Ansa Mathew vs State Of Kerala
2022 Latest Caselaw 6730 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
            THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
        TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
                          WP(C) NO. 926 OF 2021
PETITIONER/S:

           ANSA MATHEW
           AGED 55 YEARS
           W/O.KURIAKOSE, THALAYACHIRA HOUSE, IRIMBANAM P.O.,
           TRIPUNITHURA, ERNAKULAM DISTRICT,
           WORKING AS HIGH SCHOOL ASSISTANT, VOCATIONAL HIGHER
           SECONDARY SCHOOL, IRIBANAM, TRIPUNITHURA, ERNAKULAM.

           *CORRECTED.

           ANSA MATHEW, AGED 55 YEARS,
           W/O.KURIAKOSE, THALAYACHIRA HOUSE, IRIMBANAM P.O.,
           TRIPUNITHURA, ERNAKULAM DISTRICT,
           WORKING AS UPPER PRIMARY SCHOOL ASSISTANT
           VOCATIONAL HIGHER SECONDARY SCHOOL, IRIBANAM,
           TRIPUNITHURA, ERNAKULAM.

           *ADDRESS OF THE PETITIONER IS CORRECTED AS PER ORDER DATED
           27.01.2021 IN I.A.1/2021 IN WP(C)926/2021.

           BY ADVS.
           K.MOHANAKANNAN
           SMT.A.R.PRAVITHA
           SMT.D.S.THUSHARA
           SRI.H.PRAVEEN (KOTTARAKARA)
           SRI.T.S.NEJIMUDDIN
           SMT.T.V.NEEMA

RESPONDENT/S:

     1     STATE OF KERALA
           REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION
           DEPARTMENT ANNEX II, THIRUVANANTHAPURAM-695 001.

     2     THE ACCOUNTANT GENERAL (A & E),
           AG'S OFFICE COMPLEX, CANTONMENT STATION ROAD, STATUE,
           PALAYAM, THIRUVANANTHAPURAM-695 001.

     3     THE DEPUTY DIRECTOR OF EDUCATION,
           CIVIL STATION, KAKKANAD P.O., ERNAKULAM-682 030.

     4     DISTRICT EDUCATIONAL OFFICER,
           ERNAKULAM, KOCHI-682 011.
   WP(C) NO. 926 OF 2021         2


    5     THE PRINCIPAL, VOCATIONAL HIGHER SECONDARY SCHOOL,
          IRIBANAM, TRIPUNITHURA, ERNAKULAM-682 309.

          **CORRECTED.

          THE HEADMISTRESS, VOCATIONAL HIGHER SECONDARY SCHOOL,
          IRIBANAM, TRIPUNITHURA, ERNAKULAM - 682 309.

          **ADDRESS OF THE 5TH RESPONDENT IS CORRECTED AS PER ORDER
          DATED 27.01.2021 IN 1/2021 IN WP(C)926/2021.




          SRI PREMCHAND R NAIR, SR. GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION          ON
14.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 926 OF 2021                 3




                                JUDGMENT

Challenge in this writ petition is directed against Ext.P8 order as per

which directions have been issued to the Principal of the institution where

the petitioner is working as a High School Assistant to revise the pay fixed

with effect from 15.07.2007 in the scale of pay of UPST and also to

regularise the pay fixation in the post. Further directions were issued to

recover the excess pay paid to the petitioner.

2. Brief facts are as under:

The petitioner contends that she was appointed as UPSA in a regular

vacancy in the VHSC, Irimbanam on 07.06.1994. While continuing in the

post as such, being duly qualified to the post of HSA, the Manager

promoted the petitioner to the post of HSA under Rule 43 of the KER.

Accordingly, her pay in the post of HSA was fixed as per Rule 28A of Part I

of the KSR. She contends that she completed 8 years in the post of HSA

on 07.06.2006 and was thus granted the 1st Time Bound Higher Grade

(TBHG), in the scale of pay of 9590-16650 as per Ext.P1 pay fixation

statement. While so, during the academic year 2007-2008, there was a

reduction in the post of HSA in the School. In the said circumstances, the

Manager reverted the petitioner and accommodated her in the regular

vacant post of UPST with effect from 15.07.2007. According to the

petitioner, her pay in the post of HST had been protected and her pay in

the UPST post was fixed accordingly. Ext.P2 pay fixation statement and

Ext.P3, copy of the relevant page of the service book is relied on by the

petitioner to substantiate the said aspect. According to the petitioner,

Ext.P4 objection was raised by the internal audit party with regard to the

pay fixation of the petitioner. However, by Ext.P5 dated 24.08.2015, the

3rd respondent informed the DEO that the objections insofar as the

petitioner is concerned were liable to be ignored. It is contended that

even thereafter the 3rd respondent raised Ext.P6 objection with regard to

the permissibility of granting protection of the last pay of HSA drawn at

the time of reversion to the post of UPST. In response, Ext.P7 letter was

issued by the 5th respondent and requested the 3rd respondent to drop

the objections. The records sought for by the 3rd respondent were also

furnished. However, ignoring Exts.P5 and P7, the 3rd respondent has

issued Ext.P8 directing the Principal to revise the pay already fixed and

also to recover the excess amount which was paid to the petitioner.

According to the petitioner, she is due to retire from service on

31.05.2021 after working as a class III employee and the attempt of the

respondent to recover amounts pursuant to the pay fixation done on

15.07.2007 will result in grave injustice. On the basis of Ext.P8 the

respondents are refusing to process the pension to be paid to the

petitioner. It is in the above backdrop that the petitioner is before this

Court seeking to quash Ext.P8 and for incidental directions.

3. A counter affidavit has been filed by the 3rd respondent

wherein it is stated that the contention of the petitioner that her pay has

been protected in the scale of HSA and the same has been sanctioned by

the DEO cannot be accepted as the statement of fixation issued as per

Ext.P2 by the DEO is erroneous. It is contended that as the petitioner has

been reverted to the post of UPSA, Rule 28A has no application. The

office of the Deputy Director has verified the service book of the petitioner

and objections were raised with regard to the illegal pay protection

granted to the petitioner. It is also stated that the reliance placed by the

petitioner on G.O.P No.178/2002 dated 28.06.2002 is untenable as the

said Government order provides for guidelines for the deployment of

excess teachers. It is also stated that the Government as per Circular

No.1237/J1/2012/G.Edn dated 18/02/2012 has clarified that the teachers

are not eligible for pay protection in a higher scale of pay if their

reappointment is in lower categories.

4. In the reply affidavit filed by the petitioner it is stated that the

Circular dated 18.02.2012 will not assist the respondents as the Circular

cannot supplant Rule 52(1) of Chapter XIV A of the KER.

5. Sri.K.Mohanakannan, the learned counsel appearing for the

petitioner submitted that the attempt of the respondents is to recover the

alleged excess amount that has been drawn and paid to the petitioner

pursuant to the pay fixation order which had taken place on 15.07.2007.

The learned counsel would refer to Exts.P5 and P7 and it was urged that

the educational authorities had reiterated that there is no anomaly in the

case of the petitioner. By relying on the judgment of the Apex Court in

State of Punjab and Others v. Rafiq Masih(White Washer) [2015 (4)

SCC 334] and that in Administrator and another v. Aravindan P.C

and another [2021(4) KLJ 407], it was argued that excess pay and

allowances granted to a Class III employee while he was in service cannot

be recovered in as much as the alleged mistake had occurred decades

back.

6. I have heard the learned Government Pleader who has

reiterated the contentions in the counter.

7. In the case on hand, the petitioner was promoted by the

Manager as HSA on 1.6.1998 and she completed 8 years of service in the

said post on 07.06.2006. She was granted a 1st TBHG by Ext.P1 order.

During the academic year 2007-2008, there were reduction of posts after

staff fixation and the petitioner was reverted to the post of UPST with

effect from 15.07.2007. Exts.P2 and P3 would reveal that the pay of the

petitioner in the post of HSA had been fixed. The said documents also

reveal that the benefits granted to the petitioner were duly approved by

the controlling officer and the same was endorsed in the service book.

Furthermore, Exts.P5 and P7 would reveal that the objections raised by

the internal auditor were properly responded to, and it was informed that

there was no anomaly in the case of the petitioner herein. While holding

that the objection raised by the auditors are without basis, the DEO had

apparently relied on Rule 52 of Chapter XIVA of the KER.

8. Rule 52 of Chapter XIV A of the KER reads thus:

(1) Teachers who are relieved on account of any reduction in the number of posts under orders of the department shall on reappointment in the same school or in another school under the same management or a different management start on the same pay as they were getting at the time of relief, whether the new appointment is permanent or not (2) Teachers thrown out from service due to the withdrawal of recognition of schools by the Department shall also be eligible to draw the pay which they were getting at the time of withdrawal of recognition of the school on re-appointment in another school.

9. Rule 52 clearly says that Teachers who are relieved on

account of any reduction in the number of posts under orders of the

department shall on reappointment in the same school or in another

school under the same management or different management, start on

the same pay as they were getting at the time of relief, whether the new

appointment is permanent or not. The only reason stated by the

respondents in the counter is that the Government has clarified by

circular dated 18.2.2012 that the teachers would not be entitled to the

benefit of pay protection if their reappointment are in lower categories.

As rightly submitted by the learned counsel, if there is a conflict between

the executive instructions and the rules made in exercise of legislative

powers, the rules shall prevail.

10. Furthermore, I find that the petitioner has attained

superannuation on 31.05.2021. It would be highly illegal and improper

to order the recovery of the alleged excess pay and allowances paid to

the petitioner on account of the pay fixation statement issued by the

DEO. From the counter affidavit itself, it is obvious that the respondents

have no case that it is due to any act committed by the petitioner that

the alleged excess amounts were paid to the petitioner. This Court in

K.V. Ajithkumar v. State of Kerala and others [2017 (3) KLT 58],

relying on the principles laid down in Rafiq Masih had held that

recoveries cannot be made from employees after their superannuation.

Having considered the entire facts, I am of the view that the

petitioner is entitled to succeed. Ext.P8 will stand set aside. There will be

a direction to the respondents to forward the pension proposal of the

petitioner to the Accountant General and expeditious steps shall be

taken by the competent among the respondents to sanction and release

the terminal benefits of the petitioner in terms of the original fixation of

pay disregarding Ext.P8 objection.

Sd/-

RAJA VIJAYARAGHAVAN V, JUDGE

sru

APPENDIX OF WP(C) 926/2021

PETITIONER'S EXHIBITS

EXHIBIT P1 TRUE COPY OF THE PAY FIXATION STATEMENT DATED 07.06.2006 OF THE PETITIONER.

EXHIBIT P2 TRUE COPY OF PAY FIXATION STATION DULY COUNTERSIGNED BY THE 4TH RESPONDENT.

EXHIBIT P3 TRUE COPY OF RELEVANT PAGES OF THE SERVICE BOOK OF THE PETITIONER DULY COUNTERSIGNED BY THE DISTRICT EDUCATION OFFICER.

EXHIBIT P4 TRUE COPY OF THE COPY OBJECTION OF THE INTERNAL AUDITOR NO.D6/13702/13 DATED 26.10.13.

EXHIBIT P5 TRUE COPY OF THE LETTER NO.D5/12743/14 DATED 24.08.2015 OF THE 3RD RESPONDENT DATED 24.08.2015.

EXHIBIT P6 TRUE COPY OF THE LETTER NO.IA NO.3/5559/2020 OF THE 3RD RESPONDENT DATED 1.10.2020.

EXHIBIT P7 TRUE COPY OF THE REPLY OF THE 5TH RESPONDENT DATED 14.10.2020.

EXHIBIT P8 TRUE COPY OF THE COMMUNICATION OF HE 3RD RESPONDENT DATED 13.11.2020.

RESPONDENTS EXHIBITS : NIL