IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 28TH MAY 2009 / 7TH JYAISHTA 1931 OP.No. 2152 of 2003(F) ----------------------------------- PETITIONER(S): ----------------------- A.VALSARAJAN, AGED 47 YEARS, S/O. APPUTTY, HEAD MASTER, IRSHADIYA A.U.P. SCHOOL, VALIAPARAMBA, VALIAPARAMBA P.O. 673 637, MALAPPURAM DISTRICT. BY ADV. MR.P.V.MOHANAN RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION (B) DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE ASSISTANT EDUCATIONAL OFFICER, KONDOTTY. * 4. THE MANAGER, IRSHADIYA A.U.P. SCHOOL VALIAPARAMBA P.O. 673 637. (DELETED) * R4 IS DELETED AS PER ORDER DT. 27.2.08 IN IA. 2880/08. GOVERNMENT PLEADER SMT.T.B.RAMANY FOR R1-3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 28/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.3852/2003 IN OP. 2152/2003 DISMISSED 28/05/2009 SD/- T.R.RAMACHANDRAN NAIR, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE CERTIFICATE (ACCOUNT TEST (LOWER) CONDECT BY THE KERALA PUBLIC SERVICE COMMISSION DT. 5.8.83. P2:- COPY OF THE APPOINTMENT ORDER DT. 10.9.82 ISSUED BY THE 4TH RESPONDENT. P3:- COPY OF THE JUDGMENT IN OP. 10125/89 DT. 6.4.98 BY THE HONOURABLE COURT. P4:- COPY OF THE G.O.(P) 127/99/G.EDN. DT. 4.5.99 ISSUED BY THE IST RESPONDENT. P5:- COPY OF THE ORDER NO.K. DIS./G2/103424/2000 DPI DT. 25.1.01 ISSUED BY THE 2ND RESPONDENT. P6:- COPY OF THE PROCEEDINGS NO.50640/B1/2001/GE DT. 16.10.01 ISSUED BY THE IST RESPONDENT. P7:- COPY OF THE PROCEEDINGS NO.D.5769/99 DT. 1.2.02 ISSUED BY THE 3RD RESPONDENT. P8:- COPY OF THE JUDGMENT IN OP. NO.10125/89 DT. 6.4.98 BY THIS HONOURABLE COURT. P8:- COPY OF THE JUDGMENT IN OP. 24851/99 DT. 28.1.03 ( I.A. NO.16822/06). RESPONDENT'S EXHIBITS NIL. TRUE COPY P.S. TO JUDGE TSS T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P. No.2152 of 2003-F - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of May, 2009. JUDGMENT Aggrieved by Ext.P5 order, the petitioner has filed this writ petition. Shortly stated, the necessary facts are the following: The petitioner is the Headmaster of an aided U.P. School managed by the 4th respondent. The school was started in the year 1979 and it became a complete U.P. School in the year 1981. The petitioner is having the qualification of Graduation and B.Ed. and his appointment was approved. A post of Headmaster was sanctioned in the school and one Abdu Rahiman was holding the charge as Headmaster. He resigned from the post on 10.9.1982 and remained as Assistant Teacher. The petitioner was promoted as Headmaster with effect from 10.9.1982 as per Ext.P2. It may be mentioned herein that even though Account Test (Lower) shall be an obligatory qualification for Headmaster. Under Rule 45B(3) of Chapter XIV-A K.E.R., a temporary exemption from acquiring the qualification was provided till 31.3.1986. The petitioner obtained the qualification of Account Test (Lower) within the period of exemption, in February 1983 which is evidenced by Ext.P1. 2. The appointment of the petitioner as Headmaster was approved op 2152/2003 2 with effect from 10.9.1982 as per order dated 9.11.1982. When a subsequent incumbent assumed charge as Asst. Educational Officer, he made an entry in the Service Book of the petitioner to the effect that his appointment will be as “ Headmaster in Charge with effect from 10.9.1982.” This was without notice to the petitioner. Again, on completion of five years of service, the petitioner was redesignated as Graduate Headmaster on 2.6.1985 and was granted the scale of pay of Headmaster. But even though the matter was take up before the Government by the petitioner and various other similarly placed persons, he was compelled to refund the excess salary drawn and on completion of 15 years of service, he was granted the scale of pay of Headmaster. 3. Sub-rule (1) of Rule 1 of Chapter XXVI of K.E.R. providing the scale of pay of aided school teachers and Headmasters was amended by G.O.(P) No.136/88/G.Edn. dated 8.9.1988 published in the Gazette dated 15.9.1988 with retrospective effect from 1.6.1973. Going by the said provision, 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 15years continuous service as teacher in schools recognised by the Department. This was challenged by various persons op 2152/2003 3 before this court and the matter was considered by a Full Bench which were disposed of taking the view that the retrospectivity given is bad. The above judgment is reported in Indira M. v. State of Kerala and others (ILR 1998 (2) Ker. 771 (FB). In accordance with the judgment, the Government passed Ext.P4 order granting the benefit to various persons. In the operative portion of the said order, it was specified that the monetary benefits under these orders will be granted notionally from the date of their promotion up to 18.11.1997, and from 19.11.1997 onwards it will be paid in cash. This was challenged in various writ petitions and by Ext.P8 judgment a Division Bench of this court held that the petitioners are entitled to draw the new scale of pay of Headmasters from the date of their respective appointment to the said post and that they are also entitled to receive the monetary benefits in cash for the period from the date of their promotion to 18.12.1997. The above judgment of the Division Bench has also been implemented by the Government as per G.O.(P) No.138/2005/G. Edn. dated 4.5.2005 ordering that the restriction of monetary benefits up to 18.12.1997 to those Headmasters appointed before 15.9.1988 will be withdrawn and that they will be eligible for arrears of salary from the respective date of their appointment till 18.12.1997. 4. After the above issues were settled, the Manager filed a petition op 2152/2003 4 before the Director of Public Instruction which was disposed of by Ext.P5 order. The Manager in the above petition had requested to issue order redesignating the petitioner as Headmaster with effect from 10.9.1982. This was rejected by Ext.P5 which is under challenge in this writ petition. The only reason for rejection is that the petition filed by the Manager after a lapse of more than 18 years cannot be considered and accordingly it was rejected. There is also a finding that the petitioner was qualified for the post of Headmaster when he acquired five years teaching experience. He was appointed as Headmaster with effect from 2.6.1985. 5. Shri P.V. Mohanan, learned counsel for the petitioner submitted that the finding that the petitioner ought to have completed five years service as on the date of appointment, is clearly against the judgment of a Full Bench of this court in O.P.No.10125/1989 which is also produced as Ext.P3 herein. After referring to the Full Bench decision in Indira's case (ILR 1998 (2) Ker. 771), and considering the scope of Rule 45 of Chapter XIV-A K.E.R., it was held by the Full Bench thus in para 7 of the judgment: “The requirement of 5 years service for a graduate teacher as per the provisions contained under Rule 45 of Chapter XIV-A will be relevant only when there is senior under-graduate teacher waiting for op 2152/2003 5 promotion in that school.” In para 6 of the judgment it was held that “it is not necessary to insist that the graduate teacher should have completed 5 years of service. It is only in cases where the graduate-teacher claims promotion over a qualified senior under graduate-teacher the requirement of five years service and half of the period of service of the senior under graduate-teacher should be insisted upon. Their Lordships overruled the earlier decision of this court in Usha Kumari v. State of Kerala (1996 (2) KLT 1003). A Division Bench of this court in Ushakumari v. State of Kerala (2000 (1) KLT 292) has followed the above judgment of the Full Bench. 6. In the light of the binding decision of the Full Bench, there cannot be any doubt that the petitioner who was a graduate teacher was entitled to be promoted as Headmaster even without waiting for completion of five years service. Therefore, the approval grated by the Asst. Educational Officer with effect from 9.11.1982 was perfectly justified. 7. In the counter affidavit filed by the respondents, the plea taken is that the petition by the Manager was filed more than 18 years after the endorsement was made by the Asst. Educational Officer. It is further stated in para 5 that the petitioner was qualified for the post of Headmaster when op 2152/2003 6 acquired five years' experience. He was appointed as Headmaster with effect from 2.6.1985. A reference is made to an audit objection in para 6 regarding the excess pay refunded by the petitioner and ultimately it is averred that in terms of Government Orders dated 4.6.1999 and 8.6.1999 the pay of the petitioner has been revised. In para 9, reference is made in para 9 to various Government Orders clarifying that Headmasters who are appointed prior to 15.9.1988 are entitled to get the monetary benefits from the date of promotion itself. Therefore, there cannot be any doubt as regards the eligibility of the petitioner for getting Headmaster's scale from the date of appointment and from the date of approval thereof. The other objection that he should have completed five years of service is no more alive in the light of the Full Bench decision referred to above (Ext.P8 judgment). As regards Account Test (Lower) also, he has passed the test within the period of exemption granted under Rule 45B(3) of Chapter XVI-A K.E.R. This is evident from Ext.P1. 8. In the light of the legal position emerging the contention raised by the respondents that there has been unreasonable delay in the matter cannot be accepted in toto. The true interpretation of Rule 45 as well as the challenge against sub-rule (1) of Rule 1 of Chapter XXVI K.E.R. was pending consideration before the Full Benches of this Court and after the op 2152/2003 7 decision of the Full Benches in Indira's case (ILR 1998 (2) Ker. 771) was implemented, there cannot be any dispute that the petitioner was entitled for the monetary benefits accordingly. When a declaration of law is made by this court in respect of the persons who are similarly placed in a service, that benefit can automatically be claimed by a person like the petitioner. The Division Bench in Ext.P8 judgment produced along with I.A.No.16822/2006, finally settled the issue regarding restriction of the monetary benefits granted to Headmasters with effect from 18.12.1997. Therefore, it cannot be said that there was any culpable delay on the part of the Manager in pointing out that the designation of the petitioner as Teacher in charge was not correct. When the dictum laid down by the Full Bench and the consequent orders passed by the Government are applicable in the case of the petitioner and since he is continuing in service throughout, there cannot be any doubt that the claim cannot be rejected for the reason of any unreasonable delay. 8. For all these reasons, Ext.P5 is quashed. It is declared that the petitioner's promotion as Headmaster is liable to be approved with effect from 10.9.1982 with all consequential benefits. The petitioner will therefore, submit a form of option before the third respondent within a period of one month from the date of receipt of a copy of this judgment and op 2152/2003 8 the third respondent will fix the Headmaster's scale as applicable to him along with other benefits, if any, and appropriate orders will be passed within a period of three months thereafter. The writ petition is allowed as above. (T.R. Ramachandran Nair, Judge.) kav/ op 2152/2003 9 T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P. No.2152 of 2003-F - - - - -- - - - - - - - - - - - - - - - - - - - - JUDGMENT 28th day of May, 2009.