Baby Letha.K v State of Kerala and The Assistant Educational Officer, Thalassery North

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 30[TH] DAY OF JUNE 2022 / 9TH ASHADHA, 1944`** ## **`WP(C) NO. 15391 OF 2021`** ## **`PETITIONER/S:`** ``` BABY LETHA.K AGED 62 YEARS W/O.MOHANAN,PENSIONER, AGED 62 YEARS, RESIDING AT 'MANJEERAM', KOTTAYAM MALABAR.P.O, KOOTHUPARAMBA, KANNUR, PIN-670643. BY ADVS. R.SURENDRAN S.MAYUKHA ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-6950001. 2THE ASSISTANT EDUCATIONAL OFFICER THALASSERY NORTH,KANNUR DISTRICT,PIN-670101. BY ADV ADVOCATE GENERAL OFFICE KERALA SMT NISHA BOSE SR GP ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSION ON30.06.2022,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` ``` WP(C) NO. 15391 OF 2021 ``` ``` 2 ``` ## **JUDGMENT** The petitioner herein was appointed as Lower Primary School Assistant (“LPSA”) in the Eranholi East L.P. School on 01.07.1985. Later, by Exhibit P1 order dated 01.04.2010, the de facto Manager promoted and appointed the petitioner as Head Mistress of the School with effect from 01.04.2010 in a retirement vacancy. Though the proposal for approval was forwarded, the request was not considered as the appointment of the aforesaid M.K.Sudheer as the Manager of the School was pending consideration. However, the petitioner continued to be the Head Mistress in Charge. By order dated 08.02.2012, as the school was uneconomic, the 1st respondent ordered the closing down of the school. The petitioner was given protection and deployment, and she was posted in the Government High School, Aralam Farm. 2. The petitioner contends that she retired from service on 31.05.2015 on attaining superannuation. However, her request for Head Master’s scale and approval of appointment as Head Mistress with effect from 01.04.2010 was declined by the Deputy Director on the ground that the petitioner was a protected teacher from the academic year 2012-2013. She also contends that she had approached this Court and filed W.P.(C) ``` WP(C) NO. 15391 OF 2021 ``` ``` 3 ``` No.37916/2018, and by Exhibit P2 judgment, directions were given to the 1st respondent to consider the issue. The 1st respondent considered the matter and issued orders to the 2nd respondent to approve the appointment of the petitioner as Headmistress from 01.04.2010 if she is otherwise qualified. The petitioner asserts that, by Exhibit P4 order, the 2nd respondent considered the matter and rejected the request made by the petitioner. In Exhibit P4, it is stated that the petitioner was re-appointed as Lower Primary School Teacher (“LPST”) in the Government High School, Aralam Farm, and in view of the Government Circular No. 1237/J1/12/G.Edn., the petitioner was not eligible for pay protection in the higher scale of pay, if the appointment is in the lower categories. The petitioner asserts that reliance placed by the 2nd respondent on Exhibit P5 cannot be sustained. 3. In the said circumstances, the petitioner is stated to have submitted a representation before the 1st respondent seeking grant of the pay scale in the post of Headmistress. However, the same was rejected by Exhibit P8. It is in the afore circumstances that the petitioner approached this court seeking to quash Exhibit P5 Circular No. 1237/J1/12/G.Edn., dated 18.02.2012 and Exhibits P4, P6 and P8 orders, and for incidental reliefs. ``` WP(C) NO. 15391 OF 2021 ``` ``` 4 ``` 4. In the counter affidavit filed by the second respondent, it is stated that the petitioner was initially appointed as LPST in the Eranholi East LP School with effect from 01/07/1985, and the appointment was approved. The petitioner was later promoted and appointed as Headmistress of the school with effect from 01/04/2010 by the manager. The approval of the appointment was, however, rejected on the ground that the proposal was submitted by an unapproved manager. The petitioner continued to work as Assistant-in-charge of the school from 01/04/2010 to 04/07/2012. By order dated 8/2/2012, the Eranholi School was ordered to be closed down, and the petitioner being the solitary teacher working there, was deployed as LPST in the Government High School Aralam with effect from 01/06/2012. Later by Exhibit P3 order dated 26/2/2020, approval was granted to the appointment of the petitioner as Headmistress with effect from 01/04/2010. It is stated that the petitioner had performed duty as Headmistress for the period from 01/04/2010 to 31/05/2012. According to the 2nd respondent, teachers are not eligible for pay protection in the higher scale of pay if their reappointment is in lower categories. It is stated that the petitioner, after deployment as LPST in the school with effect from 01/06/2012 had worked as such till her retirement on 31/05/2015. The petitioner is therefore eligible only to draw the salary in the scale of LPST for the period during which she had worked in the ``` WP(C) NO. 15391 OF 2021 ``` ``` 5 ``` Government High School, Aralam. It is further stated that in view of Circular No. 1237/J1/12/G.Edn dated 18.02.2012 issued by the first respondent, pay protection can be granted to retrenched teachers on reappointment only if the reappointment is in the same cadre and same scale of pay. 5. Sri. R Surendran, the learned counsel appearing for the petitioner, urged that in view of Rule 52(1) of Chapter XIV A of the KER, teachers who are relieved on account of any reduction in the number of posts under the order of the Department shall, on reappointment in the same school or in another school under the same management or different management, start on the same pay as they were getting at the time of relief, whether the new appointment is permanent or not. According to the learned counsel, Exhibit P5 Circular overwrites Rule 52(1) of Chapter XIVA and cannot be sustained under law. Sri. Surendran, the learned counsel submitted by relying on the law laid down in **State of Sikkim v. Dorjee Tshering Butia and Ors** [(1991) 4 SCC 243], and it was argued that the executive power of the State cannot be exercised in the field which is already occupied by the laws made by the legislature. According to the learned counsel, it is settled that any order, instruction, direction or notification issued in exercise of executive power of the State which is contrary to any statutory provision is without jurisdiction and is a nullity. ``` WP(C) NO. 15391 OF 2021 ``` ``` 6 ``` 6. The learned Government Pleader, however, refutes the contentions raised by the petitioner and refers to the judgment of the Division Bench of this Court in W.A. No. 2157/2018 dated 09.01.2020. In the said judgment, their Lordships of the Division Bench took note of Circular No. 1237/J1/12/G. Edn. and placing reliance on the same, it was held that Rule 52 has been clarified by virtue of the Circular, and therefore if a teacher loses their job and is appointed to a lower category of post, her entitlement is only to receive the salary and allowances with reference to the lower category of post. 7. I have considered the submissions advanced by the learned counsel appearing for the petitioner and the learned Government Pleader. 8. Rule 52 of Chapter XIVA of the KER reads thus: - “[XXX] Teachers who are relieved on account of any reduction in the number of posts under orders of the department shall on reappointment in the same school or in another school under the same management or different management start on the same pay as they were getting at the time of relief, whether the new appointment is permanent or not.” 9. I find that the Government noticed that the Rule was not being interpreted in the proper sense and meaning, and pay protection was being granted to teachers in the strength of the Rule even in cases where they are reappointed in a lower category. This created huge financial ``` WP(C) NO. 15391 OF 2021 ``` ``` 7 ``` liability on the Government. It is in the said circumstances that the respondents came up with Exhibit P5 circular, which is extracted below for convenience. ## **“GOVERNMENT OF KERALA** No.1237/J1/12/G.Edn General Education(J)Department Thiruvananthapuram, Dated:18/02/2012 ## **CIRCULAR** Sub: Pay protection granted to teachers on retrenchment clarification-reg. As per Rule 52(1) of Chapter XIV A KER, teachers who are relieved on account of any reduction in the number of posts shall on re-appointment the same school or in other school under the same management or different management start on the same pay as they were getting at the time of relief whether the new appointment is permanent or not. It has come to the notice of Government that the rule is not interpreted in the proper sense and meaning and pay protection is granted to teachers on the strength of the above rule even if they are re-appointed in a lower category. This creates huge financial liability to Government. The rule is intended for granting pay protection to retrenched teachers on re-appointment in the same cadre and same scale of pay. In the case of reappointment to a lower category the rule need not be made applicable for pay protection in a higher scale of pay. In the circumstances, Government hereby clarify that teachers are not eligible for pay protection in the higher scale of pay if their reappointment are in lower categories. All the educational officers are requested to adhere strict compliance to this circular while taking decision in such cases. M.Sivasankar Secretary to Government.” ``` WP(C) NO. 15391 OF 2021 ``` ``` 8 ``` 10. By the above Government Order, it was clarified by the Government that the rule is intended for granting pay protection to retrenched teachers on re-appointment in the same cadre and same scale of pay. In the case of reappointment to a lower category, the rule need not be made applicable for pay protection in a higher scale of pay. 11. Now, the question is whether the statutory rules can be supplemented by issuing executive directions. In **District Registrar, Palghat and Ors V M.B. Koyakutty and Ors** [(1979) 2 SCC 150], the Apex Court has held that if the Statutory Rules framed by the Governor or any law enacted by the State Government under Article 309 is silent on any particular point, the Government can fill up that gap and supplement the rule by issuing administrative instructions. It would be apposite to refer to paragraph 22 of the judgment, which reads as follows: “There can be no quarrel with the proposition that if the statutory rules framed by the Governor or any law enacted by the State Legislature under Article 309 is silent on any particular point, the Government can fill up that gap and supplement the rule by issuing administrative instructions not inconsistent with the statutory provisions already framed or enacted. The Executive instructions in order to be valid must run subservient to the statutory provisions. In the instant case, however, it could not be said that there was a gap or a void in the statutory provisions in the matter of promotion from the cadre of Lower Division Clerks to that of Upper Division Clerks.” ``` WP(C) NO. 15391 OF 2021 ``` ``` 9 ``` 12. A Division Bench of this court had occasion to consider a similar question in **State of Kerala v. Asha G** [W.A. No. 2157/2018 dated 09.01.2020] and relying on Circular No. 1237/J1/12/G. Edn., had held that the teachers reappointed to a lower post are only entitled to the benefits with reference to the lower category of post. Paragraphs 3 to 6 of the judgment is extracted below for convenience: 3. The Government took up a contention that Rule 52(1) of Chapter XIVA have been clarified as per Circular No.1237/Ji/12/G.Edn. dated 18.02.2012. It is clarified that if a reappointment is in a lower category, the teacher will only get the pay of protection in the lower category and will not get higher scale of pay. 4. Ext.P7 is the impugned order dated 18.11.2015. The Government while filing an objection took up a contention that the petitioner is not entitled for the higher salary of HSA, whereas, she will only entitled for scale of pay of Lower Grade Hindi Teacher and the pay had been fixed at Rs.7820/- w.e.f 15.07.2005. It is further stated that the 2nd respondent, Deputy Director of Education had raised objections and fixation of pay at Rs.7820/- as on 15.07.2005, in the Lower Grade have no authority, when the teacher was reverted from HSA to Lower Grade Hindi post and she is eligible for minimum scale of 6680- 10790. 5. The learned Single Judge after considering the matter and after having considered Rule 52 observed that since the petitioner had been granted all benefits of fixation of pay scale applicable to HSA w.e.f 15.07.2005 by applying Rule 52, the fixation of pay of petitioner which was done earlier as in 2006 cannot be accepted by the issuance of Circular in the year 2012 and accordingly, issued the impugned order. The learned Government Pleader would submit that Rule 52 had been clarified by virtue of the Circular and therefore, if the Teacher looses her job and she is appointed to a Lower category of post, her entitlement is only to receive the salary and allowances with reference to the Lower category of post. The Circular which is relevant for the purpose, reads as under; ``` WP(C) NO. 15391 OF 2021 ``` ``` 10 ``` # **“GOVERNMENT OF KERALA** No.1237/J1/12/G.Edn General Education(J)Department Thiruvananthapuram, Dated:18/02/2012 ## **CIRCULAR** Sub: Pay protection granted to teachers on retrenchment clarification-reg. As per Rule 52(1) of Chapter XIV A KER, teachers who are relieved on account of any reduction in the number of posts shall on re-appointment the same school or in other school under the same management or different management start on the same pay as they were getting at the time of relief whether the new appointment is permanent or not. It has come to the notice of Government that the rule is not interpreted in the proper sense and meaning and pay protection is granted to teachers on the strength of the above rule even if they are re-appointed in a lower category. This creates huge financial liability to Government. The rule is intended for granting pay protection to retrenched teachers on re-appointment in the same cadre and same scale of pay. In the case of reappointment to a lower category the rule need not be made applicable for pay protection in a higher scale of pay. In the circumstances, Government hereby clarify that teachers are not eligible for pay protection in the higher scale of pay if their reappointment are in lower categories. All the educational officers are requested to adhere strict compliance to this circular while taking decision in such cases. M.Sivasankar Secretary to Government.” 6. Once Rule 52 has been clarified to indicate that the Teacher on getting a posting in a Lower category will only get the pay fixed based on the scale of pay available to the said category, a higher scale of pay cannot be claimed. ``` WP(C) NO. 15391 OF 2021 ``` ``` 11 ``` 13. Sri. Surendran, the learned counsel submitted that before the Division Bench, the Circular issued by the respondents was not under challenge. The fact remains that the Division Bench had occasion to consider the scope and import of Rule 52 and also the Circular issued by the Government and has clearly concluded that it is a clarificatory circular that cannot be ignored. Furthermore, it cannot be said that the Circular supplants the rule, as the rule is silent with regard to a teacher getting a posting in a lower category due to the closing down of the school. 14. In that view of the matter, the contention of the petitioner that she is entitled to all benefits attached to the post of Headmistress from 01.04.2010 till her retirement cannot be sustained. As held by the Division Bench, the petitioner was posted on a lower category due to the closing down of the school, she is entitled to get the pay fixed on the scale of pay available to the said category and a higher scale of pay cannot be claimed. In view of the discussion above, I am of the considered opinion that the petitioner has not made out any case for interference. This writ petition will stand dismissed. There will be no order as to costs. ## **`Sd/-`** ## **RAJA VIJAYARAGHAVAN V JUDGE** ``` avs ``` ``` WP(C) NO. 15391 OF 2021 ``` ``` 12 ``` ## **`APPENDIX OF WP(C) 15391/2021`** ## **`PETITIONER EXHIBITS`** - `Exhibit P1 TRUE COPY OF APPOINTMENT ORDER DATED 1.4.2010 BY THE MANAGER OF ERANHOLI EAST L.P.SCHOOL TO THE SECOND RESPONDENT` - `Exhibit P2 TRUE COPY OF THE JUDGMENT DATED 22.11.2018 IN THE MATTER OF WP(C) 37916 OF 2018 BEFORE THE HONOURABLE HIGH COURT OF KERALA` - `Exhibit P3 TRUE COPY OF THE ORDER DATED 26.2.2020 ISSUED BY THE FIRST RESPONDENT` - `Exhibit P4 TRUE COPY OF ORDER ISSUED BY THE SECOND RESPONDENT DATED 18.8.2020 BEARING NO.A/1289/20/K.DIS WITH STATEMENT OF FIXATION OF PAY` - `Exhibit P5 TRUE COPY OF GOVT.CIRCULAR NO.1237/J1/12/G.EDN.DATED 18-2-2012` - `Exhibit P6 TRUE COPY OF THE COVERING LETTER DATED 13.11.2020 SENDING BACK THE PAY BILL TO THE PETITIONER` - `Exhibit P7 TRUE COPY OF THE REPRESENTATION DATED 23.7.2019 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT` - `Exhibit P8 TRUE COPY OF THE ORDER DATED 30.1.2021 BEARING NO.454/T1/2020/G.EDN ISSUED BY THE FIRST RESPONDENT.` ## **`RESPONDENT EXHIBITS`** - `Exhibit R2(1) True copy of approval Order dated. 18.6.2020.` ``` Exhibit R2(2)True copy of Order No. A/723/2020 dated. 23.10.2020 ```