P. Abosalam Koya v Union of India and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 16TH DAY OF NOVEMBER 2016/25TH KARTHIKA, 1938 ## _**WP(C).No. 36426 of 2009 (S)**_ _**----------------------------**_ AGAINST THE ORDER IN OA 696/2007 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 27-07-2009 PETITIONER(S): ------------- P.ABOOSALAM KOYA, AGED 58 YEARS, S/O.LATE SRI.ABOOBACKER KOYA,, POST GRADUATE TEACHER, GOVERNMENT SENIOR SECONDARY, SCHOOL, KAVARATHIM, RESIDING AT TYPE III, GOVERNMENT QUARTERS, KAVARATHI. BY ADVS.SRI.M.R.HARIRAJ SRI.P.A.KUMARAN SRI.NIRMAL V NAIR SRI.SURAJ.S SMT.VINEETHA B. RESPONDENT(S): -------------- 1. UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF HUMAN RESOURCE DEVELOPMENT, NEW DELHI. 2. ADMINISTRATOR, UNION TERRITORY OF LAKSHADWEEP, KAVARATHI. 3. THE DIRECTOR OF EDUCATION, UNION TERRITORY OF LAKSHADWEEP,, KAVARATHI. 4. SRI.K.K.BUHARI, HEAD MASTER, GOVERNMENT HIGH SCHOOL, AMINI. 5. SRI.P.MOHAMMED, HEAD MASTER, SR.BASIC SCHOOL, KALPENI. 6. SRI.B.ABOOSALA, ASST.HEAD MASTER, GHS, KADAMAT. 7. SRI.YOUSEF PALI, AHM, GHS, AMINI. 8. SRI.K.P.B.AHAMED, HM, SR.BASIC SCHOOL, AGATTI. _**WP(C).No. 36426 of 2009 (S)**_ :2: 9. SHRI.C.N.KAMIKOYA, EDUCATIONAL OFFICER, DIRECTORATE OF EDUCATION, KAVARATHY. 10. SRI.M.FATHAHULLA, HM, GHS, AGATTI. 11. SRI.K.KADER, HM, GHS, KALPENI. R1 BY SRI. N. NAGARESH,ASST. SOLICITOR GENERAL OF INDIA R2,R3 BY ADV. SRI.MANU.S, CGC, ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO. 36426 OF 2009 ## APPENDIX PETITIONER'S EXHIBITS : EXT. P1 : TRUE COPY OF THE ORDER NO.18/12/94 END. DATED 30.8.1994 ISSUED BY THE THIRD RESPONDENT. EXT. P2 : TRUE COPY OF THE ORDER NO. 184/98-EDN.(1) DATED 15.12.1998 ISSUED BY THE THIRD RESPONDENT. EXT. P3 : TRUE COPY OF THE ORDER NO. 18/4/98-END./ESTT. DATED 21.06.2005 ISSUED BY THE THIRD RESPONDENT. EXT. P4 : TRUE COPY OF THE ORDER NO. 18/8/97-END/ESTT. DATED 21.06.2008 ISSUED BY THE THIRD RESPONDENT. EXT. P5A : TRUE COPY OF THE ORDER NO. F-7-9/88-UT-I DATED 21.10.1988 EXT. P6 : TRUE COPY OF THE LAKSHADWEEP ADMINISTRATION EDUCATION DEPARTMENT (HEAD MASTER, SENIOR BASIC SCHOOL/ASST. EDUCATION OFFICER (ACADEMIC)/ASST. HEADMASTER, HIGH SCHOOL (GROUP B NON-GAZETTED) RECRUITMENT RULES, 1994 EXT. P7 : TRUE COPY OF THE LAKSHADWEEP ADMINISTRATION EDUCATION DEPARTMENT (HEADMASTER, SENIOR BASIC SCHOOL/ASST. EDUCATION OFFICER (ACADEMIC)/ASST. HEADMASTER HIGHER SCHOOL (GROUP B NON GAZETTED) (AMENDMENT) RECRUITMENT RULES, 1996 EXT. P8 : TRUE COPY OF THE LAKSHADWEEP ADMINSITRATION EDUCATION DEPARTMENT (HEADMASTER, SENIOR BASIC SCHOOL/ ASST. EDUCATION OFFICER (ACADEMIC)/ASST. HEADMASTER, HIGH SCHOOLD) (GROUP B NON-GAZETTED ) RECRUITMENT RULES, 2006 EXT. P9 : TRUE COPUY OF THE RELEVANT PROTION OF LAKSHADWEEN ADMINISTRATION, HEADMASTER, HIGH SCHOOLS, RECRUITMENT RULES 1985 EXT. P10 : TRUE COPY OF THE DRAFT OF THE AMENDED RECRUITMENT RULES ON FILE NO.F3/32/(3)92-PR - EXT. P11 : TRUE COPY OF THE REPRESENTATION DATED 22.09.2003 EXT. P13 : TRUE COPY OF THE ORDER NO. 18/31/2000/EDN./ESTT. DATED 22.6.2005 ISSUED by the THIRD RESPONDENT. - EXT. P14 : TRUE COPY OF THE REPRESENTATION DATED 5.9.2005 EXT. P15 : TRUE COPY PF THE REPRESENTATION DATED 05.06.2005 - EXT. P16 : TRUE COPY OF THE ORDER NO. 5-180-86-UT DATED 12.8.1987 ISSUED BY THE FIRST RESPONDENT. - EXT. P17 : TRUE COPY OF THR EPRESENTATION DATED 29.03.2007 EXT. P18 : TURE COPY OF THE RESPRESENTATION DATD 25.4.2007 EXT. P19 : TRUE COPY OF THER EPRESENTATION DATD 22.5.2007 :2: EXT. P20 : TRUE COPY OF THE NO. F18/6/2007-EDN. (ESTT.) DATED 31.01. 2008 EXT. P21 : TRUE COPY OF THE ORIGINAL APPLICATION 696/2007 AS AMENDED (WITHOUT ANNEXURES) EXT. P22 : TRUE COPY OF THE REPLY STATEMENT WAS FILED BY THE RESPONDENTS 2 AND 3 (WITHOUT ANNEXURES) EXT. P23 : TRUE COPY OF THE REJOINDER. EXT. P24 : TRUE COPY OF THE FINAL ORDER DATED 27.7.2009 IN O.A. 696/2007 ON THE FILES OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. /TRUE COPY/ P.A. TO JUDGE ## **P.R. RAMACHANDRA MENON & P. SOMARAJAN, JJ.** ~~~~~~~~~~~~~~~~~~~~~~ W.P.(C) No. 36426 of 2009 ~~~~~~~~~~~~~~~~~~~~~ Dated, this the 16[th] day of November, 2016 ## **JUDGMENT** ## Ramachandra Menon, J. The applicant in O.A. No. 696 of 2007 is the petitioner before this Court. Challenge is against Ext. P24 order passed by the Tribunal, whereby the O.A. was dismissed. The claim was for granting senior scale on completion of 12 years, counting the same from 30.08.1994 – the date of Ext. P1 – when the petitioner was promoted as Post Graduate Teacher on 'ad hoc' basis. There was also a claim for promotion to the post of Head Master, Senior Basic School with reference to promotion effected to the juniors vide Ext. P13 dated 22.06.2005. 2. Coming to the sequence of events, it is to be noted that the petitioner was appointed as a Trained Graduate Teacher in the year, 1986. Subsequently, the petitioner acquired PG qualification in the year 1992. As per Ext. P5(B) dated 15.09.1993, a post of Post Graduate Teacher was created and accordingly, considering the credentials, the petitioner was promoted to the said post on 'ad hoc' basis, vide Ext. P1 dated 30.08.1994. _W.P.(C) No. 36426 of 2009_ : 2 : 3. While so, the petitioner was sent on deputation as Subject Expert – English carrying the same scale of pay, vide Ext. P2 dated 15.12.1998. Later, he was repatriated as P.G. Teacher vide Ext.P3 dated 21.06.2002 and was continuing so, till he was regularised as P.G. Teacher as per Ext. P4 dated 21.06.2005, retrospectively w.e.f.15.06.2005. The fact remains that he retired from service in the year 2011 (after filing the present writ petition). 4. With regard to the nature of grievance projected by the petitioner, it is to be noted that, from the post of Trained Graduate Teacher, there are two separate channels for promotion. One is to the post of 'Post Graduate Teacher', if the candidate is having Post Graduate qualification. The other one is to the post of 'Head Master' to Central Basic School (originally, it did not require PG qualification) or to the post of 'AEO-Academic' which is an interchangeable post. The Recruitment Rule is the same as that of the PG Teacher. The petitioner was an aspirant for further promotion, which however was not given to him; whereas the persons who were occupying the posts of Head Master [Senior Basic School] were being considered for promotion to the post of Head Master [High School]. Immediately, after regularisation of _W.P.(C) No. 36426 of 2009_ : 3 : service of the petitioner on 21.06.2005 as per Annexure A4, the respondent on very next date issued Ext. P13 dated 22.06.2005, whereby the juniors were stated as promoted to the post of Head Master, Senior Basic School or as Assistant Head Master, High School. Apart from the fact that the petitioner was denied promotion, his claim to have the benefit of 'Senior Scale', on completion of 12 years' service, was also not entertained by the respondents stating that the 12 years' service had to be 'regular service' in the post and that the petitioner was not satisfying the said requirement. As the attempt made by the petitioner before the Departmental Authorities did not turn to be fruitful, the petitioner approached the Tribunal by filing O.A. with the following prayers : “(i) Direct the respondents to reckoning applicants his service from 1994 as qualifying for promotion and to consider the applicant for grant of senior scale with effect from the date on which he completed twelve years in Post Graduate Teacher Grade and to direct the respondents to consider the applicant for promotion as Headmaster, High School, and to grant the applicant the said promotions in his due turn with all consequential benefits including interest @ 18% per _W.P.(C) No. 36426 of 2009_ : 4 : annum on delayed payment of arrears of monetary benefits. (i) (a) To quash Annexure A16. (ii) Grant such other reliefs as may be prayed for and the court may deem fit to grant, and (iii) Grant the costs of this Original Application. 5. The claim was resisted from the part of the Department, pointing out that the post of Post Graduate Teacher held by the petitioner was never a feeder category, as per the amended Rules [a copy of which was produced as Annexure R2(d)]. With regard to the claim for granting 'Senior Scale', on completion of 12 years, it was contended that, though the relevant O.M. issued in this regard did not stipulate that it was to be 'regular service', by virtue of the existing instructions issued by the Government of India, Ministry of Personnel & Training, vide Articles 17.10 and 17.11 of the Consolidated Instructions contained in Chapter 53 of Swamy's Complete Manual on Establishment & Administration, it had to be 'regular service' and nothing else. After hearing both the sides, the Tribunal dismissed the O.A. holding that the applicant was not entitled to get any promotion, by virtue of the fact that he did not occupy any level which was forming feeder category to the post in _W.P.(C) No. 36426 of 2009_ : 5 : question. This made the petitioner to approach this Court by filing the writ petition challenging the said finding, also asserting that the contention with regard to the eligibility to have Senior Scale on completion of 12 years was never considered or dealt with while passing Ext. P24 verdict. 6. Heard Mr. M.R. Hariraj, the learned counsel for the petitioner as well as Sri. Manu S., the learned standing counsel for the Lakshadweep Administration, besides the learned Asst. Solicitor General appearing on behalf of the Union of India. 7. Particulars of the revisions of scales to the School Teacher as evident from Ext. P16 dated 12.08.1997 would be worthwhile to be extracted, for easy understanding as to the nature of grievance : ---------------------------------------------------------------- Category of school teachers Revised Pay Scales (a) Primary School Teachers Rs.1200-30-1380-EB-30 -1560-EB-40-1800-EB40-2040 Senior Scale (After 12 Rs.1400-40-1600-50years) 1650-EB-50-1950-EB50-2250-EB-50-2300 -60-2600 ## _W.P.(C) No. 36426 of 2009_ : 6 : Selection Scale (After Rs.1640-60-2000-EB12 years in senior scale and 60-2360-60-2600-75 attainment of qualifications laid -2750-EB-75-2900 down for TGTs) (b) Trained Graduate Rs.1400-40-1600-50Teachers/Headmasters of 1650-EB-50-1950-EBPrimary School 50-2250-EB-50-230060-2600 Senior Scale Rs.1640-60-2000-EB (after 12 years) -60-2360-EB-60-2600 -75-2750-EB-75-2900 Selection Scale Rs.2000-60-2300-75(After 12 years in senior 2375-EB-75-2825-EBScale and attainment of 75-3200-100-3300qualifications laid for PGTs) EB-100-3500 (c) Post Graduate Teachers/ Rs.1640-60-2000-EBHeadmasters of Middle School 60-2360-EB-60-250075-2750-EB-75-2900 Senior Scale Rs.2000-60-2300-75(after 12 years) 2375-EB-75-2825-EB75-3200-100-3300-EB100-3500 ## _W.P.(C) No. 36426 of 2009_ : 7 : Selection Scale Rs.2200-75-2650-EB(After 12 years in 75-2800-100-3200-EB Senior Scale) -100-3800-EB-1004000 (d) Vice-Principal/Head Rs.2000-60-2300-75Masters of Secondary School 2375-EB-75-2825-EB 75-3200-100-3300-EB 100-3500 Senior Scale Rs.2200-75-2650-EB(After 12 years) 75-2800-100-3200-EB100-3800-EB-100-4000 8. A specific pleading was raised by the petitioner in the O.A. as contained in Ground B, which is extracted below : “B. The claim for grant of senior scale to the applicant is not considered. It is submitted that the applicant has service in the grade of Post Graduate Teacher for more than 12 years. The grant of senior scale do not demand regular service of 12 years. 'Service' without any adjectives can mean service of any description and hence refusal to grant senior scale to the applicant based on his service in the grade of Post Graduate Teacher from 1994 onwards is discriminatory and illegal. It is inconsistent with the mandate of Art. 14 _W.P.(C) No. 36426 of 2009_ : 8 : ## and 16 of the Constitution of India.” 9. The said plea was taken note of by the Tribunal while passing Ext.P24, which is discernible from Paragraph 5; the relevant portion of which is extracted below: “5. The learned counsel of the applicant argued that as the applicant has been working as PGT on ad hoc basis with effect from 1994 onwards followed by regularisation in 2005, he is eligible to reckon the ad hoc service rendered by him as qualifying service for promotion to senior scale. The counsel also argued that the applicant was eligible to be considered and granted promotion as Headmaster, High School in his due turn but the respondents did not consider him despite repeated requests, therefore, he may be granted promotion as Head Master, High School with consequential benefits. The learned counsel for the respondents on the other hand argued that the applicant while working TGT was appointed to the post of PGT against a post which became vacant due to deputation of the regular incumbent. While so the applicant was also selected for appointment as “Subject Expert” on deputation on 15.12.1998. As the regular incumbent at the time of repatriation from deputation, was appointed as Headmaster SB School the applicant on return from deputation was again appointed _W.P.(C) No. 36426 of 2009_ : 9 : as PGT on ad hoc basis. In the result, the applicant continued as PGT on ad hoc basis as there was no regular vacancy ................................................................................................. ................................................................................................................” 10. According to the petitioner, 'ad hoc' service rendered by the petitioner in the post in question is also liable to be reckoned for granting 'Senior Scale'. Had it been reckoned, he would have been eligible to have Higher Grade on completion of 12 years i.e. in the year 2006, which naturally will entitle the appellant to draw arrears of salary as well as arrears of pension. Because of the conspicuous omission on the part of the Tribunal in dealing with the issue, despite referring to the pleadings and nature of contentions, much prejudice has been caused to the petitioner, and hence the challenge. 11. The learned Standing Counsel for the respondent Administration submits that the claim with reference to the 'Senior Scale' was resisted, raising specific contentions, as given in paragraph 9 of Ext. P22 reply statement, which is extracted below : “9. As regards to the claim of the Applicant that he has been denied the benefit of senior scale applicable to the post of PGT in consideration of his _W.P.(C) No. 36426 of 2009_ : 10 : entire ad-hoc service as PGT from 10.9.94 in terms of Annexure A-12, Government of India letter dated 12.8.1987, it is submitted that normally regular service in respective grades are to be taken into account for the grant of senior scales and selection scales. As the Govt. of India Order dated 12.8.1987 is silent and no specific clarification has been received from Govt. of India so far as to whether the ad-hoc service rendered by a Teachers can be taken into account for awarding senior scales and selection scales, the case of applicant could be considered only after getting specific clarification on the above points from the competent authority of Government of India, for which Government of India is being addressed.” 12. Virtually, the said point [though was referred to as part of the pleadings raised by the applicant] was not answered by the Tribunal, while passing Ext. P24 order. The only case for the respondent Administration was that, even for granting the benefit of 'Senior Scale', service had to be 'regular service' in the post in question. When the 'ad hoc' service rendered from 10.09.1994 to 15.06.2005 (the date of regularisation) is not liable to be counted, particularly, in the light of the relevant instructions issued by the Government of India, no benefit could be extended to the petitioner _W.P.(C) No. 36426 of 2009_ : 11 : under any circumstances. But, the fact remains that the version of the Administration before the Tribunal was that the issue was being taken up for consideration before the Government. The said submission was in the year 2008, when the reply statement was filed [though exact date of taking up the matter was not revealed in the statement]. The matter was pending consideration before this Court for more than 'seven years'; despite which the relevant particulars in this regard have not been brought to the notice of this Court. The question is whether the service mentioned in Ext.P16 dated 12.08.1987 for granting the benefit of 'Higher Scale' is actually to be 'regular service' or whether the service rendered on ad hoc basis could be considered or not. Exactly similar issue had come up for consideration before a Division Bench of this Court and the point was answered as per the decision reported in **1987** **(1) KLT 84 [K.K. Marakkar Vs. KPSC],** specifically holding that, whenever the Rule making authority felt that only 'regular service' should be counted, it has chosen to use the expression 'regular' and since no such expression has been used, but for using the term 'service', the Court found no justification to read into the Rule, adding the prefix 'regular'. Reliance is also sought to be placed on _W.P.(C) No. 36426 of 2009_ : 12 : the decision already rendered by this Court in **Bhaskaran Vs. State of Kerala [1981 KLT 633].** The relevant portion as contained in paragraph 4 of the decision rendered in **K.K. Marakkar Vs. KPSC** [cited supra] reads as follows : “4. It was however contended by Shri. Kelu Nambiar, the learned counsel for the Public Service Commission that the finding recorded by the learned single Judge that the provisional service can be taken into account is not correct. What is stated in the rule extracted above is that the candidates should have two years’ service in the specified position. The rule does not say as to whether the said service should be in a regular appointment, permanent appointment, temporary appointment, or provisional appointment. If the rulemaking authority felt that it was only regular service and not the provisional service that should be taken into account, proper expression in that behalf would have been used. We find that the rule-making authority has used such an expression when it wanted to qualify the nature of the service. The rule regarding recruitment to the Public Works Department to the cadre of Attenders was amended in the year 1980 by Notification G.O. (P) No. 81/80/ PW & D dated 10-6-1980, prescribing under cl. (B) five years’ regular service under the Government. _W.P.(C) No. 36426 of 2009_ ## : 13 : It thus becomes clear that whenever the rule-making authority felt that it is only regular service that should count, it has chosen to use the expression ‘regular’. As, such an expression has not been used and that the only expression used is ‘service’, we find no justification to read into the rule the prefix ‘regular’. That is precisely the view taken by this Court in the decision reported in 1981 KLT 633 (between Bhaskaran v. State of Kerala). That was also a case of the Public Works Department and considered the category of the First Grade Surveyors. It has been observed in that case that the only word used is service, which means service of any kind would entitle the petitioner for being promoted if he has the requisite service to his credit. It is pointed out that unless the service is qualified being either as regular service or officiating service, an officer claiming the benefit of promotion will be entitled to his service when the word used is only ‘service’. It is pointed out that the word ‘service’ without qualification means service of any kind and that service has to be taken into account for the purpose of qualification and only for that purpose. The context in which the word ‘service’ has been used does not justify any other inference either. Emphasis of the rule appears to be on the persons concerned having become familiar with the duties of the _W.P.(C) No. 36426 of 2009_ ## : 14 : particular post for a particular period Therefore, the question as to whether that familiarity or experience has been acquired by holding the post on a provisional, regular or other basis is not of any materiality. We have therefore no hesitation in taking the view that the expression ‘service’ used in the rule in question does entitle the appellant to count the service rendered by him on a provisional basis. If the service rendered by the appellant as a provisional employee along with the service rendered by him on a regular basis is taken into account, it is not disputed that the appellant would have the requisite period of two years of service and he would thus be fully qualified for the post. Hence it has to be held that the appellant was duly qualified and that the Public Service Commission was not right in not inviting the appellant for interview.” 13. In the above circumstances, we find that the petitioner is entitled to get benefit of entire service including 'ad hoc' service till 15.06.2005, when he was regularised in service and as such on completion of 12 years of service, he ought to have been placed in 'Senior Scale' of Post Graduate Teacher mentioned in Ext. P16. Accordingly, the verdict passed by the Tribunal as per Ext. P24 stands modified to the above extent, making a declaration as _W.P.(C) No. 36426 of 2009_ **==> picture [36 x 10] intentionally omitted <==** above. The respondents concerned are directed to compute the consequential benefits flowing therefrom and to have the same disbursed to the petitioner, at the earliest, at any rate, within 'three months' from the date of receipt of a copy of this judgment. The submission made by the learned counsel for the petitioner that the petitioner is not pressing the relief with regard to the claim for promotion is recorded. The writ petition stands allowed to the said extent. No cost. sd/- **P. R. RAMACHANDRA MENON, JUDGE** sd/- **P. SOMARAJAN,** **JUDGE** kmd /True copy/ P.A. to Judge