Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI MONDAY, THE26H DAY OF MAY20145TH JYAISHTA, 1936 WP(C).No. 28161 of 2011 (U) --------------------------- PETITIONER(S): -------------- SMT.MINI.M HEADMISTRESS, SNV UPS, MOOLAMKUDAM THRISSUR DISTRICT. BY ADV. SRI.S.RAMESH BABU RESPONDENT(S): -------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF EDUCATION GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.
2. DEPUTY DIRECTOR OF EDUCATION, THRISSUR-680001.
3. ASSISTANT EDUCATIONAL OFFICER, CHALAKUDY-680307. BY GOVERNMENT PLEADER SRI.SHYSON P.MANGUZHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON2605-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BKA/- WP(C).No. 28161 of 2011 (U) ---------------------------- APPENDIX PETITIONER'(S) EXHIBITS: EXT.P1 TRUE COPY OF THE RELEVANT EXTRACT OF THE SERVICE BOOK OF THE PETITIONER. EXT.P2 TRUE COPY OF THE AUDIT OBJECTION TOGETHER WITH THE COVERING LETTER DATED0307.2011. EXT.P3 TRUE COPY OF THE GOVERNMENT ORDER
DTD. 06.10.1997. EXT.P4 TRUE COPY OF THE GOVERNMENT ORDER
DTD. 06.03.1969. EXT.P5 TRUE COPY OF THE REPRESENTATION DATED. 28.02.2008. EXT.P6 TRUE COPY OF THE COMMUNICATION DTD. 03.11.2008. EXT.P7 TRUE COPY OF THE GOVERNMENT ORDER
DTD. 26.03.2001. EXT.P8 TRUE COPY OF THE LETTER DTD. 29.04.2009. EXT.P9 TRUE COPY OF THE ORDER
DTD. 24.05.2010. EXT.P10 TRUE COPY OF THE COMMUNICATION DTD. 03.08.2011. RESPONDENT'(S) EXHIBITS: NIL //TRUE COPY// PA TO JUDGE BKA A.V. RAMAKRISHNA PILLAI, J.
-------------------------------------------------- W.P.(C) No. 28161 of 2011 -------------------------------------------------- Dated this the 26th day of May, 2014
JUDGMENT
Under challenge in this writ petition are Exts.P2, P6, P9 and P10 objecting the fixation of pay of the petitioner on the ground that the petitioner was thrown out of service from 1992 to 1995.
2. The petitioner entered service in a regular vacancy of the school in the year 1985 as L.P.S.A. Subsequently, she was promoted as Headmistress of the school with effect from 01.04.2005. The petitioner has come up before this Court as in the course of audit, an objection to the fixation of pay of the petitioner was made contending that under Chapter 26 Rule 1 of Kerala Education Rules, only those Headmasters, who have put in a minimum of 15 years continuous service as teacher, are entitled to the scale of pay of Headmaster and that the service book of the petitioner revealed that she has W.P.(C) No. 28161 of 2011 ..2.. continuous service only from 05.06.1995 and hence, eligible for the scale of Headmaster only with effect from 04.06.2010. In the light of the aforesaid observation, her pay was directed to be refixed and the excess salary paid was ordered to be recovered after issuing a show cause notice and after affording an opportunity of being heard. It is in this context, the petitioner has approached this Court.
3. In the counter filed by the State, they have admitted the initial appointment as well as the promotion of the petitioner as Headmistress. The stand taken by the respondents is that the proposal for regularization of thrown out period of service was rejected by the Government on account of the Government Order dated 24.05.2011, by which, the period during which the protected teacher was out of service till the date of deployment on protection alone can be regularized as leave without allowance. According to the respondents, the petitioner was not deployed on protection, but, was reappointed in regular vacancy in the same school. W.P.(C) No. 28161 of 2011 ..3.. Therefore, the Government justified the stand taken by them in the orders impugned.
4. I have heard the learned senior counsel appearing for the petitioner as well as the learned Senior Government Pleader quite in extenso.
5. The short question to be answered is whether the thrown out period from 14.07.1992 to 05.06.1995 (with breaks during which the petitioner has worked in leave vacancies) could be treated as period of service so as to avoid break in service. In this context, the learned senior counsel for the petitioner invited my attention to two Government Orders. By Ext.P4 Government Order dated 06.03.1969, it was made clear that the period during which a retrenched teacher was thrown out of service, would be teated as eligible leave or leave on loss of pay. This situation continued till 1984. However, later, by Government Order dated 15.02.1996, the previous Government Order was introduced with certain modifications. There, the Government ordered that protection would be given to those Aided School W.P.(C) No. 28161 of 2011 ..4.. Teachers, who were retrenched due to division fall after completing seven years of service on or before 15.07.1995.
6. The learned senior counsel for the petitioner would argue that the petitioner squarely comes within the ambit of the aforesaid Government Order; and therefore, on the petitioner's retrenchment due to division fall, the period, during which the petitioner was thrown out, is liable to be treated as eligible leave or leave without allowances in terms of Exts.P3 and P4.
7. It is relevant to note that the precise intention of Exts.P3 and P4 was to avoid any break in service as explained in Ext.P4. Chapter 26 Rule 1 read in conjunction with Exts.P3 and P4 makes it clear that there is no break in the service of the petitioner for the period from 1992 to 1995. The petitioner's service as teacher in the school commenced from 03.06.1985. She had completed 15 years of service by 02.06.2000. Hence, she satisfies the condition of completion of 15 years as on 01.04.2005; and therefore, the petitioner is entitled to the W.P.(C) No. 28161 of 2011 ..5.. salary of Headmistress in the scale of pay of 5500-9075; so submitted by the learned senior counsel for the petitioner. I see valid force in the submission made by the learned senior counsel.
8. The argument advanced by the learned Senior Government Pleader that Ext.P7 Government Order dated 26.03.2001 is applicable to the case of the petitioner, cannot be accepted. The claim of the petitioner is covered by Exts.P3 and P4 Government Orders, whereby the thrown out period of service is liable to be regularized as Leave Without Allowance. The petitioner satisfies the conditions imposed in Ext.P3 as she has seven years of service as on 15.07.1995. Therefore, this Court is of the definite view that the objection raised in audit as also Exts.P6, P9 and P19 are erroneous and unsustainable. In the result, the writ petition is allowed. Exts.P2, P6, P9 and P10 are quashed. The respondents are directed to treat the period of thrown out service of the petitioner from 14.07.1992 to 05.06.1995 as Leave Without Allowance as contemplated W.P.(C) No. 28161 of 2011 ..6.. under Exts.P3 and P4 Government Orders. Needless to say that the petitioner is eligible for payment in the scale of pay of 5500-9075 as Headmistress. Formal orders as per the direction in this judgment shall be passed within a period of three months from the date of receipt of a copy of this judgment. To facilitate an early action, it shall be open to the petitioner to produce a copy of this writ petition and a copy of this judgment before the 2nd respondent within a period of one month from today. Sd/- A.V. RAMAKRISHNA PILLAI, JUDGE bka/-