Karnataka High Court
E.C. Kuttiamma vs State Of Karnataka And Ors. on 5 October, 2007
Equivalent citations: 2008(2)KARLJ492
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
ORDER D.V. Shylendra Kumar, J.
1. These two writ petitions are by persons who had been appointed as physical education teachers in private aided educational institutions between the years 1971 and 1974 and in the pay scale of Rs. 100-200.
2. In the wake of reorganisation of states and similar physical education teachers who had been working in the merging areas getting integrated to the new State of Mysore and particularly in the erstwhile State of Hyderabad, such teachers having enjoyed the benefit of pay scale of Rs. 130-210, it appears, the Government thought it fit to protect their pay and while the intention was good, they led to a series of chaotic and confusing orders being issued by the Government, generating unending litigation. The present writ petitions are also links in that chain.
3. In view of a Government order, which had been issued in the year 1976 for the purpose of protecting the pay scales of physical education teachers in the merging areas, who had already been accustomed to the pay scale of Rs. 130-210, many other persons had approached this Court contending that while such advantageous pay scale is extended only to a few of the physical education teachers, it has been denied to several others and sought for issue of a writ of mandamus to extend like pay scale etc. A batch of writ petitions had been filed and while in the initial stage some writ petitions had been allowed, the Government went on issuing further Government orders and one such Government order dated 29-7-1998 was the subject-matter of batch of writ petitions before this Court in W.P. Nos. 30193 to 30214 of 1998 and connected matters, disposed of on 25-2-1999, filed by one Gadigeppa and others, wherein the Government's action to withdraw the pay scale of Rs. 130-210, which had been extended to physical education teachers who had been initially appointed in the pay scale of Rs. 100-220 and who had been extended this pay scale only because of the Court orders etc., and the proposal to recovery of the excess payment had been questioned.
4. In those writ petitions, it was noticed that while the revised pay scale of Rs. 100-220 had been given effect to all uniformly by the Government in respect of physical education teachers with effect from 1-1-1970, nevertheless, many teachers appointed during the period 1-1-1970 to 13-6-1974 had been appointed on the pay scale of Rs. 130-210 from the beginning itself. It also transpired that when other persons who were in the pay scale of Rs. .100-220 had approached this Court seeking for directions to consider or extend the pay scale of Rs. 130-210 to them also, while in most of the writ petitions, a direction to consider the case had been issued, in some cases, this Court had issued directions to extend that pay scale itself. This Court found a distinction amongst the different categories of such physical education teachers viz., those who had been initially appointed in the pay scale of Rs. 100-220 and continued to remain like that and those who had been appointed in this pay scale, but later had been extended the benefit either because of the Court orders or following the representations on the basis of the Court directions and such of those who had been though appointed by the Government after the Rs. 100-.220 pay scale had come into force from 1-1-1970 nevertheless appointed in the Rs. 130-210 pay scale and such of those who had been, after consideration of their request in terms of the Court directions, extended this pay scale and others who had been extended this pay scale even as per the Court direction itself. On an examination of the contentions urged on behalf of the petitioners and on behalf of the State, this Court had formulated the following two points.-
(1) Whether the State Government is justified in issuing the impugned official memorandum dated 29-7-1998 holding that petitioners are not entitled to the benefits under Government order dated 25-3-1976?
(2) Even if the answer to point (1) is in the affirmative, whether the respondents are entitled to recover the amounts already paid to petitioner in pursuance of the Government order dated 25-3-1976 and refix the pay of the petitioners by deleting the benefit extended to petitioner under Government order dated 25-3-1976?
5. This Court, after elaborately discussing the rival submissions, concluded as under:
21. These petitions are therefore allowed in part as follows.-
(a) The impugned official memorandum (No. ED 292 SEW 98), dated 29-7-1998 passed by the Government of Karnataka, holding that the provisions of G.O. No. ED 97 SES 75, dated 25-3-1976 are inapplicable to PE teachers (Grade II) who were appointed to the pay scale of Rs. 100-220 between 1-1-1970 and 13-6-1974 is upheld;
(b) As a consequence, respondents will be at liberty to refix the pay of the petitioners by resorting to status quo ante i.e., withdraw the benefit that was extended in terms of the Government order dated 25-3-1976 and again refix the pay by ignoring the benefit under Government order dated 25-3-1996;
(c) Respondents are at liberty to quantify the amount that was paid in excess to the petitioners as a result of wrongly extending the benefit of the orders dated 25-3-1976 upto 29-7-1998. But the respondents shall not however recover the same from the petitioners. It is made clear that respondents will be entitled to recover any excess payment made in regard to the period subsequent to 29-7-1998;
(d) The above directions will apply, even in regard to petitioners who have now retired. Respondents will be entitled to refix their salary. As a consequence, any payments made either before retirement or after retirement upto 29-7-1998 shall not be recovered. Any excess payments made after 29-7-1998 shall be recovered;
(e) The aforesaid directions will apply to only those cases where this Court had allowed earlier writ petitions of the petitioners with a direction to consider their cases for extension of the benefit of Government order dated 25-3-1976 and will not apply to those cases where this Court had allowed the earlier writ petitions ordering the grant of relief in accordance with the Government order dated 25-3-1976;
(f) The refixation shall be done in each case after giving an opportunity to the respective petitioner to show cause or point out any errors in the proposed refixation; and
(g) xxxx.
6. While what may be relevant in the present context is that in respect of persons like the petitioners, while the Government was at liberty to refix their pay scale in the pay scale of Rs. 100-220, having regard to the fact that they had been initially appointed in this very pay scale, amounts paid by way of salary on the basis of Rs. 130-210 pay scale and paid upto 29-7-1998 cannot be recovered, but if any amount over and above this scale has been paid thereafter, that can be recovered.
7. In this case, the petitioners have questioned the subsequent action of the respondents, after the above judgment by this Court, in terms of Annexure-D memorandum dated 4-11-2003, follow up memorandum dated 29-1-2004 (Annexure-F) in W.P. No. 7522 of 2004 and memorandum dated 30-7-2002 (Annexure-N) and follow up memorandum dated 6-8-2002 (Annexure-O) in W.P. No. 32019 of 2002.
8. A perusal of these memoranda clearly indicates that the proposed action under these memoranda, whether through the show-cause notice or otherwise, is not only to refix the pay scales of the petitioners in the pay scale of Rs. 100-220 with effect from the date of their appointment, but also for computation of the excess pay made to them upto the date of memoranda, excess due to the extension of benefit of Rs. 130-210 pay scale, and with a further direction to the heads of institution to calculate this amount, deduct the same from the salary of such teachers and remitted to the state treasury. It is such action that is questioned in these two writ petitions.
9. The respondents have entered appearance through Counsel. The State and its officers are represented by Ms. Sheela Anish, learned Additional Government Advocate. They have also filed statement of objections.
10. While Sri Sunil S. Desai, learned Counsel for the petitioners, submits that the issue is clearly covered by the decision of this Court rendered in the batch of writ petitions referred to above in the case of Gadigeppa and others and the proposed action to recover the excess amount is clearly in the teeth of this judgment, Ms. Sheela Anish, learned Additional Government Advocate, appearing on behalf of the State and its officers, with reference to the statement of objections filed in W.P. No. 32013 of 2002 and with specific reference to Annexure-R2, a Government order dated 15-11-1999, submits that the state has already given effect to the direction issued by this Court in the above referred decision in the case of Gadigeppa and others, and such follow up action is being taken and nothing more. It is also submitted that the proposal to recover the excess amount even from the very beginning of the appointment of the petitioners and payment made on the basis of extension of Rs. 130-220 pay scale is a mistake and perhaps the officers have committed this mistake in the light of certain confusing directions that had been issued by this Court in the case of Gadigeppa and others, particularly in para 21(c), extracted above, and as a result of the impugned memoranda could have been issued.
11. Even while disposing of the batch of writ petitions in the case of Gadigeppa and others, this Court had passed strictures on the action of the Government which virtually tried to review the Court directions by way of and in issuing subsequent Government orders to be in the nature of clarificatory Government orders. A perusal of the 15-11-1999 Government order only indicates that the Government is back at its old game of attempting review of judicial orders, though the executive wing of the State has no such power or liberty to review judicial orders but only has to comply with the Court orders and directions. Even when the direction in terms of the judgment of this Court in the case of Gadigeppa was very clear that in whatever manner pay had been given to the physical education teachers in the pay scale of Rs. 130-220 upto 29-7-1998, no part of such amount could be recovered as excess payment and this Court had issued directions following similar directions and law declared by the Supreme Court, and it was the bounden duty on the part of the Government to have fully obeyed this direction. In the guise of obeying the Court order and in the guise of issuing clarificatory Government orders, the Government could not have added either any further confusion or could have acted in a way at variance with the Court directions. But unfortunately that is what the Government has done under the Government order of the year 1999 and the follow up actions questioned in these writ petitions.
12. Unfortunately, in the present case, in the impugned memoranda, there is absolutely no reference to the Government order of the year 1999, though at one place the Government order dated 12-11-1999 is mentioned, and learned Additional Government Advocate submits that it is a mistake and it should be with reference to the Government order dated 15-11-1999 and therefore the impugned action is only in terms of the Government order dated 15-11-1999 etc.
13. Whether it is in terms of the Government order dated 15-11-1999 or independent of it, I find the proposed action insofar as the recovery of excess salary for the period upto 29-7-1998 is clearly not sustainable and is in contravention of the directions issued by this Court. If the officers passing such memoranda are not following even the Government orders themselves, it is a matter for the Government to look into and take proper action against such erring officers, but such action is also being contrary to the direction that had been issued by this Court, this Court cannot just brush aside the proposed action in terms of Annexure-D memorandum dated 4-11-2003 follow up memorandum dated 29-1-2004 (Annexure-F) in W.P. No. 7522 of 2004 and memorandum dated 30-7-2002 (Annexure-N) and follow up memorandum dated 6-8-2002 (Annexure-O) in W.P. No. 32019 of 2002.
Though this Court had earlier expressed a concerned view to avoid unnecessary, prolonged and wasteful litigation and indicated that the Government should have adopted a uniform stand in the earlier round of litigation, the officers of the Government only, believe in taking truncated, disjoint and inconsistent action. It appears that officers passing such orders and memoranda think they are free authorities who can issue any directions to the head of the institution for recovery of any amount irrespective of either the Government order or Court directions! Such aberrations which are more often in recent times is only reflective of the way of Government functions and the Government officers acting in an arbitrary manner.
14. The impugned action under the memoranda questioned in these writ petitions to the extent they propose to recover any excess payment made to the petitioners for the period upto 29-7-1998 is clearly illegal and unsustainable and are hereby quashed by issue of a writ of certiorari. In fact it appears that no such excess thereafter also can be recovered, even as permitted by this Court in the case of Gadigeppa and others, if re-fixation, which is also dependent upon the facts and circumstance and particularly in the case of the petitioners, if this Court had earlier issued a mandamus to fix them in the pay scale of Rs. 130-210, itself.
15. Though the petitioners succeed in part, the action proposed by the respondent-State and its officers for recovery of excess payment from the very inception of their appointment being an action which is clearly in the teeth of directions issued by this Court and which perhaps could have elicited action in contempt jurisdiction also, is to be highly deprecated and while the action for initiation of contempt proceedings is not pursued, the petitioners are awarded costs, which is quantified at Rs. 5,000/- (Rupees five thousand only) for each of the petitioners, which is to be deposited before this Court by the respondent-State and on such deposit, is permitted to be withdrawn by the petitioners through their Counsel. The cost shall also be paid or deposited by the respondent-State within eight weeks from today, failing which, the registry is directed to issue a certificate in favour of the petitioners for recovery of the cost as though it is a decree passed by the Civil Court. The State is at liberty to recover the cost from the erring officers.
Writ petitions are allowed accordingly. Rule made absolute.