Omana C.K. v. State of Kerala

**WP(C) NO. 28399 OF 2019** **1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 18[TH] DAY OF OCTOBER 2022 / 26TH ASWINA, 1944 WP(C) NO. 28399 OF 2019** ## **PETITIONER/S:** OMANA C.K. AGED 54 YEARS W/O.JOHNSON.C.K., WORKING AS HST, VANNERY H.S.S, PUNNAYURKULAM, PERUMPADAPPA.P.O., MALAPPURAM DISTRICT-679680, RESIDING AT CHERUVATHOOR HOUSE, ST.GREGORIOUS NAGAR, GURUVAYOOR ROAD, KUNNAMKULAM.P.O., PIN-680503 BY ADVS. SAJITH KUMAR V. SHRI.GODWIN JOSEPH SHRI.VIVEK A.V. ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM P.O., PIN-695001 2 THE DIRECTOR OF PUBLIC INSTRUCTIONS, O/O.DPI, THYCAUD, JAGATHI P.O., THIRUVANANTHAPURAM DISTRICT-695014 3 THE DEPUTY DIRECTOR OF EDUCATION DISTRICT EDUCATIONAL OFFICE, B2 BLOCK, CIVIL STATION, MALAPPURAM P.O., MALAPPURAM DISTRICT-676505 4 THE DISTRICT EDUCATIONAL OFFICER, NEAR MINI CIVIL STATION, TIRUR.P.O., MALAPPURAM DISTRICT-676101 **WP(C) NO. 28399 OF 2019** **2** 5 THE HEAD MASTER, VANNERY H.S.S, PUNNAYURKULAM, PERUMPADAPPA P.O, MALAPPURAM DISTRICT-679580 BY ADV ADVOCATE GENERAL OFFICE KERALA SMT. ANIMA M, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 28399 OF 2019** **3** ## **JUDGMENT** The petitioner has approached this Court with this writ petition seeking issuance of directions to the respondents to release the annual increments due to the petitioner in April 2018 and April 2019 by recognizing the pay fixation approved in Exhibit P2 and to release all consequential benefits and for ancillary reliefs. 2. Short facts are as under : 1. The petitioner joined service as UPSA at the Vannery HSS, Punnayurkulam with effect from 24.08.1989. Her service was terminated on 27.10.1989 for want of vacancy. Thereafter, she was regularly appointed as a UPSA with effect from 01.08.1990. She asserts that she was promoted as High School Assistant on 07.06.1993. In the writ petition filed on 22.10.2019, it is stated she is due to attain superannuation in **WP(C) NO. 28399 OF 2019** **4** the year 2021. 2. According to the petitioner the Government has come out with Ext.P1 Government Order, G.O.(P) No.7/2016/Fin. dated - 20.01.2016, making it clear that service for fitment benefit and service weightage would mean full-time service, including broken periods of service qualifying for normal increments in the scale of pay. It has also been made clear that prior regular service in aided schools/colleges/polytechnics, Municipal Common service, University service, Panchayat service and High Court of Kerala Service would also be reckoned. 3. On the strength of Ext.P1, the petitioner is stated to have submitted her option counting 24 years of service as of 01.07.2014 by reckoning the broken period of service in a leave vacancy during the period from 24.08.1989 to - 27.10.1989. Ext.P2 is the copy of the statement of fixation, ## which stands approved by the DEO, Tirur. 4. Subsequent to the disbursement of benefits, the Educational **WP(C) NO. 28399 OF 2019** **5** Officer has forwarded Exhibit P3 audit objection to the 5th respondent wherein, insofar as the petitioner is concerned, it is stated that the grant of weightage for a period of 24 years by considering the broken period of service from 24.08.1989 to 27.10.1989 was irregular. It is also stated in Ext.P3 that the broken period of service cannot be considered for service weightage. A further direction was issued to revise the staff fixation and to direct the petitioner to refund the excess amount that has been realized by her and also to revise the grade. 5. The petitioner asserts that she submitted Ext.P4 explanation to Ext.P3. According to the petitioner, none of the explanations submitted by the petitioner was considered. This led the RDD to issue Ext.P10, ordering recovery of amounts and calling for an explanation for the delay. 3. It is in the afore circumstances that this writ petition is filed seeking **WP(C) NO. 28399 OF 2019** **6** the following reliefs: I. To issue a writ of Mandamus or other appropriate writ,order or direction commanding the Respondents to release the annual increments due to the Petitioner in April 2018 and April 2019 by recognizing the pay fixation approved in Exhibit P2 and to release all consequential benefits, II. To issue a writ of mandamus or other appropriate writ, order or direction commanding the Respondents to not to effect any recovery from the Petitioner without following the due process of law. 4. A counter affidavit has been filed by the 3rd respondent wherein it is stated that in terms of Paragraph 6 of Annexure II of Ext.P1, only regular service (uninterrupted and broken) can be calculated for service weightage. According to the 3rd respondent, the petitioner is entitled to draw a pay in terms of the 2014 pay revision only after excluding the leave vacancy service. It is also stated that excluding the said period, the pension proposal which is received from the Headmaster is being processed. 5. Sri.V. Sajith Kumar, the learned counsel appearing for the petitioner, urged that the stand taken by the respondent cannot be sustained. According to the learned counsel, Note to Clause 6 of Annexure II in Ext.P1 is emphatically **WP(C) NO. 28399 OF 2019** **7** clear, and it states that service for the purpose of this rule means the Full-Time Regular Service, including a broken period of service, qualified for normal increment in the scale of pay. The learned counsel would also rely on the law laid down by this Court in Khadeeja A v. State of Kerala and another [2014 (4) KLT 349] and in Ibraheem Vadakkekara Thazhath v. State of Kerala (judgment dated 04.08.2021 in WPC No.858 of 2020 and the judgment dated 10.10.2011 in WPC No.17912 of 2010 dated 10.10.2011) to substantiate the said contention. 6. The learned Government Pleader, on the other hand, would reiterate the contentions in the counter affidavit. 7. It would be appropriate to extract Clause 6 and 7 dealing with Fitment Benefit and Service Weightage in Ext.P1 Annexure II, which reads as under: ## Fitment Benefit and Service Weightage 6. To the existing emoluments computed above, shall be added an amount equal to 12% of basic pay in Rule 5 (a) subject to minimum of Rs.2000, towards Fitment Benefit and **WP(C) NO. 28399 OF 2019** **8** another amount equivalent to 1/2% of basic pay specified in Rule 5(a) above, for each completed year of service subject to a maximum of 30 completed years, towards Service Weightage, provided the amount of Fitment Benefit and Service Weightage taken together shall not exceed Rs.12,000. . Note:-Service for the purpose of this rule means full time regular service including broken periods of service qualifying for normal increments in the scale of pay. Time spent on leave not counting for norinal increment shall not be reckoned. Service during the period of bar on increment, without cumulative effect will be reckoned. Prior regular service in aided schools/colleges/polytechnics, Municipal Common Service, University Service, Panchayat Service and High Court of Kerala Service will also be reckoned. ( emphasis supplied) 7. The amount so arrived at under Rule 6 above shall be stepped up to the next stage in the revised scale of pay. 8. As is clear from the note that the service for the purpose of this **WP(C) NO. 28399 OF 2019** **9** rule means full-time regular service, including a broken period of service qualifying for a normal increment in the scale of pay. The service during the period of bar on increment without cumulative effect and also prior regular service in aided schools/colleges/polytechnics, Municipal Common Service, University Service, Panchayat Service and High Court of Kerala service will also be reckoned. The respondents have not been able to place before this Court any material to show that the broken period of service would not qualify for normal increments in the scale of pay. 9. The very same issue had come up for consideration in WPC No.17912/2020, wherein in paragraph No.7 of the judgment, it was held as under:. ## 7. In the light of the contrary stand taken, it is necessary to analyse the terms of the Rules regarding fixation of pay contained in Annexure-II of Ext.P1. “Service Weightage” is provided under clause 5(1). Going by Rule 5(1), one increment for each completed 4 years of service, subject to a maximum of 4 increments in the **WP(C) NO. 28399 OF 2019** **10** revised scale, will be added to the pay so fixed. The Note reads as follows:- “Service for the purpose of this rule means service (where protection of pay is allowed) including broken periods of service qualifying for normal increments in the scales of pay. Service during the period of bar on increment without cumulative effect and diesnon period will also be reckoned. Time spent on leave that will not count for normal increment will not be reckoned. Prior service of Government employees in aided educational institutions (and vice versa) will also not be reckoned for determining the length of service.” A reading of the same shows that what is provided under the Note for granting weightage is service including “broken periods of service qualifying for normal increments in the scales of pay”. Therefore, the idea conveyed is that any type of service which has been reckoned as qualifying service for normal increment will come within the meaning of the term “service”. In fact, the Note also shows that the service during the period of bar on increment without cumulative effect and dies-non period will also be reckoned. It is specifically provided that time spent on leave that will not **WP(C) NO. 28399 OF 2019** **11** count for normal increment will not be reckoned. Prior service of Government employees in aided educational institutions (and vice versa) will also not be reckoned for determining the length of service. Therefore, specifically, the types of service which can be reckoned have been mentioned in the Note and the service which cannot be reckoned are also specifically provided therein. Going by the same, it can be seen that part-time service which have been reckoned as qualifying service for increments has not been specifically excluded in the Note or in the main part of the Rule. It was held that the types of service which can be reckoned have been mentioned in the Note and the service which cannot be reckoned are also specifically provided therein. Part-time service, which have been reckoned as qualifying service for increments, has not been specifically excluded in the Note or in the main part of the Rule. 10. The above judgment was followed by another learned Single Judge in ## Khadeeja (supra) and Ibraheem Vadakkekara Thazhath (supra) . **WP(C) NO. 28399 OF 2019** **12** 11. In that view of the matter, the stand now taken by the respondents cannot be sustained under law. The period of service rendered by the petitioner in a leave vacancy for the period from 24.08.1989 to 27.10.1989 can also be reckoned as service for the purpose of fitment benefits and service weightage. In that view of the matter, the petitioner is entitled to succeed. There will be a direction to the respondents to release the annual increments due to the petitioner in April 2018 and April 2019 after recognizing the pay fixation as stated in Ext.P2. The petitioner shall be entitled to all consequential benefits. Consequently, Ext.P10 and all further steps initiated to recover the amounts from the petitioner will stand quashed. **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** NS **WP(C) NO. 28399 OF 2019** **13** ## **APPENDIX OF WP(C) 28399/2019** PETITIONER(S) EXHIBITS : EXHIBIT P1 A TRUE COPY OF THE RELEVANT PAGES OF G.O. (P)NO.7/2016/FIN. DATED 20.01.2016 ISSUED BY THE FINANCE DEPARTMENT, GOVT. OF KERALA EXHIBIT P2 A TRUE COPY OF THE STATEMENT OF FIXATION OF THE PETITIONER, APPROVED BY THE O/O.THE DEO, TIRUR EXHIBIT P3 A TRUE COPY OF THE RELEVANT PAGES OF THE AUDIT OBJECTION FORWARDED TO THE PETITIONER BY THE SUPERINTENDENT/ACCOUNTS OFFICER, DEPUTY DIRECTORATE OF EDUCATION, MALAPPURAM EXHIBIT P4 A TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER TO THE AUDIT OBJECTION EXHIBIT P5 A TRUE COPY OF THE CIRCULAR NO.J2/44060/11 GEN.ED.D DATED 26.09.2012 ISSUED BY THE 1ST RESPONDENT EXHIBIT P6 A TRUE COPY OF THE OBJECTION IN FILE NO.F4/33370/17 ND/S DATED 20.07.2018 BY THE ACCOUNTS OFFICE, O/O.DDE MALAPPURAM EXHIBIT P7 A TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER THROUGH THE 5TH RESPONDENT EXHIBIT P8 A TRUE COPY OF THE LETTER NO.F4/33370/17 DATED 02.05.2019 FROM THE 3RD RESPONDENT TO THE 5TH RESPONDENT EXHIBIT P9 A TRUE COPY OF THE REPLY LETTER DATED 20.05.2019 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT EXHIBIT P10 A TRUE COPY OF THE LETTER NO.F4/33370/2017 DATED 14.10.2019 ISSUED BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT. RESPONDENT(S) EXHIBITS : NIL