rs.16180/- in the scale of pay 13900-24040 w.e.f 1.08.2017.”_ 19. The regularization order is dated 23/11/2010. On comparison of the order Ext.P5 and Ext.P3, it is evident that the alleged mistake according to the respondents by which the first petitioner Seema was drawing a higher salary which came to be rectified only after expiry of seven years. That exercise could not have been done without putting notice to the first petitioner. In support of such observation, we draw our reliance to the findings rendered in paragraph no.19 of the judgment **Shekhar Ghosh** (Supra). Conceded position on record is that before passing Ext.P5 order, no opportunity of hearing was given to the first petitioner. The second petitioner was appointed against a regular vacancy whereas the first petitioner was appointed on contract basis and that the benefits of pay scales as relied upon _vide_ Annexure A4 is pertaining to Government employees and not to the employees of the KIHMS. In this regard it is apposite to extract para 3 of Ext.R1(b) dated 22/11/2007: _“3. The revised scales of pay and other benefits sanctioned as per this Government Order are not applicable to the employees of Kerala Institute of Hospitality Management Studies, Malayattoor.”_ **W.A.Nos.754 & 1627 of 2023** 18 20. Subsequently on 31/07/2013 Government in unison had decided to give the following pay scales to the employees working in KITTS department. The said order reads as under: _“The Pay & allowances of the employees of Kerala Institute of Tourism and Travel Studies (KITTS) were revised vide Government Order read as 1st paper above. The Director, Kerala Institute of Tourism and Travel Studies (KITTS) in her letter read as 3rd paper above has proposed to extend the benefits of Pay and Revision implemented to State Government employees vide Government Order read as 2nd paper above to the employees of Kerala Institute of Tourism and Travel Studies (KITTS)._ _Government have examined the proposal in detail and are pleased to revise the pay and allowances of the regular employees of Kerala Institute of Tourism and Travel Studies (KITTS) w.e.f. 1.7.2009 as detailed below as per Annexure I of G.O.(P)No.85/2011/Fin dated 26.2.2011 subject to the conditions specified hereunder”_ i) Existing and revised scale of pay |Sl.<br>No.|Name of Post|No.of<br>Post<br>Sanctioned|Existing<br>Scales of Pay|Revised<br>Scales of Pay| |---|---|---|---|---| |1|Director|1|Deputation|AS in PD| |2|Administrative Officer|1|Deputation|AS in PD| |3|Assistant Librarian|1|8390-13270|14620-25280| |4|Steno Clerk|1|7990-12930|13900-24040| |5|Typist Clerk|1|7990-12930|13900-24040| |6|Receptionist Cum Typist|1|7990-12930|13900-24040| **W.A.Nos.754 & 1627 of 2023** 19 |7||Consultant|2|7990-12930|13900-24040| |---|---|---|---|---|---| |8||Accountant|1|6680-10790|11620-20240| |9||Typist|1|5250-8390|9190-15780| |10||Driver|1|5250-8390|9190-15780| |11||Driver cum Peon|1|5250-8390|9190-15780| |12||Peon|4|4510-6230|8500-13210| |13||Gardener|2|4510-6230|8500-13210| |14||Sweeper|1|4510-6230|8500-13210| |||Total|19||| _ii) Stepping up of the scales of pay of any category will not be allowed under any circumstance._ _iii) All the rules relating to fixation of pay as per Annexure-II of G.O. (P)No.85/2011/Fin dated 26.02.2011 should be strictly followed except service weightage. For service weightage regular service in Kerala Institute of Tourism and Travel Studies only will be reckoned._ _iv) The date of effect of revision of pay and allowances, option and time bound higher grade be sanctioned as specified in GO(P) No. 85/2011/Fin.dated 26.2.2011._ _v) HRA as specified at para 13 of GO(P) No.85/2011/Fin dated 26.2.2011 may be sanctioned CCA is admissible as specified at para 15 of GO(P) No 85/2011/Fin dated 26.02.2011 will be limited to employees working in offices situated within city limits. No other allowance other than those mentioned above are admissible._ **W.A.Nos.754 & 1627 of 2023** 20 _vi) Upgradation / creation/re-designation of posts (Whether full time, part time, temporary contract or daily wages) will not be allowed without prior Government sanction._ _vii) No person shall be appointed (Whether full time, part time, temporary and contract or daily wages) without a post created validly through a Government Order._ _viii) Payment of arrears has to be decided by the Board of Directors, depending upon the final position of the company._ _ix) Employees appointed on contract basis, if any, are eligible only for basic pay + DA, or amount fixed by the Executive Committee with the approval of Government. Other allowance eligible to regular employees will not be sanctioned to them unless otherwise specifically ordered in the contract agreement._ _x) The maximum employer contribution in EPF will be calculated @ 12% of Rs. 6500/- (Basic Pay + DA) unless otherwise specifically ordered by the Government._ _xi) The additional expenditure on account of revision of pay and allowances should be met with the own fund of Kerala Institute of Tourism and Travel Studies. Government will not provide any financial assistance in this regard._ _xii) The Director will be held responsible for any violations in the implementation of Pay Revision.”_ On perusal of the above, it is evident that there is no post of accounts **W.A.Nos.754 & 1627 of 2023** 21 clerk. 21. Mr. T.K. Vipin Das learned Government Pleader belied the relief of the first petitioner, by relying upon these documents to contend that even if Seema was granted opportunity of hearing, would be confronted with the said order. 22. At this stage, Mr. K.R.Ganesh, learned counsel representing Seema, first petitioner, drew our attention to Ext.P7 order dated 03/03/2015 whereby sanction was accorded to rename Kerala Institute of Hospitality Management Studies (KIHMS) Malayattoor as the Hospitality Wing of Kerala Institute of Tourism and Travel Studies (KITTS) to contend that once KIHMS has been renamed as KITTS, the sanction dated 17/01/2016 for accounts clerk for KIHMS would deemed to have been included in the order Ext.R1(b) dated 31/07/2018 at par with the clerks, steno clerk and typist clerk, having a pay scale of ₹7990-12390/-. It is in that background, the said benefit _vide_ regularization order Ext.P3 dated 23/11/2010 was granted. 23. Cumulative effect of all the orders leaves to the following conclusions: 1) Though at one point of time, that is in 2007, the pay scales of the **W.A.Nos.754 & 1627 of 2023** 22 Government employees were not at par with the employees of the KITTS. 2) In 2013, that is on 31/07/2013, pay scales of the KITTS were revised consisting of posts referred to above i.e. Ext.R1(b) which did not contain the post of accounts clerk, which were almost at par with the Government employees. 3) _Vide_ order dated 03/03/2015 on sanctioning of a new name for KIHMS as KITTS read with order dated 17/01/2006 extracted above creating a post of accounts clerk with a pay scale of ₹4600-8000/-, would be at par with the clerk having a pay scale of ₹7990-12390/-. This aspect has not been looked into while passing the order Ext.P5 reducing the pay scale of Seema considering it to be a mistake. It is in that circumstances, the second petitioner Indulekha has submitted a representation for granting the pay scale at par with the accounts clerk, who was having, as per order dated 31/07/2013, a pay scale of ₹668010790/-. 24. To arrive at a conclusion on analysis of the documents extracted above it is required for us to extract the relevant portion of the order of the learned Single Bench and the same reads as under: **W.A.Nos.754 & 1627 of 2023** 23 _“15. In view of the fact that admittedly, Government sanction is required for creation of posts in the institute, I am of the opinion that the contention raised by the petitioner in W.P. (C).No.28342 of 2018 that the regularisation in the post of Accounts Clerk which was to be filled up only on contract basis cannot be rectified by the institute on the directions of the Government, cannot be accepted. Exhibit P6 judgment produced by the petitioner in W.P. (C).No.28342/2018 was rendered in a situation where there was no objection and no rival contentions or questions of seniority. In the instant case, the higher pay scale granted to the petitioner in W.P. (C).No.28342/2018 would lead to a situation where a regular employee, who also claims to have all the necessary qualifications, would be excluded from consideration for appointment to higher posts since the employee engaged on a contract basis steals a march by reason of her regularisation in a post in a higher scale of pay. This is more pertinent in view of the fact that the creation of the post of Account Clerk by the Government was specifically on condition that the post would be filled up only on a contract basis. Since it is an admitted fact that creation of posts in the institute requires the prior permission of the Government and since the post of Account Clerk created by Exhibit P2 was subject to the condition that appointments would be made only on a contract basis, I am of the opinion that the regularisation of the service of the petitioner in the said post and the grant of a higher scale of pay to her could not have been done without the permission of the Government. In the facts and circumstances of the instant case where all the facts are now known to the parties, the contention that the scale of pay was lowered without putting the employee on notice also is not sustainable._ _16.In the above factual situation, I am of the opinion that the_ **W.A.Nos.754 & 1627 of 2023** 24 _challenge raised in W.P.(C).No.28342 of 2018 cannot be entertained. The said writ petition is dismissed._ _17.W.P.(C).No.23061/2020 is ordered directing the respondents to treat the petitioner as senior to the 4[th] respondent in the regular service of the 2[nd] respondent for all purposes, including promotion and to grant her pay and allowances at par with the 4[th] respondent within three months from the date of receipt of a copy of this judgment.”_ 25. What is deduced from the aforementioned observation is that the learned Single Bench found that the first petitioner Seema could not have been regularized on a higher post than the second petitioner as it would amount to engagement of an employee on contract basis stealing a march over a regular recruited person. The said finding, in view of the conclusion arrived at above, cannot stand the touchstone of reasonability much less legality for, there was no challenge to the order of regularization at any point of time, even otherwise if at all there was a challenge in 2020, that could not have been permitted as the order was passed far back in 2010. In support thereof paragraph No.8 of the judgment in **Pavithran v. State of Kerala, 2009 (4) KLT 20** (Supra) is extracted: _“8. Whenever an adverse order is passed against a person, unless the same is challenged before the appropriate forum, within_ **W.A.Nos.754 & 1627 of 2023** 25 _the prescribed time limit, the said order will become final and the person, affected by it, will also be bound by it. It is a well settled principle in Administrative Law that, there are no void orders in absolute sense in administrative matters. There are only voidable orders. Unless a person aggrieved takes recourse to the appropriate remedy at the appropriate time, even an illegal order will be treated as valid and binding. See the the observations of Wade in Administrative Law, 6th Edn.” (Emphasis supplied.)_ 26. We also agree with the contention of Mr.Ganesh that the rectification of mistake has to be at the earliest point of time but should not be whimsical and at convenience. The order Ext.P5 in the first writ petition dated 17/08/2018 was passed after seven years giving benefit of higher pay derived by Seema. 27. As an upshot of our discussion, we set aside the findings of the learned Single Bench and pass the following directions. - (i) Ext.P5 order dated 17/08/2018 in the first petition, passed at the back of the petitioner and without considering the aforementioned documents, is hereby quashed. - (ii) Ext.P18 order dated 11/07/2018 in the second petition stands quashed. (iii) In the second writ petition, KITTS is directed to accord the **W.A.Nos.754 & 1627 of 2023** 26 benefit of same pay scale to the second petitioner Indulekha at par with the pay scale of Seema, that is, pre-revised pay scale ₹7990-12930/- and subsequent revision as per Annexure A4 to ₹13900-24040/-, from the same date Seema has been granted, including the future revisions within a period of two months from the date of receipt of a certified copy of this judgment. Both the writ appeals are allowed. SD/- **AMIT RAWAL JUDGE** SD/- **C.S.SUDHA JUDGE** ak **W.A.Nos.754 & 1627 of 2023** 27 ## **APPENDIX OF WA 754/2023** ## **PETITIONER ANNEXURES:-** **Annexure A1 TRUE COPY OF THE GOVERNMENT ORDER DATED 29.11.1999 APPROVING THE SPECIAL RULES OF THE 2ND RESPONDENT. ANNEXURE A2 TRUE COPY OF THE SPECIAL RULES APPROVED BY THE GOVERNMENT AS PER ANNEXURE-A1 G.O.(RT.) NO. 8816/99/GAD DATED 29.11.1999. ANNEXURE A3 TRUE COPY OF THE MINUTES OF THE SELECTION PROCEEDINGS DATED 14.01.2010 OF THE 2ND RESPONDENT. ANNEXURE A4 THE RELEVANT EXTRACT OF ANNEXURES OF THE 2004 PAY REVISION, 2009 PAY REVISION AND 2014 PAY REVISIONS. ANNEXURE A5 TRUE COPY OF THE ORDER DATED 04.03.2006 ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT. ANNEXURE A6 TRUE COPY OF THE REGULARIZATION ORDER DATED 23.11.2010 REGULARIZING THE SERVICE OF SMT. VINITHA AS TYPIST. ANNEXURE A7 TRUE COPY OF THE DECLARATION OF PROBATION OF SMT. VINITHA, DATED 15.11.2012 RESPONDENT ANNEXURES:Exhibit R4(a) True copy of the G.O.(Ms) No.112/09/TSM dated 18.05.2009 Exhibit R4(b) True copy of the relevant extract of G.O.(P)No.85/2011/Fin dated 26.02.2011. Exhibit R4(c) True copy of the G.O.(Ms) No.227/2013/TSM dated 31.07.2013. Exhibit R4(d) True copy of the G.O. (Ms)No.2/2018/Tourism dated 02.03.2018.** 28 ## **W.A.Nos.754 & 1627 of 2023** ## **APPENDIX OF WA 1627/2023** ## **- RESPONDENT ANNEXURES:** **Annexure R1(a) True copy of the proceedings No.KITTS/ESTT-recruitment/10 dated 18.01.2010 of the Director, KITTS/4th respondent.**