IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 17TH DECEMBER 2008 / 26TH AGRAHAYANA 1930 WP(C).No. 6309 of 2006(A) ------------------------- PETITIONER(S): --------------- ANCYAMMA JACOB, HEADMISTRESS, ST. THOMAS L.P. SCHOOL, AMALAGIRI P.O., PERUVANTHANAM, PEERUMADE, IDUKKI DISTRICT. BY ADV. SRI.P.C.SASIDHARAN RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ACCOUNTANT GENERAL, OFFICE OF THE ACCOUNT GENERAL'S OFFICE, THIRUVANANTHAPURAM. 3. THE ASSISTANT EDUCATIONAL OFFICER, OFICE OF THE ASSISTANT EDUCATIONAL OFFICER, PEERUMADE, IDUKKI. GOVERNMENT PLEADER FOR R1TO3 SRI. T.T. MOHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Ext.P1. True copy of the order of the SEO, Peerumade, Dated 5.12.1997 Ext.P2. True copy of the order of the Assistant Education Officer, Peerumade Dated 7.11.2003. Ext.P3. True copy of the order of the Senior Superintendent office of the Accountant General dated 22.3.2005. Ext.P4. True copy of the order issued by the Senior Superintendent Office of the Accountant General dated 20.4.2005. Ext.P5. True copy of the communication issued by the Senior Superintendent Office of the Accountant General dated 8.7.2005. Ext.P6. True copy of the Government Order GO(Rt)No.28/06/G.Edn. dated 3.1.2006. Ext.P7. True copy of the circular issued by the Government dated 6.3.1998. Ext.P8. True copy of the circular issued by the Government dated 8.5.2001. Ext.P9. True copy of the Government Letter No.54922/J2/91/G. Edn. dated 20.4.1992. // true copy // P.A to Judge. ANTONY DOMINIC,J. ----------------------- W.P.(C).No.6309 2008 ------------------------ Dated this the 17th day of December, 2008. JUDGMENT Exts.P3, P5 and P6 are under challenge in this Writ Petition. petitioner is presently working as Headmistress of St.Thomas L.P.School, Amalagiri, Peruvanthanam, where she has regular service with effect from 1.6.1989. Prior to that appointment, petitioner had rendered provisional service, both in aided and Government Schools. She completed 10 years of service reckoning the provisional service also, on 14.6.1995 and by Ext.P1 she was granted higher grade with effect from 15.6.1995. On the same basis, reckoning her 18 years of total service, she was granted Senior Grade by Ext.P2. Thereafter promoted as Headmistress with effect from 5.5.2003. Granting of higher grade and promotion were approved by the Educational Authorities. 2. By Ext.P3 proceedings, the period of provisional service rendered by the petitioner in Government Schools was excluded and reckoning her service in the aided schools, WP(c).No.6309/2006 2 her eligibility for higher grade was redetermined with effect from 29.5.1997. Thereafter proceedings were issued intimating that the excess pay received will be recovered. That was called in question before this court in WP(c).No.25007/2005 and the case was disposed of directing the Government to consider the grievance keeping in abeyance the recovery proceedings. This lead to Ext.P6 Government Order rejecting her representation. Ext.P6 to the extent it is relevant reads as follows. “Government have examined the matter in detail with relevant documents and arguments adduced at the time of hearing. The provisional(employment exchange) service of the petitioner was not reckoned for increment but at the same time the provisional service in aided schools rendered by the petitioner reckoned for increment and as such the provisional employment exchange service could not be reckoned as qualifying service. The granting of both Senior Grade and Higher Grade to the petitioner by reckoning her WP(c).No.6309/2006 3 provisional service in Govt. Schools were inadmissible as the service rendered by the teacher did not satisfy Government Decision No.2 below Rule 33 Part I KSR. Since the method of appointment to the post of Primary Department Teacher in Government School and Lower Primary School Assistant in Aided Schools were different, the provisional (employment exchange)service rendered by the petitioner could not be reckoned as qualifying service for the purpose of granting increment and time bound grade promotion vide Government Decision referred above. This view was upheld by the Hon'ble High Court in judgment dated 24.2.1992 in O.P.No.11293/91. As per the judgment the provisional (employment exchange) service in Government School cannot be reckoned with the service rendered in an aided school for the purpose of time bound promotion. This position has been emphasized by Govt. vide WP(c).No.6309/2006 4 circular No.29065/J2/98/G. Edn. dated 8.5.2001. The petitioner had produced Ext.P8 Government Circular NO.52373/J2/98/G.Edn dated 6.3.1998 in support of her argument for reckoning of provisional service for the service based grade of Aided School teachers. This Circular has since been cancelled by Government by the issuance of Circular No.29065/J2/1998/G. Ed dated 8.5.2001. Therefore the objection raised by the Accountant General is in order. Since Government Decision No.2 below Rule 33 part I KSR is not applicable to aided school teachers, they are not eligible to get their provisional service in Government schools reckoned for increment or grade promotion.” It is challenging the aforesaid proceedings the writ petition is filed. 3. Counsel for the petitioner relies on Ext.P7, the Government order, which provides for reckoning of provisional service in the Government Schools also for WP(c).No.6309/2006 5 reckoning eligibility for grade promotions. It is stated that the said order was cancelled by the Government only by Ext.P8 dated 8.5.2001. According to him, his eligibility crystallized at a time when Ext.P7 Government Order held the feild. It is therefore, contended that Ext.P3 is illegal. 4. However, learned Government Pleader makes reference to the Government decision No.2 to Rule 33 of Part-I KSR and contends that the eligibility is available only if qualification and nature of appointment in the Government School and aided school are one and the same. 5. As already noticed, higher grade was given to the petitioner with effect from 15.6.1995 and the same was extended reckoning the provisional service rendered by the petitioner in the Government Schools as well. At the time when Ext.P1 was issued, Ext.P7 Government Order held the filed. The said order was withdrawn only by Ext.P8 order dated 8.5.2001. In Ext.P10 judgment rendered by a Division Bench, disposing of the Writ Appeal Nos.1224/2005 and 1136/2005, it was held that Ext.P8 Government Order has only perspective effect. If WP(c).No.6309/2006 6 that be so, the case of the petitioner that at the time when Ext.P1 was issued he was governed by Ext.P10 deserves to be accepted. 6. In so far as the contention of the learned Government Pleader relying on decision No.2 to Rule 33 of Part-I KSR referred to above is concerned, that plea also was raised before the Division Bench while deciding the aforesaid writ appeals and the same has been rejected. On that ground also the the Writ petition deserves to be allowed. Therefore, I quash Exts.P3,P5 and P6 and it is directed that the petitioner will be entitled to restoration and consequential benefits. Writ petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/ WP(c).No.6309/2006 7