Marykutty Samuel v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931** **OP.No. 5263 of 2002(B)** **---------------------------------** ## **PETITIONER(S):** **--------------------------** **MARYKUTTY SAMUAL, W/O. V.JOHN KUTTY, PADIPPURA HOUSE, KIZHAKKE THERUVU, P.O.KOTTARAKKARA, KOLLAM DISTRICT.** **BY ADVS.MR.MATHEW JOHN (K) MR.BABY THOMAS** **MR.SIJO GEORGE** **RESPONDENT(S):** **--------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, GOVERNMENT GENERAL EDUCATION DEPARTMENT, TRIVANDRUM.** **2. THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, TRIVANDRUM.** **3. THE DISTRICT EDUCATIONAL OFFICER, KOTTARAKKARA.** **4. THE HEADMASTER, ST.MARY'S H.S. KIZHAKKEKKARA, KOTTARAKKARA,** **5. THE ACCOUNTANT GENERAL OF KERALA, TRIVANDRUM.** **R1,2,3 & R5 BY GOVERNMENT PLEADER SMT.M.R.SREELATHA** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 19/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ORDER ON CMP. NO.9323/2002 IN OP. NO.5263/2002** ## **CLOSED** ## **19/01/2010** ## **SD/- S.SIRI JAGAN, JUDGE** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **P1:- COPY OF THE PROCEEDINGS DTD. 13.7.90.** **P2:- COPY OF THE MEMO DTD. 11.6.199.** **P3:- COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DTD. 18.10.1994.** **P4:- COPY OF THE AUDIT OBJECTION.** **P5:- COPY OF THE G.O.(MS) NO.47/71 G.EDN. DTD. 21.4.1971.** **P6:- COPY OF THE REPRESENTATION BY THE PETITIONER DTD. 28.4.1997.** **P7:- COPY OF THE GOVERNMENT ORDER G.O.(MS) NO.190/74/G.EDN. DTD. 20.9.1974.** **P8:- COPY OF THE PROCEEDING DTD. 8.8.2000.** **P9:- COPY OF THE REPRESENTATION DTD. 5.9.2000 BY THE PETITIONER.** **P10:- COPY OF THE PROCEEDING DTD. 9.8.01.** **P11:- COPY OF THE REPRESENTATION DTD. 25.8.01 BY THE PETITIONER.** **P12:- COPY OF THE PROCEEDINGS DTD. 21.1.2002.** **P13;- COPY OF THE LETTER DTD. 5.1.2002.** **TRUE COPY** **P.A. TO JUDGE** **tss** S.SIRI JAGAN, J. ================== ## O.P.No. 5263 of 2002 ================== Dated this the 19[th] day of January, 2010 **==> picture [98 x 11] intentionally omitted <==** The petitioner joined as an L.P.S.A. at the A.M.U.P. School, Ayyaye, on 29.8.1983. That appointment was approved and she continued in that school till 19.6.1990. On 19.6.1990, she resigned that job for taking up appointment in the St.Mary's High School, Kizhakkekkara. The petitioner was required to join duty at St.Mary's High School on or before 13.6.1990. After resignation of the previous employment while the petitioner was preparing to join duty in the new school, she fell ill due to gynecological problems and could not join duty as directed, on 13.6.1990. Therefore, the manager filled up the vacancy by appointing another teacher. Consequently, the petitioner had to wait till 10.10.1990, when another vacancy arose in that school. She joined duty accordingly. Therefore, between the resignation and taking up employment in the new school, there was a break of 3 months and 20 days. The second appointment was also duly approved and she is continuing in the said school. While so, by Ext.P3 order dated 18.10.1994, the petitioner was granted higher grade reckoning her previous service at A.M.U.P.S. from 29.8.1983 to 19.6.1990. Consequently, the petitioner's pay was fixed in the higher grade and she drew salary accordingly. While so, by Ext.P4, an audit 2 o.p.5263/02 objection was raised against the grant of higher grade to the petitioner taking into account the service in the AMUPS also. It was pointed that, as per Ext.P5 Government order, such previous service prior to resignation could be counted for higher scales of pay only if the break between the two employments is not more than one month. According to the petitioner, that audit objection was never communicated to the petitioner. All the same, the petitioner filed Ext.P6 representation dated 28.4.1997 against the audit objection. In support of the contention, the petitioner relied on Ext.P7 Government order, which provided that break in service of less than five years can be ignored taking the aggregate service for sanctioning higher grade. After four years, the petitioner's representation was rejected by Ext.P8 order holding that the grant of higher garde to the petitioner was not in order, since the break was of more than one month. Although the petitioner filed Ext.P9 before the Government, the Government also rejected the same, by Ext.P10 order. Ext.P11 representation for review met with Ext.P12, with the same result. Pursuant thereto, Ext.P13 communication has been issued by the DEO to the Headmaster of the petitioner's school directing him to forward the proposal for refixing higher grade of the petitioner. It is under the above circumstances, the petitioner has filed this original petition challenging Exts.P10, P12 and P13 for a declaration that the petitioner is entitled to have her service 3 o.p.5263/02 prior to the resignation from the previous school reckoned for the purpose of granting higher grade. 2. A counter affidavit has been filed by the 1[st] respondent denying the contentions of the petitioner. According to the learned Government Pleader, who supports the impugned orders, Ext.P7 cannot govern the issue, since the same does not relate to resignation and joining another school. According to the learned Government Pleader, resignation and taking up employment in another school is covered by Rule 54 of Chapter XIV-A of the KER, as per which, the previous service would not be counted for increment or seniority on reappointment. The only exception is Ext.P5 Government order, which stipulates that the break between the two appointments shall not exceed one month. 3. The learned counsel for the petitioner submits that even if granting of higher grade is irregular, in so far as the petitioner has not contributed to the mistake committed by the educational authority, it is unjust and unfair to recover the excess amount drawn by the petitioner. In support of her contention, the petitioner relies on the Division Bench decision of this Court in _Aleyamma Varghese v. Secretary, General Education Department_ [2007(3) KLT 700 (SC)]. 4. I have considered the rival contentions in detail. 5. As rightly pointed out by the learned Government Pleader, 4 o.p.5263/02 the consequence of resignation from one aided school and taking up employment in another aided school is governed by Rule 54 of Chapter XIV-A of the KER, which reads thus: “54 (1) if any teacher resigns his appointment in any aided school he shall not on re-appointment, be eligible to count his service prior to his resignation for purposes of increment or seniority on re-appointment; but he shall only be deemed to commence service afresh. **==> picture [237 x 9] intentionally omitted <==** Although the question of higher grade is not mentioned therein, the general purport of the Rule is that the previous service would not be reckoned for service benefits. The only exception to the said rule can be Ext.P5 order, which reads thus: “Government have in the G.O. first cited ordered, among other things, that for the grant of higher scales of pay (in the case of Government school teachers) approved service in aided school will be counted on the condition that the service should be approved and continuous and there should not be a break for more than a month between leaving the service of an aided school and joining service in Government school and that (in the case of aided school teachers), the service in Government and local body schools will be counted provided the service is approved and continuous and there should not be a break of more than a month between leaving the service of Government/local body schools and joining aided schools. The above benefit has not been allowed to teachers who resign from one aided school to join another aided school. A teacher in an aided school may resign to avoid disciplinary action taken by the managers. Sometime he may resign to take other appointments failing which he joins in another aided school. In these cases, there is no necessity to condone the break. But in the Malabar area before the introduction of K.E.R. there were no provision for inter-management transfer. So they had to resign from one aided school to join another aided school. In the circumstances, Government are pleased to order in continuation of the orders issued in the G.O. cited that in the case of teachers who resign from one aided school to join service in another aided school, the service will be counted for sanctioning higher scales of pay on the condition that the service should be approved and continuous 5 o.p.5263/02 and there should not be a break of more than a month between leaving the service from one aided school and joining service in another aided school. The controlling officers should satisfy that the resignation was to joining another school and not for any other purpose. These orders will be deemed to have taken effect from 26.10.1968.” Going by the same, for getting the benefit of Ext.P5, break between the date of resignation and taking up employment in the other school shall not exceed one month. If that is applied, then the petitioner is not entitled to counting of previous service for the purpose of higher grade. ## 6. Ext.P7 Government order reads thus: “In the G.O. cited, it was ordered among the things that in lieu of continuous teaching service insisted on for the purpose of sanction of higher grade to teachers total teaching service would count for higher grade. It was also ordered there in that breaks in service exceeding 6 years would be reported to the Director of Public Instruction for consideration of service before the break and that requests for condonation of break under the existing rules to enable teachers to get higher grade earlier than 1.1.1973 which were pending with the department and Government would continue to be considered and sanctioned under the existing rules. 2. Government are now pleased to order that when a break is less that 5 years, the Controlling Officers can ignore it and take the aggregate service for sanctioning higher grade. If the break in service exceeds 5 years it shall be reported to the Director of Public Instruction. No condonation of break is necessary in such cases. The Director of Public Instruction can take a decision regarding the counting of service before the break for sanctioning higher grade without any consideration of condoning the break or without referring to Government.” I am unable to accept the contention of the petitioner that the petitioner is entitled to the benefit of Ext.P7. Ext.P7 refers to “ _break in service_ ”. That would essentially mean that during the period of service 6 o.p.5263/02 in the same service, there is a break and that break should be less than five years, which can be ignored for sanctioning higher grade. That is not the case here. Here the petitioner has left of one aided school service and took up employment in other aided school, a different service. Therefore, the same cannot be treated as a break in service. That can only be a break in employment of the petitioner herself. A such, Ext.P7 cannot govern the issue involved here. Therefore, I do not find any infirmity in the orders impugned in this original petition. 7. But that is not the end of the matter. The petitioner would claim that even if the grant of higher grade is irregular, in so far as the petitioner cannot be faulted for the mistake committed by the educational authority in granting higher grade and she had not contributed to the mistake by the authorities concerned, she shall not be mulcted with the liability to refund such large sum of money. I find merit in that contention. In fact, in somewhat similar situation, a Division Bench of this Court in _Narayanan v. State of Kerala_ [2008 (3) KLT 188] held that such recovery shall not be made. Here grant of higher garde was on 18.10.1994. I am of opinion that at this distance of time the petitioner should not be mulcted with the liability to refund the excess amount drawn by her. Therefore, while holding the refixation of the salary of the petitioner in accordance with the audit 7 o.p.5263/02 objection is correct, I direct that excess amounts drawn by the petitioner consequent to the wrong grant of higher grade shall not be recovered from the petitioner. The original petition is disposed of as above. sdk+ Sd/S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge ## S.SIRI JAGAN, J. ================== ## O.P.No. 5263 of 2002-B ================== J U D G M E N T 19[th] January, 2010