IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 WP(C).No. 28739 of 2008(U) ------------------------------------- PETITIONER(S): ---------------------- LOWER PRIMARY SCHOOL ASSISTANT, MAMBARAM, UP SCHOOL, MAMBARAM P.O., KANNUR DISTRICT. BY ADV. MR.P.M.PAREETH RESPONDENT(S): -------------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF EDUCATION, KANNUR. 4. ASSISTANT EDUCATIONAL OFFICER, THALASSERY NORTH, KANNUR DISTRICT. 5. MANAGER, MAMBARAM UP SCHOOL, MAMBARAM P.O., KANNUR DISTRICT. R1 TO R4 BY GOVERNMENT PLEADER MR.V.T.K.MOHANAN R5 BY ADV. MR.G.BIJU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.28739/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PROCEEDINGS DTD. 21.11.05 ISSUED BY THE 5TH RESPONDENT. P2:- COPY OF THE PROCEEDINGS DTD. 19.12.05 ISSUED BY THE HEAD MISTRESS MAMBARAM UP SCHOOL REVISING THE INCREMENTS OF THE PETITIONER. P3:- COPY OF THE ANNEXURE-2 (RULES OF FIXATION OF PAY) TO GO(P) 145/06 DTD. 25.3.06. P4:- COPY OF THE STATEMENT OF FIXATION OF PAY IN THE REVISED PAY. P5:- COPY OF THE LETTER DTD. 18.8.06 ISSUED BY THE 4TH RESPONDENT TO THE HEADMISTRESS OF THE PETITIONER'S SCHOOL. P6:- COPY OF THE APPEAL DTD. 24.3.07. P7:- COPY OF THE LETTER DTD. 23.4.08 ISSUED BY THE 2ND RESPONDENT. P8:- COPY OF THE PROCEEDING DTD. 22.7.08 ISSUED BY THE 5TH RESPONDENT. P9:- COPY OF THE LETTERT DT. 22.7.08 SUBMITTED BY THE HEADMISTRESS BEFORE THE 4TH RESPONDENT. P10:- COPY OF THE LETTER DTD. 11.8.08 ISSUED BY THE FORTH RESPONDENT TO THE HEADMISTRESS DIRECTING THE RECOVERY OF ALLEGED EXCESS PAYMENT RECEIVED BY THE PETITIONER . P11:- COPY OF THE GO(P) 495/90/FIN. DTD. 6.10.90. P12:- COPY OF THE GOVERNMENT LETTER NO.6382/PRU-1/06/FIN. DTD. 5.10.06. P13:- COPY OF THE GO(P) NO.452/06/FIN. DTD. 6.11.06. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 28739 of 2008-U - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of October, 2009. JUDGMENT The petitioner seeks to quash Ext.P10 and for a declaration that he is entitled to get his first increment on 17.7.1999 counting his prior broken service of 10 months and 15 days and that Ext.P4 fixation of pay of the petitioner done by the Headmistress of Mambaram U.P. School is perfectly legal and valid. 2. The petitioner was appointed as LPSA on a regular basis on 1.6.1999. Prior to the same, he had a total service of 10 months and 15 days during different spells, viz. from 7.7.1997 to 5.9.1997, from 6.11.1997 to 13.3.1998, from 1.7.1998 to 31.8.1998 and from 12.1.1999 to 19.3.1999. The above broken period of service was not counted while granting the first increment. Originally, the manager declared that the petitioner has satisfactorily completed the period of probation on completion of one year from 1.6.1999, i.e. 31.5.2000 and the first increment was thus granted on 1.6.2000. Pointing out the relevant rules, the petitioner filed a representation and accordingly the manager reversed the same as per Ext.P1. His probation was redeclared to be effective from 16.7.1999. This wpc 28739/2008 2 was implemented by the Headmistress as per Ext.P2. 3. After the pay revision of the school teachers was ordered as per G.O.(P) No.145/06/Fin. dated 25.3.2006, Ext.P4 statement of fixation was submitted counting the broken service and calculating the service weightage. This was objected to by Ext.P5. An objection was raised regarding the date of declaration of probation also. The order Ext.P5 was taken up in revision before the Director of Public Instruction, as per Ext.P6 which was disposed of by Ext.P7. In Ext.P7 it was ordered that even without any change of the date of declaration of probation, the fixation can be made calculating the prior service of the petitioner. It was also stated that the prior service could be reckoned for increment, grade promotion, etc. But it was stated that there is no provision for revising the date of declaration of probation. This was implemented by the manager as per Ext.P8. But the refixation statement was further objected to as per Exts.P9 and P10 with a further direction to recover the excess payment. 4. Learned counsel for the petitioner submitted that going by the explanation to Rule 6(a) of Chapter XIV-A K.E.R., broken periods of duty within a continuous period of two years can be reckoned for calculating the one year duty period. Therefore, the redeclaration of probation made by the manager is perfectly justified. Relying upon sub-rule (4) of Rule 61 of Chapter XIV-A, which provides that all duty in a post on a time scale wpc 28739/2008 3 whether continuous or interrupted shall count for increment in that time scale, learned counsel for the petitioner submits that the petitioner is thus entitled for increment after reckoning the broken period of service. Sub- rule (2B) of Rule 61 is also relied upon to contend that the delay in declaration of probation cannot affect the right of the petitioner to receive future increments. 5. By Relying upon Exts.P12 and P13, it is contended that the view taken by the Government that the revision of declaration of probation after five years cannot be accepted, is also not correct. 6. The respondents have filed a counter affidavit supporting the action. The first question is whether the revised declaration of probation as made in Ext.P1 is correct or not. It is clear that while declaring the probation with effect from 31.5.2000, the broken period of service was not reckoned by the manager. But going by the explanation to Rule 6(a) of Chapter XVI-A K.E.R., the broken period of continuous service can be reckoned for calculating the one year period. This is a statutory benefit conferred on teachers, which cannot be taken away. The question is whether a redeclaration as such is possible. In Kurian T.V. v. State of Kerala (2006 (1) KLJ 478), the very same issue was considered by this court and it was held that the Manager is competent to revise the orders of probation for giving to the provisions under the KER. It was held as wpc 28739/2008 4 follows: “The Government Order was issued only on 31.3.1978 before which the Manager had already declared probation and the rule was further amended only in 1986 which made it obligatory for the Manager to take into account the broken spells and declare the probation with retrospective effect. In such circumstances, for the only reason that there is no enabling provision permitting the Manager to grant the benefits to an otherwise eligible teacher, the benefit cannot be denied to the teacher. Law does not depict and cannot show such helplessness. There is no express prohibition under the Act or Rules restraining the Manager to act according to the mandate under the Statute. The Manager hence is competent to revise the orders on probation for giving to the provisions under the KER, Therefore, the Manager has acted only with his rights in giving effect to the provisions under the KER. These crucial aspects have missed the notice of the respondents while passing the impugned orders.” Therefore the manager is competent to revise the orders declaring probation for giving effect of the provisions of Rule 6(a) and explanation. In that view of the matter, Ext.P1 has been validly passed and Ext.P2 fixation is also properly made. The order passed by the Director of Public Instruction as per Ext.P7 also favours the case of the petitioner that the broken period of service can be counted for increment. It was ordered therein also that the previous service can be counted for increment and grade promotion. But it was also observed that the probation cannot be redeclared. The said objection cannot survive in the light of the decision in Kurian T.V.'s case wpc 28739/2008 5 (2006 (1) KLJ 478)). Therefore, Ext.P7 to the extent to which it holds that there cannot be a redeclaration of probation, cannot be sustained and it is set aside. 7. The Manager implemented the direction in Ext.P7 by restoring the position as per Ext.P8. Since it is only a dependent order passed in terms of Ext.P7, the same also has to be set aside and I do so. 8. Learned counsel for the petitioner is justified in relying upon Exts.P12 and P13 to contend that as far as the case of the petitioner for the claim for increment is concerned and for redeclaration of probation the period of five years provided in Ext.P11 cannot apply. In Ext.P11 the Government ordered that any claim for rectification of scales of pay, grade, etc. will automatically lapse if not sanctioned within five years from the date of such claims or two years from the date of any subsequent General Pay Revision Orders issued by the Government, whichever is earlier. In Ext.P12, it was clarified by the Government that “retrospective sanction of increment does not come under the purview of Govt. Order dated 6.10.1990 ( Ext.P11) and it is admissible and the time limit prescribed in the Govt. Order is not applicable to revision of increment. Ext.P13 dated 6.11.2006, also, the Government fixed the time limit for reckoning the prior service for service benefits. In para 3, it was specified that “those who are already in service are hereby given two years time from the date of order for wpc 28739/2008 6 preferring such claims.” Therefore, even going by the said Govt. Order, the representation submitted by the petitioner and the proceedings Ext.P1 cannot be objected to. 9. In that view of the matter, the petitioner is entitled to succeed in this writ petition. Ext.P7 to the extent to which it restricts the change in date of completion of probation and Ext.P10 are quashed. It is declared that the petitioner is entitled to get first increment counting his prior broken service of 10 months and 15 days. There will be a direction to the 4th respondent to approve the fixation as per Ext.P4 in respect of the petitioner and to pass appropriate orders within one month from the date of receipt of a copy of this judgment. The petitioner will be disbursed the due monetary benefits without any further delay also. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/