Kerala High Court
Sabi Augustine vs State Of Kerala on 3 December, 2019
Equivalent citations: AIRONLINE 2019 KER 1106
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 03RD DAY OF DECEMBER 2019 / 12TH AGRAHAYANA, 1941
WP(C).No.32039 OF 2016(D)
PETITIONER/S:
SABI AUGUSTINE,
AGED 39 YEARS,
HIGHER SECONDARY SCHOOL TEACHER, (POLITICAL SCIENCE),
JAYASREE HIGHER SECONDARY SCHOOL, KALANADIKOLLY POST,
PULPALLY, WAYANAD-673 579.
BY ADV. SRI.P.C.SASIDHARAN
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, SECRETARIAT,
TRIVANDRUM-695 001.
2 THE DIRECTOR,
HIGHER SECONDARY EDUCATION,
THIRUVANANTHAPURAM-695 001.
3 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY
EDUCATION, OFFICE OF THE REGIONAL DEPUTY DIRECTOR
OF HIGHER SECONDARY EDUCATION, KOZHIKKODE-673 001.
4 THE MANAGER,
JAYASREE HIGHER SECONDARY SCHOOL, KALANADIKOLLY POST,
PULPALLY, WAYANAD-673 579.
*ADDL. THE DISTRICT EDUCATIONAL OFFICER,
R5 OFFICE OF THE DISTRICT EDUCATIONAL OFFICER,
WAYANAD.
*ADDL.R5 IS IMPLEADED AS PER ORDER DATED 19.06.2019
IN IA 1/2019.
R1 TO R3 & R5 -SMT. MARY BEENA JOSEPH, SENIOR
GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
03.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.32039 of 2016 2
JUDGMENT
This writ petition is filed by the petitioner seeking to quash Ext.P7 Government Order, whereby re- fixation of salary is directed to be made and to take action to recover the excess amount of salary paid to the petitioner. Brief material facts for the disposal of the writ petition are as follows:
2. Petitioner was appointed as Higher Secondary School Teacher (HSST) (Political Science) under the 4th respondent Management on 01.09.2000. The above appointment was a subject matter of litigation before this Court at the instance of one Joseph Abraham, H.S.A., who was claiming promotion from the post of H.S.A (Social Science) to the post of HSST. In terms of the direction issued by this Court and in terms of the Government Order, petitioner's appointment was approved as HSST (Junior) with effect from 01.09.2000 and the post was upgraded as HSST with effect from 17.07.2001.
3. The approval granted to the petitioner was also a subject matter of litigation before this Court, i.e., W.P.(C) No.33243 of 2003, and this Court, on the ground that the selection was not conducted in accordance with law, quashed the approval of W.P.(C)No.32039 of 2016 3 appointment of the petitioner, with a direction to consider the claim of the petitioner for appointment to the resultant vacancy of H.S.A. The Government considered the issue and consequential orders were issued appointing Sri. Joseph Abraham as HSST on 25.06.2007 and appointed the petitioner to the resultant vacancy. Even though a writ appeal was preferred by the petitioner, that was dismissed and the petitioner has taken up the matter before the Supreme Court in S.L.P (C) No.11797 of 2007 and as per an interim order dated 08.04.2009, on the basis of submission made by the 2nd respondent therein, directed to explore the possibility of creating one more post of HSST in order to accommodate the petitioner without displacing Sri. Joseph Abraham. Thereafter, the S.L.P was disposed of by the apex court recording the changed circumstances and holding that the correctness of the judgment has not been examined as the petition itself became infructuous, and directed to pay salary to the petitioner to the period in which petitioner had worked as H.S.A from 12.03.2008 to 31.05.2011.
4. Thereupon, the District Educational Officer, as per Ext.P6 order dated 19.03.2014 granted fixation of pay to the petitioner consequent to the Pay Revision W.P.(C)No.32039 of 2016 4 Order, since the petitioner was not granted with the pay revision benefits of 2004 and 2009. However, later, without notice to the petitioner or hearing, the Government issued Ext.P7 order dated 11.08.2016, holding that the fixation of pay in the cadre of H.S.A to the petitioner made by the District Educational Officer is not in order and that the appointment of the petitioner in the cadre of H.S.A should be treated as fresh appointment and hence the salary of the petitioner should be re-fixed and excess pay made should be recovered. It is thus challenging Ext.P7, this writ petition is filed.
5. A detailed counter affidavit is filed by the Regional Deputy Director of Higher Secondary Education, i.e., the 3rd respondent herein, basically contending that, on the basis of Ext.P5 order of the apex court dated 10.07.2012, the Joint Director of Higher Secondary Education, Thiruvananthapuram, as per Ext.R3(a) letter dated 28.06.2013 directed to fix the salary of the petitioner as per 2004 Pay Revision in HSST scale. It was according to the said direction, fixation of pay was done in the scale of pay of Rs.11070-18450, evident from Ext.P4 order. On 01.06.2013, a request of the Principal of the 4th W.P.(C)No.32039 of 2016 5 respondent's school has been received for the fixation of petitioner's pay on re-option and for the higher grade fixation with effect from 01.07.2013 on completion of 8 years HSST service including the previous approval period from 17.07.2001 to 11.03.2008.
6. On the basis of a clarification sought for by the Regional Deputy Director to the Director of Higher Secondary Education as per a communication dated 23.09.2014, the Government issued clarification to the Director of Higher Secondary Education, Thiruvananthapuram as per Ext.R3(c) communication dated 11.08.2016 (Ext.P7). The said clarification was forwarded to the Regional Deputy Director and it was on the basis of the same, action was proposed to be taken to re-fix the pay and then effect recovery for the excess amount paid to the petitioner. On the basis of the impugned communication, the Regional Deputy Director returned the proposal for fixation of pay in the cadre of HSST and in the light of the impugned order, the Director of Higher Secondary Education instructed the Regional Deputy Director to regularise the scale of pay. Thereupon, it was returned in compliance with the direction.W.P.(C)No.32039 of 2016 6
7. The 1st respondent has filed a counter affidavit, basically justifying the stand adopted in Ext.P7 communication. Among other contentions, it is stated that, since the appointment of the petitioner as HSA with effect from 12.03.2008 is by direct method (fresh appointment), the incumbent having been appointed from a higher scale to a lower scale, i.e., from the scale of pay of Rs.11070-18450 to a scale of pay of Rs.8390-13270, she is eligible only for minimum of the scale of pay i.e., Rs.8390/-, as per Rule 37(b) of Part-I Kerala Service Rules (K.S.R.), and hence Ext.P7 order is legally sustainable.
8. A reply affidavit is filed by the petitioner, reiterating the stand adopted in the writ petition and also contending that Rule 37(b) of Part-I K.S.R has no application in the case at hand.
9. I have heard learned counsel for the petitioner and the learned Senior Government Pleader, and perused the pleadings and the documents on record.
10. The question emerges for consideration is, whether any manner of interference is warranted to Ext.P7 order issued by the Government, directing to re-
fix the salary and recover the excess amount paid to the petitioner. Respective counsel have addressed W.P.(C)No.32039 of 2016 7 their arguments in terms of the pleadings put forth and the stand of the Government in the impugned communication. The issue revolves around Rule 37(b) of Part-I K.S.R., which read thus:
"37(b). In the case of officiating appointments from a higher time scale of pay to a lower time scale of pay, by direct recruitment, the officer's officiating pay in the lower time scale shall be fixed at the minimum of the scale of pay of the new post without considering his pay in the higher time scale except in the cases where such appointments are made in accordance with the Special Rules applicable to such appointment and in the case of such appointments, the officer's officiating pay in the new time scale shall be fixed at his officiating pay in the previous appointment, if it is a stage in the new time scale, or at the next lower stage, if it is not a stage in the new time scale, the difference being treated as personal pay to be absorbed in future increases. But nothing in this sub-rule shall apply to cases of reversions".
11. Therefore, it is clear from the said provision that when officiating appointments are made from a higher time scale of pay to a lower time scale of pay, by direct recruitment, the officer's officiating pay in the lower time scale shall be fixed at the minimum of the scale of pay of the new post without considering his pay in the higher time scale except in the cases where such appointments are made in accordance with the Special Rules applicable to such appointments. The paramount contention advanced by learned counsel for the petitioner is that, petitioner was appointed on the W.P.(C)No.32039 of 2016 8 basis of the directions contained in Ext.P5 order of the apex court, and therefore, the rule specified above has no manner of role to play in the peculiar circumstances of this case.
12. On the other hand, learned Senior Government Pleader submitted that, except under the special circumstances provided under Rule 37(b), under no other circumstances, petitioner is entitled to higher time scale of pay when she was appointed as H.S.A from HSST, and therefore, petitioner is only entitled to get the minimum scale of pay in accordance with the mandatory requirements contained under the afore-quoted rule.
13. On an evaluation of the respective submissions, I am of the considered opinion that, the apex court as per Ext.P5 order has observed that, despite the appointment of the petitioner on the lower post of H.S.A with effect from 12.03.2008, the respondents have not paid her salary in the scale prescribed for that post. It was also recorded thereunder that the salary was not paid to the petitioner because she did not give her consent for being posted as H.S.A and her appointment on that post was not approved. Anyhow, it is an admitted fact that petitioner had worked as H.S.A with effect from W.P.(C)No.32039 of 2016 9 11.03.2008 till her re-promotion as HSST in 2011.
14. Taking into account the said facts, the apex court had directed in Ext.P5 to pay salary to the petitioner in the scale prescribed for the post of H.S.A till the date of her re-promotion as HSST. Therefore, it is clear that, there was no direction made to pay the salary, overlooking the provisions of rule in vogue. To put it short, petitioner is entitled to get salary only in accordance with Rule 37(b) of Part-I K.S.R., and therefore, I do not think there is any illegality in the Government directing as per Ext.P7 communication dated 11.08.2016 to re-fix the salary in terms of Rule 37(b) of Part-I K.S.R. Therefore, the challenge made by the petitioner in that regard fails.
15. However, learned counsel for the petitioner has invited my attention to the judgment of the apex court in 'State of Punjab v. Rafiq Masih (White Washer)' [(2015) 4 SCC 334], which considered the question with respect to recovery of amount paid in excess without fault of the recipients and the hardship caused to employees in case of recovery directed to be made, and has evolved certain principles at paragraph 18 of the said judgment, to protect the interest of W.P.(C)No.32039 of 2016 10 certain persons, which read thus:
"18. It is not possible to postulate all situations of hardship, which would govern employees on the issue 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 Class-III 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."
16. Learned counsel has submitted that, petitioner is belonging to Class-III employment and, therefore, entitled to get the benefit of clause (i) thereunder read along with clause (iii). However, learned Senior Government Pleader pointed out that, petitioner is not entitled to get the benefit of the said judgment, since W.P.(C)No.32039 of 2016 11 the pay fixation was directed to be done as per the order dated 11.08.2016 and therefore, petitioner is not entitled to get any benefit of the said judgment of the apex court.
17. But, fact remains, as per Ext.P7, on the basis of re-fixation of pay to be done is for the period from 12.03.2008 to 31.05.2011, and therefore, in my considered opinion, the recovery from the petitioner is directed to be made for a period in excess of five years before the issuance of order of recovery. Therefore, if the impugned communication dated 11.08.2016 is taken into account, it is clear that the recovery sought is for a period exceeding five years from the order of recovery.
18. In that view of the matter, I am of the considered opinion that, petitioner is entitled to succeed on the basis of the proposition of law laid down by the apex court in 'Rafiq Masih' (supra). Therefore, there will be a direction to the respondents not to effect recovery of the amount from the petitioner as is directed in Ext.P7 order dated 11.08.2016.
W.P.(C)No.32039 of 2016 12
The writ petition is allowed to the above extent.
Sd/-
SHAJI P.CHALY JUDGE St/-04.12.2019 W.P.(C)No.32039 of 2016 13 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER DATED 20-08-2002. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 25-06-2007. EXHIBIT P3 TRUE COPY OF THE ORDER OF THE SUPREME COURT OF INDIA DATED 8-4-2009.
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 23-11-2011. EXHIBIT 5 TRUE COPY OF THE ORDER OF THE SUPREME COURT OF INDIA DATED 10-07-2012.
EXHIBIT P6 TRUE COPY OF THE ORDER OF THE FIXATION OF PAY OF THE PETITIONER ISSUED BY THE DISTRICT EDUCATION OFFICER DATED 19-3-2014. EXHIBIT P7 TRUE COPY OF THE ORDER DATED 11-8-2016. RESPONDENTS' EXHIBITS:
EXHIBIT R3(A) TRUE COPY OF THE LETTER DATED 28.06.2013 FROM JOINT DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM.
EXHIBIT R3(B) TRUE COPY OF THE FIXATION STATEMENT.
EXHIBIT R3(C) TRUE COPY OF THE LETTER NO.22699/T2/2015/G/EDN. DATED 11.08.2016.