T.M. Padmini vs State Of Kerala on 30 September, 2016

[Cites 4, Cited by 25]

Kerala High Court

T.M. Padmini vs State Of Kerala on 30 September, 2016

The petitioner in W.P.(C).No.28307 of 2007 and W.P.(C). No.31934 of 2006 is in appeal challenging the common judgment dated 30.09.2016 of the learned Single Judge, dismissing her writ petitions. W.P.(C).No.28307 of 2007 was filed by the appellant/petitioner claiming that she was entitled to pensionary benefits, taking into account her broken periods of under qualified service put in prior to her approved service also. In W.P.(C). No.31934 of 2006, she contended that, on the very same basis, she was entitled to two more grade promotions.

2. The appellant was appointed as a Lower Primary School Assistant ('LPSA' for short) in the Edavatty South L.P.School, Kuthuparamba of Kannur District on 01.07.1982. At the time of her appointment, her qualification was only an SSLC with TCH from Mysore. She was appointed for broken spells during different periods, after the said date. At the time of her appointment, it is admitted that there was a ban of appointment of TCH holders from Mysore as LPSAs. Therefore, her service was not approved. Later on, she underwent in-service training, after which, she was appointed on regular basis since 01.06.1989. Her service has been W.A.No.2490 of 2016 2 approved from the said date. Later on, as per G.O.(Rt.) No.3056/93/G.Edn dated 26.08.1993 the appellant's appointment for the period from 01.07.1982 to 31.05.1989 was approved as under qualified, as a special case by the Assistant Educational Officer, Kuthuparamba without eligibility for salary. Thereafter, she continued in service and has upon attaining superannuation retired on 31.03.2006. Initially, as per Ext.P3 in W.P.(C).No.28307 of 2007, her qualifying service was computed taking into account her under qualified service from 01.07.1982 also. However, by Ext.P4 proceedings dated 18.06.2007, the mistake was rectified by the fourth respondent and her qualifying service has been taken as only 17 years, for the purpose of pension. It was aggrieved by the said proceedings that, the appellant had filed W.P.(C).No.28307 of 2007. As already noted above, W.P.(C).No.31934 of 2006 was filed by the appellant claiming that she was entitled to be granted second and third grade promotions contending that her total service was 24 years, including her unqualified approved service also.

3. The contentions of the appellant were contested by the respondents by filing counter affidavit in both the cases. According to the respondents, the appellant had been appointed at a time when there was a ban against appointment of persons with the qualification, TCH (Mysore). Therefore, the initial appointment of the appellant was unlawful and could not be approved. In spite of W.A.No.2490 of 2016 3 the above, the appellant was permitted to undergo in-service training and was given regular appointment from 01.06.1989 onwards. Later on, her appointment from 01.07.1982 to 31.05.1989 was also approved as under qualified service, with eligibility only for her salary. In view of the above, it is contended that, her under qualified service cannot be taken into account or counted for the purpose of computing her pensionable service. With respect to her claim for grade promotions, it has been found by the learned Single Judge that, the grade promotions are granted in terms with the provisions contained in the orders issued by the Government from time to time along with pay revision orders. Going by the said orders, only service that could be counted for increments, could be taken into account for grade promotions. For the above reason, it has been found that the appellant was not entitled to claim additional grade promotions also. Accordingly, both the writ petitions have been dismissed. These appeals are against the said judgment.

4. According to Adv.Sri.N.K.Subramanian, who appears for the appellant, though the appellant was having only a qualification of SSLC with TCH (Mysore) at the time of her appointment on 01.07.1982, the fact remains that, she was appointed and that, she had worked from the said date, over broken periods. The Government had a duty to provide in-service training to such W.A.No.2490 of 2016 4 teachers. If such training had been provided on an earlier date, it is contended that, the appellant would have acquired the necessary qualification, much earlier. After successfully completing the in- service training, the appellant was regularly appointed on 01.06.1989, which appointment was also duly approved by the respondents. She had worked continuously thereafter and has retired from service on 31.03.2006. It is contended by the learned counsel that, the benefit of her service from 01.07.1982 is being denied to her for no fault of hers. The fact that the appointment was perfectly in order is clear from the conduct of the respondents in approving such service, though as under qualified. The learned counsel places reliance on the decision of a Division Bench of this Court in State of Kerala and Another v. M.Mohammed Haneefa [(2005 KHC 1347) (2005 (4) KLT SN 88)] to contend that, such broken periods of service shall be counted for the purpose of pensionary benefits. According to the learned counsel, such service was duly approved by the Government and salary was paid out of the Government funds for the said purpose. Therefore, going by Rule 10 of Part III KSR (Kerala Service Rules), the said period of service has to be treated as qualifying service. The learned counsel also points out that, another Division Bench of this Court has in an unreported judgment dated 18.07.2016 in Writ Appeal No.150 of 2016 followed the said decision and has reiterated W.A.No.2490 of 2016 5 the preposition that, broken periods of service could be counted for the purpose of computing the qualified period for pension. In response to the contentions of the learned Government Pleader that, there was a ban against appointment of persons with TCH (Mysore) qualification from 31.03.1980, it is contended by the learned counsel that, segregation of the homogeneous class of teachers on the basis of a date as contended is violative of the dictum in D.S.Nakara v. Union of India [1983 (1) SCC 305]. The counsel also places reliance on a Division Bench of this Court in Dasan v. State of Kerala [2014 (4) KHC 747 (DB)], where the said dictum has been followed. It is therefore, contended that, the judgment of the learned Single Judge requires to be interfered with and set aside in appeal.

5. Per contra, the learned Government Pleader points out that, the appellant in the present case was appointed on 01.07.1982, in the teeth of the Government Order that prohibited the appointment of TCH (Mysore) holders after 31.03.1980. Therefore, her appointment was unlawful. For the said reason, the appointment was not approved. It is then pointed out that, service of the appellant from 01.07.1982 onwards is over broken spells during different years and was not continuous. It was only much later, after the appellant was permitted to undergo in-service training that her regular appointment on 01.06.1989 was approved. Therefore, W.A.No.2490 of 2016 6 according to the learned Government Pleader, the service of the appellant prior to 01.06.1989 cannot be counted for the purpose of computing her pensionary benefits, as claimed. Though the service prior to 01.06.1989 was approved much later, according to the learned Government Pleader, such service was approved only as under qualified service, which entitled her only to claim salary, which she has already received. Such service cannot be counted for computing her qualifying service for the purpose of pension. With respect to the dicta in the two Division Bench decisions relied upon by the counsel for the appellant, the learned Government Pleader points out that, appointment of the incumbents in the said cases were before the crucial date 31.03.1980, from which date the appointment of TCH (Mysore) holders was prohibited. In view of the above crucial difference in facts, it is contended that, the dicta in the said decision do not have any application to the facts of the present case. It is further contended that, there is no classification in this case on the basis of a date, attracting the dicta in D.S.Nakara's case (supra) or the later Division Bench decision of this Court. For the above reasons, the learned Government Pleader seeks dismissal of the appeals.

6. Heard. There is no dispute regarding the fact that, the qualification of the appellant was only SSLC with TCH (Mysore) at the time of her appointment on 01.07.1982. She continued to work W.A.No.2490 of 2016 7 for broken periods during the subsequent years, as evident from Ext.P3, until her regular appointment on 01.06.1989. Upon her regular appointment, her service from 01.06.1987 was duly approved and there is no dispute regarding the subsequent period. The service of the appellant over broken periods, spread over the period from 01.07.1982 to 31.05.1989, had remained unapproved, initially. Later on, as noticed by the learned Single Judge, it is only as per the Government Order dated 26.08.1993 that, her service during the said period was approved as under qualified service. The same was approved entitling her to the benefit of the salary. The contention now advanced by the learned counsel for the appellant is that, the said period should be tagged on to the regular service of the appellant, for the purpose of computing her qualifying service for pension. We have been taken through the judgment of the Division Bench reported in 2005 KHC 1347 (supra). We notice from paragraph 5 of the said judgment that, the incumbent in the said case was appointed for various broken periods from 08.08.1973 to 31.03.1977, after which, the person was deputed for B.Ed training. The judgment does not disclose that, there was any prohibition against such appointment at the relevant point of time. The appointments also were duly approved. Therefore, what this Court has held is only that, in spite of small breaks, service of employees would count for pension provided that, there is no W.A.No.2490 of 2016 8 prohibition against such appointment. In the unreported judgment on which reliance is placed, we notice that the incumbent therein was also having the same qualification of SSLC and TCH. However, the incumbent had commenced service from 11.01.1980 before the prohibition against appointment of persons with TCH, Mysore came into effect on 31.03.1980. Therefore, in both the cases, on which reliance is placed, there was no prohibition against appointment of persons with the qualification, TCH, Mysore, which is a distinctive feature in the present case. In the present case, therefore, the appellant was appointed by the Manager, in violation of the prohibition that was in force. For the said reason, her service prior to 01.06.1989 was also not approved. The said periods were subsequently approved as under qualified only on the basis of special orders issued by the Government, as rightly noticed by the learned Single Judge. The above being the position, the appellant has obtained all the benefits due to her, on the basis of her under qualified service as per law. When the service prior to 01.06.1989 was approved only as under qualified, it is not open to the appellant to contend that such under qualified service should be tagged on to her qualifying service for the purpose of computing her total qualifying service for pension. Therefore, we find no infirmity in the conclusion drawn by the learned Single Judge that the appellant is not entitled to the benefit of her under qualified service, for the W.A.No.2490 of 2016 9 purpose of computing her pensionary benefits. We do not find that there is any substance in the contentions put forward by the learned counsel on the basis of the dicta in D.S.Nakara's case (supra) and Dasan's case (supra) for the reason that, in the present case, the appellant has not been denied any benefits on the basis of a date, which was not the situation in the said cases. In those cases, the appellants and the others included in the class formed a homogeneous class. In the present case, the appellant having been appointed in violation of the prohibition that was in force at the time of her appointment, cannot claim that she forms part of the class of persons, who were qualified to be so appointed.

7. The other claim put forward is regarding the grant of grade promotions. As rightly held by the learned Single Judge, grade promotions are granted on the basis of service that qualify for the purpose of grant of increments. In the present case, the under qualified service of the appellant cannot and does not qualify for the grant of increments. Grade promotions are granted on the basis of Government Orders issued from time to time. We are not satisfied that, there is any infirmity in the conclusion drawn by the learned Single Judge on the above aspect also.

8. For the foregoing reasons, we find no grounds to interfere with the judgment of the learned Single Judge or to grant any of the reliefs sought for. The appeals fail and are accordingly dismissed. W.A.No.2490 of 2016 10

The learned counsel for the appellant expresses an apprehension that, the respondents would issue further proceedings for recovery of the amounts paid to her before the issue of Ext.P4. It is contended that, since the mistake, if any, in computing the qualifying service of the appellant was not due to any act on the part of the appellant, any action to recover the amount already paid may be interdicted. We are satisfied that, in view of the dictum in State of Punjab v. Rafiq Masih [2015 (1) KLT 429 SC], it is necessary to interdict the respondents from recovering any excess amount that has been paid to the appellant before the issue of Ext.P4. We do so.

Sd/-

K.SURENDRA MOHAN JUDGE Sd/-

A.M.BABU JUDGE AV /True Copy/ P.A to Judge

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