IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 19TH OCTOBER 2011 / 27TH ASWINA 1933 WP(C).No. 8208 of 2009(U) ------------------------------------ PETITIONER(S): ----------------------- LAILA.M.M., AGED 59 YEARS, W/O.ABDUL SALIM, KADUVAKUZHIYIL, KANGAZHA P.O., PATHANAD, KOTTAYAM DISTRICT. BY ADV. SRI.ESM.KABEER RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, PATHANAMTHITTA. 3. THE ACCOUNTANT GENERAL (A & E), THIRUVANANTHAPURAM. R1 TO R3 BY GOVERNMENT PLEADER SMT.M.T.SHEEBA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.8208/2009 APPENDIX PETITIONER'S EXHIBITS P1;- COPY OF THE PENSION PAYMENT ORDER DTD. 29.6.2007. P1(a):- COPY OF THE PARTICULARS OF SERVICE OF THE PENSIONER DT.D 29.6.2007. P2:- COPY OF THE SERVICE BOOK DURING THE PERIOD FROM 28.7.75 TILL 31.3.76. P3:- COPY OF THE SERVICE BOOK DURING THE PERIOD FROM 12.7.77 TO 27.10.07. P4:- COPY OF THE CIRCULAR NO.52373/J2/G.EDN. DTD. 6.3.1998. P5:- COPY OF THE JUDGMENT IN WA. 1224/05 DTD. 26.6.06. P6:- COPY OF THE REPRESENTATION SUBMITTED BEFORE THE IST RESPONDENT DTD. 19.7.07. P7:- COPY OF THE JUDGMENT IN WPC. 28765/07 DTD 27.9.07. P8:- COPY OF THE ORDER DTD. 12.3.08. P9:- COPY OF THE ONE OF SUCH JUDGMENT IN WPC. NOP.15147/05 DTD. 20.10.08. P10:- COPY OF THE ORDER IN SLP.7526/07 DTD. 13.4.2009 OF THE HONOURABLE SUPREME COURT. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.8208 of 2009-U - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of October, 2011. JUDGMENT The petitioner's claim for grant of Higher Grade benefits reckoning provisional service stands rejected by the Government as per Ext.P8, which is under challenge in the writ petition. The petitioner has already retired from service on 31.5.2007. She has got 30 years, 6 months and 13 days of total service. Out of the same, 28 years 5 months and 18 days have been reckoned as qualifying service for pensionary benefits. The petitioner has got a provisional service of 2 years, 4 months and 14 days, out of which 5 months and 22 days was counted for pension. Thus, the petitioner is seeking for a direction to count the remaining portion of service, viz. 1 year 10 months and 23 days for the purpose of pension as well as for Higher Grade benefits. 2. It is the case of the petitioner that the petitioner has got provisional service during different spells in various schools including St. Thomas High School, Ranni. From 6.6.1979 onwards she worked till her retirement on 31.5.2007 at the said school itself. It is stated that the period of service from 5.7.1978 to 31.10.1978 and from 16.11.1978 to 10.1.1979 wpc 8208/2009 2 was counted for pension. Exts.P1 and P1(a) are the copies of the pension payment order and the service particulars. Exts.P2 and P3 are the copies of the relevant extract of the service book. In Ext.P8, the reason stated is that the method of appointment of teachers in Government schools and aided schools are not the same and thus the conditions prescribed in Government decision No.2 under Rule 33 Part I K.S.R. Are not satisfied in the case of the petitioner. 3. Learned counsel for the petitioner placed reliance upon a decision of this Court in Rajendran v. State of Kerala (2004 (3) KLT 533) wherein the view taken is that the provisional service rendered by Government employees and aided school teachers prior to 27.11.1979 is liable to be counted for the purpose of grade promotions. The said judgment has been upheld by a Division Bench of this Court by Ext.P5 judgment in W.A. No.1224/2005. In Ext.P5 judgment the very same question was considered. In para 7, after referring to the arguments raised by the learned Government Pleader, it has been held thus: “7. We do not think the learned Judge had committed an error in tackling the issue when it was held that the recovery was not warranted. The contention of the learned Government Pleader that provisional service before 27.11.1979 could not have been recognisable, is unacceptable. Of course, higher grade to teachers wpc 8208/2009 3 was introduced with effect from the above said date, but that did not mean that service before that date was not to be taken notice of for the purpose of granting the benefits. As pointed out by the learned Judge in Rajendran's case, such a limited view would have been inadmissible as there was no effort taken at any point of time by the Government for holding that the past service was to be deemed as of no consequence. The change brought in the K.S.R. whereby provisional service was not recognisable for the purpose of increments came into operation only from 1994. Only in respect of persons who were regularised after 1.10.1994, increments were to be denied. However, in the case of the petitioners, such service had been recognised, as per the norms which were in force at that time. In fact, Annexures A1 and A2 indicate that the teachers who had provisional service will be entitled to reckon their service for the purpose of grade promotion. The clarificatory order now relied on was issued later on, namely, Annexure D. This Governent Order (G.O.(P) No.540/94/Fin. dated 30.9.1994) indicates that considering the hardship, the embargo had been lifted in respect of a group, and petitioners in the writ petitions belonged to this group. Although it was re-introduced by Annexure E from 8.5.2001, it could not have been affected the settled past cases. Also, as teachers belonging to aided schools, it could not be stated that their qualification and method of appointment was not the same, for provisional appointment as well as regular service.” In the light of the above, the petitioner is entitled to succeed in the writ petition as far as the claim for grant of higher grade benefits are concerned. wpc 8208/2009 4 The view taken in Ext.P8 that as the method of appointment of teachers in Government schools and aided schools are not identical and hence the petitioner is not entitled for grant of higher grade benefits, therefore, cannot be supported. Therefore, the provisional service has to be counted for grant of higher grade benefits. Even though learned counsel for the petitioner has raised a contention that the same could be reckoned for the purpose of counting the total service for grant of pension and other benefits, it is not supported by any provision. Therefore, the said contention cannot be accepted. Therefore, the writ petition is allowed. Ext.P8 is quashed. The provisional service of the petitioner from 23.1.1975 to 27.10.1977 will be reckoned for the purpose of grant of higher grade benefits. Accordingly, the respondents are directed to pass appropriate orders granting the same and on the basis of the same, the pensionary benefits of the petitioner will be revised and eligible amount along with arrears, will be disbursed within a period of three months from the date of receipt of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) kav/