Kerala High Court
The State Of Kerala vs Biju E on 13 April, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
THURSDAY, THE 13TH DAY OF APRIL 2023 / 23RD CHAITHRA, 1945
WA NO. 302 OF 2023
AGAINST THE JUDGMENT DATED 05.01.2023 IN WP(C) 17115/2022
OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 1 TO 5 IN WPC:
1 THE STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY TO
GOVERNMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 THE SECRETARY,
FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
3 THE REGIONAL DEPUTY DIRECTOR,
HIGHER SECONDARY EDUCATION, REGIONAL OFFICE,
KOZHIKODE - 673 003.
4 THE DIRECTOR OF TREASURIES,
DIRECTORATE OF TREASURIES, THYCAUD,
THIRUVANANTHAPURAM - 695 014.
5 THE SUB TREASURY OFFICER,
PERAMBRA, KOZHIKODE - 673 525., PIN - 67352
BY ADV A.J.VARGHESE SR.GP.
RESPONDENTS/PETITIONER & 6TH RESPONDENT IN WP(C):
1 BIJU E,
S/O. BALAN NAIR, H.S.S.T. POLITICAL SCIENCE,
VADAKKUMPAD HIGHER SECONDARY SCHOOL,
PALERI TOWN P.O., KOZHIKODE, RESIDING AT
VAZHAYIL HOUSE, KUTTIYADI, PALERI P.O.,
KOZHIKODE - 673 508., PIN - 673508
Writ Appeal No.302 of 2023 2
2 THE MANAGER,
VADAKKUMPAD HIGHER SECONDARY SCHOOL,
PALERI, KUTTIYADI, KOZHIKODE - 673 508.
BY ADVS.
ELVIN PETER P.J.
V.RAJENDRAN
M.S.MOHAMMED ANSARY(K/260/1981)
SOHAIL MOHAMMED ANSARY(K/915/2016)
AMEENA.R(K/001602/2018)
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
13.04.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Writ Appeal No.302 of 2023 3
P.B.SURESH KUMAR & SOPHY THOMAS, JJ.
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Writ Appeal No.302 of 2023
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Dated this the 13th day of April, 2023
JUDGMENT
P.B.Suresh Kumar, J.
This appeal is directed against the judgment dated
05.01.2023 in W.P.(C) No.17115 of 2022. The appellants are
respondents 1 to 5 in the writ petition. Parties and documents
are referred to in this judgment for convenience, as they appear
in the writ petition.
2. Sans unnecessary details, the facts of the case
are the following :
The petitioner was an Upper Primary School Teacher
in an aided Higher Secondary School. While the petitioner was
working as such, a few additional Higher Secondary batches
were sanctioned to the School in the academic year 2010-2011.
Later, when the Government sanctioned additional posts of
Higher Secondary School Teachers for the School to conduct
the additional batches, the Manager appointed the petitioner by
transfer as Higher Secondary School Teacher in one of the
vacancies on 30.08.2013. The said appointment of the
petitioner was not approved by the competent authority then,
as a senior teacher in the School staked a claim for
appointment in the vacancy in which the petitioner was
appointed. Later, the Regional Deputy Director considered the
rival claims and directed the Manager to appoint the senior
teacher in the place of the petitioner. Though the petitioner
challenged the decision of the Regional Deputy Director in
appeal, the Appellate Authority affirmed the decision of the
Regional Deputy Director. The petitioner took up the matter in
revision before the Government and the Government upheld
the claim of the petitioner. The senior teacher challenged the
decision of the Government in a writ petition before this Court.
The petitioner also instituted a writ petition for implementing
the decision of the Government. The writ petitions were
disposed of in terms of Ext.P7 judgment, among others
directing the Regional Deputy Director to approve the
appointment of the petitioner with effect from 30.08.2013.
Pursuant to Ext.P7 judgment, the Regional Deputy Director
approved the appointment of the petitioner as Higher
Secondary School Teacher in the school on 04.08.2021 with
effect from 30.08.2013, in terms of Ext.P8 order. Thereupon,
the Principal of the School had drawn and submitted the salary
bill of the petitioner for the period from 01.09.2013 to
31.01.2016 for payment before the fifth respondent, the Sub
Treasury Officer. Ext.P9 is the proceedings issued by the
Principal of the school in this regard on 16.04.2022. The Sub
Treasury Officer returned the salary bill of the petitioner taking
the stand that in the light of Ext.P12 circular of the
Government, the arrears of salary payable to the petitioner
could only be transferred to his Provident Fund account.
Ext.P11 is the Note issued by the Sub Treasury Officer in this
regard. The writ petition was instituted in the above
background challenging Ext.P11 Note and for a direction to the
official respondents to draw and disburse the arrears of salary
to the petitioner. The case set out by the petitioner in the writ
petition is that the Government have directed to approve
certain appointments made in aided schools from the academic
year 2011-2012 which were not approved with effect from the
respective dates of appointments by applying a revised
teacher-student ratio as per G.O.(P) No.29 of 2016, subject to
the condition that the arrears of salary payable to the teachers
on account of such approval will be transferred to their
Provident Fund accounts and that Ext.P12 circular is one issued
by the Government reiterating the said direction of the
Government and the same cannot have any application to the
facts of the present case. It was also the case of the petitioner
in the writ petition that inasmuch as the salary due to him
consequent on the approval of his appointment being a
property falling within the scope of Article 300A of the
Constitution of India, the payment of the same cannot be
deferred otherwise than in accordance with law and that there
is no law in force which enables the Government to withhold the
salary of the petitioner in the manner indicated in Ext.P12
circular, if at all it applies to the petitioner.
3. A counter affidavit was filed in the writ petition on
behalf of the State contending that Ext.P12 circular applies to
situations like one involved in the present case as well and that
the State is competent to issue directions to credit the arrears
of salary of teachers in aided schools in their respective
Provident Fund accounts for a term.
4. The learned Single Judge found that Ext.P12
circular is one intended only to cover the beneficiaries of G.O(P)
No.29 of 2016 dated 29.01.2016 and that the same cannot
have any application to the facts of the present case. The
learned Single Judge also found that the right flowing from the
approval of the appointment of a teacher in an aided school to
receive salary in terms of the Kerala Education Act (the Act) and
the Kerala Education Rules (the KER), cannot be curtailed or
limited by a circular issued by an Additional Secretary to
Government. The learned Single Judge further found, placing
reliance on the decision of the Andhra Pradesh High Court in
Dinavahi Lakshmi Kameswari v. State of A.P., (2020) SCC
OnLine AP 600 and the decision of the Apex Court affirming the
same in appeal, that inasmuch as the salary payable to a
teacher would form part of the property of an individual
attracting Article 300A of the Constitution, such rights cannot
be taken away, except by an authority of law, by issuance of an
executive order. In the light of the said findings, the writ
petition was allowed, Ext.P11 Note was quashed and the official
respondents were directed to honour the salary bill of the
petitioner. The State and its officials are aggrieved by the said
decision of the learned Single Judge.
5. Heard the learned Government Pleader as also
the learned counsel for the petitioner.
6. The learned Government Pleader contended that
Ext.P12 circular applies not only to the beneficiaries of G.O.(P)
No.29 of 2016 dated 29.01.2016, but also to persons like the
petitioner whose appointment as teacher in an aided school
was approved with retrospective effect. It was also contended
by the learned Government Pleader that merely for the reason
that Ext.P12 circular was one issued by an Additional Secretary
to the Government, it cannot be said that it is invalid, inasmuch
as the same was one issued strictly in accordance with the
Rules of Business of the Government of Kerala framed under
Article 166 of the Constitution. Placing reliance on Rule 10(5) of
Chapter XXX KER, it was also contended by the learned
Government Pleader that the said provision enables the
Government to direct transfer of the arrears of salary of
teachers of aided schools to their Provident Fund accounts for a
term. According to the learned Government Pleader, in the light
of the said statutory provision, it cannot be said that Ext.P12
circular is one issued without authority of law. The learned
Government Pleader reinforced the said submission pointing
out that even otherwise, Section 12(1) of the Act which confers
power on the State Government to prescribe conditions of
service of aided school teachers including the conditions
relating to their pay, enables the State Government to issue a
circular in the nature of Ext.P12. It was also argued by the
learned Government Pleader that the judgment of the Division
Bench of the Andhra Pradesh High Court in Dinavahi Lakshmi
Kameswari cannot have any application to the facts of the
present case, as the proposition laid down in the said case is
only that the deferment of salary cannot be made without
authority of law. The learned Government Pleader also argued
that during the period from 2013 to 2021, the Government
issued two pay revision orders enhancing the pay of
Government employees, including aided school teachers, and,
at any rate, the benefit of the said pay revisions, as far as the
petitioner is concerned, can certainly be directed to be
deposited in his Provident Fund account as stipulated in the pay
revision orders issued by the Government in this regard.
7. Per contra, the learned counsel for the
petitioner submitted that a combined reading of G.O.(P) No.29
of 2016 dated 29.01.2016 and Ext.P12 circular would indicate
that Ext.P12 applies only to the beneficiaries of G.O.(P) No.29
of 2016. As regards the submission made by the learned
Government Pleader based on Rule 10(5) of Chapter XXX KER,
it was pointed out by the learned counsel for the petitioner that
only the arrears of pay or allowances or both payable to
teachers of aided schools under a scheme or revision of pay
implemented with retrospective effect, could be directed to be
deposited in the Provident Fund account of the teachers as per
the said Rule. It was also pointed out by the learned counsel
that the said Rule cannot have application in a case of the
instant nature, since the amount covered by the salary bill
which is the subject matter of Ext.P11 Note is neither the
arrears payable to the petitioner under any scheme nor arrears
due to the petitioner on account of any revision of pay or
allowances.
8. We have given our thoughtful consideration to
the arguments advanced by the learned counsel for the parties
on either side.
9. As noted, the appointment of the petitioner by
transfer as Higher Secondary School Teacher in the School with
effect from 30.08.2013 was against a sanctioned post. The
materials indicate that it is not on account of any reason
attributable to the petitioner that his appointment was not
approved by the competent authority. Instead, it is on account
of a rival claim raised by a senior teacher, that the appointment
of the petitioner could not be approved then and there by the
competent authority. The said dispute was resolved by this
Court finally, in terms of Ext.P7 judgment and immediately
thereupon, the appointment of the petitioner was approved. In
the circumstances, according to us, the first and foremost
question to be decided is whether the State Government is
empowered, in the exercise of its executive powers, to direct
deposit of the arrears of salary payable to a teacher in an aided
school due to delay in the approval of his appointment, in his
Provident Fund account. If this question is answered in the
negative, it is unnecessary to consider the questions viz,
whether Ext.P12 circular applies to teachers like the petitioner
who are not beneficiaries of G.O.(P) No.29 of 2016 dated
29.01.2016 and whether an Additional Secretary to the
Government is empowered to issue a circular in the nature of
Ext.P12, if at all it applies to the case of the petitioner.
10. Dinavahi Lakshmi Kameswari was a case in
which the decision taken by the Government of Andhra Pradesh
to defer a portion of the salary payable to its employees
including the employees in Government aided institutions for a
term, was challenged. A Division Bench of the Andhra Pradesh
High Court held in the said case that though the Constitution
permits the State to deprive any person the right in property by
authority of law, the respondents were unable to show any
provision which authorises the State to defer payment of a
portion of the salary of its employees and consequently,
declared that the impugned decision is illegal and arbitrary. The
said decision was affirmed in appeal by the Apex Court. It was
placing reliance on the said decision of the Andhra Pradesh
High Court that the learned Single Judge held that the
Government cannot direct deposit of the arrears of salary
payable to a teacher, in the Provident Fund account.
11. The learned Government Pleader did not
dispute the proposition of law laid down in Dinavahi Lakshmi
Kameswari. Instead, as noted, the attempt of the learned
Government Pleader was to show that unlike the case dealt
with by the Andhra Pradesh High Court, as far as the teachers
and non-teaching staff of the aided schools in the State are
concerned, Section 12(1) of the Act and Rule 10(5) of Chapter
XXX KER confer authority on the State Government to direct
deposit of the arrears of salary payable to them in their
Provident Fund accounts. Section 12 of the Act reads thus:
12. Conditions of service of aided school teachers.- (1)
The conditions of service of teachers in aided schools,
including conditions relating to pay, pension, provident fund,
insurance and age of retirement, shall be such as may be
prescribed by the Government.
(2) No teacher of an aided school shall be dismissed, removed
or reduced in rank by the manager without the previous
sanction of the officer authorised by the Government in this
behalf, or placed under suspension by the manager for a
continuous period exceeding fifteen days without such
previous sanction.
No doubt, Section 12(1) of the Act confers authority on the
State Government to prescribe the conditions of service of
teachers in aided schools including conditions relating to their
pay. Section 9 of the Act provides that the Government shall
pay the salary of all teachers in aided schools direct or through
the Headmaster of the school. In the light of the provision
contained in Section 9 of the Act, it is obligatory for the State
Government to pay the salary of all teachers in the manner in
which the salary of Government employees are being
disbursed. There is no dispute to the fact that the salary of
teachers and non-teaching staff of aided schools in the State
are being disbursed in the manner in which the salary of
Government employees are being disbursed as provided for
under the Financial Code of the State Government. Section 12
of the Act if understood in the light of Section 9 of the Act, it
cannot be said that the former Section confers power on the
State Government to withhold the salary payable to a teacher
in an aided school by directing the same to be deposited in his
Provident Fund account, for such an interpretation would defeat
the provision contained in Section 9 of the Act. The argument
advanced by the learned Government Pleader based on
Section12(1) of the Act, in the circumstances, is liable to be
rejected and we do so.
12. Let us now examine whether Rule 10(5) of
Chapter XXX KER empowers the State Government to direct
deposit of arrears of salary payable to a teacher of an aided
school on account of delayed approval of the appointment, in
the provident fund account. The relevant portion of Rule 10 of
Chapter XXX KER reads thus:
10. (1) The amount of subscription shall be fixed by the
subscriber himself subject to the following conditions,
namely:-
(a) It shall be expressed in whole rupees; and
(b) It may be any sum, so expressed which shall not be less
than 6 percent of his emoluments.
Note:-If 6 percent of emoluments represents a sum not
expressible in whole rupees of the fraction of a rupee will be
rounded to the nearest whole rupee, 50 Paise or more
counting as the next higher rupee.
xxxx xxxxx
(5) Notwithstanding anything contained in sub-rule (1) the
Government may, by order direct that the whole or any part
of the arrears of pay or allowances or both payable to
subscribers under a Scheme or revision of pay or allowances
or both implemented with retrospective effect shall be
credited to the Fund and every subscriber to whom such order
applies shall comply with such order.
Chapter XXX KER deals with the Provident Fund Rules of
employees of aided schools. It is compulsory for all aided school
teachers to subscribe to the Fund constituted in terms of the
Rules made in Chapter XXX KER namely, the Kerala Aided
Schools Employees' Provident Fund. Rule 10(1) of Chapter XXX
KER provides that the amount of subscription payable to the
Fund shall be fixed by the subscriber himself, subject to the
conditions stipulated therein. As noted, Rule 10(5) of Chapter
XXX KER provides that notwithstanding anything contained in
sub-rule(1), the Government may by order direct that the whole
or any part of the arrears of pay or allowances or both payable
to subscribers under a Scheme or revision of pay or allowances
or both, implemented with retrospective effect shall be credited
to the Fund and every subscriber to whom such order applies
shall comply with such order. A close reading of the extracted
Rule would indicate that the same confers power on the State
Government to direct deposit of the arrears of pay or
allowances or both due to the subscribers in their respective
accounts. In the case on hand, what is directed to be deposited
is not the arrears of pay or allowances payable to the petitioner
under any scheme or arrears of pay or allowances payable to
the petitioner on account of revision of his pay or allowances
implemented with retrospective effect. On the other hand, the
amount which is directed to be deposited in the Provident Fund
account of the petitioner is actually the salary payable to him
for having worked in the school as a Higher Secondary School
Teacher pursuant to his appointment and the same had to be
received as arrears since the approval of the appointment was
delayed due to reasons not attributable to him. According to us,
the salary payable to a teacher in an aided school for the period
from the date of joining the school pursuant to the appointment
till the date of approval of the appointment cannot be treated
as arrears of pay, falling within the scope of Rule 10(5) of
Chapter XXX KER. It is all the more so since the scheme of
Chapter XIVA KER dealing with the conditions of service of
aided school teachers is such that orders could be passed on
proposals for approval of the appointment of teachers only after
the teachers join duty and the appointment is effective from
the date on which the teacher is admitted to duty. In other
words, the approval of the appointment would always be with
retrospective effect. Going by the prevailing situation, the
approval of all the appointments are delayed either due to
administrative reasons or due to rival claims as in the case on
hand and in every case, the salary payable to a teacher
consequent on the approval of the appointment is being drawn
and disbursed as arrears. If the argument advanced on behalf
of the State is accepted, such payments could also be directed
to be deposited in the Provident Fund account of the teacher.
We have no doubt, therefore, in our minds that Rule 10(5) of
Chapter XXX KER does not confer on the State Government any
authority to direct the salary payable to a teacher on account of
delayed approval of the appointment, to be deposited in his
Provident Fund account. Needless to say, the direction in
Ext.P12 circular, even if it is construed as a valid executive
order covering cases in the nature of one involved in this
matter, is bad in law inasmuch as it violates the right of the
petitioner under Article 300A of the Constitution. We take this
view also for the reason that if Ext.P12 circular is taken as a
valid executive order conferring power on the State to withhold
the salary payable to a teacher as arrears on account of the
delayed approval of his appointment, the same would be per se
arbitrary too, for in that event, the approval process of the
appointment could be delayed, so that the arrears of salary
payable to teachers can be directed to be deposited in their
Provident Fund accounts. Similarly, in that event, the decision
would be discriminatory too, for naturally there will be delay in
the approval process in cases where there are rival claims and
teachers involved in such cases may not get their salaries, as in
the case on hand for the period during which the rival claims
are pending adjudication either before the statutory authorities
or before court, which may not be a reason to treat the
teachers involved in such cases differently.
For the aforesaid reasons, we do not find any reason
to interfere with the impugned decision. The writ appeal is
accordingly, dismissed. However, this judgment will not
preclude the competent authorities from directing the benefit of
any pay revisions due to the petitioner to be deposited in his
Provident Fund account if so provided in the pay revision
orders.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
SOPHY THOMAS, JUDGE.
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