BIJU E. Vs. STATE OF KERALA

JUDGEMENT

(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.11,14,191.00 to which the petitioner is entitled consequent to the order issued by the Regional Deputy Director granting approval to his appointment with effect from 30/8/2013. It is in the above backdrop that this writ petition is filed seeking the following reliefs.

(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 dtd. 9/3/2021, had directed the RDD, Kozhikode, to take up the proposal for approval of the appointment of the petitioner with effect from 30/8/2013 and had also ordered to disburse all the consequent benefits including salary. In tune with the directions issued by this Court, Exhibit P8 proceeding dtd. 4/8/2021 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 01/9/2013 to 31/1/2016 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. dtd. 27/1/2021.

(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 Sec. 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. dtd. 27/1/2021 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 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. dtd. 12/1/2010 and in G.O.(P) No.29/2016/G.Edn. dtd. 29/1/2016. 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. dtd. 27/1/2021, 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.) No.29/2016/G.Edn. dtd. 29/1/2016 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 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 dtd. 27/1/2021 would be applicable to all Government orders issued from the General Education Department from time to time, including those covered under G.O.(P.) No.29/2016/G.Edn. dtd. 29/1/2016. It is further stated that G.O.(P.) No.29/2016/G.Edn. dtd. 29/1/2016 is applicable to the petitioner, and the Circular dtd. 27/1/2021 is concerned with the approval 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.