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IN THE HIGH COURT OF KERALA AT ERNAKULAM
RAJA VIJAYARAGHAVAN V., J.
Biju E. S/o Balan Nair – Petitioner
Versus
The State of Kerala – Respondent
W.P. (C) No. 17115 of 2022
Decided On : 05-01-2023
The court analyzed the Kerala Education Act and the Kerala Financial Code. The court referred to Section 9 of the Kerala Education Act, which requires the government to pay the salary of teachers in aided schools directly or through the Headmaster of the school. The court also referred to Section 12 of the Act, which empowers the government to prescribe the conditions of service of teachers in aided schools. The court further referred to the Kerala Financial Code, which provides for the disbursement of salary to employees. The court concluded that the petitioner was entitled to receive salary from the date of approval of his appointment in accordance with the provisions of the Act and the Code.
Fact of the Case:
The petitioner, a teacher, filed a writ petition seeking to quash the proceedings of the Sub Treasury Officer rejecting the request to disburse salary arrears. The petitioner had been appointed as HSST (Political Science) and was entitled to salary arrears. The Sub Treasury Officer refused to disburse the amount, stating that it should be credited to the Provident Fund Account as per a government circular. The petitioner challenged the circular and sought the disbursement of salary arrears.
Finding of the Court:
The court examined the relevant government orders and circulars and found that the circular relied upon by the Sub Treasury Officer was not applicable to the petitioner's case. The court held that the petitioner was entitled to receive salary arrears from the date of approval of his appointment. The court also referred to previous judgments that supported the payment of salary from the date of creation of the post. The court further held that the circular issued by the Additional Secretary of the Finance Department imposed restrictions on the payment of salary and allowances that were not contemplated by the government order. The court concluded that the circular was illegal and intended to overreach the directions issued by the court.
Ratio Decidendi: The court held that teachers are entitled to be paid salary from the date of creation of the post and that the government cannot withhold or defer salary for work done. The court also held that an executive order cannot override express statutory provisions. The court further held that the right to livelihood, including the right to receive salary, is a fundamental right protected under Article 21 of the Constitution of India. The court concluded that the circular issued by the Additional Secretary was illegal and violated the petitioner's constitutional rights.
Result: The court quashed the proceedings of the Sub Treasury Officer and directed the respondents to disburse the salary arrears to the petitioner in accordance with the order issued by the Principal. The court also allowed the writ petition and held that the petitioner was entitled to receive salary arrears from the date of approval of his appointment.
JUDGMENT :
1. 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:
(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.
(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 earliest.
(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.
2. The sequence of events that led to the issuance of the order of 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 issued by the RDD was consequent to the directions issued by this Court in 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. 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 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 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.
3. A counter affidavit has been filed by the 1st respondent. It is 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 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 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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