Girijakumari J. v. Assistant Educational Officer, Malappuram District; District Educational Officer, Malappuram District; Deputy Director of Education, Malappuram District; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 23RD DAY OF NOVEMBER 2020 / 2ND AGRAHAYANA, 1942** ## **WP(C).No.3303 OF 2019(K)** ## **- PETITIONER :** **GIRIJAKUMARI.J., AGED 55 YEARS W/O.SREEKANDAN, 'HARISREE', KARKIDAKAM, KADANNAMANNA P.O, MALAPPURAM DISTRICT, PIN-679 324, WORING AS HEADMISTRESS IN A.M.L.P. SCHOOL, PULIKKALPARAMBA, MANKADA, MALAPPURAM DISTRICT.** **BY ADVS. SRI.K.M.SATHYANATHA MENON SMT.KAVERY S THAMPI** ## **- RESPONDENTS :** - **1 THE ASSISTANT EDUCATIONAL OFFICER, OFFICE OF THE ASSISTANT EDUCATIONAL OFFICE, MANKADA, MANKADA P.O, MALAPPURAM DISTRICT, PIN - 679 324.** - **2 THE DISTRICT EDUCATIONAL OFFICER, DISTRICT EDUCATION OFFICE, UP HILL, MALAPPURAM – 676 505.** - **3 THE DEPUTY DIRECTOR OF EDUCATION, THE DEPUTY DIRECTOR'S OFFICE, NH 213, DOWN HILL, MALAPPURAM - 676 505.** - **4 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM – 695 001. BY SRI.SUNIL KURIAKOSE, GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.3303 OF 2019(K) -: 2 :- ## **JUDGMENT** ## **Dated this the 23rd day of November 2020** The petitioner joined service in an aided school as Lower Primary School Assistant (LPSA) with effect from 1.6.1988. She was promoted as Headmistress on 1.6.1992. She was retired from service on 31.3.2019. She had filed W.P.(C) No.6970/2015 seeking grant of time bound higher grade in the post of Headmistress, taking note of her length of service. The writ petition was disposed of by Ext.P8 judgment directing the 1[st] respondent to pass orders sanctioning higher grade to the petitioner, on completion of 10 years of service as Headmistress and the second higher grade on completion of 20 years of service as Headmistress, reckoning the date of appointment as Headmistress. Accordingly, the petitioner was granted the benefits and pay fixation was entered in her service book. However, when the pension proposal was sent up, it was held up on the contention that Government sanction was required and the pension proposal was returned. It is stated that Ext.P15 amendment was effected by Government Order dated 17.10.2018. However, Ext.P18 communication was issued by the Government on 19.12.2019 stating that in similar cases, where judgments had been obtained by incumbents and where the claims WP(C).No.3303 OF 2019(K) -: 3 :- for higher grade had been finalised on the basis of the directions of the court, the same need not be reviewed. In cases, where the issue had not been settled alone, appeals were required to be filed. 2. The learned counsel for the petitioner would submit that the petitioner had been granted the benefits of Ext.P8 judgment and the fixation of pay had been effected and recorded in her service book. It was on the said basis that the petitioner's pension proposal had also been forwarded. It is, therefore, contended that the petitioner's case would come within the settled cases as referred to in Ext.P18 and that no review is contemplated. The learned counsel for the petitioner further contends that all the similarly situated teachers, who had been granted the benefit of higher grade on the basis of the Division Bench judgments and resultant directions issued by this Court, had been granted the pensionary benefits on the basis of such fixation of pay and pension and that the petitioner who had retired from service is also entitled to the very same benefit. 3. The learned Government Pleader would submit that the amendment effected to Rule 1 of Chapter XXVI of the KER is retrospective with effect from 8.9.1988 and that therefore the petitioner would not be entitled to the fixation of pay as has been granted to her on the basis of Ext.P8 judgment. It is further WP(C).No.3303 OF 2019(K) -: 4 :- contended that the correctness of the judgment of the Division Bench in W.A. No.1577/2010 and connected cases has been doubted and the issue has been referred to be decided by a Full Bench by order of reference in W. A. No.2230/ 2019 dated 5.10.2020. I notice that in the mean while, the validity of the note inserted in Rule 1 of Chapter XXVI had been considered by a learned Single Judge in a decision reported in **Vasanthakumari T. M. and another** v. **State of Kerala and others** [2020 (4) KHC 731]. Relying on the judgment in W.A. No.1577/2010 and connected cases, the learned Single Judge held that the provisions of Rule 1 of Chapter XXVI of KER have no relevance for the grant of time bound higher grade and that the amendment, therefore, can have no application. The writ petition was, therefore, allowed. The learned Government Pleader would submit that the said judgment is also being subjected to an appeal. It is, therefore, contended that the issue of grant of time bound higher grade to head teachers in aided primary schools has not attained finality and as such, the relief sought for by the petitioner cannot be granted. 4. A counter affidavit has also been placed on record by the 1[st] respondent stating that an amount of Rs.9,74,097/- had been fixed as liability of the petitioner and steps had been taken to WP(C).No.3303 OF 2019(K) -: 5 :- disburse the pensionary benefits to the petitioner, excluding the benefit of pay fixation granted by virtue of time bound higher grade and subsequent fixation which was not admitted by the 3[rd] respondent. It is, therefore, contended that the withholding of the amounts from the retirement benefits due to the petitioner was legal and proper and that the issue requires no reconsideration. 5. I have considered the contentions advanced. A Division Bench of this Court in **Saji C.M. and others** v. **State of Kerala and others** [2015 (4) KHC 753] held that the prescriptions of Rule 1 of Chapter XXVI KER are with regard to grant of higher scale of pay and not the grant of time bound higher grade promotion as contemplated in the relevant Government orders. Relying on this observation, a learned Single Judge in **Vasanthakumari T. M. and another's case** also held that the petitioners are entitled to grant of time bound higher grade in the scale of pay of L. P. Headmaster, on completion of the required years of service as such. The issue now stands referred to the Full Bench for a consideration. In the mean while, the Government, by Ext.P18 has directed the Director General of Education not to withhold the benefits due in cases where fixation has been effected on the basis of judgments issued by this Court. WP(C).No.3303 OF 2019(K) -: 6 :- 6. Ext.P8 judgment obtained by the petitioner was on 13.12.2016. Ext.P9 re-fixation statement would show that the benefits had been granted to the petitioner, which stood approved in March, 2017. The petitioner retired from service on 31.3.2019. In the above factual situation, I am of the opinion that the directions contained in Ext.P18 communication of the Government covers the issue. The applicability of the rules and the requirement of completion of the required number of years of service after being granted the higher scale of pay, are matters which have been placed for consideration before a Full Bench of this Court. However, in case similarly situated persons have been granted the benefits of the judgments which they have obtained on the basis of the Division Bench judgment of this Court in **Saji C.M. and others** v. **State of Kerala and others,** I am of the opinion that the petitioner would also be entitled to the very same benefit. Since the fixation of pay has been effected and recorded in the petitioner's service book, I have no hesitation to hold that the petitioner would be entitled to the pensionary benefits on the basis of such fixation as well. It is not in dispute before me that Ext.P8 judgment obtained by the petitioner has become final since no appeal has been preferred therefrom. WP(C).No.3303 OF 2019(K) -: 7 :- In the above circumstances, there will be a direction to the 1[st] respondent to forward the pension proposal of the petitioner for sanction. The pension proposal shall be considered on the basis of the last pay drawn by the petitioner and the amounts due shall be calculated and disbursed to the petitioner without further delay. Appropriate steps shall be taken within a period of three months from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly. **Sd/ANU SIVARAMAN JUDGE** Jvt/24.11.2020. WP(C).No.3303 OF 2019(K) -: 8 :- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT DATED 1.6.1992.** - **EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS NO.KAS/0/2016/11 OF THE 2ND RESPONDENT DATED 7.9.2011.** - **EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK OF THE PETITIONER.** - **EXHIBIT P4 TRUE COPY OF THE G.O(P) NO:242/2009/(129)/FIN DATED 26.6.2009.** - **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 5.7.2016 IN WRIT APPEAL NO.1519/2012 AND CONNECTED CASES.** - **EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 25.7.2014 IN WPC.NO.6510 OF 2010.** - **EXHIBIT P7 TRUE COPY OF THE COMMUNICATION NO.D/134/2015 DATED 15.1.2015 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** - **EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN WPC.6970/2015 DATED 13/12/2016.** - **EXHIBIT P9 TRUE COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK OF THE PETITIONER.** - **EXHIBIT P10 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO SPARK, P.M.U OFFICE, VANDANAM, T.C.25/3436(37), UPPALAM ROAD, STATUE JUNCTION, THIRUVANANTHAPURAM DATED 12/7/2017.** - **EXHIBIT P11 TRUE COPY OF THE PENSION PROPOSAL FORWARDED BY THE PETITIONER TO THE 1ST RESPONDENT.** - **EXHIBIT P12 TRUE COPY OF THE PROCEEDINGS NO.B/5364/2018 DATED 27.11.2018 ISSUED BY THE ASST.EDUCATIONAL OFFICER, MANKADA.** - **EXHIBIT P13 TRUE COPY OF THE PROCEEDINGS NO.F2/33896/2018 DATED 31.10.2018 TO THE ASST.EDUCATIONAL OFFICER, MANKADA.** WP(C).No.3303 OF 2019(K) -: 9 :- **EXHIBIT P14 TRUE COPY OF THE PROCEEDINGS NO.J1/108/2018/GED DATED 10.10.2018 ISSUED BY THE UNDER SECRETARY, GENERAL EDUCATION(J) DEPARTMENT, THIRUVANANTHAPURAM. EXHIBIT P15 TRUE COPY OF G.O.(P)NO.20/2018/GEDN DATED 17.10.2018. EXHIBIT P16 THE TRUE COPY OF THE LIABILITY CERTIFICATE ISSUED BY THE 1ST RESPONDENT DATED 26.11.2019 EXHIBIT P17 THE TRUE COPY OF THE COMMUNICATION NOB/2984/2019, ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 5.2.2020 EXHIBIT P18 THE TRUE COPY OF THE COMMUNICATION NO-GEDNJ1/237/2019- G.EDN, ISSUED BY THE SECRETARY TO GENERAL EDUCATION DEPARTMENT FORWARDED COMMUNICATION TO THE DIRECTOR OF EDUCATION THIRUVANANTHAPURAM DATED 19.12.2019**