Salary for government employees is a property right protected under the Constitution, and cannot be deferred by executive orders without legislative authority.

JUDGMENT

These two writ petitions are connected and therefore, I am disposing of these two writ petitions by a common judgment. The prayers in these writ petitions are as follows:

W.P.(C) No. 18402 of 2021

“i. orders to set aside Ext.P4 circular to the extent to which it stands against disbursing arrear salary to the petitioner in cash.

ii. Orders declaring that the petitioner is entitled for arrear salary for the period from 01.06.2018 to 31.05.2021 to be paid in cash except the statutory deductions.

iii. issue a writ of mandamus commanding the 5th respondent to sanction the bill claiming arrear salary in respect of the petitioner without insisting for merging the entire salary and allowances into KASEPF account.

iv. Orders commanding the respondents No.1 to 5 to pay the interest @ 9% to the petitioner for delayed payment of Rs.1144980/-(Rupees eleven lakh forty four thousand nine hundred and eighty only) from 10.08.2021 (date of return of the bill by the 5th respondent) to the actual date of payment.

v. any other writ or order that this Hon'ble court may deem fit in this case.”(sic)

2. When these writ petitions came up for consideration, the counsel for the petitioners submitted that the point raised is found in favour of the petitioners in judgment dated 05.01.2023 in WP(C) No.17115 of 2022 and the judgment dated 18.01.2023 in WP(C) No.19124 of 2022. This Court perused the above judgments. It will be better to extract paragraphs 10 to 24 in the judgment dated 05.01.2023 in WP(C) No.17115 of 2022.

“10. In Exhibit P12, after referring to G.O.(P) No. 29/2016, it is stated that in case of grant of approval being granted to aided school teachers/non-teaching staff with retrospective dates, the salary arrears for the period has to be deposited in their PF Account and the amount can be withdrawn only after 5 years from the date of the order granting approval.

11. 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 Kerala , [2015 (2) KHC 725 (DB)]

12. While so, the Government, taking note of the large number of 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 challenge