Ibraheem Vadakkekara Thazhathu v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 4[TH] DAY OF AUGUST 2021 / 13TH SRAVANA, 1943** **WP(C) NO. 858 OF 2020** ## **PETITIONER:** **IBRAHEEM VADAKKEKARA THAZHATHU, AGED 50 YEARS, CLERK, B.Y.K.VOCATIONAL HIGHER SECONDARY SCHOOL, VALAVANNUR, MALAPPURAM DISTRICT.** **BY ADVS. GEORGE ABRAHAM SRI.JOSEPH GOPURAN** ## **RESPONDENTS:** |**1**|**STATE OF KERALA, REPRESENTED BY SECRETARY, GENERAL**| |---|---| ||**EDUCATION DEPARTMENT, THIRUVANANTHAPURAM - 695 001.**| |**2**|**DIRECTOR OF GENERAL EDUCATION,**| ||**JAGATHY, THIRUVANANTHAPURAM - 695 033.**| |**3**|**DEPUTY DIRECTOR OF EDUCATION,**| ||**MALAPPURAM - 676 505.**| |**4**|**DISTRICT EDUCATIONAL OFFICER,**| ||**THIRURANGADY, MALAPPURAM - 676 306.**| ||**BY ADV. SRI.V.VENUGOPAL, GP**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) NO. 858 OF 2020** **-2-** ## **JUDGMENT** The petitioner, who is stated to be working as a Clerk in “B.Y.K. Vocational Higher Secondary School”, Malappuram, has approached this Court impugning Exts.P3 and P4, as per which, the benefit of service weightage already granted to him was ordered to be withdrawn. 2. The petitioner says that the only reason stated in Ext.P4 is that earlier reckoning of the broken spells of service rendered by him is incorrect; and consequently, that he has been directed to give back the benefits obtained under the said sanction. 3. The petitioner says that Rule 6A Chapter XIVA of the Kerala Education Rules (KER) stipulates without doubt that the broken periods of duty within a continuous period of two years can be reckoned for declaration of probation, and ## **WP(C) NO. 858 OF 2020** **-3-** that Rule 61(4) thereafter mandates that the duty in a post on a time scale, whether continuous or interrupted, shall count for increment in the said time scale. The petitioner thus prays that Exts.P3 and P4 be set aside and the respondents be directed not to take any action against him for recovery of the amounts already obtained. 4. I have heard Dr.George Abraham – learned counsel appearing for the petitioner and Sri.V.Venugopal – learned Government Pleader appearing for the official respondents. 5. Dr.George Abraham – learned counsel appearing for the petitioner, supplemented the afore contentions of his client by asserting that the issues in this case are squarely covered by the judgments of this Court, namely, **Khadeeja A. v. State of Kerala and Another** [2014 (4) KLT 349] and **Latha S. v. State of Kerala** in W.P.(C)No.7171 of 2013. He submitted that, therefore, his client ## **WP(C) NO. 858 OF 2020** **-4-** - identically situated as the petitioners in the afore precedents - is also deserving the same benefits; and thus reiteratingly prayed that this writ petition be allowed. 6. In response, the learned Government Pleader - Sri.V.Venugopal, submitted that the issues noticed by this Court in **Khadeeja** (supra) and **Latha** (supra) were with respect to the question whether the broken periods of service can be reckoned; but he asserted that it did not take into account the specific factual difference involved in this case, namely, that petitioner had served in a leave vacancy. He submitted that, therefore, the afore two cited precedents cannot applied to the case of the petitioner, as has been asserted by Dr.George Abraham. He resultantly prayed that this writ petition be dismissed. 7. When I hear the learned Government Pleader as above, it becomes obvious that unless there is ## **WP(C) NO. 858 OF 2020** **-5-** a difference in law as regards the spells of service rendered by the petitioners in **Khadeeja A.** (supra) and **Latha** (supra) and the spell served by the petitioner herein, this Court will be enjoined to follow the said precedents. 8. The only contention of the learned Government Pleader is that the petitioner in this case was on leave vacancy; while the petitioners in the afore precedents were on part-time service. However, going by the Pay Revision Order, service for the purpose of the relevant Rule, has been defined to be full-time regular service, including broken periods of service qualifying for normal increments in a pay scale. In fact, on an earlier occasion, in W.P.(C)No.17912 of 2010, a learned Judge of this Court had considered this Rule and declared as under: _“12. The said argument at the first blush is attractive. But, when we come to the scheme of Rules for Fixation of Pay, one thing that is discernible is that wherever specific exclusions had to be_ **WP(C) NO. 858 OF 2020** **-6-** _mentioned, the same were being specifically provided in the Rules for Fixation of Pay in the Revised Scale. Therefore, in respect of past Pay Revisions, the part-time service was not being reckoned in the light of the exclusionary clauses mentioned in the rules for fixation, as far as the scheme for schoo1 teachers are concerned. A reading of the relevant clauses will show that certain other types of service have also been excluded and when we come to Ext.P1, it can be seen that certain types of service have been excluded on the ground that they were not accounted for normal increments. A true test for the interpretation of the Note will therefore be that the service that will be qualified for normal increments will be reckoned for counting service weightage and that is the manner in which the general clause has been introduced in the Note and, as noted already part-time service which was reckoned for the purpose of increment has not been specifically excluded. If the real intention was to exclude the same, it could have been easily provided under any of the clauses, which is not done as it was being done before.”_ 9. It is, therefore, ineluctable that the submission of the learned Government Pleader, that the nature of the spell served by the petitioner is different from the one rendered by the petitioners in the afore cited precedents, cannot find favour in any manner whatsoever. In the afore circumstances, following **Khadeeja** ## **WP(C) NO. 858 OF 2020** **-7-** (supra) and **Latha** (supra), I allow this writ petition and set aside Exts.P3 and P4; thus, declaring that no recovery shall be effected against the petitioner, in any manner whatsoever, based on the said orders. **Sd/DEVAN RAMACHANDRAN JUDGE** akv **WP(C) NO. 858 OF 2020** **-8-** ## **APPENDIX OF WP(C) 858/2020** ## **PETITIONER'S EXHIBITS:** ## **EXHIBIT P1** **TRUE COPY OF THE FIXATION OF PAY IN THE REVISED SCALE OF PAY SUBMITTED BY THE PETITIONER DATED 4/9/2018.** **EXHIBIT P2** **TRUE COPY OF THE STATEMENT OF FIXATION OF PAY IN THE REVISED SCALE AS PER ANNEXURE II(B).** **EXHIBIT P3** **TRUE COPY OF THE ORDER PASSED BY THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM DATED 20/5/2019.** **EXHIBIT P3 (A) TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P3.** **EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DATED 6/12/2019.** **EXHIBIT P4(A) TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P4.** ## **RESPONDENT'S/S EXHIBITS : NIL.** //TRUE COPY// P.A. TO JUDGE