IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 7TH JANUARY 2011 / 17TH POUSHA 1932 WP(C).No. 7322 of 2004(V) ------------------------------------- PETITIONER: ------------------- M.B.SHEELA, L.P.S.A., V.S.KIZHOOR, KUNNAMKULAM, THRISSUR DISTRICT. BY ADV. SRI.ELVIN PETER P.J. RESPONDENTS: ------------------------ 1. THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM 2. THE ASSISTANT EDUCATIONAL OFFICER, KUNNAMKULAM. R1 & R2 BY GOVERNMENT PLEADER SMT. M.R. SREELATHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/01/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.7322/2004-V: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE RESIGNATION LETTER DT. 12/09/90 SUBMITTED BY THE PETITIONER. EXT.P.2: COPY OF THE ORDER NO.G.7487/90 DT. 01/11/90 ISSUED BY THE A.E.O., WADAKKANCHERY. EXT.P.3: COPY OF THE APPOINTMENT ORDER DT. 02/12/1991 OF THE PETITIONER. EXT.P.4: COPY OF THE APPOINTMENT ORDER DT. 01/06/1992 OF THE PETITIONER. EXT.P.5: COPY OF THE GOVERNMENT ORDER DTD. 27/03/1968. EXT.P.6: COPY OF THE GOVERNMENT ORDER DTD. 18/06/1970. EXT.P.7: COPY OF THE GOVERNMENT ORDER DTD. 22/06/1971. EXT.P.8: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE HEAD MISTRESS, V.S. KIZHUR. EXT.P.9: COPY OF THE COMMUNICATION NO. E/1712/2003 DT. 11/08/2003 OF THE R.2. EXT.P.10: COPY OF THE ORDER NO. 33024/B2/03/G. EDN. DT. 28/11/2003 ISSUED BY THE R.1. EXT.P.11: COPY OF THE GOVERNMENT ORDER DTD. 29/03/1982. EXT.P.12: COPY OF THE GOVERNMENT ORDER DTD. 01/03/2001. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 7322 of 2004-V - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of January, 2011. JUDGMENT The sole question is whether the service of the petitioner in aided school before joining the service in the present school could be reckoned for the purpose of granting service benefits. 2. The order under challenge is Ext.P10, whereby the Government took the view that the pre-resignation service will count for sanctioning higher scale on the condition that the service should be approved and continuous and there should not be break of more than one month between leaving the service from one aided school and joining in another aided school. The short facts leading to the dispute are the following: 3. The petitioner was first appointed as an L.P.S.A. In the M.N.D.S., Panangattukara, in a leave vacancy on 3.8.1987. The said appointment was approved by the Asst. Educational Officer, Vadakkancherry. Thereafter, she was appointed as LPSA in E.S., Kandanassery in a leave vacancy from 13.1.1989 to 17.3.1989 which was also approved. A regular vacancy of LPSA arose in M.N.D.S., Panangattukara with effect from 1.6.1989 and the petitioner was appointed in the said vacancy which appointment was also wpc 7322/2004 2 approved. 4. While continuing in the above school, she delivered a child and it is stated that the Manager declined to grant maternity leave which compelled the petitioner to resign from service. Accordingly, on 12.9.1990 the petitioner resigned from service. Ext.P1 is the copy of the resignation letter. This was approved by the Asst. Educational Officer as per Ext.P2 order. 5. The petitioner obtained another job as LPSA in Vernacular School, Kizhur on 2.12.1991 which was approved by Ext.P3 order. Even though she was terminated from service on 13.2.1992, on reopening she was again appointed on 1.6.1992 and thereafter she is having continuous service with the said school. The petitioner relies upon various Government Orders, viz. Exts.P4 to P7 to show that as regards aided school service also, the benefit available to Government servants are applicable and therefore the earlier period could be counted for various service benefits. The petitioner is also relying upon Exts.P11 and P12 orders to show that in case of certain other teachers the benefit was granted by the competent authority. 6. Learned counsel for the petitioner invited my attention to Ext.P7 which is an order passed by the Government clarifying that the benefit of counting aided school service rendered before resignation will be counted wpc 7322/2004 3 towards pension in the case of teachers who are governed by Chapter XIV- C K.E.R. and Pension Rules in Part III K.S.R. One thing to be noticed is that the resignation should be for taking up employment. The period of break in service is also mentioned in Ext.P7. 7. Learned Govt. Pleader invited my attention to Rule 3 of Chapter XXVII-B which states that “the rules on retirement benefits including family pension and death cum-retirement benefits and all the conditions for the grant of these benefits applicable to Government Servants as laid down in Part III K.S.R. as amended from time to time shall mutatis-mutandis apply to the teachers governed by the rules in this Chapter.” It is pointed out that going by Rule 29 of Part III K.S.R., especially sub-rule (b), it can be seen that resignation of an appointment should be to take up another appointment. Therefore, it is pointed out that only in such contingencies alone the question of non-forfeiture of past service arises. Herein, evidently the petitioner resigned from service due to family problems and not for taking up another employment. It is therefore submitted by the learned Government Pleader that the Government Orders relied upon by the petitioner will not apply here. I find much force in the above submission. 8. Evidently, the petitioner resigned from service as per Ext.P1 letter due to non granting of maternity leave and for looking after her child aged wpc 7322/2004 4 only 3 ½ months. The same was approved by the Asst. Educational Officer as per Ext.P2. Therefore, the resignation was not for the purpose of getting employment in the school, namely at Vernacular School, Kizhur. The appointment in the said school was unconnected with the act of resignation. Therefore, none of the contingencies provided under Rule 29(b) of Part III K.S.R. or the Government Orders relied on are applicable here. The Government Orders also provide that the break in service should not be more than one month. Herein, the said period is also more than one month. For all these reasons, in Ext.P10 the Government took the view that the request of the petitioner cannot be considered at all. In the light of the legal position emerging as above, the view taken by the Government in Ext.P10 cannot be faulted. No interference is called for and the writ petition is dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/