Kerala High Court
Sosamma Varghese vs The State Of Kerala on 31 December, 1997
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
TUESDAY, THE 29TH DAY OF NOVEMBER 2016/8TH AGRAHAYANA, 1938
WP(C).No. 21213 of 2014 (B)
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PETITIONER:
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SOSAMMA VARGHESE,
W/O K.A JOY, AGED 44 YEARS,
UPPER PRIMARY SCHOOL ASSISTANT,
ST. JOHN'S SYRIAN HIGHER SECONDARY SCHOOL,
VADAKARA, KOOTHATTUKULAM, ERNAKULAM DISTRICT.
BY ADVS.SRI.V.A.MUHAMMED
SRI.V.RAJASEKHARAN NAIR
RESPONDENT(S):
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1. THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT,
SECRETARIAT THIRUVANANTHAPURAM 695001.
2. THE DIRECTOR OF PUBLIC INSTRUCTIONS,
JAGATHY, THIRUVANANTHAPURAM 695014.
3. THE DEPUTY DIRECTOR OF EDUCATION,
ERNAKULAM AT KAKKANAD 682030.
4. THE DISTRICT EDUCATIONAL OFFICER,
MUVATTUPUZHA 686661, ERNAKULAM DISTRICT.
5. THE HEADMASTER,
ST. JOHN'S SYRIAN HIGHER SECONDARY SCHOOL,
VADAKARA P.O, OLIYAPPURAM 686679,
KOOTHATTUKULAM, ERNAKULAM DISTRICT.
R1 TO R4 BY SENIOR GOVERNMENT PLEADER SRI BIJOY CHANDRAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 29-11-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
K.V.
WP(C).No. 21213 of 2014 (B)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE RELIEVING ORDER DATED 31-12-1997
EXHIBIT P2 TRUE COPY OF THE STATEMENT OF FIXATION OF THE PETITIONER
DATED 15-11-2000.
EXHIBIT P2(A) TRUE COPY OF THE STATEMENT OF FIXATION OF THE
PETITIONER DATED 17-09--2001.
EXHIBIT P3 TRUE COPY OF THE LETTER OF THE DEPUTY DIRECTOR OF
EDUCATION DATED 05-06-2001
EXHIBIT P4 TRUE COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK OF
THE PETITIONER.
EXHIBIT P5 TRUE COPY OF THE FORM OF OPTION OF THE PETITIONER
DATED 22-01-2005
EXHIBIT P5(A) TRUE COPY OF THE STATEMENT OF FIXATION OF THE
PETITIONER DATED 12-07-2005
EXHIBIT P6 TRUE COPY OF THE FORM OF OPTION OF THE PETITION
DATED 05-06-2006
EXHIBIT P6(A) TRUE COPY OF THE STATEMENT OF FIXATION OF THE
PETITIONER DATED 25-09-2006.
EXHIBIT P7 TRUE COPY OF THE OBJECTION OF THE DISTRICT EDUCATIONAL
OFFICER DATED 21-10-2009.
EXHIBIT P8 TRUE COY OF THE APPEAL FILED BEFORE THE GOVERNMENT
DATED 27-10-2009
EXHIBIT P9 TRUE COPY OF THE ORDER OF THE GOVERNMENT DATED 04-04-2010
EXHIBIT P10 TRUE COPY OF THE G.O(MS) NO 47/71/S. EDN
DATED 21-04-1971 OF THE GOVERNMENT
EXHIBIT P11 TRUE COPY OF THE DISTRICT EDUCATIONAL OFFICER
DATED 05-05--2010
EXHIBIT P12 TRUE COPY OF THE ORDER OF THE DISTRICT EDUCATIONAL
OFFICER DATED 18-02-2012
EXHIBIT P13 TRUE COPY OF THE JUDGMENT IN WPC NO 18835/2010-D
DATED 24-09-2012.
EXHIBIT P13(A) TRUE COPY OF THE G.O (RT)NO 2661/2013/G.EDN
DATED 28-06-2013 OF THE GOVERNMENT
EXHIBIT P14 TRUE COPY OF THE G.O (RT) NO 2985/2014/G. EDN
DATED 25-07-2014 OF THE GOVERNMENT.
EXHIBIT P15 TRUE COPY OF THE G.O(MS) NO 62/73/S. EDN DATED 02-05-1973
OF THE GOVERNMENT.
-2-
-2-
WPC 21213 OF 2014:
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EXHIBIT P16 TRUE COPY OF THE ORDER OF THE DEPUTY DIRECTOR
DATED 31-05-2014.
EXHIBIT P17 TRUE COPY OF THE G.O (MS) NO 122/86/G.EDN
DATED 17-07-1986 OF THE GOVERNMENT.
EXHIBIT P18 TRUE COPY OF THE G.O (RT) NO 1943/2001/GE
DATED 17-05-2001 OF THE GOVERNMENT.
RESPONDENT(S)' EXHIBITS NIL
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/TRUE COPY/
P.A.TO JUDGE
K.V.
ANU SIVARAMAN, J.
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W.P.(C) No.21213 of 2014
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Dated this the 29th day of November, 2016
JUDGMENT
The challenge in this writ petition is against the orders, reviewing the sanction of Higher Grade to the petitioner, counting her pre-resignation service as well for the purpose of grant of Higher Grade. It is submitted that the petitioner was initially appointed as UPSA on 22.09.1986 and the said appointment was approved. She resigned from the school on 31.12.1997 and joined the 5th respondents school on 01.01.1998, in a leave vacancy. Her appointment in the leave vacancy from 01.01.1998 to 04.03.1998 was approved. Thereafter, she was appointed in a regular vacancy from 01.06.1998 and the said appointment was also approved. Taking into account her prior service from 22.09.1986 onwards, the petitioner was granted 10 years Higher Grade in 1996, and further Grade promotions and fixations were also granted, taking into account the prior service as well. W.P.(C) No.21213 of 2014 -2- However, by Ext.P7, an objection was raised, stating that the pre-resignation service cannot be counted for increments in her new appointment. The petitioner submitted Ext.P8 representation before the Government, but by Ext.P9 order, it was held that the petitioner had joined the present school on 01.01.1998, in a leave vacancy, and since there was break of more than a month between leaving the service from one aided school and joining service in another aided school in a permanent vacancy, the revision petition cannot be considered.
2. Heard the learned counsel for the petitioner and the learned Government Pleader appearing for the official respondents.
3. The learned counsel for the petitioner relies on Ext.P10 Government Order dated 21.04.1971 and Ext.P17 Government Order dated 17.07.1986, to contend that the period of pre-resignation service is to be counted for all W.P.(C) No.21213 of 2014 -3- purposes, including Higher Grade and increment. However, orders were passed by the Government in Exts.P13(a) and P14, stating that the petitioner, having resigned from the earlier school to take up employment in the present school in a leave vacancy, leave vacancy and regular vacancy cannot be treated as same service and as such, her claim cannot be considered. The petitioner contends that going by Exts.P10 and P17 Government Orders, break in service up to 5 years is to be ignored, and the pre-resignation service is to be taken into account for increments as well as Higher Grade. The petitioner also contends, relying on Exts.P10 and P17, that orders have already been passed, granting the benefit to other teachers, as can be seen from Ext.P18 order dated 17.05.2001.
4. The learned Government Pleader would contend that going by the provisions of Rule 62 of Chapter XIV C, KER as well as Rule 54(1) of Chapter XIV A, KER, resignation from a school entails loss of prior service. It is submitted that by W.P.(C) No.21213 of 2014 -4- Ext.P10 Government Order dated 21.04.1971, it has been ordered that pre-resignation service will be counted for sanctioning Higher Grade, on the condition that the service should be approved and continuous and there should not be a break of more than one month between leaving the service of one aided school and joining service of another aided school. It is stated that since the petitioner had left the service of the earlier school on 31.12.1997, on resignation and since her appointment from 01.01.1998 to 04.03.1998 was only is a leave vacancy, the provisions of Ext.P10 Government Order are not applicable.
5. I have considered the contentions raised. On going through the provisions of Exts.P10 and P17 Government Orders, it is clear that there is no distinction in these Government Orders between service rendered in leave vacancy and a regular vacancy. It is clear that all periods of service rendered in a scale of pay is to be treated as qualifying service W.P.(C) No.21213 of 2014 -5- for the purpose of calculating increment and Higher Grade. This is provided in Rule 61(4) of Chapter XIV A, KER. In the above view of the matter, even broken spells of appointment in leave vacancies are to be counted for considering the total service for the purpose of granting increment. In the above circumstances, contention raised by the learned Government Pleader to the effect that the period of service from 01.01.1998 to 04.03.1998 cannot be reckoned at all, for the purpose of counting the total service of the petitioner for grant of increments, cannot be countenanced. Further, the Government, which has itself issued Exts.P10 and P17 orders and have acted upon the same, as is evident from Ext.P18, cannot contend that the rules do not provide for counting of pre-resignation service for the purpose of increment. It is clear that the Government themselves have considered the benefits in respect of teachers, and counted their pre-resignation service for increment. In the above W.P.(C) No.21213 of 2014 -6- circumstances, it would not be open for the Government to contend that Exts.P10 and P17 are issued in violation of the rules. The Government being the author of Exts.P10 and P17 are according to me, bound by such orders issued by them, and cannot contend that those orders work against the statutory provisions of the rules. The claim of the petitioner based on Ext.P17 Government Order is not seen discussed in the counter or in the impugned orders. Further, the contention raised in the impugned orders to the effect that the leave vacancy and regular vacancy cannot be said to be in the same service is also unsupported by any material.
6. In the above view of the matter, since the Government themselves have given effect to Exts.P10 and P17, I am of the opinion that the petitioner is also entitled to the benefit of such orders. As stated earlier, I am of the view that Ext.P10 does not make a distinction between approved service in a leave vacancy and a regular vacancy for the W.P.(C) No.21213 of 2014 -7- purpose of grant of increment. Therefore, the grant of increment to the petitioner, reckoning her continuous service from 22.09.1986, in spite of the resignation on 31.12.1997 and joining duty in another school on the very next day, was perfectly in order.
The impugned orders are therefore set aside. It is declared that the petitioner is entitled to count her service from 22.09.1986 for grant of increments and Grade promotions.
Writ petition is allowed as above.
ANUJUDGE SIVARAMAN, vs