Letha R. v. State of Kerala and Others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 29[TH]DAY OF AUGUST 2022 / 7TH BHADRA,1944 ``` ``` WP(C) NO. 5386 OF 2022 ``` ## `PETITIONER/S:` ``` LETHA.R., AGED 49 YEARS W/O.ANIL.M.L., L.P.S.T., A.M.L.P.S. AYYAYA, OZHUR P.O., TANUR (VIA), MALAPPURAM-676 307, RESIDING AT "MADHAVAM", THOZHUVANUR P.O., VALANCHERY (VIA), MALAPPURAM DISTRICT, PIN-676 552. BY ADVS. J.G.SYAMNATH S.ANEESH ``` ## `RESPONDENT/S:` ``` 1STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2THE DIRECTOR OF GENERAL EDUCATION, DIRECTORATE OF GENERAL EDUCATION, JAGATHY P.O., THIRUVANANTHAPURAM-695 014. 3THE DEPUTY DIRECTOR OF EDUCATION, DOWNHILL P.O., MALAPPURAM-676 519. 4THE DISTRICT EDUCATION OFFICER, TIRURANGADI P.O., MALAPPURAM-676 306. 5THE ASSISTANT EDUCATION OFFICER, TANUR, TANUR P.O., MALAPPURAM-676 302. 6THE HEADMASTER, A.M.L.P.S., AYYAYA, OZHUR P.O., TANUR (VIA), MALAPPURAM-676 307. ``` 2 W.P. (C) No.5386 of 2022 ``` SRI.PREMCHAND R NAIR, SR GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P. (C) No.5386 of 2022 ## **JUDGMENT** The petitioner states that she is presently working as LPST at AMLP School, Ayyaya. She refers to Exts.P9 to P15 appointment orders and submits that before the commencement of her continuous service on 1.6.1998, she had five spells of broken service of 1 year, 2 months and 13 days. The above broken period of service was also reckoned for the declaration of her probation, sanctioning of increments, and also for the sanctioning of higher, senior, and selection grade pays. To substantiate the said contentions, the petitioner refers to Ext.P1 order issued by the 5th respondent sanctioning higher grade pay. 2. The petitioner contends that on the strength of an audit report, the selection grade pay sanctioned to the petitioner by reckoning her broken period of service was objected to. The petitioner contends that the 3rd respondent has issued Ext.P7 communication to the petitioner stating that the broken period of service in the leave vacancy cannot be reckoned for the purpose of increments and the previous grade pays. 4 W.P. (C) No.5386 of 2022 3. It is in the afore circumstances that this writ petition is filed seeking to quash Ext.P4(a) and P7 orders and for a further direction to the respondents to reckon the broken spells of service of the petitioner and also to disburse all consequential benefits including pay revisions for the year 2014 and 2019. 4. In the counter affidavit filed by the 3rd respondent, it is stated that as per Annexure-II para 6 of G.O.(P) No.07/2016 Fin. dated 20.1.2016, by which pay of employees has been revised with effect from 1.7.2014, service for the purpose of the rule means full-time regular service including broken service qualifying for normal increment in the scale of pay. According to the respondent, the leave vacancy services are not broken services till the appointees are terminated from their post after completing their tenure, and moreover, they have no lien over the post in which they have worked. It is stated that the objection raised regarding the fixation of pay is lawful and valid in accordance with the fixation rules of Pay Revision 2014. 5. The learned counsel appearing for the petitioner by referring to the law laid down by this Court in **Khadeeja A. v. State of Kerala and Another** [2014(4) KLT 349] and **Latha S. v. State of Kerala** (W.P.(C) 5 W.P. (C) No.5386 of 2022 No.7171 of 2013) and also the judgment rendered by a learned Single Judge of this Court in W.P.(C) No.858 of 2020 dated 4.8.2021, it is argued that the stand taken by the respondents cannot be sustained in so far as the broken period of service has not been specifically excluded in the rules, the same is to be counted for the benefits of service weightage. 6. I have heard the learned Senior Government Pleader. 7. I find that the very same issue has been considered by this Court in Khadeeja A as well as in Latha S (supra). A learned Single Judge of this Court in Ext.P8 judgment while considering the same issue had occasion to hold as follows in para 8 and 9. 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 mentioned, the same were being specifically provided in the Rules for Fixation of Pay in the Revised Scale. Therefore, in 6 W.P. (C) No.5386 of 2022 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 school 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 (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. In view of the law laid down, Exts.P4(a) and P7 cannot be sustained. There will be a direction to the 3rd respondent to reconsider the issue in accordance with the law laid down by this Court in Khadeeja ( supra) and Latha S (supra), taking note of the observations above. Fresh orders shall 7 W.P. (C) No.5386 of 2022 be passed in accordance with law expeditiously, in any event, within a period of two months after affording an opportunity of being heard to the petitioner and the 6th respondent Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** sru 8 W.P. (C) No.5386 of 2022 ## `APPENDIX OF WP(C) 5386/2022` ``` PETITIONER’S EXHIBITS : ``` ``` Exhibit P1TRUE COPY OF THE ORDER DATED 27.07.2006 OF THE 5TH RESPONDENT. Exhibit P2TRUE COPY OF THE ORDER DATED 25.09.2012 OF THE 5TH RESPONDENT. Exhibit P3TRUE COPY OF THE ORDER DATED 20.06.2019 OF THE 5TH RESPONDENT. Exhibit P4TRUE COPY OF THE RELEVANT EXTRACT OF THE AUDIT REPORT ISSUED BY THE OFFICE OF THE 3RD RESPONDENT. Exhibit P4 ATRUE COPY OF THE COVERING LETTER DATED 01.10.2020 ISSUED BY THE 3RD RESPONDENT. Exhibit P5TRUE COPY OF LETTER DATED 18.05.2021. Exhibit P6TRUE COPY OF THE FILE STATUS REPORT OF THE APPEAL. Exhibit P7TRUE COPY OF THE LETTER DATED 09.09.2021 OF THE 3RD RESPONDENT. Exhibit P8TRUE COPY OF THE JUDGMENT DATED 04.08.2021 IN WPC NO.858 OF 2020. Exhibit P9TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE PETITIONER DATED 23/09/1996. Exhibit P10TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE PETITIONER DATED 11/02/1997. ``` 9 W.P. (C) No.5386 of 2022 ``` Exhibit P11TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE PETITIONER DATED 02/06/1997. Exhibit P12TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE PETITIONER DATED 01/09/1997. Exhibit P13TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE PETITIONER DATED 02/02/1998. ``` ``` Exhibit P14TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE PETITIONER DATED 01/06/1998. Exhibit P15TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE PETITIONER DATED 16/07/1998. ``` ``` RESPONDENTS EXHIBITS : NIL ```