IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 5TH JULY 2011 / 14TH ASHADHA 1933 WP(C).No. 34575 of 2010(V) -------------------------- PETITIONER: --------------- IDA LOPEZ, AGED 40 YEARS, W/O.STANLEY PIGAREZ, PATHISSERY HOUSE, ARIPALAM, THRISSUR, NOW WORKING AS HEADMISTRESS, D.B.E.P.S, PADIYOOR. BY ADV. SRI.V.M.KRISHNAKUMAR SMT.ANITHA RAVINDRAN RESPONDENT(S): ----------------------- 1. THE STATE OF KERALA, REP. BY SECRETARY, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM PIN 695 001. 2. ASSISTANT EDUCATIONAL OFFICER, IRINJALAKUDA. PIN 680 123 BY GOVERNMENT PLEADER SMT.NISHA BOSE FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No. 34575/10 PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE GO(P)NO.242/09/129/FIN.DT.26.6.09. EXT.P2 : COPY OF THE STATEMENT OF FIXATIONOF PAY AND GRADE OPTION FILED BY THE PETITIONER. EXT.P2 (A) : COPY OF THE STATEMENT OF FIXATION OF PAY AND GRADE OPTION FILED BY THE PETITIONER. EXT.P3 : COPY OF THE COVERING LETTER DT.5.10.10 ISSUED BY THE PETITOINER ALONG WITH EXT.P2 EXT.P4 : COPY OF THE ENDORSEMENT MADE ON THE BACK SIDE OF EXT.P3 DT.22.10.10. EXT.P5 : COPY OF THE DECLARATION OF PROBATION DT.22.6.01. EXT.P6 : COPY OF THE RELEVANT PAGE OF SERVICE BOOK, PAGE 20, 21 RESPONDENT'S EXHIBITS: EXT.R2(a) : COPY OF THE APPOINTMENT ORDER DT.22.6.2000. //TRUE COPY// P.A. TO JUDGE dsn T.R.RAMACHANDRAN NAIR, J. ------------------------------------- W.P.(C)No.34575 Of 2010-V -------------------------------------------------- DATED THIS THE 5TH DAY OF JULY, 2011 J U D G M E N T The grievance raised by the petitioner is regarding the non- grant of higher grade on completion of eight years of service in the post of Headmistress. 2. The petitioner is working as Headmistress of the DBEPS, Padiyoor within the Irinjalakuda Educational Sub District, which is an aided school. Initially the petitioner was appointed on 21.6.1991 as an LPSA and was promoted as Headmistress on 22.6.2000. Even though she was promoted, she was not eligible for the Headmaster's scale of pay as she has not completed 15 years of continuous service as teacher in the school as provided under Chapter XXVI of Rule 1 of the Kerala Education Rules. 3. The petitioner was sanctioned the scale pay of the Headmistress on 20.6.2006. It is pointed out that as per Exhibit P1 order issued by the Government, the petitioner was eligible for grant of higher grade on completion of eight years in the post of Headmistress. W.P.(C)No.34575/2010 -2- 4. The petitioner who was appointed as Headmistress from 22.6.2000 completed eight years' service as Headmistress on 22.6.2008. Exhibit P2 and Exhibit P2(a) are the statement of fixation of pay submitted by the petitioner for getting higher grade along with the option and Exhibit P3 is the covering letter. The same was returned by endorsement in Exhibit P4. The view taken therein is that 8 years' service is not completed after grant of scale of pay of Headmistress as the scale of pay was sanctioned only on 21.6.2006. 5. The above said position is reiterated in the counter affidavit also. It is also pointed out in the counter affidavit that the petitioner's appointment was only on a provisional basis as Headmistress. 6. The learned counsel for the petitioner relied upon a judgment of this Court in W.P.(C)No.11484/2006 wherein a similar question was considered. This Court has taken the view that the contention that higher grade can be granted only after completing 8 years continuous service in the scale of pay cannot be justified. It was held thus in paragraph No.8:- “8........ ....... The entitlement for grant of particular scale W.P.(C)No.34575/2010 -3- of pay on completion of specified number of years cannot put them in a disadvantage in getting the benefits like higher grade that is allowable as per the relevant provisions of G.O.(P) No.3000/98/ Fin. dated 25.11.1998. If the contention of the respondents is accepted, then that will amount to a modification of the terms of the said Government Order wherein the scheme for grant of higher grade has been laid down. It is not the requirement in the said scheme that for the grant of time bound higher grade promotion in respect of Headmasters who have been benefited by the Headmaster's scale in terms of Rule 1 of Chapter XXVI of K.E.R they should complete another 10 years in Headmaster's scale. In the absence of anything of that sort in the scheme, the contention raised by the respondents cannot be accepted.” 7. The situation herein is identical and therefore the said dictum will apply to the facts of this case also. 8. Along with the reply affidavit, the petitioner has produced a copy of the proceedings declaring the probation in the post of Headmistress dated 22.6.2011, which shows that the petitioner has completed her probation period in the category of Headmistress, namely, within one year from 22.6.2000 to 21.6.2001. The relevant portion of the service book is also produced to show that the appointment is not on provisional W.P.(C)No.34575/2010 -4- basis but on regular basis. I find force in the said submission also. Therefore the contention by the respondents that the appointment was on provisional basis is not correct as the petitioner was posted on a regular basis and her probation is also declared. There cannot be any doubt regarding the same also. Therefore the Writ Petition is allowed and Exhibit P4 is quashed. It is declared that the petitioner is entitled for grant of higher grade benefits on completion of eight years of service as Headmistress. There will be a direction to the 2nd respondent to process the fixation statement and sanction the eligible benefits to the petitioner within a period of two months from the date of receipt of a copy of this judgment. Consequential benefits also will be disbursed to the petitioner without further delay. No costs. SD/-( T.R.RAMACHANDRAN NAIR, JUDGE.) dsn