P.K. Sosamma v. State of Kerala and Others

WP(C) NO. 34473 OF 2010 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 19[TH] DAY OF OCTOBER 2022 / 27TH ASWINA, 1944 WP(C) NO. 34473 OF 2010** ## **PETITIONER/S:** P.K.SOSAMMA W/O.ZACHARIA JACOB, LOWER PRIMARY SCHOOL, ASSISTANT(LPSA)MDLP SCHOOL, THAZHATHANGADI PO,, KOTTAYAM DISTRICT,RESIDING AT:THANUGUMPADICKAL,, VILLOONNI PO,KOTTAYAM DISTRICT. BY ADVS. SRI.T.C.GOVINDA SWAMY SRI.G.SHYAM RAJ ## **RESPONDENT/S:** 1 STATE OF KERALA SECRETARY TO GOVERNMENT OF KERALA,EDUCATION, DEPARTMENT SECRETARIAT,THIRUVANANTHAPURAM-695 001. 2 THE DISTRICT EDUCATIONAL OFFICER KOTTAYAM DISTRICT,KOTTAYAM-1. 3 THE ASSISTANT EDUCATIONAL OFFICER KOTTAYAM WEST, KOTTAYAM DISTRICT,KOTTAYAM-1. 4 THE HEADMASTER MDLP SCHOOL THAZHATHANGADI PO, KOTTAYAM-5,KOTTAYAM DISTRICT,. WP(C) NO. 34473 OF 2010 2 5 THE ACCOUNTANT GENERAL(AUDIT) KERALA THIRUVANANTHAPURAM-695 001. ## **OTHER PRESENT:** SRI.C.N.PRABHAKARAN, SR GP; SMT GOURI BALAGOPAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 34473 OF 2010 3 **P.V.KUNHIKRISHNAN, J --------------------------------------W.P.(C) No.34473 of 2010 -------------------------------------Dated this the 19[th] day of October, 2022** ## **JUDGMENT** The above writ petition is filed with following prayers : (a) Issue a writ certiorari or other appropriate writ order or direction calling for the records leading to the issue of Exhibits P1 and P3 and quash the same. (b) Issue a writ of mandamus or other appropriate writ order or direction commanding the respondents to grant the petitioner forthwith all consequential benefits as if Exhibits P1 and P3 had not been issued at all and as if the petitioner continued to be in the senior grade with effect from 17.11.2005 (c) Award costs of and incidental to this petition. (d) Pass such other orders or directions as deemed fit and necessary in the facts and circumstances of the case” [SIC] 2. The petitioner was working as a Lower Primary WP(C) NO. 34473 OF 2010 4 School Assistant (LPSA) in MDLP School, Thazhathangadi. She is aggrieved by the fixation of her pay. The petitioner was initially appointed as LP School Assistant through employment exchange for the period from 23.9.1985 to 19.4.1986 in the Government LPS, Chittari South under Rule 9(a)(i) of Part II of KS & SSR. Thereafter, the petitioner was regularly appointed with effect from 15.6.1988 as LP School Assistant in the MDLP School which is a Government aided School under a corporate management, having schools all over Kerala. It is the case of the petitioner that though the petitioner's initial appointment was at Kasaragode, the petitioner was later transferred to her present school at Thazhathangadi in Kottayam district. The petitioner was granted promotion to the junior grade on completion of ten years service with effect from 1.7.1998. It is the case of the petitioner that if the provisional service rendered by the petitioner in the Government School between 23.9.1985 to 19.4.1986 were WP(C) NO. 34473 OF 2010 5 taken into account, the petitioner would have got her senior grade on completion of 18 years. However, taking into account the provisional service of 6 months and 27 days rendered by the petitioner between 23.9.1985 to 19.4.1986, in accordance with the Government of Kerala instructions in that regard, the petitioner was granted the senior grade w.e.f. 17.11.2005 deeming the petitioner to have completed 18 years of service as on 17.11.2005. On that basis, the petitioner also exercised her option for future fixation of pay and she also becomes entitled to the next higher grade on completion of 23 years w.e.f. 17.11.2010. While the matter stood so, it is understood by the petitioner that there was a communication from the Asst. Education Officer addressed to the Headmaster of the petitioner's school indicating some objections in the audit for reckoning the provisional service rendered by the petitioner for the purpose of grant of the senior grade. Ext.P1 is the communication. The petitioner WP(C) NO. 34473 OF 2010 6 submitted a detailed representation addressed to the 3[rd] respondent as evident by Ext.P2. It is the case of the petitioner that without considering Ext.P2, a communication was sent by the 3[rd] respondent indicating that the provisional service rendered in the Government School will not count for service in Aided School and the same was pointed out by the Local Audit Report. Ext.P3 is the communication. Against Ext.P3, the petitioner submitted Ext.P4. In Exts.P2 and P4, the petitioner highlighted the Government orders in circular bearing No. 3/95(35)Fin dated 1.3.1995 issued by the Government of Kerala, Finance Department and the General Education (J) Department circular dated 6.3.1998 which are produced as Exts.P5 and P6. The same is not considered. Hence, this writ petition. 3. Heard the learned counsel for the petitioner and the learned Government Pleader who appeared for the respondents. WP(C) NO. 34473 OF 2010 7 4. The learned counsel for the petitioner reiterated his contentions. The Government Pleader submitted that the provisional service of the petitioner in the Government Service cannot be reckoned for the purpose of Higher Grade. I requested Adv.Gouri Balagopal to find out whether there is any Govt. Order in this issue. Adv. Gouri Balagopal submitted that there is a Government Order dated 30.3.2009 and the copy of the same is furnished. The above Government Order is extracted hereunder : - “Read 1. Judgment dated 6.11.08 in WP(C) No.32715/08 filed by Sri.Sajith N.L. and 47 others. 2. Letter No.Ad.B/Spl.cell/31449/06/HSE dated 13.1.09 of the Director of Higher Secondary Education. ## O R D E R The Hon'ble High Court of Kerala in its judgment dated 6.11.08 in WP(C) No.32715/08 filed by Sajith N.L., Higher Secondary School Teacher (English), Government Higher Secondary School, Pallickal Thiruvananthapuram and 47 others directed the 1[st] respondent to dispose of Exhibit P50 as expeditiously as possible and at any rate within three weeks from the date of production of a copy of the WP(C) NO. 34473 OF 2010 8 judgment. The Hon'ble Court has also directed to hear one of the petitioners before final orders are passed. 2. As directed by the Hon'ble High Court the 1[st] petitioner, Sri.Sajith N.L. was heard on 5.2.09 Main Prayer of the petitioners in this case is to grant higher grade to them on completion of 18 years of Service taking into account the Aided School Service rendered by the petitioners for the purpose of calculating 8 years of Service in the category of Higher Secondary School Teacher. Government have examined the matter in detail and are pleased to order that Aided School Service rendered by the petitioners as Higher Secondary School Teacher prior to their entry in Government Service can be reckoned for calculating time bound higher grade of 8 years after completing their probation in the category of Higher Secondary School Teacher in Government Service subject to verification of their Service in Aided School as approved in the category of Higher Secondary School Teacher by the Director of Higher Secondary Education. The judgment dated 6.11.08 in WP(C) No.32715/08 of the Hon'ble High Court is thus complied with accordingly. (By order of the Governor) R.Devaraj, Under Secretary For Secretary to Government.” WP(C) NO. 34473 OF 2010 9 5. In that Government Order, it is stated that Aided School Service rendered by the petitioners as Higher Secondary School Teacher prior to their entry in Government Service can be reckoned for calculating time bound higher grade of 8 years after completing their probation in the category of Higher Secondary School Teachers in Government Service subject to verification of their service. If that is the case, the same is applicable in vice versa also. Therefore, according to me, the impugned orders will not stand in the light of the above Government Order. In **Rajendran v. State of Kerala** [2004 (3) KLT 533], this Court observed that the intention of the Government is to grant the benefit of the provisional service to the teaching and non-teaching staff both in the Government as well as aided sector for the purpose of time-bound Higher Grade. In such circumstances, according to me, the impugned orders will not stand. WP(C) NO. 34473 OF 2010 10 Therefore, this writ petition is allowed in the following manner : - 1) Exts.P1 and P3 are quashed. - 2) The competent authority among the respondents will pass - consequential orders in accordance to law as expeditiously as possible at any rate, within 6 months from the date of receipt of a copy of this judgment. Before concluding, I record my appreciation to Smt. Gouri Balagopal for helping this Court. **SD/-** **P.V.KUNHIKRISHNAN JUDGE** SKS WP(C) NO. 34473 OF 2010 11 ## APPENDIX PETITIONER'S EXHIBITS: EXT.P1 A TRUE COPY OF COMMUNICATION BEARING NO. C2427/09 DATED 31.10.09 ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT EXT.P2 A TRUE COPY OF REPRESENTATION DATED NIL DECEMBER 2009 ADDRESSED TO THE 3RD RESPONDENT EXT.P3 A TRUE COPY OF COMMUNICATION BEARING NO. C/2427/10 DATED 13.7.2010 ISSUED BY THE 3RD RESPONDENT EXT.P4 A TRUE COPY OF DETAILED REPRESENTATION DATED 19.7.2010 ADDRESSED TO THE 1ST RESPONDENT EXT.P5 A TRUE COPY OF CIRCULAR BEARING NO. 3/95(35)/FIN DATED 1ST MARCH 1995 ISSUED BY THE GOVERNMENT OF KERALA FINANCE (PRC-A) DEPARTMENT EXT.P6 A TRUE COPY OF CIRCULAR BEARING NO. 52373/JS/98/G.EDN DATED 6TH MARCH1998, ISSUED BY THE GOVERNMENT OF KERALA, GENERAL EDUCATION (J) DEPARTMENT EXT.P7 A TRUE COPY OF JUDGMENT IN WPC NO. 15147/2005 C) DATED 20 OCTOBER 2008 RENDERED BY THE HON'BLE COURT RESPONDENT'S EXHIBITS : NIL