Kerala High Court

The State Of Kerala vs Gireesh Kumar.K on 21 May, 2025

Author: Anil K. Narendran

Bench: Anil K. Narendran

                                              2025:KER:34822
W.A.No.2170 of 2018        1

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

        THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN

                                 &

        THE HONOURABLE MR. JUSTICE P. V. BALAKRISHNAN

 WEDNESDAY, THE 21ST DAY OF MAY 2025 / 31ST VAISAKHA, 1947

                      W.A. NO.2170 OF 2018

        AGAINST THE JUDGMENT DATED IN WP(C) NO.8636 OF 2015

                   OF HIGH COURT OF KERALA

APPELLANTS/RESPONDENTS 1 TO 4 IN W.P.(C):

    1     THE STATE OF KERALA
          REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION
          DEPARTMENT, GOVERNMENT SECRETERIAT,
          THIRUVANANTHAPURAM -695 001

    2     THE DIRECTOR OF PUBLIC INSTRUCTIONS,
          DIRECTORATE OF PUBLIC INSTRUCTION, JAGATHI,
          THIRUVANANTHAPURAM.

    3     DEPUTY DIRECTOR OF EDUCATION,
          OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION,
          THIRUVALLA, PATHANAMTHITTA DISTRICT.

    4     ASSISTANT EDUCATIONAL OFFICER,
          KOZHENCHERRY, PATHANAMTHITTA DISTRICT.


          BY ADV GOVERNMENT PLEADER


RESPONDENTS/PETITIONER & RESPONDENTS 5 & 6 IN W.P.(C):

    1     GIREESH KUMAR.K
          LOWER GRADE PART TIME TEACHER(SANSKRIT),
          (LGPT)(FULL TIME BENEFIT), NOEL MEMORIAL U.P.
          SCHOOL KEEKOZHOOR, RANNY, PATHANAMTHITTA,
                                                              2025:KER:34822
W.A.No.2170 of 2018            2

            RESIDING AT VILAYIL PUTHEN VEEDU, IVERKALA,
            IVERKALA EAST P.O., KOLLAM DISTRICT,PIN - 691
            507.

    2       THE HEADMISTRESS,
            N.M.U.P SCHOOL, KEEKOZHOOR, PATHANAMTHITTA
            DISTRICT 691 507.

    3       THE MANAGER,
            N.M.U.P SCHOOL, KEEKOZHOOR, PATHANAMTHITTA
            DISTRICT 691 507.



OTHER PRESENT:

            SMT. NISHA BOSE, SR. GP


     THIS     WRIT    APPEAL   HAVING     COME   UP    FOR    ADMISSION    ON
21.05.2025,     THE    COURT   ON   THE    SAME       DAY    DELIVERED    THE
FOLLOWING:
                                                     2025:KER:34822
W.A.No.2170 of 2018         3

                           JUDGMENT

Anil K. Narendran, J,

The official respondents in W.P.(C)No.8636 of 2015 are

before this Court in this writ appeal invoking the provisions under

Section 5(i) of the Kerala High Court Act, 1958, challenging the

judgment of the learned Single Judge dated 20.02.2017 in that

writ petition, which was one filed by the 1st respondent herein,

who was working as a Part-Time Language Teacher in Sanskrit

with Full Time benefit, seeking a writ of certiorari to quash Ext.P7

communication dated 01.07.2014 issued by the 4th appellant

Assistant Educational Officer to the 2nd respondent Headmistress,

N.M.U.P.School, Ext.P8 communication dated 08.01.2015 issued

by the 4th appellant and Ext.P12 order dated 06.02.2015 issued

by the 3rd appellant Deputy Director of Education; a writ of

mandamus commanding the 2nd appellant Director of Public

Instructions to keep in abeyance consideration of Exts.P13 and

P14 representations, in the light of Exts.P4 and P6; a declaration

that the writ petitioner is eligible for weightage on account of his

part time service, from the date of sanctioning full time benefits

as Lower Grade Part Time Teacher (Sanskrit); a writ of mandamus

commanding the 2nd respondent Headmistress not to take any 2025:KER:34822

action pursuant to Exts.P7, P8 and P12; and a writ of mandamus

commanding appellants 1 and 2 to consider and dispose of

Exts.P13 and P14 representations, after affording the writ

petitioner an opportunity of being heard, as expeditiously as

possible.

2. The learned Single Judge, by the impugned judgment

dated 20.02.2017, disposed of the writ petition, setting aside

Exts.P7, P8 and P12. Paragraphs 5 to 9 and also the last paragraph

of that judgment read thus;

"5. The petitioner contends that by an earlier judgment, namely Exhibit P10, this Court had already interdicted recovery of any amount from the petitioner. He says that the action of the third respondent in issuing Exhibit P12 by casually rejecting his claim is virtually an affront of the directions of this Court. He also says that the finding of the authority is that he is not entitled to have the part time service reckoned, is contrary to the directions contains in Exhibits P4 and P6 orders and that these orders have not been adverted to by the authorities while issuing Exhibit P12 order. The specific contention of the petitioner is that Note to Rule 4 of Annexure II pay revision order, 2009, namely, Exhibit P6, would obviously entitle him to the benefits that have now been granted to him. He also contends that all the befits granted to him have been obtained under proper sanction and approval. He, therefore, says that any action to recover the amounts 2025:KER:34822

would be completely illegal and unlawful. I see that the petitioner has, in fact, filed Exhibit P13, which is a representation against Exhibit P12 before the first and second respondents. In normal circumstances, therefore, it would have been possible for this Court to have the same considered by the said respondent. However, I deem it not necessary in this case for the reasons that I will presently state.

6. The learned Government Pleader supports the impugned orders on the assertion that recovery has been ordered on valid reasons because the petitioner was not entitled to have his part time service reckoned for the purpose of sanction of scale. However, I see that sanction has been given by the competent authority under Exhibit P4 after being aware of the fact that his part time service was being reckoned. The fixation of his pay by reckoning such service obviously is on account of anything that can be attributed to the petitioner.

7. As I have already noticed above, the scale of the petitioner was re-fixed by granting him the benefit of the part time service on the basis of Exhibits P4 and P6 orders. It is obvious that they were sanctioned and the orders were issued granting him the benefit under the appropriate provisions of law. This is clear from Exhibit P4 order. Now, an attempt to recover the same by the very same authority who granted the benefit should normally be founded on an intelligible reason. The only reason stated in the order seeking recovery is that the petitioner is not entitled to have his part time service reckoned. This is contrary to Exhibits P4 and P6 orders. In any event of 2025:KER:34822

the matter, the law has now been settled by the Hon'ble Supreme Court in State of Punjab v. Rafiq Masih (White Washer) [(2015) 4 SCC 334] that any benefit granted to a person for no fault of his under a valid sanction cannot be recovered on the ground that the sanction was based on wrong considerations. This is not a case where, in fact, I feel that the benefit so granted to the petitioner was on wrong foundations. On the contrary, it was granted to him under a valid provision and the same was approved by valid process.

8. In such circumstances, I have no hesitation in quashing Exhibits P7, P8 and P12 orders issued by the respective authorities as being illegal and unconstitutional and they being contrary to the law declared by the Hon'ble supreme Court in Rafiq Masih (White Washer) (supra). It is, therefore, ordered that the same shall stand quashed. I do not think I require to make any further provision regarding future payment because it is submitted by the petitioner that he did not receive any further benefits other than what he has already received pursuant to these orders and that he has been given the benefit of one increment based on Exhibit P4 order.

9. The learned Government Pleader at this point of time voiced an apprehension that this judgment will be used as a precedent in other cases. I make it clear that the conclusions in this judgment have been arrived at by me only in the peculiar facts and circumstances of this case and does not intend to operate generally. Obviously, therefore, this cannot operate as a precedent. The writ petition is ordered as above. In the facts and 2025:KER:34822

circumstances of the case, I make no order as to costs and the parties are directed to suffer their respective costs."

3. This writ appeal was one filed along with C.M.Appl.No.1

of 2018 for condonation of filing delay of 555 days. By the order

dated 08.01.2020, C.M.Appl. was allowed, taking note of the order

of the Apex Court dated 29.10.2013 in SLP(C)No.18990 of 2013,

whereby the said Court directed that consideration of similar

matters which are pending before the High Court shall be deferred

until a final decision is taken by the Apex Court.

4. On 13.01.2020, when this writ appeal came up for

admission, it was admitted on file and notice was ordered to the

respondents by speed post. Despite service of notice, none

appears for the respondents.

5. The learned Senior Government Pleader would point

out the order of the Apex Court dated 02.11.2023 in Civil Appeal

No.9884 of 2013 and connected matters - State of Kerala and

others v. K. Bhanamma. The said order reads thus;

"Leave is granted in SLP(C)No.33132 of 2015. Challenging the order dated 29.05.2013 passed in Writ Appeal No. 560 of 2013 arising out of order passed in Writ Petition (C) No. 19075 of 2012, Civil Appeal No. 9884 Of 2013 has been filed. Challenging the order dated 2025:KER:34822

08.04.2013 in Writ Appeal No. 539 of 2013 arising out of order passed in W.P.(C)No.30328 of 2008, Civil Appeal No. 9885 of 2013 has been filed and against the order dated 24.03.2015 in Writ Appeal No. 1980 of 2014 arising out of order passed in W.P.(C)No.11846 of 2012 by the High Court of Kerala. Civil Appeal No.7439 of 2023 [SLP(C)No. 33132 of 2015] has been preferred.

After hearing learned senior counsel appearing for the appellant(s) and learned counsel appearing for the respondent(s), we are not inclined to entertain these appeals. During hearing, we have perused the Notification issued on 11.10.2012, which is reproduced as under:-

Order Government are pleased to order that the first sentence of Note below Rules 5(2). Annexure 2 of the Government Order read above, regarding service weightage is modified as follows: "Service for the purpose of this rule means full time regular service (where protection of pay is allowed) including broken periods of service qualifying for normal increments in the scales of pay". However, already settled court cases will not be re-opened."

In view of the Notification, the cases of post-amendment shall be considered and decided as per the said Notification and the impugned Judgment would not be applied as a precedent in those cases.

In view of the forgoing observations, these appeals stand disposed of. All questions of law are left open. Pending interlocutory application(s), if any, is/are disposed of."

2025:KER:34822

6. Heard the learned Senior Government Pleader for the

appellants.

7. Having considered the submissions made by the

learned Senior Government Pleader, we notice that the issue

raised in this writ appeal is covered against the appellants by the

order of the Apex Court dated 02.11.2023 in Civil Appeal No.9884

of 2013 and connected matters - State of Kerala and others v.

K. Bhanamma.

In such circumstances, this writ appeal fails and the same is

accordingly dismissed.

Sd/-