Mohanan.P vs State Of Kerala
2022 Latest Caselaw 6722 Ker

OP(KAT)Nos.25 and 30 of 2017

                                   1



           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

    THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

                                   &

         THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

  TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944

                      OP(KAT) NO. 25 OF 2017

    AGAINST THE ORDER IN        OA NO.(EKM) 34/2013 OF KERALA
     ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM       DATED
                               28.09.2016

PETITIONER:
           MOHANAN.P, AGED 54 YEARS
           S/O.KUNHIKRISHNAN NAIR,
           HIGH SCHOOL ASSISTANT (MATHAMATICS),
           GOVERNMENT HIGHER SECONDARY SCHOOL
           BEYPORE-673105,
           RESIDING AT PRITHVIPRIYA,
           KURUVANGAD P O, KOYILANDY,
           KOZHIKODE 673620,
           (NOW WORKING AT GOVERNEMTN VOCATIONAL HIGHER
           SECONDARY SCHOOL, MEENCHANDA, CALICUT)


           BY DR.GEORGE ABRAHAM


RESPONDENTS:

     1     STATE OF KERALA
           REPRESENTED BY SECRETARY TO GOVERNMENT,
           GENERAL EDUCATION DEPARTMENT,
           GOVERNMENT SECRETARIAT,
           THIRUVANANTHAPURAM-695001.
 OP(KAT)Nos.25 and 30 of 2017

                               2

     2     DIRECTOR OF PUBLIC INSTRUCTIONS
           THIRUVANANTHAPURAM-695010

     3     DEPUTY DIRECTOR OF EDUCATION
           KOZHIKODE 673001.


           BY SRI.BINOY CHANDRAN, GOVERNMENT PLEADER



     THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ALONG WITH OP(KAT) 30 OF 2017 ON 14.06.2022, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(KAT)Nos.25 and 30 of 2017

                                  3



           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

    THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

                                  &

         THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

  TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944

                      OP(KAT) NO. 30 OF 2017

AGAINST THE ORDER IN TA 2729/2012 OF KERALA ADMINISTRATIVE
                  TRIBUNAL, THIRUVANANTHAPURAM

PETITIONERS:
     1     E M GIREESH
           PRIMARY DEPARTMENTAL TEACHER,
           GOVERNMENT LOWER PRIMARY SCHOOL KINASSERY,
           POKKUNU.P.O., KOZHIKODE-673013

     2     PURUSHOTHAMAN.N.P.
           PRIMARY DEPARTMENTAL TEACHER,
           GOVERNMENT UPPER PRIMARY SCHOOL, THIRUVANNUR,
           THIRUVANNUR NADA.P.O., KOZHIKODE


           BY ADV DR.GEORGE ABRAHAM


RESPONDENTS:

     1     STATE OF KERALA
           REPRESENTED BY SECRETARY TO GOVERNMENT,
           GENERAL EDUCATION DEPARTMENT,
           GOVERNMENT SECRETARIAT,
           THIRUVANANTHAPURAM-695001

     2     DIREWCTOR OF PUBLIC INSTRUCTIONS
           THIRUVANANTHPURAM- 695001
 OP(KAT)Nos.25 and 30 of 2017

                               4

     3     DEPUTY DIRECTOR OF EDUCATION,
           KOZHIKODE- 673001

     4     ASSISTANT EDUCATIONAL OFFICER
           CITY EDUCATIONAL SUB DISTRICT,
           KOZHIKODE-673001


           BY SRI.BINOY CHANDRAN, GOVERNMENT PLEADER




      THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 14.06.2022 ALONG WITH OP(KAT) 25 OF 2017, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(KAT)Nos.25 and 30 of 2017

                                    5



                               JUDGMENT

A.K.Jayasankaran Nambiar, J.

As both these original petitions arise from a common order

of the Kerala Administrative Tribunal, they are taken up together

for consideration and disposed by this common judgment. The

brief facts necessary for the disposal of the Original Petitions are

as follows:-

The petitioners before us, who were the applicants before the

Administrative Tribunal, are teachers who after completion of

various spells of teaching service in aided schools, joined

Government schools in the State. It would appear that based on

the Government Orders issued from time to time they were

granted the time bound higher grade on the completion of 10

years, 18 years and 23 years, respectively. While reckoning the

qualifying service for the time bound higher grade the period of

service rendered in aided schools prior to their joining Government

service was also taken into consideration. The provocation for

approaching the Tribunal was an audit objection that was raised in

connection with the sanctioning of the first higher grade on

completion of 10 years of service with the Government taking the

stand that the first higher grade promotion could not have been

granted to the applicants prior to their probation being declared OP(KAT)Nos.25 and 30 of 2017

in the Government school. The representations preferred by the

applicants against the audit objection having met with no success,

the applicants approached the Tribunal with a prayer to set aside

the audit objections and the consequential orders passed by the

Government, as well as for a declaration that in the case of a

teacher who had entered Government service after putting in

service as a teacher in aided schools, though the sanctioning of

higher grade could await a declaration of satisfactory completion

of the period of probation, such higher grade had to be given with

effect from the date on which it actually fell due on completion of

the prescribed number of years.

2. The Tribunal on a consideration of the matter found that

the issue whether teachers in Government service, who had

previous aided school service, will be entitled to higher grade

without their probation being declared, had already been decided

against the applicants by the order of the Tribunal in

G.Kanakakumaran v. State of Kerala [2013 (2) KAT Reporter

246]. The Tribunal therefore found that this issue had to be

decided against the applicants in the O.A. The Tribunal then went

on to consider the contention regarding the inequitable nature of

the recovery proceedings that followed pursuant to the audit

objection of the Government. In that connection a reference was

made by the Tribunal to the decision of the Supreme Court in

State of Punjab and others v. Rafiq Masih [2015(4) SCC 334]

and after extracting the relevant findings of the supreme court in OP(KAT)Nos.25 and 30 of 2017

that case the matter was relegated to the Government for its

consideration as regards whether or not the recovery proposed

needed to be continued against the applicants in view of the

principles laid down by the supreme court in Rafiq Masih (supra).

The Government was also directed to take a decision in the matter

within a period of three moths from the date of receipt of a copy of

the order. The interim stay against recovery that was granted by

the Tribunal in the original applications was directed to be

continued till a final decision was taken by the Government.

3. In the Original Petitions before us the challenge is

essentially against the remand order of the Tribunal. The learned

counsel for the petitioners' does not seriously contest the findings

of the Tribunal on the merits of the issue as to whether the first

time bound higher grade promotion could be granted only after the

declaration of probation in Government service. He would confine

his argument to the aspect of recovery and the applicability of the

decision in the Rafiq Masih (supra) .

4. On a consideration of the submissions of the learned

counsel for the petitioners we find that the issue of whether or not

a recovery was permissible pursuant to a belated audit objection

was actually considered and decided by the Tribunal in favour of

the petitioners, by placing reliance on the decision in Rafiq Masih

(supra). The remand in our view was for the limited purposes of OP(KAT)Nos.25 and 30 of 2017

ascertaining the factual situation in the individual cases before the

Tribunal so that the Government could apply the decision in Rafiq

Masih (supra) on a case to case basis after determining whether a

recovery would be inequitable. While ordinarily the Government

would have taken a decision as directed by the Tribunal within the

time granted by the Tribunal, we note that it was solely on account

of the pendency of these Original Petitions before this Court and

the stay of further proceedings granted by this Court therein that,

the Government could not complete the said exercise. Since it is a

factual ascertainment that is contemplated, this Court cannot

continue to do what the Government may directed to do. In the

result, we dismiss these original petitions and direct the

Government to forthwith take a decision on the question of

recovery, in terms of the judgment of the Supreme Court in Rafiq

Masih (supra) after ascertaining the factual situation pertaining to

the petitioners herein. The Government shall pass orders in the

matter after hearing the petitioners within an outer time limit of

eight weeks' from the date of receipt of a copy of this judgment.

These original petitions are disposed as above.

Sd/-

A.K.JAYASANKARAN NAMBIAR, JUDGE

Sd/-

MOHAMMED NIAS C.P., JUDGE dlk 15.6.2022 OP(KAT)Nos.25 and 30 of 2017

APPENDIX OF OP(KAT) 25/2017

PETITIONER'S EXHIBITS & ANNEXURES

EXHIBIT P1 TRUE COPY OF O.A ALONG WITH ANNEXURES.

ANNEXURE A1 TRUE COPY G.O.(MS)NO.74/68/EDN. DATED 24.02.1968

ANNEXURE A2 TRUE COPY OF RELEVANT PORTIONS OF THE STATEMENT SHOWING THE FIXATION OF PAY OF THE APPLICANT IN THE FIRST HIGHER GRADE.

ANNEXURE A3 TRUE COPY OF THE GOVERNMENT CIRCULAR MEMORANDUM NO.26316/11/80/G.EDN DATED 23.03.1983

ANNEXURE A4 TRUE COPY OF THE GOVERNMENT LETTER NO.49526/11/85/G.EDN DATED 19.1.1988

ANNEXURE A5 TRUE COPY OF THE RELEVANT PORTION OF THE AUDIT REPORT

ANNEXURE A6 TRUE COPY OF THE OBJECTION SUBMITTED BY THE APPLICANT TO THE DEPUTY DIRECTOR, EDUCATION, KOZHIKODE

ANNEXURE A7 TRUE COPY OF THE LETTER NO.G3/8421/13 DATED 28.01.2013

ANNEXURE A8 TRUE COPY OF THE GOVERNMENT LETTER NO.21173/L1/09/G.EDN DATED 25.04.2009

ANNEXURE A9 TRUE COPY OF GO(RT)NO.2689/2006/G.EDN DATED 29.06.2006

ANNEXURE A10 TRUE COPY OF THE RELEVNT EXTRACT OF GOVERNMENT CIRCULAR NO.46/2008/FIN DATED 8.8.2008/G.EDN DATED 29.6.2008

ANNEXURE A11 TRUE COPY OF THE GO(P) NO.62/81/(282)/FIN DATED 21.01.2981 OP(KAT)Nos.25 and 30 of 2017

EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENT

EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN OA (EKM/34/2013.

EXHIBIT P4 TRUE COPY OF CIRCULAR ISSUED BY THE GOVERNMENT DATED 31/8/2019 OP(KAT)Nos.25 and 30 of 2017

APPENDIX OF OP(KAT) 30/2017

PETITIONERS ANNEXURES

ANNEXURE A TRUE COPY OF TA 2729/2012 ALONG WITH EXHIBITS.

ANNEXURE B TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENT.

ANNEXURE C TRUE COPY OF THE JUDGMENT IN TA 2729/2012 DATED 28TH SEPTEMBER, 2016.

EXHIBIT P1 TRUE COPY OF G.O.(MS) NO.74/68/EDN.

                      DATED 24.2.1968

EXHIBIT P2            TRUE COPY OF THE ORDER

NO.G3/16170/08/L.DIS 22.11.2008 OF THE DEPUTY DIRECTOR(EDUCATION), KOZHIKODE

EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE HON'BLE MINISTER OF EDUCATION

EXHIBIT P4 TRUE COPY OF THE GOVERNMENT LETTER NO.27820/L1/09/G.EDN. DATED 30.5.2009

EXHIBIT P5 TRUE COPY OF THE RELEVANT EXTRACT OF THE ADULT OBJECTION

EXHIBIT P6 TRUE COPY OF THE GOVERNMENT IN CIRCULAR MEMORANDUM NO.26316/J1/80/G.EDN. DATED 23.3.1983

EXHIBIT P7 TRUE COPY OF THE GOVERNMENT LETTER NO.49526/J1/85/G.EDN DATED 19.1.1988

EXHIBIT P8 TRUE COPY OF THE RELEVANT EXTRACT OF THE GOVERNMENT CIRCULAR NO.46/2008/FIN. DATED 8.8.2008

EXHIBIT P9 TRUE COPY OF GO(P) NO.62/81/(282)/FIN.

DATED 20.1.1981 OP(KAT)Nos.25 and 30 of 2017

EXHIBIT P10 TRUE COPY OF THE GOVERNMENT LETTER NO.41730/J1/88/G.EDN. DATED 10.9.1990

EXHIBIT P11 TRUE COPY OF THE LETTER NO.OA(HQ)111992-

239/03-04/523 DATED 3.8.2005 OF THE ACCOUNTANT GENERAL.