Kerala High Court
P.M.Nalini vs State Of Kerala
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
MONDAY, THE 10TH DAY OF NOVEMBER 2014/19TH KARTHIKA, 1936
WP(C).No. 24590 of 2012 (W)
----------------------------
PETITIONER:
-------------
P.M.NALINI
HEADMISTRESS, S.S.M.A.L.P.SCHOOL, PAZHAMALLUR
MANKADA, MALAPPURAM DISTRICT.
BY ADV. SRI.V.RAJENDRAN
RESPONDENTS:
-----------------
1. STATE OF KERALA
REPRESENTED BY THE SECRETARY
GENERAL EDUCATION DEPARTMENT, GOVERNMENT OF KERALA
THIRUVANANTHAPURAM, PIN-695001.
2. DEPUTY DIRECTOR(EDUCATION),
MALAPPURAM-676505.
3. ASSISTANT EDUCATIONAL OFFICER,
MANKADA-679331, MALAPPURAM.
GOVERNMENT PLEADER SMT. M.J. RAJASREE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
10-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 24590 of 2012
APPENDIX
PETITIONER'S EXHIBITS:
P1 : A RELEANT EXTRACT OF THE SERVICE BOOK (PAGES 6 & 7) OF THE
PETITIONER.
P2 : TRUE COPY OF ORDER OF APPOINTMENT DATED 09.07.87 OF THE
PETITIONER.
P3 : A RELEVANT EXTRACT OF THE SERVICE BOOK (PAGES 14 & 15) OF
THE PETITIONER.
P4 : A RELEVANT EXTRACT OF THE REPORT OF THE 3RD RESPONDENT
TO THE 2ND RESPONDENT.
P5 : A RELEVANT EXTRACT OF THE SERVICE BOOK (PAGES 16 & 17) OF
THE PETITIONER.
P6 : TRUE COPY OF REPRESENTATION DATED 15.01.2010 OF THE
PETITIONER TO THE 1ST RESPONDENT.
P7 : TRUE COPY OF THE GOVT. ORDERE G.O.(RT) NO.4842/2010/G.EDN.
DATED 01.11.2010.
P8 : TRUE COPY OF THE GOVERNMENT LETTER DATED 22.10.2011.
P9 : TRUE COPY OF THE JUDGMENT DATED 28.02.2012 IN W.P.(C)
NO.36893 OF 2010.
P10 : TRUE COPY OF THE ARGUMENT NOTE DATED 02.05.2012
SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT.
P11 : TRUE COPY OF THE GOVERNMENT ORDER G.O.(RT)
NO.3942/2012/G.EDN. DATED 14.08.2012.
RESPONDENTS' EXHIBITS: NIL
//TRUE COPY// P.A. TO JUDGE
P.B.SURESH KUMAR, J.
-----------------------------------------------
W.P.(C).No.24590 of 2012
-----------------------------------------------
Dated this the 10th day of November, 2014
J U D G M E N T
Petitioner is aggrieved by Ext.P11 order by which the service rendered by her prior to 15.7.1991 is declined to be reckoned as qualifying service for weightage for determination of her pay in accordance with the IXth pay revision.
2. The petitioner entered service as a Lower Primary School Assistant on 25.2.1985 in a leave vacancy for the period from 25.2.1985 to 1.7.1989. Approval was granted for the said appointment only upto 30.04.1985, the end of the academic year. She was reappointed on 24.06.1985. The petitioner availed maternity leave for the period from 20.11.1985 to 17.2.1986. Consequently, for want of eligible months of continuous service, she was relieved from the school on the last date of the academic year. She was again reappointed on 11.6.1986 and her probation was declared with effect from 08.09.1986. The petitioner was sanctioned the first increment on 09.09.1986. Her absorption in regular vacancy was on 09.07.1987.
3. When the pay revision referred to above was implemented, the pay of the petitioner was also fixed in accordance with the orders W.P.(C).No.24590 of 2012 2 issued by the Government. Later, an objection was raised by the second respondent to the fixation given to the petitioner on the ground that her service prior to 15.7.1991 could not have been reckoned for service weightage and the said objection was sustained by the Government as per Ext.P7 order. The petitioner challenged Ext.P7 order before this Court in W.P.(C) No.37893 of 2010. During the pendency of the said writ petition, the Government issued Ext.P8 order clarifying that as per the 2004 Pay Revision Order, the service including the broken period of service qualifying for the increment can be reckoned for service weightage. In other words, the clarification was to the effect that if the period is reckoned for increment, it can be reckoned for service weightage as well. In the light of Ext.P8 order, this Court quashed Ext. P7 decision and directed the Government to reconsider the matter afresh as per Ext.P9 judgment.
4. Pursuant to Ext.P9 judgment, Ext.P11 order was passed by the Government. The stand of the Government in Ext.P11 is that on 30.06.1991, the petitioner was terminated from service for want of vacancy, when another teacher who was on long leave returned after the leave and she was reappointed later, on 15.07.1991 against a newly sanctioned post, and therefore, her service prior to the W.P.(C).No.24590 of 2012 3 termination cannot be reckoned for service weightage as her pay prior to the termination is not protected under Rule 52(1) of Chapter XIVA KER. According to the Government, only teachers who are relieved on account of reduction in the number of posts under orders of the department are entitled to protection of their pay and persons like the petitioner, who are terminated from service, cannot claim the protection of the said provision. Rule 52(1) of chapter XIVA KER reads thus:
" Teachers who are relieved on account of any reduction in the number of posts under orders of the department shall on reappointment in the same school or in another school under the same management or a different management start on the same pay as they were getting at the time of relief, whether the new appointment is permanent or not."
It is beyond dispute that the petitioner was appointed in the school on 09.07.1987 in the regular vacancy of one Ammini, who was appointed in Government service. Ext.P2 is the order of appointment. It is seen from Ext.P2 that the appointment made as per Ext.P2 was approved on 30.12.1987. Under Rule 48 of Chapter XIVA KER, no teacher can be relieved before the expiry of the term of appointment without the previous approval of the Educational Officer. Since the appointment to the petitioner was against a regular vacancy, she could not have W.P.(C).No.24590 of 2012 4 been relieved without the previous approval of the Educational Officer before the date of superannuation. There is nothing on record to indicate as to whether permission of the department was obtained before the petitioner was relieved on 30.06.1991, when another teacher who was on long leave returned after the leave. It is beyond dispute that the petitioner is relieved on account of the reduction in the number of posts. Since the petitioner was relieved on 30.06.1991 on account of the reduction in the number of posts and since the petitioner could not have been relieved without the previous permission of the department, I am of the view that the petitioner is entitled to the benefits of Rule 52(1) of chapter XIVA KER. Further, the specific case of the petitioner is that her entire service including the service prior to 15/7/1991 was reckoned for sanctioning increments and granting grade promotions and there had been no objections for the same. In other words, the petitioner was extended the benefits of Rule 52(1) of chapter XIVA KER and objection against the fixation of pay of the petitioner has been raised without adverting to the said fact.
5. In the circumstances, Ext.P11 order of the Government is liable to be quashed and I do so. It is declared that the petitioner is entitled to reckon her entire approved service for the purpose of the W.P.(C).No.24590 of 2012 5 benefits of 2004 Pay Revision.
The writ petition is allowed as above.
Sd/-
P.B.SURESH KUMAR, JUDGE //true copy// smv