IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 9TH JUNE 2011 / 19TH JYAISHTA 1933 WP(C).No. 17158 of 2007(P) --------------------------------------- PETITIONER(S): ----------------------- 1. SHIVADASAN N.K., HEADMASTER, GOVT.LOWER PRIMARY SCHOOL, PURAKKAL PRAKKAD, MUDADI NORTH, KOZHIKODE DISTRICT. 2. AHAMMAD P.M., HEADMASTER, GOVT.LOWER PRIMARY SCHOOL, KUNNASSERY, CHANGAROTH P.O., KUNNUMMAL, KOZHIKODE. BY ADV. SRI.THOMAS ANTONY SRI.PRAKASH M.P. RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY IT'S SECRETARY TO THE GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. ASSISTANT EDUCATIONAL OFFICER, KUNNUMMAL, VATTOLI P.O., KOZHIKODE DIST - 673 510. 3. DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE. R1 TO R3 BY GOVERNMENT PLEADER SMT.RANI DIOTHIMA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/05/2011, THE COURT ON 09/06/2011 DELIVERED THE FOLLOWING: sts 2/- -2- WP(C)NO.17158/2007 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PROCEEDINGS DATED 25/05/2005 OF THE 3RD RESPONDENT. P2 COPY OF THE ORDER DATED 24/8/2005 OF THE 3RD RESPONDENT. P3 COPY OF THE STATEMENT OF FIXATION OF PAY DATED 14/11/2005 SUBMITTED BY THE 1ST PETITIONER. P4 COPY OF THE ORDER DATED 17/12/2005 OF THE 2ND RESPONDENT. P5 COPY OF THE APPEAL PETITION DATED 29/12/2005. P5(A) COPY OF THE ENDORSEMENT MADE ON THE APPEAL PETITION. P6 COPY OF THE STATEMENT OF FIXATION OF PAY DATED 18/9/2005 BY THE 2ND PETITIONER. P7 COPY OF THE PROCEEDINGS DATED 20/02/2006 OF THE 2ND RESPONDENT. P8 COPY OF THE REPRESENTATION DATED 08/06/2006 OF THE 1ST PETITIONER. P9 COPY OF THE REPRESENTATION DATED 06/07/2006 OF THE 2ND PETITIONER. P10 COPY OF THE JUDGMENT DATED 26/9/2006 IN WP(C)NO.13475OF 2006. P11 COPY OF THE G.O(RT)NO.1636/07.GE. DATED 12/4/2007. P12 COPY OF THE ORDER NO.K.DIS.B.NO.373/98 DATED 21/1/1998 AEO, KOILANDY. P13 COPY OF THE G.O.(MS)NO.32/71/S.EDN DATED 19/03/1971. P14 COPY OF THE G.O.(MS)NO.55/73/S.EDN DATED 24/04/1973. P15 COPY OF THE G.O.(MS)NO.53/74/G.EDN DATED 14/03/1974. P16 COPY OF THE G.O.(MS)NO.242/74/G.EDN DATED 11/12/1974. P17 COPY OF THE G.O.(P)486/79/51 FIN DATED 26/5/1979. P18 COPY OF THE G.O.(P)191/80/G.EDN DATED 18/11/1980. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 17158 of 2007-P - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of June, 2011. JUDGMENT The petitioners are aggrieved by the denial of Primary School Headmaster's scale, in spite of the promotions granted to them on the ground that they are not having 15 years of continuous service as on the date of promotion, if the period of leave without allowance availed of by them is excluded. 2. The final order passed by the Government rejecting the representations, has been produced as Ext.P11. The petitioners had availed leave without allowance for employment abroad and in Ext.P11 it was held that the said period will have to be excluded from their credit for reckoning 15 years of service. 3. Heard learned counsel for the petitioners and learned Govt. Pleader. 4. The first petitioner was promoted as Headmaster and posted in a Government Lower Primary School as per Ext.P2 order dated 24.8.2005. He had joined service as P.D. Teacher on 6.6.1985. Leave without allowance was granted to him as per G.O.(Rt) No.1303/98/GE dated wpc 17158/2007 2 26.3.1998, for the purpose of taking up employment abroad. The total period covered by the leave is from 1.4.1998 to 31.5.2005 and he rejoined duty on 1.6.2005. 5. The second petitioner joined service as P.D. Teacher on 20.1.1986. He was granted leave without allowance from 1.2.1994 to 30.1.1999 and from 30.3.1999 to 15.6.2003. He rejoined duty as P.D. Teacher on 15.6.2003. He was also promoted as Headmaster as per Ext.P2 order. Both of them were promoted based on their seniority. 6. Initially the second respondent rejected the claim for scale of pay and an appeal was filed which was rejected by the third respondent for the very same reason. The Government considered the matter in the light of the direction issued by this Court as per the judgment in W.P.(C) No.13475/2006. 7. The petitioners have produced Ext.P12, a copy of the proceedings of the Asst. Educational Officer, Koyilandi in respect of one Shri T.Mohammed Kutty and it is submitted that he was also identically placed, but no such objections were taken in his case. 8. Learned counsel for the petitioner mainly contended that the promotions have been granted to the petitioners on the basis of the seniority. Under Rule 28A of Part I K.S.R. the petitioners are entitled to fixation of wpc 17158/2007 3 pay and the same cannot be denied to them. The prescriptions made by various Government Orders providing for 15 years of continuous service for the purpose of granting Headmaster's scale, cannot be imposed to deny the benefits conferred under Rule 28A of Part I K.S.R. It is pointed out that even though the petitioners have availed leave without allowance, the conditions for grant of such leave will not take away the benefit of service for granting Headmaster's scale. Therefore, as they are having the required number of service on promotion, they are entitled for the scale of pay of Headmaster. Learned counsel for the petitioners also placed reliance upon the decision of a Full Bench of this Court in Indira M. v. State of Kerala (ILR 1998 (2) Ker. 771 - FB) and the decision of a Division Bench of this Court in Sivaprasad v. Public Service Commission (2007 (4) KLT 1023). It is pointed out by the learned counsel for the petitioners that even going by Clause 4 of Appendix XII-A of Kerala Service Rules, the only stipulation is that during the currency of the period of leave, the said persons shall lose all service benefits such as earning of leave including half pay leave, pension, gratuity, increment, etc. and also promotion chances as may arise without reference to their seniority in the posts from which they proceeded on leave. The petitioners will not be affected by that wpc 17158/2007 4 stipulation and they will get promotion once they rejoin service after the leave period is over. 9. There is no dispute that the petitioners were granted leave without allowance in the light of Rule 88 of Part I K.S.R. read with Appendix XIIA. In Clause 4 of Appendix XIIA, it is specified that “ in such cases for and during the currency of the period of leave, the officers shall lose all service benefits such as earning of leave including half pay leave, pension, gratuity, increment, etc. and also promotion chances as may arise without reference to their seniority in the posts from which they proceeded on leave. They shall also lose seniority in the higher grade/grades with reference to their juniors who might get promoted to such grade/grades before they rejoin duty.” 10. The order Ext.P11 passed by the Government states in para 5 that the petitioners were granted leave without allowance for taking up employment abroad under Rule 88/Appendix XII-A Part I KSR “subject to the condition that the leave period will not count for any service benefits like pay fixation, Grade, increment, pension, etc. In the counter affidavit filed also, in para 13 it is mentioned that “at the time of applying for leave they were well aware that the period of leave without allowance applied for would not reckon for any service or pensionary benefits including fixation wpc 17158/2007 5 of pay. As the petitioners have not put to their credit a service of 15 years as Primary School Teacher as on the date of their promotion to the post of Headmasters excluding the period of leave without allowance taken for taking up better employment abroad, they are not eligible for the scale of pay applicable to the post of Primary School Headmaster, but only for their grade pay as primary school teacher and supervision allowance admissible to the post of primary school Headmaster.” 11. The decision of the Full Bench in Indira's case (ILR 1998 (2) Ker. 771) is one relating to the interpretation of Rule 1 of Chapter XXVI K.E.R. Therein, it was held that the teachers appointed as Headmaster during 1972-1976 of Lower and Upper Primary Schools are entitled to the salary of Headmasters irrespective of the fact that the schools are not complete or they did not have the requisite years of service. Actually, the question considered was in a different context. 12. The decision of the Division Bench in Sivaprasad's case (2007 (4) KLT 1023) considered a case where a person who availed of leave without allowance, applied for appointment by transfer. The Division Bench held that Clause 4 of Appendix XIIA only takes in promotion chances of persons who have availed of leave, but does not take away right of a person for appointment by transfer and past services rendered. It was wpc 17158/2007 6 also held that the promotion and recruitment by transfer are different concepts and accordingly it cannot be held that he has lost his right for applying recruitment by transfer and the length of service already put in by him, before availing of leave without allowance. The facts of the case show that the special rules therein provided a minimum service of five years for applying for the post of Assistant Engineer by way of appointment by transfer, apart from educational qualifications. It was held that the same was satisfied by him before he took leave. It is in that context the above decision was rendered. The same will not apply to the facts of this case. 13. This Court has considered the effect of the conditions prescribed by the Government while granting leave without allowance for taking up employment abroad under different situations. The words “service benefits” also were interpreted in some judgments. 14. In Lukose v. State of Kerala (1995 (2) KLT 285 - FB), it was held that “Members of the service who have completed their probation are entitled to seniority over and above the members who have gone on leave for taking employment abroad. A member of service who takes up employment after availing leave cannot be allowed to have the double benefit of service/promotion as well as his leave.” 15. Two Division Benches of this Court has considered the situation wpc 17158/2007 7 almost identical to the one herein, wherein the length of service enabled the parties concerned to get certain service benefits. First of them is Dr. Krishna Pillai v. State of Kerala (1988 (2) KLT 106). Therein, the leave was granted to take employment abroad on condition that the leave will not count for increment, pension or any other service benefits. The question posed was whether the words “any other service benefits” includes the benefit of service rendered during period of absence . It was held in para 2 that “it is clear that the period during which the appellant was on leave for taking up employment abroad cannot count for 'increment, pension or any other service benefits'. The expression “any other service benefits” includes the benefit of service rendered during the period of absence.” The facts of the case show that after returning from leave, the appellant staked his claim for the post of Unit Chief Radiologist which depended upon the number of points he would acquire under the points system under which the length of service rendered was one of the factors to be taken in awarding units. It was contended that the period of his absence of leave from 18.7.1980 to 5.5.1985 should be counted as service for awarding units, which contention was not accepted by the State Government. It is in that context the above finding was rendered by the Division Bench. wpc 17158/2007 8 16. In Abdul Razak v. State of Kerala (2006 (1) KLT 818), the Division Bench examined the question whether the period of leave without allowances can be reckoned for the purpose of grant of higher grade and it was held that “it cannot be”. The relevant findings contained in para 4 are as follows: “The stress of the rule, as could be understood, is that officers shall lose all service benefits, when they avail of leave without allowances. Reference is made to earned leave, including half pay leave, pension, gratuity, increments etc. Promotion chances are also lost to them. The Rule in fact discourages possible claim, which may be urged in the matter of higher grades. In the eventuality of an officer, who availed of leave without allowances, getting a higher grade, that will not enable him to press for an advantage over his junior counter parts, who had remained in service, and by virtue of such service in the meanwhile were conferred with grade promotions.” Clause 4 of of Appendix XII-A was considered therein. It was further held in para 5 that what was salvaged was the right of seniority, which would not have been deemed as lost in view of the provisions of Rule 27 of KS & SSR and finally in para 6 the Bench declared the legal position thus: “That a person may retain his position of seniority for whatever it is worth does not automatically lead to a presumption that he is to be deemed as having rendered service all throughout. Conferment of wpc 17158/2007 9 grade promotion is for ensuring that stagnation is avoided and disgruntlement does not result. After rendering service for a specified period in a post, an officer is deemed to have come over to the higher grade. The absence of a higher post itself is immaterial for giving such benefit. In respect of persons who are able to secure promotion, benefit of grade promotions is not admissible. Thus the benefit is introduced with clear insight.” Therefore, when a particular length of service is required for conferring a benefit, the party concerned will have to complete the said period of service. 17. Herein, the conditions under which the leave without allowance was granted, are not in dispute even though the orders have not been placed on record. As already noticed, in Ext.P11 it is mentioned that the leave was granted on condition that the leave period will not count for any service benefits like “pay fixation, grade, increment,” etc. The said conditions are binding on them. Therefore, evidently, with regard to pay fixation, the said period cannot be counted. The Government has held in paragraph 5 of Ext.P11 order that the petitioners have no dispute regarding the conditions under which they had availed the leave themselves. Therefore, having agreed for such conditions at the time of grant of leave, as observed by the Division Bench in Dr. Krishna Pillai's case (1988 (2) KLT 106), they wpc 17158/2007 10 cannot try to wriggle out of the conditions that were imposed by the order granting leave, denying service benefits during the period of their absence. 18. It was vehemently contended by the learned counsel for the petitioners that the benefit of fixation under Rule 28A cannot be denied to them by relying upon the Government Orders. In fact, leave was granted under Rule 88 read with Appendix XIIA of Part I K.S.R. which cannot be of dispute and therefore the conditions were imposed in terms of the said statutory rules alone. It is not a case where the benefit of fixation under Rule 28A is being denied based on executive orders. When a particular length of service is required for granting a scale of pay which is prescribed by the various executive orders, to obtain the same the said period will have to be rendered by the parties concerned. The fixation of scales are clearly made by various executive orders. What stands against the petitioners, is the conditions of the orders granting leave in exercise of the power under Rule 88 and Appendix XIIA of Part I K.S.R. Therefore, when the said conditions are applied, they will not be entitled for the fixation. There is no conflict between the method of fixing the pay scale under Rule 28A and in applying the conditions for granting leave. Therefore, the said contention also cannot help the petitioners. True that in terms of the seniority they have been promoted as Headmasters. But the grant of scale wpc 17158/2007 11 depends upon various factors, as noted above. It is for that reason the respondents denied their claim. As rightly pointed out in the counter affidavit, at the time of applying for leave they were well aware that the period of leave without allowance applied for would not reckon for any other service or pensionary benefits including fixation of pay. They cannot claim back the benefit of fixation by pointing out Rule 28A of Part I K.S.R. in such circumstances. For all these reasons, the writ petition is dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/