Allowed

Biju E. v. the State of Kerala

Kerala HC5 Jan 2023WP(C)/17115/2022

Case brief

AI extract

What is this about?

The court quashed the Sub Treasury Officer's order directing that salary arrears of an aided school teacher be credited to his PF account and withdrawn only after five years, on the ground that the circular relied upon did not apply to the petitioner, whose appointment was approved pursuant to a court order, and that deferment of salary without authority of law violated Articles 21 and 300-A of th

What did the court decide?

Exhibit P11 proceedings quashed; respondents directed to disburse salary arrears of Rs.11,14,191/- to the petitioner for the period from 01.09.2013 to 31.01.2016 within eight weeks.

Biju E. Vs the State of Kerala — Pension and Retirement Benefits | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 5^TH DAY OF JANUARY 2023 / 15TH POUSHA, 1944

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WP(C) NO. 17115 OF 2022

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PETITIONER:

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 BIJU E.
 AGED 44 YEARS
 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.
 BY ADVS.
 ELVIN PETER P.J.
 K.R.GANESH
 GOURI BALAGOPAL
 ABHIJITH.K.ANIRUDHAN
 SREELEKSHMI A.S.

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RESPONDENTS:

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1 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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2 THE SECRETARY FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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3 THE REGIONAL DEPUTY DIRECTOR HIGHER SECONDARY EDUCATION, REGIONAL OFFICE, KOZHIKODE - 673 003.

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4 THE DIRECTOR OF TREASURIES DIRECTORATE OF TREASURIES, THYCAUD, THIRUVANANTHAPURAM - 695 014.

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5 THE SUB TREASURY OFFICER PERAMBRA, KOZHIKODE - 673 525.

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 6 THE MANAGER
 VADAKKUMPAD HIGHER SECONDARY SCHOOL,
 PALERI, KUTTIYADI, KOZHIKODE - 673 508.

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 SMT NISHA BOSE, SR GOVERNMENT PLEADER

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 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
 ON 05.01.2023, THE COURT ON THE SAME DAY DELIVERED THE
 FOLLOWING:

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J U D G M E N T

This writ petition is filed seeking to quash Exhibit P11 proceedings issued by the Sub Treasury Officer, Perambra, by which the Officer has rejected the request of the Principal of the Vadakkumpad Higher Secondary School, Paleri, where the petitioner is working as HSST (Political Science), to disburse the salary arrears to the tune of Rs.11,14,191/- to which the petitioner is entitled consequent to the order issued by the Regional Deputy Director granting approval to his appointment with effect from 30.08.2013. It is in the above backdrop that this writ petition is filed seeking the following reliefs.

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i) To issue a writ of certiorari calling for the records leading to Exhibit P11 proceedings of the Sub Treasury Officer, Perambra and to quash the same;

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ii) To issue a writ of mandamus or any other appropriate writ, order or direction, directing respondents 1, 4 and 5 to disburse the arrears of salary to the tune of Rs 11,14.191/ to the petitioner for the period from 1.09.2013 to 31.01.2016 in accordance with Exhibit P9 proceedings dated 16.04.2022 issued by the Principal with immediate effect;

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iii) To declare that the petitioner is entitled to get his arrears of salary for the period from 1.09.2013 to 31.01.2016 at the

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earliest;

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iv) that Exhibit P12 circular dated 27.1.2021 shall not apply to the case of the petitioner as the same refers to the approval of the appointment of the teachers in accordance with G.O.(P) No 29/2016;

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The sequence of events that led to the issuance of the order of

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approval is not of much relevance for the consideration of the relief sought in this writ petition. However, it needs mention that Exhibit P8 order of approval

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issued by the RDD was consequent to the directions issued by this Court in

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Exhibit P7 judgment. While disposing of the matter, this Court, by judgment dated 09.03.2021, had directed the RDD, Kozhikode, to take up the proposal for approval of the appointment of the petitioner with effect from 30.08.2013 and had also ordered to disburse all the consequent benefits including salary.

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In tune with the directions issued by this Court, Exhibit P8 proceeding dated 04.08.2021 was issued by the Regional Deputy Director granting approval as ordered. On its basis, sanction was accorded by the Principal of the school by issuing Exhibit P9 order to disburse salary for the period that the petitioner

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had actually worked from 01.09.2013 to 31.01.2016 as HSST (Political Science). This request has been refused by the Sub Treasury Officer as per the impugned order by stating that the salary arrears of the petitioner, which

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was approved by the RDD, would have to be credited to the Provident Fund Account in accordance with Circular No.7/2021/Fin. dated 27.01.2021.

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A counter affidavit has been filed by the 1st respondent. It is

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stated that under Article 309 of the Constitution of India, the State Government is empowered to formulate its policies on regulating the pay of all sections of employees under its administrative control, taking into account the Socio-Economic affairs of the State. It is stated that though the appointment of the aided school employees is made by the Manager, the financial commitment on account of salary, pay revision, and pension of the

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non-teaching staff is borne by the State. The aided educational sector constitutes about 7000 institutions around the State, and as payments are made through the Direct Payment System, the entire exercise exerts tremendous strain on State finances. The Government has therefore issued instructions in the form of Circular No.7/2021/Fin. dated 27.01.2021 to the effect that in case of grant of approval of appointments which are initially rejected and which are approved subsequently with retrospective effect, then the arrears of salary accruing from the date of approval till the date of order

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of approval has to be credited to the Provident Fund account of the incumbent for a period of five years. It is further stated that the above order

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came to be issued when it came to the notice of the Government that several cases of appointments in aided schools were being approved retrospectively. It is stated that the condition of depositing arrears of salary was in existence in G.O.(P) No.10/10/G.Edn. dated 12.01.2010 and in G.O.(P) No.29/2016/G.Edn. dated 29.01.2016. It has been stated in the above Government Orders that if approval has been granted in the light of the Government Orders, arrears of the salary of those incumbents will be deposited in the Provident Fund Account for the time stipulated therein. It was on humanitarian considerations that the Government issued Exhibits R1(a), R1(b), and R1(c), based on which teachers have been granted retrospective approval. It was in the said circumstances that the Government has come up with Circular No. 7/2021/Fin. dated 27.01.2021, by which it was decided not to pay the arrears of salary in lumpsum but instead, to deposit arrears of salary in the Provident Fund account of staff of the Aided school for five years from the date on which order of approval is granted retrospectively. It is stated that the file relating to the above Circular has been circulated at all levels of the Government, and the Minister concerned has also seen and approved the same. Hence, the above Circular is applicable to all Aided school appointments whether regularized by G.O.(P.)

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No.29/2016/G.Edn. dated 29.01.2016 or otherwise. It is also stated that the Government has not denied the approval of the appointment of the incumbents issued by virtue of Government Orders. However, instructions have been given only to deposit the arrears in their own Provident Fund account and to permit the same to be withdrawn after five years from the date of approval. As it is a policy matter, the Government is fully empowered

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to issue directions in the form of Circulars to credit all arrears to their Provident Fund Account. It is further stated that the Government has also come up with Exhibit R1(d) letter, wherein it has been clarified that Circular dated 27.01.2021 would be applicable to all Government orders issued from

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the General Education Department from time to time, including those covered under G.O.(P.) No.29/2016/G.Edn. dated 29.01.2016. It is further stated that G.O.(P.) No.29/2016/G.Edn. dated 29.01.2016 is applicable to the petitioner, and the Circular dated 27.01.2021 is concerned with the approval

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of the appointment of non-teaching staff as well. It is also stated that the Circular is not a clarification of any Government Order, and it is having independent existence.

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In the counter affidavit filed by the 2nd respondent, it is stated that in terms of Rule 10(5) of Chapter XXX of the Kerala Education Rules,

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1959, the Government is well within its powers to direct that the whole or any part of the arrears of pay or allowances or both payable to a subscriber under a scheme or a revision of pay or allowances shall be credited to the Fund and every subscriber is bound to comply with the said order. It is further stated that in terms of Section 12 of the Kerala Education Act, the Government is conferred with the power and authority to issue orders, if necessary, relating to teachers of Aided Schools, and they are bound to obey such orders. After reiterating the contentions raised by the 1st respondent in their counter, it is stated that unless the Government fixes a cut-off date for the grant of financial benefits, it would result in serious economic repercussions to the Government. It is stated that all arrears, including pay revision arrears of State Government employees, which are due from 01.07.2019, has been deferred till 2023, and Dearness Allowance Arrears are credited to the PF Account of the employees, and a time limit has been set for its withdrawal. The arrears are not withheld or deferred but are being credited to their own PF Account. The teachers will obtain interest till the time of withdrawal of the amount.

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Sri. K.R. Ganesh, the learned counsel appearing for the petitioner, submitted that it was after a series of litigations that this Court, by

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Ext.P7 judgment, had ordered the RDD to take up the proposal for approval of the appointment of the petitioner with effect from 30.08.2013 and it was further ordered that all benefits, including salary and emoluments, to which the petitioner is entitled to, were to be disbursed to him within a time frame. In terms of the directions so issued, Ext.P8 order was issued by the RDD granting approval with effect from 30.08.2013 to the post of HSST (Political Science). It was on the strength of the said order that Ext.P9 proceedings were issued by the Principal of the School, granted sanction to disburse a sum of Rs.11,14,191/- to the petitioner, being the arrears for the period from 01.09.2013 to 31.01.2016. The action of the Sub Treasury Officer in refusing to credit the amount relying on Ext.P12 Government Circular is clearly illegal and is intended to overreach the directions issued by this Court, contends the learned counsel. It is further submitted that Ext.P12 Circular is applicable only to those teachers whose appointments have been approved on the strength of G.O. (P) No.29/2016/G.Edn. dated 29.01.2016. According to the learned counsel, G.O.(P) No. 29/2016 happened to be issued pursuant to the directions issued by this Court in W.P.(C.) No.19008/2013, which writ petition was filed challenging various Circulars and Orders issued by the Government after withdrawing the Teachers’ package, which was put in place by G.O.(P)

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W.P.(C)No. 17115 of 2022

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No.199/2011 dated 01.10.2011. The learned counsel would then refer to G.O.(P) No.29/2016 and specifically to Direction No. II, and it is pointed out that the said order concerns teachers who were appointed in substantive vacancies during the academic year 2011-2012 and who fulfill the criteria stated therein. It is only in respect of those teachers for whom approval was granted in terms of Direction No. II (2) and (3), that it was ordered in clause

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(6) that the salary arrears and allowances are to be deposited in the Provident Fund Account. It was also ordered that the amount could be withdrawn from the account only after the financial year 2020-2021. The learned counsel points out that the approval of the appointment of the petitioner not having been granted in terms of G.O.(P.) No.29/2016, the respondents were not justified in refusing to disburse the arrears. The learned counsel would then contend that a Division Bench of this Court in

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State of Kerala v. Daisy¹ , wherein it was held that teachers are entitled to be paid salary from the date of creation of the post, and it would not be proper and fair on the part of the Government, that too, after extracting service from the appointees, to refuse salary for the work done or to defer the same. This, according to the learned counsel, would be violative of Article

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1 [ILR 2006 (4) Ker. 772]

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14 of the Constitution of India. The learned counsel would further contend that in similar circumstances, a learned Single Judge of this Court, by judgment dated 04.08.2021 in W.P.(C) No.8725/2021, had occasion to direct the disbursement of salary and other allowances after accepting the contention of the petitioner therein, that Ext.P12 Circular was applicable only to those appointees who were granted approval on the strength of G.O.(P) No.29/2016. The learned counsel would then rely on the law laid down in State of Kerala v. Ciji P Jose² , and it is argued that Ext.P12 Circular will not prevail over the statutory rules which provide that teachers are entitled to be paid salary from the creation of the post. Much reliance is also placed

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on Moosakutty v. DEO, Wandoor³ , and it is submitted that an executive order cannot go against or override the express statutory provisions. The learned counsel would finally urge that under Article 300A of the Constitution of India, no citizen can be deprived of his/her right to property except by authority of law, and as salary forms part of the property of an individual, such right cannot be taken away by an executive order. It is contended that any infringement of such right can be placed only by the authority of a duly

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2 [2015 (1) KLT 458]

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3 [2009 (3) KLT 863]

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enacted law either by the Parliament or by the State Legislature or by a Rule having a statutory flavor and not by a Circular issued by the executive.

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Smt. Nisha Bose, the learned Senior Government Pleader, would controvert the contentions advanced by the learned counsel. After reiterating the contentions in the counter affidavit filed by the respondents, the attention of this Court was drawn to Sections 9 and 12 of the Kerala Education Act, and it is submitted that the Government is well within its powers to prescribe the conditions of service of teachers in Aided Schools, including conditions relating to pay, pension, provident fund, insurance and age of retirement. Placing reliance on a judgment rendered by a learned Single Judge in the judgment dated 30.10.2018 in W.P.(C) No.28543/2016, it is submitted that this Court has held that it is for the Government to decide in what manner salary is to be paid in view of the larger power available with the Government under Section 9 of the Act. The learned Government Pleader would then rely on Sudheer v. State of Kerala⁴ , and it is argued that a Government Order issued in the name of the Governor can be clarified or modified by a Government letter. It is further submitted that Ext.P12 is issued by the Additional Secretary of the Finance Department, and in terms

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4 [2010 (1) KLT 25]

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of Rule 12 of the Rules of Business of the Government of Kerala, the said Officer can take a decision on behalf of the Government. According to the Government Pleader, deferment of salary is a matter concerning the economic policy of the Government, and huge liability would be incurred if arrears of salary is ordered to be paid. Reliance is placed on the judgment of the Apex Court in Peerless General Finance and Investment Co. Ltd &

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Anr. v. Reserve Bank of India⁵ , and it is argued that in the matters of economic policy, this Court should keep its hands and permit the policy to prevail over the rights of the individual.

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I have carefully considered the submissions advanced and have gone through the records made available.

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I find that it was in terms of the directions issued by this Court in Ext.P7 judgment that the proposal for approval of the petitioner as HSST (Political Science) was taken up by the RDD. This Court had directed the said authority to take up the proposal with effect from 30.08.2013 and take a decision. This Court had also ordered by judgment dated 09.03.2021 that all consequential benefits, including salary and emoluments, shall be paid without delay. In terms of the directions so issued, Ext.P8 order has been

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5 [(1992) 2 SCC 343]

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issued by the RDD granting approval with effect from 30.08.2013. Immediately thereafter, Ext.P9 proceedings have been issued by the Principal granting sanction to disburse Rs. 11,14,191/- towards arrears for the period from 01.09.2013 to 31.01.2016. However, the Sub Treasury Officer has

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issued Ext.P11 proceedings ordering that the salary arrears are to be credited

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to the Provident fund Account. Exhibit P11 proceeding reads as under:

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നിരാകരണ കു റി�്

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“RDD യുെട approval order തീയതി�ു മു�ു� കുടി�ിക PF അ�ൗ�ിേല�് മാേ��താണ്. (സർ�ാർ പരിപ�തം 7/21 dt. 27/1/21)

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കൂടുതൽ ��ഷ്ടീകരണ�ിനു േവ�ി �ടഷറി ഡിറ��േറ�ിേല�് കെ�ഴുതിയി�ു�്. മറുപടി അറിയി�ു�താണ്.”

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In Ext.P11 proceedings issued by the Sub Treasury Officer, it is

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mentioned that in tune with Circular No. 7/2021/Fin, the amount has to be credited to the PF account. Exhibit P12 Circular No. 7/21 dated 27/01/2022, referred to in Exhibit P11, reads as under:

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േകരള സർ�ാർ

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ധനകാര� (പി എഫ്) വകു�്

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തിരുവന�പുരം തീയതി: 27/01/2021

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ന�ർ.7/2021/ധന.

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വിഷയം:നിയമനാംഗീകാരം ലഭി� എയ്ഡഡ് സ്കൂള�കളിെല അ��ാപക/അന��ാപക ജീവന�ാരുെട ശ�ള കുടി�ിക നിലവിലുളള പി എഫ് അ�ൗ�ുകളിൽ ലയി�ി�ു�ത് - സംബ�ി�്.

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സൂചന :- 1. സ.ഉ (പി) നം. 10/2010/െപാ വി വ തീയതി 12/01/2013 2. സ് ഉ (പി) നം.29/2016/െപാ വി വ തീയതി 29/01/2016 3. പരിപ�തം നം.06/2018/ധന തീയതി 10/01/2018

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സൂചന 2 �പകാരം നിയമനാംഗീകാരം ലഭി� അ��ാപക അന��ാപക ജീവന�ാരിൽ െപൻ ഷൻ പ�ിേ�ായവർ പി എഫ് അംഗത�ം നിർബ�മ�ാ�വർ എ�ിവെരാഴി��വരുെട മുൻകാല ശ�ള കുടി�ിക ആയതിെല ഖ�ിക | (6) െല വ�വ�കൾ�് വിേധയമായി നിലവിലുളള പി എഫ് അ�ൗ�ിേല�് നിേ�പിേ��താെണ�് സൂചന 3 �പകാരം വ�വ� െചയ്തിരു�ു. എ�ാൽ എയ്ഡഡ് സ്കൂള�കളിെല അംഗീകാരം ലഭി�ാതിരു� മുൻകാല നിയമന�ളിൽ പി�ീട് അംഗീകാരം ലഭി�ു� സാഹചര��ിൽ ശ�ള കുടി�ിക ഇന�ിൽ വരു� തുക ജീവന�ാർ�് േനരി�് നൽകണെമ�് ആവശ�െ��െകാ�് വിവിധ തല�ളിൽ നി�ു� അേപ�കൾ സർ�ാരിന് വീ�ും ലഭി�� വരു�തായി കാണു�ു.

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ധനകാര� വകു�് ടി വിഷയം വിശദമായി പരിേശാധി�ുകയും എയ്ഡഡ് സ്കൂള�കളിെല അംഗീകാരം ലഭി�ാതിരു� മുൻകാല നിയമന�ളിൽ പി�ീട് അംഗീകാരം ലഭി�ു� സാഹചര��ിൽ ടി കാലയളവിെല ശ�ള കുടി�ിക നിർബ�മായും അവരുെട പി എഫ് അ�ൗ�ിേല�് നിേ�പിേ��താെണ�ും ടി തുക ജീവന�ാർ�് നിയമനാംഗീകാരം നൽകിയ ഉ�രവിെ� തീയതി മുതൽ 5 വർഷം കഴി�ു മാ�തേമ പിൻവലി�ാൻ കഴിയുകയു�� എ�ും നിഷ്കർഷി�ു�ു. എ�ാൽ ടി വർഷ കാലയളവിനു�ിൽ സർ�ീസിൽ നി�് പിരി�ു േപാകു�വർ �ം' പി എഫ് അംഗത�ം നിർബ�മി�ാ�വർ�ും നിലവിൽ പി എഫ് ഇ�ാ� പാർ�് ൈടം ടീ�ർ മാർ�ും ശ�ള കുടി�ിക അവരുെട ബാ�് �ടഷറി അ�ൗ�ിേല�് മാ�ി നൽകാവു�താണ്. ടി വിഷയ�ിൽ മുൻപ് തീർ�ാ�ിയ അേപ�കൾ പുന:പരിേശാധിേ��തി�.

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In Exhibit P12, after referring to G.O.(P) No. 29/2016, it is stated

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that in case of grant of approval being granted to aided school

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teachers/non-teaching staff with retrospective dates, the salary arrears for

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the period has to be deposited in their PF Account and the amount can be

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withdrawn only after 5 years from the date of the order granting approval.

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In this context, it would be relevant to note the context under which G.O.(P) No.29/2016 happened to be issued. In the year 2005, the Government in continuation to the earlier orders had ordered that the restriction on appointment on additional vacancies in Aided Schools shall continue from 2006-2007 onwards. However, in spite of the orders of the ban on appointments issued as above, some of the Aided School Managers appointed teachers and non-teaching staff in additional division vacancies. The Government by G.O.(P). No.10/10/G.Edn. dated 12.01.2010 lifted the ban and permitted approval on conditions. Appointments made during the ban period were permitted to be approved provided they were in accordance with KER and on condition of the Managers of such schools appointing one protected teacher as against each such appointment approved. It also provided for all future appointments to be on a ratio of 1:1, by direct recruitment and by appointment of a protected teacher. The challenges made in respect of some of the conditions were laid to rest by a Division Bench of this Court in Nair Service Society v. Government of Kerala⁶ .

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While so, the Government, taking note of the large number of

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6 [2015 (2) KHC 725 (DB)]

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litigations concerning approval and staff fixation orders, wanted to fix the anomaly and rectify the sad plight faced by the teachers. The Government came out with G.O.(P) No.199/2011/G.Edn. dated 01.10.2011 with the avowed objective of rectifying the anomalies. A Teacher’s Package was put in place as per which aggrieved teachers could be given regular appointments by ensuring that the pupil-teacher ratio was as per the norms prescribed under the Right of Children to Free and Compulsory Education Act, 2009, and the Rules framed thereunder. The Government Orders were challenged before this Court, and a learned Single Judge took the view that the orders issued were beyond the executive powers of the Government. It appears that the Government accepted the observations and findings and brought out certain amendments to the KER itself. This action of the Government was challenged before this Court in W.P.(C) No.19008/2013. A Division Bench of this Court, after a meticulous analysis of the events which led to the amendment, disposed of the matter by issuing certain directions. It is in terms of the directions issued by this Court that G.O.(P) No. 29/2016 dated 29.1.2016 was issued by the Government. Direction No. II of G.O.(P) No. 29/2016 deals with staff fixation and grant of approval. Clauses (1), (2), (3), and (6) of Direction No.II is of some relevance, and the same is extracted

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herein below for easy reference.

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II. ത�ിക� നിർ�യം, നിയമനാംഗീകാരം

¶120

(1) ത��ിക നിർ�യം, നിയമനാംഗീകാരം എ�ിവ ബഹു . ൈഹേ�ാടതി വിധി അനുസരി�ു താെഴ�റയു� ഖ�ികകളിെല നിർേ�ശ�ളുെട അടി�ാന�ിൽ നടേ��താണ്.

¶121

(2) 2011 -12 വർഷം രാജി, മരണം, റി�യർെമന്റ്, െ�പാേമാഷൻ, �ലമാ�ം എ�ീ ഒഴിവുകളിൽ നിയമി�െ��വർ�ു എൽ.പി യിൽ 1:30 ഉം യു ;പിയിൽ 1:35 ഉം ൈഹ��ൂളിൽ 1:45 ഉം അനുപാതമനുസരി�ു ത��ികകൾ ലഭ�മാെണ�ിൽ അംഗീകാരം നൽകാം. 2012-13, 2013-14, 2014-15, 2015-16 വർഷ�ളിൽ നട�ിയ നിയമന�ൾ�് േകാടതി വിധി�ു അനുസൃതമായി (1 മുതൽ 5 വെര �ാ�ുകൾ�് 1:30, 6 മുതൽ 8 വെര �ാ�ുകൾ�് 1:35, 9,10 �ാ�ുകളിൽ 1:45 എ� മുറയ്�് അംഗീകാരം നൽേക�താണ്.

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(3) 2011-12 വർഷം അധിക ത��ികകളിൽ നിയമി�െ��വർ�ു െക.ഇ.ആർ വ�വ� �പകാരം 1:45 അനുപാത�ിൽ കു�ികൾ ലഭ�മാെണ�ിൽ മാ�തേമ അംഗീകാരം നൽേക�തു�ൂ . പി�ീടു� വർഷ�ളിൽ േകാടതി വിധി�ു അനുസൃതമായി(1 മുതൽ 5 വെര �ാ�ുകൾ�് 1:30, 6 മുതൽ 8 വെര �ാ�ുകൾ�് 1:35, 9, 10 �ാ�ുകളിൽ 1:45 എ� മുറയ്�്) അംഗീകാരം നൽേക�താണ്. 2015 -16 മുതൽ അധിക ത��ികകൾ�് െക.ഇ.ആർ അധ�ായം XXIII ച�ം 12 ൽ വരു�ിയ േഭദഗതി അനുസരി�ു ത��ിക നിർ�യ തീയതി മുതൽ മാ�തേമ �പാബല�ം ഉ�ായിരി�ുകയു�ൂ . അധിക ത��ികകൾ അനുവദി�ു�തിന് േകരളാ വിദ�ാഭ�ാസ ച��ളിൽ നി��ർഷി�ു� ഭൗതിക സാഹചര��ൾ ഉെ��ു AEO/DEO മാർ ഉറ�ു വരുേ��താണ്.

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XXXXX XXXXXX

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XXXXX

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(6) അധ�ാപകർ�് േമൽ ഉപ ഖ�ിക (2), (3) എ�ിവ �പകാരം അംഗീകാരം നൽകുേ�ാൾ ഈ ഉ�രവ് തീയതി വെരയു� ശ�ളവും അലവൻസുകളും അവരുെട േ�പാവിഡന്റ് ഫ�് ആരംഭിയ്�ു� മുറയ്�് അതിൽ നിേ�പി�ു�താണ്. ഇ�പകാരം േ�പാവിഡന്റ് ഫ�ിൽ നിേ�പി�ു� തുകയിൽ നി�് അഡ�ാൻസ് തുക പിൻവലി�ു�തിന് 2020-21 നു േശഷം മാ�തേമ അനുവദി�ാവൂ .

¶128

What is stated in the above Government Order is that in the case of those vacancies that arose during the academic year 2011-2012 consequent to resignation, death, retirement, promotion, and transfer, approval can be granted on posts being available by maintaining a teacher-pupil ratio 1:30 for the LP Section, 1:35 for UP Section and 1:45 for the High School Section. It is also mentioned that insofar as appointments that were effected during 2012-2013, 2013-2014, 2014-2015, and 2015-2016 are concerned, approval can be granted by ensuring that the above teacher-pupil ratio is maintained and available. In clause (6), it is mentioned that in respect of those teachers who are covered under clauses (2) and (3), salary and other allowances are to be deposited as and when their respective Provident Fund Account is opened, and the same can only be withdrawn after 2020-2021.

¶129

Circular No. 6/2018/Fin. dated 10.1.2018, which is also referred

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to in Ext.P12 Circular, provides that the implications of G.O.(P) No. 29/2016

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would not be applicable to teachers/non-teaching staff, who have already attained pensionable age/and are not liable to be included in the Provident Fund. A careful reading of G.O.(P) No.29/2016 and Circular No. 6/2018 would make it emphatically clear that the Government Order is applicable only to the specific category of appointees covered under Direction No. (II) (2) and (3) of G.O.(P) No.29/2016.

¶134

Now the question is whether the Government, by means of a Circular issued by an Additional Secretary of the Finance Department, could have provided for the deferment of salaries and other allowances without recourse to law. In this context, it would be relevant to note that as per Section 9 of the Kerala Education Act, the Government is required to pay the

¶135

salary of all teachers in Aided Schools directly or through the Headmaster of the school. The said provision also provides that the salary of the persons appointed in the non-teaching establishments in accordance with the rules so prescribed shall be paid by the Government. Section 12 of the Act provides that 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. As per

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the Kerala Financial Code Vol.I, Chapter-IV, the salary of employees, including Full-Time and Part-Time Contingent Employees and establishment staff for a month, will be disbursed during the first three working days of the succeeding month according to the schedule prescribed therein. In the case on hand, the RDD had issued orders for approval of the appointment of the petitioner with effect from 30.08.2013. It is undisputed that the petitioner had been working as HSST (Political Science) from the day on which approval has been granted.

¶139

This Court, in Sunil John Mathew v. Lency K.L.⁷ , has held that a Circular issued by the General Education Department cannot interpret the order issued by the Government invoking its executive powers. It was further held that the Circular can, at best, be considered as an understanding of the officer in the General Education Department, and it would not inure to the benefit of the Government.

¶140

G.O.(P) No. 29/2016 was issued by the Government in the name of the Governor to comply with the directions issued by this Court in W.P.(C) No.19008/2013. The said Government Order, while granting approval to a certain category of teachers, had also imposed certain conditions with regard

¶141

7 [2019 KHC 3534]

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to the deposit of arrears of salary in the Provident Fund Account of the teacher concerned. The petitioner herein, admittedly, is not covered under the Government Order, and his approval was not granted on the strength of the same. The impugned Circular issued by the Additional Secretary travels much beyond the scope of the Original Government Order and imposes restrictions which were not even been contemplated by the Government. In other words, the Circular issued by the Additional Secretary imposes restrictions on the payment of salary and other allowances, to which a teacher like the petitioner is entitled, in terms of the provisions of the Kerala Education Act and the Rules framed thereunder, on being granted approval. The said right cannot be curtained, cabined, or limited by a Circular issued by a Secretary by riding on a Government order, which is intended to apply to appointees falling in a different category.

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Smt. Nisha Bose, the learned Government Pleader, would argue

¶146

by relying on Sudheer C.B. v. State of Kerala⁸ that an Additional Secretary can take a decision on behalf of the Government, and according to her, a Government Order issued in the name of the Governor can be clarified

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or modified by a Government letter. As per the provisions of the Act and the

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8 [2010 (1) KHC 39]

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Rules and also the Kerala Financial Code, the petitioner is entitled to salary from the date of grant of approval. As held by this Court in Daisy (supra), it is not proper and fair on the part of the respondents to refuse the disbursal of the salary due to the teacher after extracting service from him, be it on account of financial constraints or any other reason.

¶152

The petitioner has raised a contention that the withholding of salary for the period he had worked would be violative of the rights guaranteed to him under Articles 21 and 300-A of the Constitution of India. In Dinavahi Lakshmi Kameshwari v. State of Andhra Pradesh⁹ , the question before the Division Bench of the High Court of Andhra Pradesh was whether deferment of part of salary to the Government servants for the months of March and April 2020 and deferment of part of the pension to the retired Government servants for the month of March 2020, is permitted by any authority of law and whether it would be violative of Articles 21 and 300-A of the Constitution of India. The State, faced with the economic consequences of the lockdown and the cessation of revenue inflows, and the extra burden imposed on the State resources, had ordered the deferment of salaries/wages/remuneration/honorarium/pension by following a pattern.

¶153

9 [2020 SCC Online AP 600]

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While ordering to pay the deferred salary/pension and other emoluments

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with interest @ 12% per annum, it was observed as follows in paragraph

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Nos. 42 to 45 and 48 to 60 of the judgment:

¶159

The word ‘salary’ is not defined in any enactment, but salary is a fixed regular payment, typically paid on a monthly basis but often expressed as an annual sum, made by an employer to an employee. Thus, salary is a form of payment from an employer to an employee, which may be specified in an employment contract. It is contrasted with piece wages, where each job, hour, or other unit is paid separately, rather than on a periodic basis. In accounting, salaries are recorded on payroll accounts. Though the word ‘salary’ was not specifically defined under any statute, the Court may fall back on the law laid down by the Apex Court in various judgments and dictionary meaning of salary.

¶160

According to Cambridge dictionary, “salary” is defined as the total amount of money that an employee is paid every year to do their job, or one of the payments they receive each month as part of the job.

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In Collins dictionary, “salary” is the money that someone is paid each month by their employer.

¶162

The word ‘property’ is inclusive of both movable and immovable property, both pension and salary payable to an employee can be said to be part of the property, as held by the Apex Court in Madhav Rao Scindia v. Union of India17, where the Apex Court opined that that Prievy Purse payable to ex-rulers is property. In K. Nagraj v. State of A.P (AIR 1985 SC 553), Apex Court opined that right of person to his livelihood is property which is subject to rules of retirement. In State of Kerala v. Padmanabhan (AIR 1985 SC 356) the Apex Court opined that right of pension is property under the Government service Rules, In Madhav Rao Scindia v. State of M.P (AIR 1971 SC 530) and State of M.P. v. Ranojirao (AIR 1968 SC 1053) the Apex Court opined that property in the context of Article

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300-A includes ‘money’, salary accrued pension, and cash grants annually payable by the Government; pension due under Government Service Rules; a right to bonus and other sums due to employees under statute.

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xxxxxxx xxxxxxxx xxxxxxx xxxxxxxx

¶167

Payment of salary or pension to the employees is only to eke out their livelihood during their service by way of salary and after retirement by way of pension. If, whole or part of the salary or pension is deferred, it amounts to denial of right to life guaranteed under Article 21 of the Constitution of India. Initially, right to livelihood was not recognized as fundamental right under Article 21 of the Constitution of India. But, later it was recognized as Fundamental Right by judicial interpretation to Article 21 of the Constitution of India.

¶168

Article 21 of the Constitution of India guarantees right to life. The right to life includes the right to livelihood. Time and again the Courts in India held that Article 21 is one of the great silences of the Constitution. The right to livelihood cannot be subjected to individual fancies of the persons in authority. The sweep of the right to life conferred by Article 21 is wide and far reaching. An important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation.

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In Re: Sant Ram (AIR 1960 SC 932) a case which arose before “Maneka Gandhi v. Union of India” (AIR 1978 SC 597), the Supreme Court ruled that the right to livelihood would not fall within the expression “life” in Article 21. The Court observed:

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“The argument that the word “life” in Article 21 of the Constitution includes “livelihood” has only to be rejected. The question of livelihood has not in terms been dealt with

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by Article 21.”

¶174

In “Olga Tellis v. Bombay Municipal Corporation24” the Apex Court held as follows:

¶175

“If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21.”

¶176

The right to live with human dignity, free from exploitation is enshrined in Article 21 and derives its life breadth from the Directive Principles of State Policy and particularly Clauses (e) and (f) of Article 39 and Articles 41 and 42 and at least, therefore, it must include the right to live with human dignity, the right to take any action which will deprive a person of enjoyment of basic right to live with dignity as an integral part of the constitutional right guaranteed under Article 21 of the Constitution of India.

¶177

In “Delhi Transport Corporation v. D.T.C. Mazdoor Congress25”, the Supreme Court while reiterating the principle observed that the right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. Income is the foundation of many fundamental rights. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them.

¶178

The Apex Court in various judgments interpreted the right to livelihood is a part of right to life under Article 21 of the Constitution of India and it is relevant to refer the principle in “M. Paul Anthony v. Bharat Gold Mines Limited26, the Apex Court held

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that when a government servant or one in a public undertaking is suspended pending a departmental disciplinary inquiry against him, subsistence allowance must be paid to him. The Court has emphasized that a government servant does not loose his right to life. However, if a person is deprived of such a right according to the procedure established by law which must be fair, just and reasonable and which is in the larger interest of people, the plea of deprivation of the right to livelihood under Article 21 is unsustainable.

¶182

Thus, in view of the law laid down by the Apex Court in various judgments (referred supra), widening the meaning of word ‘right to life’ includes ‘right to livelihood’, right to livelihood is a fundamental right, and it is an integral part of right to life guaranteed under Article 21 of the Constitution of India. Therefore, non-payment of part of eligible salary and pension to the employees in service and to the employees retired from service by issuing G.O. Ms. No. 26 dated 31.03.2020 and G.O. Ms. No. 37 dated 26.04.2020 is violative of Article 21 of the Constitution of India.

¶183

The major contention of the petitioner from the beginning is that, deferment of part of salary and non-payment of pension as stated above, is contravention of Article 300 of the Constitution of India. No doubt, as per Article 300-A of the Constitution of India, no citizen of India be deprived of his/her right to property, except by authority of law. As salary and pension form part of property of an individual to attract Article 300-A of the Constitution of India, such right cannot be taken away except by authority of law.

¶184

On a bare look at Article 300-A of the Constitution of India, any citizen of India cannot be deprived of their right to property, except by authority under law. That means a property of any citizen of India cannot be taken unless the State is authorized to do so. In Shapoor M. Mehra v. Allahabad Bank (2013) 3 Mah LJ 126, wherein Bombay High Court opined that retiral benefits including pension and gratuity constitute a valuable right in property.

¶185

In Deoki N andan Prasad v. State of Bihar (1971) 2 SCC 330, the

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Apex Court held as follows:

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“(i) The right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no powers to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by sub-article (5) of Article 19. Therefore, it follows that the order denying the petitioner right to receive pension affects the fundamental right of the petitioner under Article 19(1)(f) and 31(1) of the Constitution and as such the writ petition under Article 32 is maintainable.”

¶190

(ii) In the light of aforesaid legal position, it is crystal clear that right to get the aforesaid benefits is constitutional right. Gratuity or retiral dues can be withheld or reduced only as per provision made under M.P. Civil Services (Pension) Rules, 1976. In the present case, there is no material on record to show that respondents have taken any action in invoking the said rules to stop or withhold gratuity or other dues…”

¶191

Thus, both salary and pension payable to the employees in service or retired from service falls within the definition of property under Article 300-A of the Constitution of India.

¶192

Though the Constitution of India permits the State to deprive any person's right in property by authority of law, the respondents were unable to show any provision which authorized the State to defer payment of part of salary/pension to the employees in service or retired from service. In the absence of any statute governing deferment of salary or pension, deprivation of right to property by employees in service or retired employees would amount to violation of constitutional right guaranteed under Article 300-A of the Constitution of India.

¶193

Their Lordships held that the non-payment of the part of eligible

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salary and pension to the employees in service and to the employees retired from service by issuing Government Orders would be violative of Article 21 of the Constitution of India. It was also held that under Article 300-A of the Constitution of India, no citizen of India be deprived of his/her right to property, except by authority of law. As salary forms part of the property of an individual to attract Article 300-A of the Constitution of India, such right cannot be taken away except by authority of law. By issuance of a mere executive order, the State had no powers to withhold the same. The Apex Court in Bishambhar Dayal Chandra Mohan v. State of Uttar Pradesh¹⁰ , while deciding the issue with reference to Article 300-A of the Constitution of India, defined the word “authority of law,” and it was held that Article 300-A provides that no person shall be deprived of his property

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save by authority of law. The State Government cannot, while taking recourse to the executive power of the State under Article 162, deprive a person of his property. Such power can be exercised only by the authority of law and not by a mere executive fiat or order. Article 162, as is clear from the opening words, is subject to other provisions of the Constitution. It is, therefore, necessarily subject to Article 300-A. The word ‘law’ in the context

¶198

10 [AIR 1982 SC 33]

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of Article 300-A must mean an Act of Parliament or of a State Legislature, a rule, or a statutory order; having the force of law, that is, positive or State-made law. The respondents have not been able to refer to any law enacted by the legislature enabling them to defer the salary of the petitioner or to credit the same to the PF Account and permitting him to obtain the same only after five years.

¶202

The above judgment rendered by the High Court was taken up in appeal before the Hon’ble Supreme Court by the State. In State of Andhra Pradesh and Another v. Smt. Dinavahi Lakshmi Kameswari (Judgment 08.02.2021 in Civil Appeal No. 399/2021), the Apex Court, while dismissing the appeal observed as follows in paragraph Nos. 14 and 15 of the judgment.

¶203

The direction for the payment of the deferred portions of the salaries and pensions is unexceptionable. Salaries are due to the employees of the State for services rendered. Salaries in other words constitute the rightful entitlement of the employees and are payable in accordance with law. Likewise, it is well settled that the payment of pension is for years of past service rendered by the pensioners to the State. Pensions are hence a matter of a rightful entitlement recognised by the applicable rules and regulations which govern the service of the employees of the State. The State Government has complied with the directions of this Court for the payment of the outstanding dues in two tranches. Insofar as the interest is concerned, we are of the view that

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the rate of 12% per annum which has been fixed by the High Court should be suitably scaled down. While learned counsel for the respondents submits that the award of interest was on account of the action of the Government which was contrary to law, we are of the view that the payment of interest cannot be used as a means to penalize the State Government. There can be no gainsaying the fact that the Government which has delayed the payment of salaries and pensions should be directed to pay interest at an appropriate rate.

¶207

We accordingly order and direct that in substitution of the interest rate of 12% per annum which has been awarded by the High Court, the Government of Andhra Pradesh shall pay simple interest computed at the rate of 6% per annum on account of deferred salaries and pensions within a period of thirty days from today. This direction shall, however in the facts and circumstances, be confined to categories 3, 4, 5 and 6 of GOMs No 26 dated 31 March 2020. We clarify that interest shall be paid to all pensioners of the State at the rate of 6% per annum on the deferred portion, for the period of delay. Having regard to the prevailing bank interest, the rate of 12% per annum which has been fixed by the High Court, would need to be and is accordingly reduced.

¶208

The Hon’ble Supreme Court refused to interfere with the

¶209

well-reasoned and erudite judgment rendered by the Division Bench of the High Court of Andhra Pradesh. I am of the view that the findings and observations would equally apply in the facts and circumstances of the instant case.

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I find that a learned Single Judge of this Court by Ext.P13

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judgment had occasion to direct the respondents to disburse the salary and other allowance after accepting the contention of the petitioner therein that Ext.P12 circular would apply only to those persons who were granted approval on the strength of G.O.(P) No. 29/2016. Furthermore, by Ext.P7 judgment dated 09.03.2021, this Court had directed the RDD, Kozhikode, to take up the proposal for approval of the appointment of the petitioner with effect from 30.08.2013 and had also ordered to disburse all the consequent benefits, including salary.

¶214

I fail to understand the reasoning behind the contention in the counter affidavit filed by the respondents that the arrears are not withheld or deferred but are being credited to their own PF Account and that the teachers would obtain interest for the same and therefore, the grievances projected by them have no basis. The specific case of the petitioner in the instant case is that being qualified to be appointed as HSST (Political Science), the petitioner had been taking classes from the academic year 2011-2012. The post was sanctioned by the Government by Exhibit P2 order dated 15.07.2013. Finally, it was by Exhibit P8 that approval was finally granted with effect from 30.08.2013. The sanctioning order issued by the Principal of the School would reveal that the petitioner had actually rendered

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service from 01.09.2013 onwards, and approval was only granted on 04.08.2021. It would seem that the respondents have not contemplated how difficult and tough it would have been for the petitioner to work almost eight years without pay. The learned counsel for the petitioner has stated that the petitioner is 44 years old and has a family to provide for. For teachers like the petitioner, who have families to support and other fixed costs like rent, loan, or mortgage, going without pay can be extremely difficult. If teachers are made to work for many years without pay, it would be, without any doubt, quite disheartening for them. The teachers’ morale and drive would plummet, and this would reflect in his/her classroom performance. He or she will be under a lot of pressure, worrying about where and when they will get the money to take care of their family. It will be an uphill battle for the teacher to provide for his/her family throughout his/her life, and he/she won't be able to afford medical treatment or insurance during his/her prime earning years. Such a stressful life can also lead to mental and physical health issues. The respondents appear to have been oblivious to all these considerations when they came up with the impugned order.

¶218

In view of the discussion above, the petitioner is entitled to succeed. Exhibit P11 proceedings will stand quashed. There will be a

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direction to the respondents 1, 4, and 5 to disburse the arrears of salary to the tune of Rs.11,14,191/- to the petitioner for the period from 01.09.2013 to 31.01.2016 in accordance with Exhibit P9 proceedings dated 16.04.2022 issued by the Principal. Orders as directed above shall be passed expeditiously, in any event, within eight weeks from the date of receipt of a copy of this judgment. As the petitioner has not claimed any interest for the deferred payment, the matter is left at that.

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Resultantly, this writ petition will stand allowed.

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Sd/- RAJA VIJAYARAGHAVAN V, JUDGE

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PS /29/12/2022.

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W.P.(C)No. 17115 of 2022

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: 35 :

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APPENDIX OF WP(C) 17115/2022

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 PETITIONER’S EXHIBITS:

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`Exhibit P1`	`TRUE PHOTOCOPY OF THE` `G.O.(M.S)NO.167/11/G.EDN DATED 03/08/2011` `ISSUED BY THE GOVERNMENT SANCTIONING` `ADDITIONAL HUMANITIES BATCH FOR THE HIGHER` `SECONDARY SECTION IN THE 6TH RESPONDENT` `SCHOOL.`
`Exhibit P2`	`TRUE PHOTOCOPY OF THE` `G.O.(M.S)NO.211/2013/G.EDN DATED 15/07/2013` `ISSUED BY THE GOVERNMENT SANCTIONING THE POST` `OF HSST JUNIOR IN THE SUBJECT POLITICAL` `SCIENCE.`
`Exhibit P3`	`TRUE PHOTOCOPY OF THE APPOINTMENT ORDER DATED` `30/08/2013 ISSUED BY THE 6TH RESPONDENT` `APPOINTING THE PETITIONER AS HSST (POLITICAL` `SCIENCE).`
`Exhibit P4`	`TRUE PHOTOCOPY OF THE ORDER NO.A2/11812/2013` `DATED 03/05/2014 ISSUED BY THE 3RD RESPONDENT` `REGIONAL DEPUTY DIRECTOR.`
`Exhibit P5`	`TRUE PHOTOCOPY OF THE ORDER NO.A2/12972/2013` `DATED 14/05/2014 ISSUED BY THE 3RD RESPONDENT` `REJECTING THE APPOINTMENT OF THE PETITIONER` `AS HSST JUNIOR (POLITICAL SCIENCE).`
`Exhibit P6`	`TRUE PHOTOCOPY OF THE GOVERNMENT ORDER` `G.O.(RT) NO.4414/2017/G.EDN. DATED 16/11/2017` `ISSUED BY THE GOVERNMENT.`

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W.P.(C)No. 17115 of 2022

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`Exhibit P7`	`TRUE PHOTOCOPY OF THE COMMON JUDGMENT DATED` `09/03/2021 IN WP(C) NO.38737/2017 OF THIS` `HON'BLE COURT.`
`Exhibit P8`	`TRUE PHOTOCOPY OF THE ORDER DATED 04/08/2021` `ISSUED BY THE 3RD RESPONDENT APPROVING THE` `APPOINTMENT OF THE PETITIONER WITH EFFECT` `FROM 30/08/2013.`
`Exhibit P9`	`TRUE PHOTOCOPY OF THE PROCEEDINGS DATED` `16/04/2022 ISSUED BY THE PRINCIPAL TO THE 5TH` `RESPONDENT SUB TREASURY OFFICER, PERAMBRA.`
`Exhibit P10`	`TRUE PHOTOCOPY OF THE ORDER NO.A5/4910/14` `DATED 05/08/2021 ISSUED BY THE 3RD RESPONDENT` `REJECTING THE CLAIM OF THE PETITIONER.`
`Exhibit P11`	`TRUE PHOTOCOPY OF THE PROCEEDINGS DATED` `20/04/2022 ISSUED BY THE 5TH RESPONDENT SUB` `TREASURY OFFICER STATING THAT THE SALARY` `ARREARS OF THE PETITIONER, APPROVED BY THE` `3RD RESPONDENT REGIONAL DEPUTY DIRECTOR WOULD` `BE CREDITED IN HIS P.F.ACCOUNT IN ACCORDANCE` `WITH THE CIRCULAR NO.07/2021 DATED` `27/01/2021.`
`Exhibit P12`	`TRUE PHOTOCOPY OF THE CIRCULAR` `NO.07/2021/FIN. DATED 27/01/2021 ISSUED BY` `THE 1ST RESPONDENT.`
`Exhibit P13`	`TRUE PHOTOCOPY OF THE JUDGMENT DATED` `04/08/2021 IN WP(C) NO.8725/2021 OF THIS` `HON'BLE COURT.`
`RESPONDENT EXHIBITS`
`Exhibit R1(a)`	`True copy of the GO(P)No.4/2021 G.Edn Dated` `06-02-2021`

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W.P.(C)No. 17115 of 2022

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 Exhibit R1(b) True copy of the GO(P)No.3/2019-G.Edn Dated
 28-02-2019
 Exhibit R1(C) True copy of the Circular No J2/57/2019 Dated
 08-03-2019
 Exhibit R1(d) True copy of the Government Letter NO
 PF-1/37/2022-Fin (2124126)

Biju E. v. the State of Kerala

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Biju E. v. the State of Kerala

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