IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 3RD JUNE 2011 / 13TH JYAISHTA 1933 WP(C).No. 10060 of 2008(V) ------------------- PETITIONERS : --------------------- 1. C.F.ROBIN, AGED 35 YEARS, S/O.C.R.FRANCIS, HEADMASTER, ST.ANTONY'S L.P.SCHOOL, VARANDARAPILLY, THRISSUR DISTRICT. 2. SHEEJA.A.J., AGED 38 YEARS, W/O.P.K.ANTO, LOWER PRIMARY SCHOOL ASSISTANT ST.ANTONY'S L.P.SCHOOL, VARANDARAPILLY, THRISSUR DISTRICT. 3. LISSY T.L., W/O.M.I.JOY, AGED 41 YEARS, LOWER PRIMARY SCHOOL ASSISTANT, ST.ANTONY'S L.P.SCHOOL, VARANDARAPILLY, THRISSUR DISTRICT. 4. A.K.SINI, W/O.STAIN CHACKO, AGED 33 YEARS, UPPER PRIMARY SCHOOL ASSISTANT, ST.ANTONY'S HIGHER SECONDARY SCHOOL, AMMADOM, THRISSUR DISTRICT. BY ADVS. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14. 3. THE DEPUTY DIRECTOR OF EDUCATION, AYYANTHOLE, THRISSUR DISTRICT. 4. THE DISTRICT EDUCATIONAL OFFICER, THRISSUR DISTRICT. ...2/- WP(C).No. 10060 of 2008(V) -2- 5. THE ASSISTANT EDUCATIONAL OFFICER, CHERPU, THRISSUR DISTRICT. 6. THE MANAGER, CORPORATE EDUCATIONAL AGENCY, ARCHDIOCESE OF TRICHUR, CATHOLIC ACHBISHOP'S HOUSE, THRISSUR-680 005. 7. THE HEADMASTER, ST.ANTONY'S HIGHER SECONDARY SCHOOL, AMMADOM, THRISSUR DISTRICT. R1 TO R5 BY GOVT. PLEADER SMT. RANI DIOTHIMA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/06/2011, ALONG WITH WPC NO. 32966 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...3/- WP(C).No. 10060 of 2008(V) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE STATEMENT OF FIXATION OF THE 1ST PETITIONER. EXT.P2 : COPY OF THE PROCEEDINGS OF THE MANAGER (2ND PETITIONER) EXT.P3 : COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK OF THE 3RD PETITIONER. EXT.P4 : COPY OF THE PROCEEDINGS OF THE MANAGER (4TH PETITIONER) EXT.P5 : COPY OF THE ORDER NO. D-3191/06 OF THE ASST. EDL. OFFICER, CHERPU (1ST PET.) EXT.P6 : COPY OF THE PETITION FILED BY THE MANAGER (1ST PETITIONER). EXT.P7 : COPY OF THE ORDER NO. B3-25019/07/L.DIS. OF THE DY. DIRECTOR (1ST PET.) EXT.P8 : COPY OF THE ORDER NO. D. 4231/06 OF THE -DO- EXT.P9 : COPY OF THE ORDER NO. D-3192/06 OF THE ASST. EDL. OFFICER, CHERPU (2ND PET.) EXT.P10 : COPY OF THE ORDER NO.D-4219/06 OF THE ASST. EDL. OFFICER, CHERPU (3RD PET.) EXT.P11 : COPY OF THE ORDER NO. D3-25022/06/L.DIS. OF THE DY. DIRECTOR (2ND PET.) EXT.P12 : COPY OF THE ORDER NO. B3-25021/06 OF THE DY.DIRECTOR (3RD PET.) EXT.P13 : COPY OF THE ORDER NO. B1-6166/2006 OF THE -DO- (4TH PETITIONER) EXT.P14 : COPY OF THE NOTICE NO. B1-468/2007 OF THE DIST. EDL. OFFICER (4TH PET.) EXT.P14(a) : COPY OF THE ORDER NO. B1-468/2007 OF -DO- EXT.P15 : COPY OF THE APPEAL PETITION FILED BY THE MANAGER (4TH PET.) (Contd...) WP(C).No. 10060 of 2008(V) EXT.P16 : COPY OF THE ORDER NO. B3-L.DIS/20999/07 OF THE DY.DIRECTOR (4TH PET.) EXT.P17 : COPY OF THE LETTER NO. 65048/J2/2000/G.EDN. OF THE GOVERNMENT. EXT.P18 : COPY OF THE G.O.(RT) NO. 5348/05/G1.EDN. OF THE GOVERNMENT. EXT.P19 : COPY OF THE DECISION REPORTED IN 2006 (1) K.L.J. 478. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.A. TO JUDGE Mn T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 10060/2008-V & 32966/2008-Y - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of June, 2011. JUDGMENT In W.P.(C) No.10060/2008, the petitioners are challenging various orders whereby they have been denied pay revision benefits and the benefits by way of increment without counting the approved broken spells of service. It is pointed out that the broken period of service have been counted for declaration of probation and, therefore, the same has to be accepted. 2. The first petitioner is the Headmaster and the other petitioners are in the category of Teachers. The details regarding the broken spells of all the petitioners have been given in paragraph (1) of the writ petition. 3. As regards the first petitioner, he commenced regular service from 06/06/1996 and the appointment was approved from 06/08/1996. By reckoning his broken service, his probation was declared with effect from 07/06/1996 in terms of explanation to Rule 6(a) of Chapter XIVA Kerala Education Rules. Increment was given to the first petitioner as per Rule 61 (4) of Chapter XIVA K.E.R and the pay was fixed accordingly during 1997 wpc 10060 & 32966/2008 2 pay revision, as evident from Ext.P1. He was appointed as Headmaster from 01/04/2004. 4. With regard to the second petitioner, the broken period of service is during different spells from 05/10/1999 to 12/07/2001 and the regular service is from 13/07/2001 onwards. There is no break in between regular service and broken service, and she has got continuous service from 12/06/2001. Ext.P2 is the proceedings by which her probation was declared with effect from 05/07/2001. 5. The period of broken service of the third petitioner is between different spells from 26/07/1994 to 21/08/1996 and regular service is effective from 30/07/1996 onwards. Her probation was declared as per Ext.P3. 6. As far as the fourth petitioner is concerned, the broken spells are between different periods from 01/10/2001 to 15/11/2002 and the regular service is effective from 04/06/2004. The continuous service is effective from 04/06/2003 onwards and the probation was declared accordingly as evident from Ext.P4. 7. During 2006 pay revision implementation, an objection was raised with regard to the declaration of probation and grant of increment with a direction to revise the same and the proceedings in respect of the first wpc 10060 & 32966/2008 3 petitioner is produced as Ext.P5. Even though the Manager challenged the same, it was rejected by the Deputy Director of Education as per Ext.P7. By Ext.P8, an order was passed directing the Manager to regularise his probation. With regard to petitioners 2 and 3, the proceedings of the Assistant Educational Officer are produced as Exts.P9 and P10 and the orders confirming the same passed by the Deputy Director of Education is produced as Exts.P11 and P12. Various other proceedings have been produced as Exts.P13 to P16. 8. The petitioners are relying upon Explanation to Rule 6(a) of Chapter XIV-A K.E.R. whereby broken periods of duty within a continuous period of two years can be reckoned for calculating the one year duty period. It is pointed out that by Ext.P17 the Government clarified that broken spells of service can be reckoned for the purpose of declaration of probation and change in the scale of pay has no relevance in this case. 9. Ext.P18 is another Government Order whereby the Government upheld the declaration of probation of a teacher who had broken service prior to the commencement of continuous service. Ext.P19 is the judgment of this Court reported in T.V. Kurian v. State of Kerala (2006 (1) KLJ 478) which, according to the learned counsel for the petitioner, applies to the facts of this case. wpc 10060 & 32966/2008 4 10. In W.P.(C) No.32966/2008, the petitioner is working as U.P. School Assistant. The petitioner had different spells of service between 29.6.1993 to 1.11.1996. The probation of the petitioner was declared as satisfactorily completed from 7.6.1997 by the Manager of the school in terms of Rule 6(a) of Chapter XIV-A K.E.R. Even though the Headmaster forwarded the revised proposal for sanction of increment from 3.6.2007, the Assistant Educational Officer rejected the request stating that time scales are not identical. Ext.P3 is the order passed by the Asst. Educational Officer. An appeal was filed before the Deputy Director of Education, wherein a direction was issued to the Assistant Educational Officer to revise the case. It is pointed out that by Ext.P5, the request was again rejected. The petitioner is relying upon the decision of a Division Bench of this Court in Hussain v. Kerala Water Authority (1996 (2) KLT 555) and also Ext.P7 judgment of a learned Single Judge of this Court. The petitioner is also relying upon Exts.P9 and P10 orders issued by the Government, whereby similar objections were dropped. 11. The Government letter dated 17.1.2001 which is produced as Ext.P1 in W.P.(C) No.32966/2008 and Ext.P17 in W.P.(C) No.10060/2008, is strongly relied upon by the learned counsel for the petitioners. Therein, it is stated that “broken spell of services is the common phenomenon in aided wpc 10060 & 32966/2008 5 schools. Rule 6(a) is incorporated in Chapter XIV-A KER to safeguard the interest of aided school teachers making them eligible for service benefits but for the breaks.” It is finally stated that the provisions in Rule 6 of Chapter XIV-A KER may be followed in the case of declaration of probation of aided school staff and change in the scale of pay has no relevance in this case. 12. A Division Bench of this Court in Hussain's case (1996 (2) KLT 555), in a similar case, allowed the reckoning of provisional service of the regularised employees for the purpose of increments. It was held that by the revision of pay scales, the identity of the scale of pay will not be lost. In Ext.P7 judgment produced in W.P.(C) No.32966/2008, the above Division Bench decision was followed and it was held that the benefit of increments counting provisional service cannot be denied when the difference in pay scale is due to pay revision. Reliance was placed therein of the decision of this Court in Hussain's case (supra) and Jose Jacob v. State of Kerala (1998 (2) KLT 873), wherein the said legal position was laid down. 13. In the light of the above, the petitioners are entitled to succeed in these writ petitions. It is declared that the declaration of probation of the wpc 10060 & 32966/2008 6 petitioners counting the broken period of service in terms of Rule 6(a) of Chapter XIV-A K.E.R. is legal and valid. The benefit cannot be denied when difference in scale is due to pay revision. 14. The writ petitions are thus allowed and the impugned proceedings are hereby quashed. It is submitted that increments from 1997 and the pay revision benefits have not been sanctioned so far. Therefore, appropriate orders will be passed by the competent authority among the respondents sanctioning the the due increments and benefits of pay revisions to the petitioners and the monetary benefits also will be disbursed accordingly. The same will be done within a period of three months from the date of receipt of a copy of this judgment. The writ petitions are allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/