Ajie Elcey Varghese v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 10[TH] DAY OF MARCH 2023 / 19TH PHALGUNA, 1944** ## **WP(C) NO. 10289 OF 2020** ## **PETITIONERS:** AJIE ELCEY VERGHESE AGED 51 YEARS D/O. LATE P.V. VARGHESE, JUNIOR HINDI TEACHER, ST. MARY'S GIRLS HIGH SCHOOL, KOZHENCHERRY, PATHANMTHITTA DISTRICT, KERALA - 689 641. BY ADVS. LIJU.V.STEPHEN SMT.INDU SUSAN JACOB SHRI.VINAY M.E. ## **RESPONDENTS:** 1 THE STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE DIRECTOR OF GENERAL EDUCATION, VAZHUTHACAUD - POOJAPPURA ROAD, JAGATHY, THIRUVANANTHAPURAM - 695 014. 3 THE DEPUTY DIRECTOR OF EDUCATION, MARKET ROAD, OPP. GOVERNMENT TALUK HOSPITAL, NEAR REVENUE TOWER, THIRUVALLA, PATHANAMTHITTA - 689 101. 4 THE DISTRICT EDUCATIONAL OFFICER, PATHANAMTHITTA - 689 645. 5 THE MANAGER, ST. THOMAS HIGHER SECONDARY SCHOOL, KOZHENCHERRY, PATHANAMTHITTA - 689 641. BY ADVS. ADVOCATE GENERAL OFFICE KERALA SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.TONY GEORGE KANNANTHANAM SMT.NISHA BOSE, SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 10289 OF 2020 2 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------W.P.(C)No. 10289 of 2020** **---------------------------------------------Dated this the 10[th] day of March, 2023** ## **JUDGMENT** The above writ petition is filed with the following prayers: _“(i) To call for the records leading to Exhibit P17 to Exhibit P22._ _(ii) To set aside Exhibit P17 to Exhibit P22._ _(iii) To declare that the Petitioner's approved broken service as LG Hindi Teacher from 22.07.1998 to 14.07.2000 and 03.11.2003 to 05.01.2004 is also to be reckoned for granting of Higher Grade Promotion and also to fix her pay scale accordingly.”[SIC]_ 2. Petitioner was appointed as a LG Hindi Teacher in St.Thomas Higher Secondary School, Kozhencherry with effect from 02.06.2004 in the retirement vacancy of Smt. P.J. Annamma by the 5[th] respondent Manager. Ext.P1 is the appointment order. The appointment of the petitioner was approved by the 4[th] respondent as per WP(C) NO. 10289 OF 2020 **==> picture [7 x 10] intentionally omitted <==** order No.K Dis/3/6558/04 dated 04.01.2005. Subsequently, the petitioner was promoted as HSA (Hindi) with effect from 01.06.2005 as per Ext.P2 appointment order. While so, due to the division fall the petitioner was reverted as UPSA (LG Hindi Teacher) with effect from 15.07.2009. Ext.P3 is the proceedings of the 5[th] respondent appointing the petitioner as LG Hindi Teacher. According to the petitioner, before entering into regular service as LG Hindi Teacher with effect from 02.06.2004, the petitioner has got two years six months and twenty days approved service as LG Hindi Teacher and HSA (Hindi). The approved prior service of the petitioner are the following: (i) LG Hindi Teacher : 22.07.1998 to 14.07.2000 (ii) HSA (Hindi) : 15.11.2001 to 29.03.2002 (iii) LG Hindi Teacher : 03.11.2003 to 05.01.2004 3. Ext.P4 to P6 are the appointment orders issued by the 5[th] respondent. The petitioner's probation in the grade of LG Hindi was declared with effect from 21.07.1999 and her first increment was sanctioned with WP(C) NO. 10289 OF 2020 4 effect from 22.07.1999 by raising the petitioner's pay from ` 4000 to 4090/- in the scale of pay of ` 40006090/-. According to the petitioner, her broken services which are approved services are also to be reckoned for grade promotion and grade pay and thereby the petitioner's first Higher Grade promotion will become due with effect from 19.11.2009. Ext.P7 is the service book of the petitioner. It is the case of the petitioner that the 3[rd] respondent without considering the petitioner's approved broken service had granted first Higher Grade promotion taking the date of her regular service as LG Hindi Teacher. According to the petitioner, the statutory rule as well as the decisions laid down by this court says that the approved broken service is also to be reckoned for granting of Higher Grade promotions and pay. It is submitted that the 3[rd] respondent as per Ext.P8 communicated to the 4[th] respondent that the petitioner's broken service can be considered for granting of higher grade promotion. But the statutory authorities without WP(C) NO. 10289 OF 2020 5 considering the factual and legal aspects rejected the claim made in this regard, is the submission. Exts.P9 to P16 are the representations submitted by the petitioner. Ext.P17 is the order of the 4[th] respondent rejecting the claim of the petitioner. The 1[st] respondent also rejected the revision filed by the petitioner as per Ext.P18 order. Ext.P19 is the order of the 1[st] respondent rejecting the review petition filed by the petitioner. Exts.P20 to P22 are the orders passed by the 3[rd] and 2[nd] respondents, rejecting the petitioner's application. According to the petitioner, the broken service of the petitioner is to be reckoned for granting higher grade promotion. Hence this writ petition is filed. 4. Heard counsel appearing for the petitioner and the learned Government Pleader. 5. Counsel for the petitioner reiterated the contentions raised in this writ petition. The counsel also relied on the judgment of this Court in **Lilly V.A v. State of Kerala and Others** [2016 (2) KLT 649] and WP(C) NO. 10289 OF 2020 6 submitted that the broken service can be reckoned for the purpose of getting higher grade promotions. The counsel also relied on the judgment of the Apex Court in **Sumnyan S. and Others v. Limi Niri and Others** [2010 KHC 4275]. 6. The learned Government Pleader on the other hand submitted that the petitioner's broken service include the period from 15.11.2001 to 29.03.2002 as High School Assistant (Hindi). According to the Government Pleader, the time bound higher grade will be granted only on completion of prescribed qualifying service in the same post. The petitioner was working as LG (Hindi) teacher and therefore the petitioner's broken service as HSA (Hindi) can not be reckoned for the purpose of higher grade promotion. The Government Pleader relied on the Circular No.46/2008/Fin. dated 08.08.2008. The Government Pleader also takes me through Clause 8 of G.O.(MS) No.62/73/S.Edn dated 02.05.1973 and submitted that the break in service WP(C) NO. 10289 OF 2020 7 exceeding 5 years has to be reported to the Director of Public Instruction for consideration of the service before the break. 7. This Court considered the contentions of the petitioner and the respondents. As rightly pointed out by the Government Pleader, the petitioner's broken service as HSA (Hindi) for the period from 15.11.2001 to 29.03.2002 can not be reckoned for the purpose of higher grade promotion. Clause 7 of Circular No.46/2008/Fin. dated 08.08.2008 is relevant in this case and the same is extracted hereunder: _“(7) Service rendered in different categories on identical scales of pay was reckoned for computing qualifying service for 13 years' time bound higher grade as per G.O.(P)705/81/(372)/Fin. dated 28-10-1981, upto 15-09-1985. From 16-9-1985 onwards time bound higher grade is admissible with reference to entry post only. In all cases of appointments by direct recruitment either through P.S.C. or through employment exchange (where the appointment was regularised in consultation with P.S.C.) the employee concerned will be granted time bound higher grade only on completion of the prescribed qualifying service in that post (Vide G.O.(Ms.) No.775/80/(245)/Fin. dated 21-10-1980).”_ WP(C) NO. 10289 OF 2020 8 8. Admittedly, the petitioner is working as LG Hindi Teacher. For the purpose of higher grade promotion only the broken service of the petitioner for the same post alone can be considered. The principle behind the grand of higher grade is to avoid stagnation in one post. Therefore the contention of the petitioner that his broken service as HSA (Hindi) from 15.11.2001 to 29.03.2002 also has to be reckoned, is to be rejected. 9. As far as the broken period of LG Hindi Teacher from 22.07.1998 to 14.07.2000 and 03.11.2003 to 05.01.2004 is concerned, the contention of the petitioner is that, that is to be reckoned for the purpose of higher grade promotion. I think there is some force in the argument. This Court in **Lilly V.A'** case (supra) considered this point in detail in paragraph 20 of the judgment. It will be better to extract paragraph 20 of the above judgment: _“20. The broken periods of service, in leave vacancy or otherwise, in aided schools is recognised by_ WP(C) NO. 10289 OF 2020 9 _the KER for all purposes and it also gives rise to a claim for appointment to a regular vacancy; arising under R.51A. The period would be treated as qualifying service for pension and would be reckoned for increment. In such circumstance, though the Full Bench had not considered the issue of whether a temporary appointment could be reckoned for determining the first appointment under sub-rule (2) of R.37, the recognition of such period of service for all purposes by the KER would persuade this Court to take a view that the same can be considered for the purpose of determining the first appointment. Sufficient reliance can be garnered for the said proposition from the decision in Saramma Joseph (supra). The 5[th] respondent, by virtue of her earlier service in the same school under a different cadre, is entitled to be considered senior to the petitioner in the cadre of HSST (Junior).”_ 10. Moreover, the Apex Court also considered this point in _**Sumnyan.S**_ ' case (supra). The relevant paragraphs of the above judgment are paragraphs 29 and 34, which is extracted hereunder: _“29. The challenge appears to us to be belated and in this regard we would endorse the same view as expressed by this Court in the case of Shri L. Chandrakishore Singh v. State of Manipur & Ors. reported in 1999 (8) SCC 287 at para 15 which is extracted hereinbelow:_ WP(C) NO. 10289 OF 2020 10 _"15. It is now well settled that even in cases of probation or officiating appointments which are followed by a confirmation unless a contrary rule is shown, the service rendered as officiating appointment or on probation cannot be ignored for reckoning the length of continuous officiating service for determining the place in the seniority list. Where the first appointment is made by not following the prescribed procedure and such appointee is approved later on, the approval would mean his confirmation by the authority shall relate back to the date on which his appointment was made and the entire service will have to be computed in reckoning the seniority according to the length of continuous officiation. In this regard we fortify our view by the judgment of this Court in G. P. Doval and Another v. Chief Secretary, Government of U.P. and Others, 1984 (4) SCC 329."_ _34. We may here also appropriately refer to another decision of this Court in the case of G. P. Doval v. Chief Secy., Govt. of U.P. reported in 1984 (4) SCC 329, wherein this Court held that regularization of the services of a person, whose initial appointment although not in accordance with the prescribed procedure but later on approved by an authority having power and jurisdiction to do so would always relate back to the dates of their initial appointment. Para 13 is, which is reproduced hereinbelow:_ _"13.........If the first appointment is made by not following the prescribed procedure but later on the appointee is approved making his appointment regular,_ WP(C) NO. 10289 OF 2020 11 _it is obvious commonsense that in the absence of a contrary rule, the approval which means confirmation by the authority which had the authority, power and jurisdiction to make appointment or recommend for appointment, will relate back to the date on which first appointment is made and the entire service will have to be computed in reckoning the seniority according to the length of continuous officiation. That has not been done in this case............... "”_ 11. In the light of the above decisions, I am of the considered opinion that the broken service of the petitioner as LG Hindi Teacher prior to his regular service can be reckoned for the purpose of higher grade promotion. Consequently, the impugned orders can be set aside and the broken period of service as LG Hindi Teacher can be reckoned for the purpose of higher grade promotion. Therefore, this writ petition is allowed in the following manner: i. Ext.P17 to P22 are quashed. It is declared that the petitioner's approved broken service as LG Hindi Teacher from 22.07.1998 to 14.07.2000 and WP(C) NO. 10289 OF 2020 **==> picture [13 x 9] intentionally omitted <==** 03.11.2003 to 05.01.2004 is to be reckoned for granting higher grade promotion and also to fix her pay scale. ii. Consequential order based on the above directions will be passed by the respondents 1 to 4 and will disburse the eligible benefit to the petitioner, as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a certified copy of this judgment. sd/- **P.V.KUNHIKRISHNAN JUDGE** DM WP(C) NO. 10289 OF 2020 13 ## **APPENDIX OF WP(C) 10289/2020** ## PETITIONER EXHIBITS |EXHIBIT P1|A TRUE COPY OF THE APPOINTMENT ORDER| |---|---| ||DATED 02.06.2004 ISSUED BY 5TH| ||RESPONDENT.| |EXHIBIT P2|A TRUE COPY OF THE APPOINTMENT ORDER| ||DATED 05.10.2007 ISSUED BY 5TH| ||RESPONDENT.| |EXHIBIT P3|A TRUE COPY OF THE PROCEEDINGS OF THE| ||5TH RESPONDENT DATED 20.10.2009 VIDE| ||ORDER NO. 1517/2009.| |EXHIBIT P4|A TRUE COPY OF THE APPOINTMENT ORDER| ||DATED 22.07.1998 ISSUED BY 5TH| ||RESPONDENT.| |EXHIBIT P5|A TRUE COPY OF THE APPOINTMENT ORDER| ||DATED 15.11.2001 ISSUED BY 5TH| ||RESPONDENT.| |EXHIBIT P6|A TRUE COPY OF THE APPOINTMENT ORDER| ||DATED 03.011.2003 ISSUED BY 5TH| ||RESPONDENT.| |EXHIBIT P7|A TRUE COPY OF THE THE SERVICE BOOK| ||OF THE PETITIONER.| |EXHIBIT P8|A TRUE COPY OF THE COMMUNICATION| ||DATED 14.03.2016 ISSUED BY THE 3RD| ||RESPONDENT TO THE 4TH RESPONDENT.| |EXHIBIT P9|A TRUE COPY OF THE REPRESENTATION| ||DATED 23.08.2011 MADE BY THE| ||PETITIONER TO THE 4TH RESPONDENT.| |EXHIBIT P10|A TRUE COPY OF THE REPRESENTATION| ||MADE BY THE PETITIONER TO THE 1ST| ||RESPONDENT.| |EXHIBIT P11|A TRUE COPY OF THE REVIEW PETITION| ||DATED 13.02.2015 FILED BY THE| ||PETITIONER TO THE 1ST RESPONDENT.| WP(C) NO. 10289 OF 2020 ||14| |---|---| |EXHIBIT P12|A TRUE COPY OF THE REPRESENTATION| ||DATED 29.06.2015 SUBMITTED BY THE| ||PETITIONER TO THE 1ST RESPONDENT.| |EXHIBIT P13|A TRUE COPY OF THE REPRESENTATION| ||DATED 20.07.2017 MADE BY THE| ||PETITIONER TO THE 4TH RESPONDENT.| |EXHIBIT P14|A TRUE COPY OF THE REPRESENTATION| ||DATED 16.03.2018 FILED BY THE| ||PETITIONER BEFORE THE 3RD RESPONDENT.| |EXHIBIT P15|A TRUE COPY OF THE REPRESENTATION| ||DATED 30.11.2018 MADE BY THE| ||PETITIONER TO THE 4T2ND RESPONDENT| ||THROUGH PROPER CHANNEL.| |EXHIBIT P16|A TRUE COPY OF THE REPRESENTATION| ||DATED 30.11.2018 MADE BY THE| ||PETITIONER TO THE 1ST RESPONDENT.| |EXHIBIT P17|A TRUE COPY OF THE ORDER DATED| ||30.05.2013 OF THE 4TH RESPONDENT| ||REJECTING THE PETITIONERS CLAIM.| |EXHIBIT P18|A TRUE COPY OF THE ORDER DATED| ||17.01.1015 OF THE 1ST RESPONDENT| ||REJECTING THE PETITIONERS REVISION| ||PETITION.| |EXHIBIT P19|A TRUE COPY OF THE ORDER DATED| ||07.05.2015 FROM THE OFFICE OF THE 1ST| ||RESPONDENT REJECTING THE PETITIONERS| ||REVIEW PETITION.| |EXHIBIT P20|A TRUE COPY OF THE ORDER DATED| ||06.10.2018 ISSUED BY THE 3RD| ||RESPONDENT REJECTING THE PETITIONERS| ||APPLICATION.| |EXHIBIT P21|A TRUE COPY OF THE ORDER DATED| ||08.05.2019 ISSUED BY THE 2ND| ||RESPONDENT REJECTING THE PETITIONERS| ||APPLICATION.| |EXHIBIT P22|A TRUE COPY OF THE ORDER DATED| WP(C) NO. 10289 OF 2020 **==> picture [13 x 10] intentionally omitted <==** 04.02.2020 ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT REJECTING THE PETITIONERS APPLICATION. RESPONDENT EXHIBITS: NIL //TRUE COPY// PA TO JUDGE