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IN THE HIGH COURT OF KERALA AT ERNAKULAM
ALEXANDER THOMAS, A. BADHARUDEEN, JJ.
State of Kerala, Rep. by its Secretary – Petitioner
Versus
P.V. Priya D/o Prabhakaran – Respondent
O.P. (KAT) No. 74 of 2021
Decided On : 28-06-2021
Constitution of India, 1950 – Article 226 & 227 - Post of HAS - scale of pay as Physical Education Teacher - As per impugned G.O.(Rt), to the extent it orders that original applicant is entitled for appointment only as Physical Education Teacher in High School Section in the scale of pay of Rs.6680-10780 instead of the scale of pay for the post of HSA of Rs.8390-13270 does not suffer from any illegality or arbitrariness, but that the consequential directions therein to the extent its orders that the original applicant should refund the entire excess amount paid on account of the earlier mistaken appointment, will be indeed unfair and inequitable and that such recovery of excess amounts was held to be illegal.
Finding of the court: Applicant has categorically and clearly disclosed all the details of her qualifications and work experience and if the authorities concerned had applied their mind, then the mistake as the one which occurred in Anx.A5, would not have happened. All throughout the applicant was under the bona- fide belief that it was a special benefit conferred in her favour by the exercise of discretion by the Government and that too, at the cabinet level and therefore, recovery of the said excess pay for the period prior to the impugned order will be harsh and iniquitous. However, we make it clear that the pay of the applicant will stand regulated on the basis of the impugned order with prospective effect. We make it clear that we are only affirming the directions and orders passed by the Tribunal especially in the matter of interdiction with the excess pay paid to applicant
Result: Petition dismissed
JUDGMENT :
ALEXANDER THOMAS, J.
1. The prayer in the afore captioned original petition filed under Articles 226 and 227 of the Constitution of India are as follows (See Page No. 12 of the paper book of this O.P.):
2. Heard Sri. B. Unnikrishna Kaimal, learned Government Pleader appearing for the petitioners herein (respondents in the O.A.) and Sri. T.T. Muhamood, learned counsel appearing for the respondent herein/original applicant in the O.A. before the Tribunal.
3. The prayers in the instant Ext.P-1 O.A. (Ekm) No. 1307/2017 filed before the KAT, Ernakulam, are as follows (See Page No. 26 of the paper book of this O.P.):
(ii) Issue a direction to the respondents to retain the applicant as HSA (physical education) in the scale of Rs. 8390-13270. (pre-revised)
(iii) Issue direction to the respondents to release the salary of the applicant in the scale of pay of HSA at the earliest.
(iv) Pass such other order or direction which this Hon’ble Tribunal may deem fit and proper to grant in the circumstances of the case.”
4. The Tribunal, after hearing both sides, has ultimately held that the reconsidered decision taken by the Government after the remit as per impugned Anx.A-12 G.O. (Rt) No. 3974/2017/G.Edn. dated 22.06.2017, to the extent it orders that the original applicant is entitled for appointment only as Physical Education Teacher in High School Section in the scale of pay of Rs. 6680-10780 instead of the scale of pay for the post of HSA of Rs. 8390-13270 does not suffer from any illegality or arbitrariness, but that the consequential directions therein to the extent its orders that the original applicant should refund the entire excess amount paid on account of the earlier mistaken appointment, will be indeed unfair and inequitable and that such recovery of excess amounts was held to be illegal. The petitioners herein (State Government and the departmental officials concerned) are not in any manner challenging the conclusive findings of the Tribunal to the extent it has upheld Anx.A-12 G.O. (Rt) No. 3974/2017/G.Edn. dated 22.06.2017, whereby it has been held that the applicant is entitled only for appointment in the lower scale of pay as Physical Education Teacher, but they are aggrieved by Ext.P5 final order of the Tribunal to the extent it has interdicted with steps proposed by them for recovery of the excess amount paid to the applicant.
5. The applicant is a sports person who was eligible to be considered for appointment in the Sports Quota in government services. She possesses the qualification of B.A. (Malayalam), MPED (Master of Physical Education), M.Phil. in Physical Education, National Institute of Sports (NIS) Diploma in Sports Coaching in Football and AFC (Ascian Football Confederation) A License. Pursuant to selection notification published in Gazette dated 06.09.2010 inviting applications for appointment to State service from outstanding sports persons, the applicant had applied for the post of Assistant, LDC and HSA in the above order of preference. After due process of selection, she was indeed selected and appointed as HSA as per Anx.A5 G.O. (MS) No. 134/2012/GAD dated 02.06.2012. The applicant was appointed against the supernumerary posts created for appointment of 45 candidates for the year 2009 and as per the above order, she was appointed to the post of HSA (Physical Education) in the scale of pay of Rs.8390-13270. Initially the appointing authority concerned (Deputy Director of Education, Kannur) had issued consequential proceedings at Anx.A6 dated 23.05.2013 appointing her to the post of Physical Education Teacher (High School), in the abovesaid scale of pay of Rs.8390-13270 at Government Vocational Higher Secondary School, Kannur, and sh
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