IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 WP(C).No. 34514 of 2007(H) --------------------------------------- PETITIONER: ------------------- MUHAMMED ASLAM.P.A., HEAD MASTER, A.U.P.SCHOOL, MUNDAKKAL, MALAPPURAM DISTRICT. BY ADV. MR.BABU S. NAIR. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, TRIVANDRUM. 2. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. 3. THE ASSISTANT EDUCATIONAL OFFICER, KIZHISSERY, MALAPPURAM DISTRICT. R1 TO R3 BY GOVT. PLEADER SMT. T.B. REMANI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/06/2009, THE COURT ON 16/07/2009 DELIVERED THE FOLLOWING: W.P.(C). NO.34514/2007-H: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PAY FIXATION ORDER OF THE PETITIONER. EXT.P.2: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE R.3. DTD. 10/06/2006. EXT.P.3: COPY OF THE ORDER OF THE R.2. DTD. 11/04/2007 AS NO. G5/3415/06. EXT.P.4: COPY OF THE APPEAL PETITION SUBMITTED BY THE PETITIONER BEFORE THE R.1. DTD. 01/12/2006. EXT.P.5: COPY OF THE ORDER DTD. 21/08/2007 ISSUED BY THE R.2. AS NO. G5/3415/06. EXT.P.6: COPY OF THE ORDER OF THE R.1. AS NO. 46422/B1/07/GE DTD. 25/10/2007, REJECTING THE APPEAL SUBMITTED BY THE PETITIONER. EXT.P.7: COPY OF THE ORDER OF THE R.3. AS NO.A/4718/05 DTD. 21/06/2007. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.34514 of 2007-H - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of July, 2009. JUDGMENT The petitioner is aggrieved by the audit objection raised against him regarding the fixation of Headmaster's scale of pay and consequential orders passed by the authorities rejecting his objections. 2. The service particulars of the petitioner show the following: The petitioner was initially appointed as a U.P.S.A. in a leave vacancy on 14.10.1986 which continued up to 10.1.1987. During the said period he was absorbed and appointed as regular U.P.S.A., from 11.12.1986. According to the petitioner, he continued as UPSA, but without salary during the vacation from 1.4.1987 to 31.5.1987 and was subsequently promoted and appointed as Headmaster on 1.5.1995 in accordance with the qualification and seniority. 3. Ext.P1 is the pay fixation by which he was granted the Headmaster's scale on completion of 15 years service, on 13.12.2001. In the year 2005 an audit objection was raised to the effect that he is entitled for Headmaster's scale only from 1.6.2002. His objections submitted as Ext.P2 was rejected by Ext.P3. He filed an appeal against the same by way wpc 34514/2007 2 of Ext.P4 and meanwhile, by Ext.P5 the second respondent directed the third respondent to revise the fixation and to refund the excess amount drawn by the petitioner, as per Ext.P5. The appeal was rejected as per Ext.P6 and by Ext.P7, again directions have been issued to refund the excess amount. 4. In Ext.P3, the reason for rejection of the objection is that his initial appointment as UPSA was for the period from 11.12.1986 to 31.3.1987 and he was reappointed from 1.6.1987. Hence, there is break in service for the period from 1.4.1987 to 31.5.1987. Fifteen years' continuous service can be reckoned only from 1.6.1987. 5. Heard learned counsel for the petitioner and learned Govt. Pleader. 6. Mainly it is contended by the learned counsel for the petitioner that it is only in the light of Rule 49 of Chapter XIV-A K.E.R. that he was denied vacation salary, but the service was continuous from 11.12.1986 and his appointment as UPSA continued even after the reopening, in the same vacancy. It is therefore submitted that the period has to be reckoned from the date of original appointment and the pay fixation that was originally done is perfectly justified. It is further contended that after long lapse of time, the pay fixation cannot be objected and in support of the same, reliance is placed on a decision of the Supreme Court in Aleyamma wpc 34514/2007 3 Varghese v. Secretary, General Education Department (2007 (3) KLT 700 SC). 7. The following facts emerge from the counter affidavit of the first respondent. The petitioner was appointed as leave substitute from 14.10.1986 to 10.1.1987 which was approved by the Asst. Educational Officer. While continuing as such, he was again appointed by the Manager as Assistant Teacher from 11.12.1986 to 31.3.1987 in the vacancy of one Shri Ramakrishnan K. Kuniyil who had resigned from service. The Manager appointed the petitioner as probationary UPSA with effect from 1.6.1987 and that appointment was also approved. Hence, the continuous service of the petitioner started from 1.6.1987 only. His appointment as UPSA from 11.12.1986 was not continuous and hence he is not eligible to get any salary from 1.4.1987 to 31.5.1987. The period of appointment was completed on 31.3.1987 and hence it cannot be said that there was denial of vacation salary from 1.4.1987 to 31.5.1987. 8. It is also contended that the Headmaster's scale was given considering the broken period of service from 14.10.1986 to 31.3.1987 and he completed 15 years of service only on 31.5.2002. Under Rule 1(1) of Chapter XXVI K.E.R., 15 years continuous service is required to grant Headmaster's scale. wpc 34514/2007 4 9. The crucial question is whether the petitioner is having continuous service as enjoined by sub-rule 1 of Rule 1 of Chapter XXVI K.E.R. The said rule is extracted below: “1. (1) Teachers of Aided Lower Primary, Upper Primary, High and Training schools shall be paid the scale of pay applicable to teachers of Government Lower Primary, Upper Primary, High and Training Schools. The Headmaster of an Aided Lower Primary School, or the Headmaster of an Aided Upper Primary School shall be given the scale of pay applicable to the Headmaster of Government School only if he has put in a minimum of 15 years continuous service as teacher in schools recognised by the Department. Those Headmasters who have not put in this minimum service shall be given their grade pay and supervision allowance as may be fixed by Government until they complete the prescribed minimum service.” Therefore, the requirement is that there should be a minimum of 15 years continuous service. The word 'continuous' is important. Even though the petitioner claims that his appointment from 11.12.1986 is continuous, on a scrutiny of the details furnished in the counter affidavit, it is evident that the petitioner was given a fresh appointment starting from 1.6.1987. The appointment as Assistant Teacher from 11.12.1986 to 31.3.1987 made by the Manager was approved as such. It is evident that he was given a fresh wpc 34514/2007 5 appointment as a probationary Assistant Teacher from 1.6.1987 and that appointment has also been approved. It should have been advantageous if the said orders were produced in this writ petition. But still, going by para 2 of the counter affidavit, these facts are clearly stated. Those have not been disputed by the petitioner by filing a reply affidavit also. Therefore, as things stand, the petitioner's continuous service starts from 1.6.1987 only. Evidently, the term of his appointment as Assistant Teacher ended on 31.3.1987. Therefore, the contention raised by the learned counsel for the petitioner based on Rule 49 of Chapter XIV-A K.E.R. cannot be sustained. The eligibility of the petitioner for Headmaster's scale can be reckoned only from 1.6.1987. 10. Learned counsel for the petitioner relied upon the decision of a Division Bench of this court in Director of Public Instructions v. Mini Joseph (2009 (1) KLT 923) regarding the interpretation of Rules 7A and 49 of Chapter XIV-A K.E.R. Reliance is placed also on the decision of a Full Bench of this court in Manager, Trikkur Panchayat Sarvodaya High School v. Suma (2003 (2) KLT 62 (FB)) regarding the scope of Rule 51-A of Chapter XIV-A K.E.R. It is true that Rule 49 provides that qualified teaches except Headmasters appointed in vacancies which are not wpc 34514/2007 6 permanent which extend over the summer vacation and who continue in such vacancies till the closing date shall be retained in the vacancies during the vacation, if their continuous service as on the closing day is not less than eight months. The teachers so retained shall be entitled to the vacation salary. But still going by the facts of this case, as already held, Rule 49 will not apply here. Therefore, the principles stated in those decisions will not apply to the facts of this case. 11. Lastly it is contended that in the light of the decision of the Supreme Court in Aleyamma Varghese's case (2007 (3) KLT 700 SC), the recovery from pay on account of wrong fixation, is not proper. In para 6 of the judgment, their Lordships have held that a mistake apparent on the face of the record may be rectified. But on the facts of the case, it was held that the amount sought to be recovered, may not be recovered from the appellant. Herein, going by the facts of the case, as noticed already, the entitlement of the petitioner is to count 15 years service from 1.6.1987 only. The mistake in reckoning the earlier period was sought to be rectified by the audit. This cannot be said to be illegal. Now by Exts.P5 and P6 it has been held that he is eligible for Headmaster's scale with effect from 1.6.2002 only. In that view of the matter, I am of opinion that the wpc 34514/2007 7 recovery ordered cannot be said to be illegal. The writ petition fails and the same is dismissed. (T.R. Ramachandran Nair, Judge.) kav/