IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 28TH NOVEMBER 2011 / 7TH AGRAHAYANA 1933 WP(C).No. 33127 of 2008(R) ------------------------------------- PETITIONER(S): ----------------------- ANNIE FRANCIS.C, HEADMISTRESS, CHALDEAN SYRIAN HIGHER SECONDARY SCHOOL, TRICHUR-680 001. BY ADVS. SRI.N. RAGHURAJ SMT.K. AMMINIKUTTY RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT EDUCATIONAL OFFICER, TRICHUR. 3. THE CORPORATE MANAGER, CHALDEAN SYRIAN CHURCH SCHOOLS, TRICHUR-680 001. R1 & R2 BY GOVERNMENT PLEADER SRI. V. VIJULAL R3 BY ADVS. SRI. GEORGE VARGHESE (PERUMPILLIKUTTIYIL) SRI.A.R. DILEEP SMT. SURYA SASI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VPV WPCNO.33127/2008 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: PHOTOCOPY OF THE ORDER APPOINTING THE PETITIONER AS HSA (CHEMISTRY) DATED 17.08.1979. EXT.P2: PHOTOCOPY OF THE ORDER BEARING NO.B4-20820/83/K DIS DATED 05.11.1983. EXT.P3: PHOTOCOPY OF THE U.O. ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT BEARING NO.A3/3868/06 DATD 27.08.2008. EXT.P4: PHOTOCOPY OF THE LETTER NO. 650458/J2/2000/GEN.EDN. DATED 17.01.2001. EXT.P5: PHOTOCOPY OF THE GO (RT) NO.5348/05/GEN.EDN, DATED 15-11-2005. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE VPV T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.33127/2008-R ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 28th day of November, 2011 J U D G M E N T The petitioner is working as Headmistress under the third respondent-Management. The challenge is against Ext.P3 Unofficial Note forwarding an audit objection with regard to the pay fixation. The audit was conducted for the period from 01/05/2003 to 30/06/2005. 2. The petitioner initially entered service as High School Assistant (Chemistry) in a leave vacancy in Mar Thimotheus High School, Chelakkottukara in Thrissur District on 17/08/1979. The said appointment was approved. Her pay was refixed at Rs.433/- with effect from 17/08/1980 and, at Rs.446/- as per order dated 23/11/1981. While she was continuing in the leave vacancy, a regular vacancy arose with effect from 01/06/1982, due to resignation of the teacher in whose vacancy she entered service, and the regular appointment has been approved as per Ext.P2. W.P.(C). No.33127/2008 -:2:- 3. A reading of Ext.P3 shows that the objection raised is regarding the date of declaration of probation. It is stated in Ext.P3 that the period of broken service pursuant to the initial appointment should have been restricted from 17/08/1979 to 31/03/1980 as the petitioner is not entitled for vacation salary. It is therefore, stated that by excluding the said two months, viz. 01/04/1980 to 31/05/1980, the probation has to be declared from 16/10/1980. 4. The petitioner was promoted as Headmistress on 01/06/2000. According to the petitioner, she is having continuous service from 17/08/1979 and the Manager had declared her probation from 17/08/1980, validly. The declaration of probation, fixation of pay, grant of increments and higher grade etc. were subjected to departmental audit during all these periods and no objections were raised on these matters at any point of time till issuance of Ext.P3. It is therefore submitted that the proposal to recover the alleged excess salary after the lapse of 28 years cannot be W.P.(C). No.33127/2008 -:3:- accepted. Reliance is placed on explanation to Rule 6 (a) of Chapter XIV A Kerala Education Rules. Various decisions of the Apex Court have been relied upon to show that recovery after a long lapse of time cannot be supported. 5. In the counter affidavit filed by the second respondent, regarding the first objection, namely, payment of vacation salary from 01/04/1980 to 31/05/1980 it is stated in para.4 that the petitioner was eligible for the same, for the reason that though the appointment was in a leave vacancy, it was continuous and extended beyond the vacation period. Therefore, the said objection does not survive now. 6. Thereafter, it is submitted that the declaration of probation by the Manager with effect from 17/08/1980 in the leave vacancy is not correct, as the probation has to be declared only after appointment in a regular vacancy. 7. This stand taken by them varies with the stand taken in Ext.P3. Regarding the above aspect, the petitioner has filed a reply affidavit and no W.P.(C). No.33127/2008 -:4:- additional counter affidavit has been filed by the respondents. The petitioner points out in the reply affidavit that the contention now taken also cannot be accepted in the light of the explanation to Rule 6(a) of Chapter XIV A K.E.R which provides that broken periods of service can be taken into consideration for the purpose of declaration of probation. Reliance is placed on Ext.P4, a clarification issued by the Government to that effect, and Ext.P5 order passed by the Government in respect of one Shri P.R.Sudhakaran, H.S.A (Mathematics) in similar circumstances. 8. Explanation to Rule 6(a) of Chapter XIV A K.E.R provides that broken periods of duty within a continuous period of two years can be reckoned for calculating the one year duty period. In such cases satisfactory completion of probation of the teacher concerned shall be declared by the Manager with retrospective effect from, the date on which he is found eligible/suitable for such declaration of completion of probation. W.P.(C). No.33127/2008 -:5:- 9. The Government in Ext.P4 by relying upon the said Rule states as follows:- “.........broken spell of service is the common phenomenon in aided schools. Rule 6(a) is incorporated in Chapter XIV A K.E.R to safeguard the interest of aided school teachers making them eligible for the service benefits but for the breaks. Probation of aided school staff is governed by the Rules in K.E.R., viz., Rule 6 Chapter XIV A K.E.R. Provisions in the K.S.R/K.S.& S.S.R will not offer the provisions in the K.E.R with regard to declaration of probation. The service conditions of Government teachers need not be compared with that of aided school staff in this regard, since there is little scheme for broken period of service for the Government school staff as they are mostly appointed against permanent vacancies. In the circumstances, the provisions in Rule 6 of Chapter XIV A K.E.R may be followed in the case of declaration of probation of aided school staff. Change in the scale of pay has no relevance in this case.” 10. Ext.P5 discloses an identical case. Therein, the teacher had been appointed in different leave vacancies as H.S.A (Mathematics) as evident from para.3 W.P.(C). No.33127/2008 -:6:- therein. The continuous appointment started from 06/06/2001. The Manager declared his probation with effect from 01/08/1997 reckoning the broken periods of service. This was not objected to by the Department but only at a later point of time some objections were raised. The Government after relying upon Rule 6(a) of Chapter XIV A K.E.R and its explanation and Ext.P4 clarification ordered in paras.10 and 11 thus:- “10. It is evident from the above facts that 'Explanation' to Rule 6(a) allows reckoning of broken spell of service for declaration of probation. Rule 41 of Chapter XIV A K.E.R is not contradictory to Rule 6(a), but it is complementary to it. Even in the orders relied on by the DEO to reject the claim of the petitioner Government have stated that broken period of service can be reckoned for probation. 11. In the above circumstances, the objection of the departmental officials in this case will not stand in the light of the explanation under Rule 6(a) Chapter XIV A K.E.R and the clarification issued in Government letter No.65048/J2/00/Gl.Edn., dated 17/01/2001 thereon. The Government are therefore pleased to allow Exts.P10 and P14 revision petitions W.P.(C). No.33127/2008 -:7:- and order that the declaration of probation reckoning broken period of service will be in order and he will be eligible for consequential benefits as claimed for.” 11. Therefore, the situation herein is identical. Evidently, explanation to Rule 6(a) provides for reckoning broken periods of duty within a continuous period of two years for calculating the one year duty period. Initially, the appointment of the petitioner, as per Ext.P1, was from 17/08/1979 which was approved and upto 22/07/1981 as evident from Ext.P1 itself. 12. The learned counsel for the petitioner relied upon the Judgment of this Court in W.P.(C). No.10060/2008 and connected case wherein this Court has referred to Ext.P5 Government order herein, apparently, in a similar situation. 13. The objection now raised in the counter affidavit that the declaration of probation can be made only after appointment in a regular vacancy is against the explanation to Rule 6(a) of Chapter XIV A K.E.R. Apart from that Ext.P4 clarification issued by the Government will also squarely apply in this case. W.P.(C). No.33127/2008 -:8:- Ext.P4 Government Order also was acted upon in issuing Ext.P5 in a similar case. As rightly pointed out by the learned counsel for the petitioner, no objection was there regarding the declaration of probation, grant of increments and higher grade etc. for a period of 28 years and only by Ext.P3 alone an objection has been raised. Even the two reasons stated in Ext.P3 have been given a go bye in the counter affidavit also. 14. For all the above reasons, the writ petition is allowed. Ext.P3 is quashed. The objection now raised in the counter affidavit that the declaration of probation can be made only after appointment in a regular vacancy does not survive in the light of the explanation to Rule 6(a) of Chapter XIV A K.E.R and Ext.P4 clarification. The petitioner is attaining superannuation on 31/03/2012. Therefore, the petitioner will forward pension papers to the school and the same will be processed in accordance with law. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms