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2017 DIGILAW 898 (KER)

State of Kerala v. Dasan Peedikakkandy

2017-06-16

ANIL K.NARENDRAN, C.T.RAVIKUMAR

body2017
JUDGMENT : C.T. Ravikumar, J. This Original Petition arises from an order of the Kerala Administrative Tribunal dated 13.02.2014 in O.A.No.1392/2013. The respondents and the applicant before the Tribunal are respectively the petitioners and the respondent, herein. The question for consideration is whether aided school service put in by a teacher before taking over/surrendering of the aided school by/to the Government, can be reckoned for the purpose of service weightage? The said issue sprang up for consideration in the following factual matrix:- 2. The applicant/respondent commenced his service as a High School Assistant in Muzhuppilangad High School, which was an aided high school in Kannur District governed by the provisions of the Kerala Education Act and the Kerala Education Rules. The school was surrendered to the Government with effect from 17.03.1997. Admittedly, the entire school with all teaching and non-teaching staff were also absorbed into Government service on such surrender. The respondent/applicant entered into the Government service pursuant to such absorption. While so, Annexure-A2 audit objection was raised by the Accountant General with respect to the service weightage granted and consequential additional payments made to him. Essentially, the audit objection was with respect to the fixation of his pay with effect from 01.07.2004 taking into account his 16 years’ service in the aided school. The said objection was raised based on the Note under R.5(2) for fixation of pay in G.O.(P) No.145/2006/Fin. dated 25.03.2006, as per which, the period of service in aided school could not be reckoned for calculating service weightage, along with Government service. Annexure-A2 would reveal that based on the said Government Order dated 25.03.2006, it was found that the applicant had acquired eligibility for service weightage for 16 years only from 17.03.1997. It is in the said circumstances that objections were raised to the effect that the pay fixation of the respondent/applicant was done erroneously and it resulted in an extra payment of Rs.90,624/- for the period from 01.04.2005 to 30.09.2010. On receipt of Annexure-A2, the respondent/applicant submitted representations, and subsequently reminders, contending that the objection is unsustainable and that his pay was correctly fixed with effect from 01.07.2004. The said representation was, virtually, rejected as per Annexure-A7 order dated 19.06.2013. On receipt of Annexure-A2, the respondent/applicant submitted representations, and subsequently reminders, contending that the objection is unsustainable and that his pay was correctly fixed with effect from 01.07.2004. The said representation was, virtually, rejected as per Annexure-A7 order dated 19.06.2013. Obviously, under Annexure-A7, the objection raised by the Accountant General in Annexure-A2 was sustained and consequentially, the second petitioner herein was directed to refix the pay of the respondent/applicant in tune with the objection raised in Annexure-A2 and also taking note of Annexure-A7. It is in the said circumstances that the respondent herein/applicant was constrained to approach the Kerala Administrative Tribunal by filing O.A.No.1392/2013 seeking the following reliefs: “The Hon’ble Kerala Administrative Tribunal may issue (i) orders to set aside Annexure A2 inspection report of the 3rd respondent to the extent to which it affects the applicant; (ii) orders to set aside Annexure A7 Govt. letter; (iii) orders declaring that the applicant is legally entitled to reckon the entire service from 06.06.1984 for service weightage as per 2004 pay revision; (iv) orders declaring that the fixation of pay allowed to the applicant on 01.07.2004 as per Annexure-A1 statement is in order.” 3. Petitioners herein/respondents therein filed reply affidavit and resisted the claims and contentions of the respondent/applicant. Obviously, they raised contentions based on Annexures-A2 and A7. Based on the rival contentions, the Tribunal pointedly considered the question whether the Note under R.5(2) of the Government Order dated 25.03.2006 prohibits reckoning of aided school service for the purpose of service weightage. After answering the said question in the affirmative, the Tribunal allowed the original application holding that the said prohibition in the Note under R.5(2) would not be applicable in the case of teachers in a surrendered school and in their case, the services in the surrendered school could be reckoned for service weightage. Based on such conclusion, the Tribunal declared that the fixation of the pay of the applicant/respondent herein as per Annexure-A1 was legal and valid, and conse-quentially, quashed Annexures A2 and A7. It is aggrieved by the said order (Ext.P2) passed by the Tribunal that this Original Petition has been filed. 4. We have heard the learned Government Pleader and also the learned counsel for the respondent/applicant. 5. Virtually, both sides reiterated their contentions raised before the Tribunal. It is aggrieved by the said order (Ext.P2) passed by the Tribunal that this Original Petition has been filed. 4. We have heard the learned Government Pleader and also the learned counsel for the respondent/applicant. 5. Virtually, both sides reiterated their contentions raised before the Tribunal. The learned Government Pleader submitted that the Note under R.5(2) of Annexure-A9 Government Order dated 25.03.2006 would reveal that it clearly prohibits reckoning of prior service of Government employees in aided educational institutions (and vice versa) for determining the length of service, evidently, for the purpose of service weightage. In this contextual situation, it is worthy to extract the Note under R.5(2) of Annexure-A9 G.O. and it reads as follows: Note:- Service for the purpose of this rule means service (where protection of pay is allowed), including broken periods of service qualifying for normal increments in the scales of pay. Service during the period of bar on increment without cumulative effect and dies-non period will also be reckoned. Time spent on leave that will not count for normal increment will not be reckoned. Prior service of Government employees in aided educational institutions (and vice versa) will also not be reckoned for determining the length of service.” 6. Relying on the last limb of the Note, the learned Government Pleader attempted to get sustained the objections in Annexure-A2 and the findings in Annexure-A7. It is contended that the pay revision order specifically interdicts reckoning of prior service of Government employees in aided educational institutions (and vice versa), for the purpose of determining the length of service for the purpose of service weightage. It is contended that, in such circumstances, in the light of the conditions in the pay revision order, the Tribunal ought not to have allowed the original application and quashed Annexures A2 and A7 and issued consequential orders. 7. Per contra, the learned counsel appearing for the respondent/applicant contended that the Tribunal was right in construing the Note under R.5(2) to hold that the last limb of the said Note is applicable only in respect of fresh entrants either in Government service or in aided educational institutions. Virtually, the Tribunal held that the last limb of the said Note is totally inapplicable in the case of staff, be it teaching or non-teaching, who were working in aided schools, taken over/surrendered by the Government. Virtually, the Tribunal held that the last limb of the said Note is totally inapplicable in the case of staff, be it teaching or non-teaching, who were working in aided schools, taken over/surrendered by the Government. Obviously, the finding is to the effect that it applies only in case of new entrants in Government service recruited directly, who had past service in aided educational institutions and vice versa. The learned counsel for the respondent/applicant further submitted that the opening sentence of the aforesaid Note itself would reveal that when pay protection is granted, the service rendered in aided school would be reckoned as service and besides the same even broken period of service, if qualified for normal increment in the scales of pay, would also be reckoned, for the purpose of Note under R.5(2) of Annexure-A9 G.O. To buttress the contentions of the petitioners herein, the learned Government Pleader relied on the judgment of a Division Bench of this Court in W.A.No.288/2005 dated 15.02.2007 and another Division Bench judgment in W.A.Nos.2052 and 1976 of 2002 and 1778 of 2004. The judgment in W.A.No.288/2005 was relied on to support the contention that the aided school service rendered by a teacher before his entry in Government service could not be reckoned for service weightage and the judgment in W.A.Nos.2052 and 1976 of 2002 and 1778 of 2004 were relied on to support the contention that it could not be reckoned for the purpose of claiming increments. 8. From the rival contentions, it is obvious that we are virtually called upon only to consider the sustainability or otherwise of the finding of the Tribunal that Note under R.5(2) of Annexure A9 is inapplicable in the case of Government employees who had prior service in aided educational institutions and they became Government employees only due to the surrender/taking over of the said educational institutions and it is applicable only in the case of Government employees directly recruited and had past service in aided educational institutions. The learned Special Government Pleader also relied on the decisions of the Honourable Apex Court in State of Punjab & Ors. v. Harnam Singh & Ors., AIR 1997 SC 1103 ), Govindankutty v. State of Kerala ( 2000 (1) KLT 138 ) and State of Kerala v. Philomina ( 2008 (1) KLT 666 (F.B.)). The learned Special Government Pleader also relied on the decisions of the Honourable Apex Court in State of Punjab & Ors. v. Harnam Singh & Ors., AIR 1997 SC 1103 ), Govindankutty v. State of Kerala ( 2000 (1) KLT 138 ) and State of Kerala v. Philomina ( 2008 (1) KLT 666 (F.B.)). A perusal of the decision in Harnam Singh’s case (supra), would reveal that the question that was considered therein was whether the staff, who were working in District Boards and Zilla Parishads which were taken over by the Government, should be treated as fresh entrants into Government service from the date of taking over and whether their previous service could be counted for the purpose of seniority. The Apex Court held that in such circumstances, the parties would be governed by the conditions specified in the deed of taking over and at the same time held that the previous service rendered by them could not be reckoned for the purpose of seniority. We may hasten to add in this context that in the case on hand the deed of surrender does not contain any specific condition touching the service conditions including seniority of the teaching and non-teaching staff on such surrender. It is also to be noted that the applicant/respondent herein did not claim seniority based on his previous aided school service. In such circumstances, we are of the considered view that Harnam Singh’s case (supra) has no relevance as regards the case on hand. In Govindankutty’s case (supra), evidently, after relying on Harnam Singh’s case (supra), a Division Bench of this Court held that employees of a School taken over by the Government could not, as a matter of right, claim that they are entitled to count their previous service for the purpose of seniority in Government service. Evidently, in view of the decision in Harnam Singh’s case (supra), it was held that such employees ought to have been treated as fresh entrants and such a condition is intended only to protect the interests of existing Government teachers. In Philomina’s case (supra), the question was whether prior military service could be reckoned for granting subsequent Grade promotions after reckoning it for granting the first Grade promotion. In Philomina’s case (supra), the question was whether prior military service could be reckoned for granting subsequent Grade promotions after reckoning it for granting the first Grade promotion. In the said decision, this Court held :- “Right to enjoy the benefit of a higher grade is traceable to the Government orders on the subject and dehors such Government orders, no employee can enjoy that benefit. Time bound higher grade is not a condition of service guaranteed by the statutory rules, but a concession intended to lessen the severity of stagnation for want of regular promotion.” It is obvious that in that case, the concerned employee had prior military service and the said service was reckoned for the purpose of granting first Grade promotion, after he became a Government servant. As noticed hereinbefore, the question was whether the said service could be reckoned for granting subsequent Grade promotions. Going by the relevant Government Circular, the prior military service could be reckoned only for grant of one Higher Grade. It is in the said circumstance, the Apex Court held that when the benefit of a Higher Grade itself is traceable only in the Government orders on the subject, dehoring the same, no employee could enjoy the said benefit. It is also to be noted that if he continued in military service, the employee concerned would not have been entitled to get the benefit flowing from the said Circular, based on which, he claimed the subsequent Grade promotions. In the context of the contentions, it is relevant to note that the benefits flowing from Annexure A9, viz., the service weightage, that is to say fixation of pay by granting one increment for each completed 4 years of service, subject to a maximum of 4 increments in the revised scale, would not only be available to Government employees but also available to teaching and non-teaching staff of aided school institutions. In such a circumstance, it can be said without all peradventure that if the school was not surrendered and the respondent herein/applicant had continued in the said aided school, he could have enjoyed the benefit flowing from Annexure A9. Most importantly, the respondent and other staffs, teaching and non-teaching, had not become Government servants after undergoing a selection process based on their applications while working in aided school. Most importantly, the respondent and other staffs, teaching and non-teaching, had not become Government servants after undergoing a selection process based on their applications while working in aided school. They happened to become Government servants solely because the Management of the said School surrendered the said School to Government. Virtually, to this crucial aspect, due consideration was given by the Tribunal as is obvious from the impugned order, while considering the applicability or otherwise of the rider in Note under clause 5(2) of Annexure A9. The Tribunal construed the aforesaid ‘Note’ in such a manner and held that the same would be applicable only in respect of the employees of aided educational institutions who were directly recruited to Government service on participating in a selection process for such appointment. It is held that it is also applicable in the cases where the Government employees becoming aided School staff after resigning from Government service. In short, it is evident that the Tribunal virtually held that the case of staff, teaching and non-teaching, working in an aided educational institution surrendered or handed over to Government would stand on a different footing. In their case, they are coming over to Government service not on their volition but solely because of surrender or taking over, of the said aided educational institution. When there is nothing on record to show that with open eyes, they had agreed to forgo all benefits flowing from their past service, if any service benefit is available based on such service going by a Government order, it could not be denied to them solely because they had come over to Government service. In this case, as already noted, the benefit of service weightage under Annexure A9 would have been available to the respondent herein and similarly situated employees or the substitute, if they could continue in the said aided School. They could not continue in the said School not because of any fault on their part and in fact, they became Government servants solely because the said aided educational institution in which they were working, was surrendered by the Management to Government. A bare perusal of clause 5(1) and also the Note under clause 5(2) would reveal that the benefits flowing from the same are available to the employees of aided educational institution and also to Government employees. A bare perusal of clause 5(1) and also the Note under clause 5(2) would reveal that the benefits flowing from the same are available to the employees of aided educational institution and also to Government employees. As per the rider in the Note, only a particular group was excluded from the category of beneficiaries. 9. In the case of persons who quit the Government service to take up aided educational service or vice versa, they quit such service on their own volition and in the case of persons like the respondent herein, they were not responsible for the change of their status and it had occurred only because of the surrender of the said School. In such circumstance, the benefit which they could have enjoyed otherwise, but for the surrender of the school, in case of their continuance in the school could not be denied to them. We are fortified in our view by an observation made by the Honourable Apex Court in State of Punjab & Ors. v. Dev Dutt Kaushal 1995 AIR SCW 3743). In paragraph 8 of the said decision, in so far as is relevant, it was held as follows :- “8. Now coming to the claim for pension, it may be noted that according to the Government rules, no lecturer is entitled to pension unless he puts in ten years service. There is no dispute about this position. There is equally no dispute that respondent had not served for ten years under the Government. The contention of the respondent, however, is that the service rendered by him in the college while it was under the private management should also be counted and his pension fixed on that basis. We are again unable to appreciate this contention. As stated above, the respondent was not entitled to any pension according to the service conditions obtaining in the private college. Had the college not been taken over by the Government and had he retired in the normal course, he would not have been entitled to any pension. He was entitled only to contributory provident fund. It is only under government service that pension is provided for. But such pension is available only if an employee puts in ten years of service under the Government. He was entitled only to contributory provident fund. It is only under government service that pension is provided for. But such pension is available only if an employee puts in ten years of service under the Government. Now the gift deed does not say that for the purpose of pension, the service rendered in the college while it was under the private management shall also be counted. On the contrary, it says that the Government shall not be responsible and shall not accept any liability for the period prior to the taking over of the college and that all such liabilities shall be cleared by the managing committee of the college - which means that on the date of taking over of the college, the respondent was entitled to be paid the contributory provident fund by the then management of the college. Indeed, it is stated by the learned counsel for the State that it was so paid to and received by the respondent. The correctness of the said statement has, however, not been put in issue and, therefore, we do not express any opinion on the correctness of the said statement of fact. All that we need say is that the respondent was entitled to receive the contributory provident fund according to the relevant rules on the date of take over of the said college from the private management. If he has not been so paid, his remedy lies against the managing committee of the college in office prior to the date of taking over. It may also be noticed that the gift deed expressly specifies the only exception to the rule of “new entrants” it recognised, viz, for the purpose of fitment in the appropriate scale of pay, their service in the said grade under the private management shall be taken into account. No other exception is provided for or recognised by the gift deed. Accepting the respondent’s plea in this behalf would amount to reading yet another exception into the said gift deed, viz., for the purpose of pension also the service under the private management shall be counted. This we cannot do for more than one reason. Wherever it wanted to so provide, the gift deed itself specified the exception to the rule of “new entrants”; hence, no other exception can be read into it. This we cannot do for more than one reason. Wherever it wanted to so provide, the gift deed itself specified the exception to the rule of “new entrants”; hence, no other exception can be read into it. Secondly, the gift deed provides expressly that in matters not expressly provided for in the gift deed, the rules, regulations, instructions and orders issued by the Government from time to time shall apply. In this view of the matter, the second claim of the respondent is also liable to be rejected and this is what the learned single Judge of the High Court had opined. The Division Bench, however, reversed him purporting to follow the decision of this Court in N.N.Swamy. It is, therefore, necessary to carefully examine the facts and the principle of the said decision to ascertain whether the principle or ratio of the said decision has any relevance herein.” Evidently, the school which was taken over in Dev Dutt’s case (supra), was a private school. The respondent therein was not entitled to pension, according to the service conditions, obtained in the said private college. But for the taking over of the said school, he would not have been entitled to get any pension and he would have retired in the normal course without any pension. However, in this case going by the service conditions obtained in the school which was surrendered, it being an aided school, the respondent could have enjoyed all the benefits flowing from Annexure A9 including the service weightage given under clause 5(1) which are available to all staff, teaching and non-teaching, of aided educational institutions. In such circumstances, we do not find any illegality or impropriety or perverseness in the conclusion arrived at by the Tribunal while construing the scope of the Note under clause 5(2) of Annexure A9 and consequently interfering with the orders impugned before it. The finding that the respondent is entitled to get restored of the benefit already granted to him, is a necessary consequence of such finding. 10. The learned Government Pleader submitted that a scanning of the impugned order would reveal that the Tribunal held that the petitioner was discriminated by declining, rather, by taking away the benefit of the service weightage available under Annexure A9 after it was extended to him as per Annexure A1. The foundation for such a finding is Annexure A10. 10. The learned Government Pleader submitted that a scanning of the impugned order would reveal that the Tribunal held that the petitioner was discriminated by declining, rather, by taking away the benefit of the service weightage available under Annexure A9 after it was extended to him as per Annexure A1. The foundation for such a finding is Annexure A10. Evidently, Annexure A10 is an order, by which, in respect of a teacher belonging to another aided school which was taken over by the Government, the service weightage based on pay revision of the year 2004 was extended to that teacher. True that the petitioner, relying on Annexure A10, contended that since under similar circumstances, such a benefit was extended to the said employee, there is absolutely no reason or rationale for declining the said benefit to him. Evidently, this contention found favour with the Tribunal and Tribunal held, relying on Annexure A10, that the petitioner was arbitrarily discriminated. The learned Government Pleader submitted that Annexure A10 was subsequently withdrawn and the factum of withdrawal of Annexure A10 was also specifically raised before the Tribunal. However, the Tribunal had not given due weight to the said aspect while rendering the impugned order and therefore, the impugned order is not sustainable. We have no hesitation to hold that the Tribunal had rendered the decision after arriving at a conclusion, that the petitioner is entitled to the benefit of service weightage flowing from Annexure A9, not solely based on Annexure A10. A scanning of the impugned order would reveal that the Tribunal had independently considered the entitlement of the respondent/applicant to service weightage as provided under clause 5(1) of Annexure A9 despite the rider in the aforesaid Note and arrived at an independent conclusion, based on the reasoning that the rider in the Note is totally inapplicable in the case of persons like the respondent. Evidently, it is only to strengthen the said conclusion regarding the entitlement of the applicant/respondent herein that the fact revealed from Annexure A10 was taken into account. In other words, it is evident that the Tribunal upheld the contentions of the petitioner and allowed the original application not solely based on Annexure A10 but after arriving at a conclusion independent of Annexure A10. In other words, it is evident that the Tribunal upheld the contentions of the petitioner and allowed the original application not solely based on Annexure A10 but after arriving at a conclusion independent of Annexure A10. In such circumstances, we have no hesitation to hold that even the withdrawal of Annexure A10 subsequently, cannot be a reason to interfere with the conclusion and the consequential finding of the Tribunal in the impugned order. In such circumstances, the Original Petition is liable to fail and accordingly it is dismissed.