IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 WP(C).No. 4621 of 2008(A) ----------------------------------- PETITIONER: ------------------- SANTHI ABRAHAM,PROTECTD L.P.S.A ST.THOMAS, L.P.SCHOOL, KANGAZHA, KOTTAYAM. BY ADVS. MR.ELVIN PETER P.J. MR.S.RAMESH RESPONDENTS: ----------------------- 1. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION KOTTAYAM. BY GOVERNMENT PLEADER SRI. DILIP MOHAN FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 4621 of 2008(A) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF THE CERTIFICATE ISSUED BY THE HEADMASTER, ST. THOMAS LPS. KANGAZHA. EXT.P2 - TRUE COPY OF THE G.O. DATED 15.2.1996 ISSUED BY THE GOVERNMENT. EXT.P3 - TRUE COPY OF THE ORDER G.O. DATED 16.10.1997 ISSUED BY THE GOVERNMENT. EXT.P4 - TRUE COPY OF THE COMMUNICATION DATED 2.3.1996 SENT BY THE HEADMASTER, ST. THOMAS LPS. EXT.P5 - TRUE COPY OF THE ORDER DATED 25.6.1996 ISSUED BY THE 3RD RESPONDENT. EXT.P6 - TRUE COPY OF THE LETTER DT. 10.6.1996 ISSUED BY THE 2ND RESPONDENT. EXT.P7 - TRUE COPY OF THE COMMUNICATION DATED 16.12.1997 ISSUED BY THE 3RD RESPONDENT. EXT.P8 - TRUE COPY OF THE JUDGMENT DT. 10.9.1997 IN O.P. NO. 14610/97. EXT.P9 - TRUE COPY OF THE JUDGMENT DATED 14.10.1998 IN O.P. NO. 19836 OF 1998. EXT.P10 - TRUE COPY OF THE REPRESENTATION DATED 27.10.1998 SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT. EXT.P11 - TRUE COPY OF THE ORDER G.O. DATED 14.6.1999 ISSUED BY THE GOVERNMENT. EXT.P12 - TRUE COPY OF THE ORDER DATED 28.6.1999 ISSUED BY THE 3RD RESPONDENT. EXT.P13 - TRUE COPY OF THE REPRESENTATION DATED 10.2.2000 FILED BY THE PETITIONER BEFORE THE GOVERNMENT. EXT.P14 - TRUE COPY OF THE ORDER DT. 26.9.2000 ISSUED BY THE GOVERNMENT. EXT.P15 - TRUE COPY OF THE JUDGMENT DATED 14.2.2006 IN O.P. NO. 2628/2001. EXT.P16 - TRUE COPY OF THE ORDER DATED 20./9.2006 OF THE GOVERNMENT. EXT.P17 - TRUE COPY OF THE ORDER DATED 24.10.2007 OF THE GOVT. EXT.P18 - TRUE COPY OF THE ORDER DT. 17.6.98 OF THE GOVERNMENT. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... W.P.(C)No.4621 of 2008 ................................................. Dated this the 3rd day of July, 2009 J U D G M E N T After putting in some broken periods of service, the petitioner entered continuous service as an aided school teacher on 1.6.1988. On 15.7.1994, she was retrenched from service due to division fall. By that time, counting the broken periods of service also, she had put in 7 years 6 months and 29 days. Along with the petitioner, another teacher namely Sherly P. Abraham was also retrenched. But she had 7 years of continuous service. Subsequently, Sherly P. Abraham was given benefits as a protected teacher with effect from 25.6.1996. By Ext.P3 order, the Government held that the period during which a protected teacher was out of job would be treated as eligible leave or leave without allowances as contemplated in G.O(MS) No. 104/69/G.Edn. dated 6.3.1969. That benefit was given to Smt. Sherly P. Abraham by Ext.P18. The petitioner was not even given benefits as a protected teacher on the ground that her 7 years of service was not continuous. Another similarly teacher W.P.(C)No.4621 of 2008 -2- approached this court by filing O.P. NO. 14610/1997. By Ext.P8 judgment, this court held that the eligibility for benefits as a protected teacher cannot be differentiated on the basis of continuous service and non-continuous service. The petitioner claimed the same benefit by filing O.P.No. 2628/2001. By Ext.P15 judgment, this court, after quashing Government Order denying benefits to the petitioner as a protected teacher, held that the petitioner is entitled to have the benefit of protection from 25.6.1996. Accordingly, by Ext.P16, that benefit was given to the petitioner. But that order was silent as to how the period from 15.7.1994 to 24.6.1996 had to be reckoned. In case of Sherly P. Abraham, since by Ext.P18 the period during which she was kept out service was treated as combination of half pay leave at her credit and leave without allowances, the petitioner also claimed similar benefit. However, that was denied by Ext.P17 order by the Government on the ground that the petitioner was not given protection for the period from 15.7.1994 to 24.6.1996. According to the petitioner, this is discriminatory in so far as Smt. Sherly P. Abraham, who was retrenched along with the petitioner, was given that benefit. The petitioner therefore seeks the following reliefs: W.P.(C)No.4621 of 2008 -3- “(a) issue a writ of certiorari or other appropriate writ, order or direction calling for the records leading to Ext.P17 and quashing the same. (b) issue a writ of mandamus or other appropriate writ, order of direction directing the first respondent to treat the period from 15.7.1994 to 24.6.1996 during which period the petitioner was out of service as eligible leave or leave without allowance as laid down in Ext.P3 forthwith. (c) issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to treat the period from 15.7.1994 to 24.6.1996 during which period the petitioner was out of service as eligible leave and to grant the petitioner all consequential benefits including fixation of pay and arrears of salary. (d) issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to grant fixation of pay to the petitioner regularising the service of the petitioner from 15.7.1994 to 24.6.1996 and to grant her arrears of salary forthwith.” 2. A counter affidavit has been filed by the 2nd respondent contending that the petitioner is not entitled to the benefit since for the period from 15.7.1994 to 24.6.1996, the petitioner did not have benefits as a protected teacher. 3. I have considered the rival contentions in detail. 4. The only difference between the petitioner and Smt. Sherly P. Abraham is that Smt. Sherly P. Abraham had 7 years of continuous service whereas petitioner's 7 years of service was W.P.(C)No.4621 of 2008 -4- not continuous but included broken periods of service also. But once this court held that eligibility for protection cannot be differentiated on the basis of whether the service is continuous or not, then the person having 7 years of continuous service and person who has total service of 7 years although not continuous, have to be treated alike in the matter of benefits of protection, including treatments of the period during which they were kept out of service pending finalisation of the eligibility for protection. Admittedly, by Ext.P18 order, the other teacher, namely, Smt. Sherly P. Abraham who was retrenched from service along with the petitioner was permitted to have the period during which she was kept out of service treated as a combination of half pay leave at her credit and leave without allowances. I am of opinion that the petitioner is also entitled to similar benefit as given in Ext.P8 to Smt. Sherly P. Abraham. 5. In the above circumstances, Ext.P7 order is quashed. The 1st respondent is directed to pass fresh orders granting the petitioner the same benefit as given to Smt. Sherly P Abraham, for the period from 15.7.1994 to 24.6.1996, during which period she was kept out of service. Consequently, the petitioner would be entitled to fixation of service benefits like higher grade etc. W.P.(C)No.4621 of 2008 -5- taking into account the period of 15.7.1994 to 24.6.1996 also as service put in by her. Orders in this regard shall be passed, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE rhs