Sheeba Elgin v. State of Kerala and Others

**WP(C) NO. 13283 OF 2021 1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 21[ST] DAY OF OCTOBER 2021 / 29TH ASWINA, 1943** ## **WP(C) NO. 13283 OF 2021** ## **PETITIONER/S:** SHEEBA ELGIN, AGED 50 YEARS, D/O. LATE SRI.ELGIN THAMPI, HST ENGLISH, VIMALA HRIDAYA GIRLS HIGHER SECONDARY SCHOOL, KOLLAM, PUTHEN PURAYIL, PRIYADARSHINI NAGAR, KILIKOLLOR , KOLLAM DISTRICT, PIN-691 004. BY ADVS. JOHNSON GOMEZ S.BIJU (KIZHAKKANELA) SANJAY JOHNSON JOHN GOMEZ ## **RESPONDENT/S:** 1 STATE OF KERALA, REPRESENTED BY THE SECRETARY DEPARTMENT OF EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM,PIN NO.695 001. 2 THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM,PIN NO.691 013. 3 DISTRICT EDUCATIONAL OFFICER, KOLLAM,PIN NO.691 013. 4 THE CORPORATE MANAGER, OFFICE OF THE CORPORATE MANAGER OF CATHOLIC SCHOOLS, BISHOP'S HOUSE, KOLLAM-691 007. **WP(C) NO. 13283 OF 2021 2** SRI BIJOY CHANDRAN, SR GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 13283 OF 2021 3** ## **JUDGMENT** The petitioner herein served as HSA (English) in different schools under the 4th respondent Corporate Manager, in leave and additional vacancies, before the commencement of her regular service. The petitioner is aggrieved by the refusal of the DEO in reckoning the broken services rendered by her as HSA in the leave vacancy and in refixing the time-bound higher grade with effect from 10.11.2014. 2. The facts of the case as borne out from the contentions and the records before this court is as follows: a) The petitioner was initially appointed as probationary HSA (English) under the 4th respondent Corporate Manager, in Krist Raj HSS Kollam from 11.06.2007 to 15.06.2008 in the leave without allowance vacancy of Sri. Manoj Das. The appointment was approved by the DEO, the 3rd respondent herein, vide order dated 05.05.2008. After completion of the period of appointment, the petitioner was appointed as probationary HSA (English) in the same scale of pay on 16.6.2008 against an additional post created for the year 2006-2007 in Nitya Sahaya Mata GHS Kottiyam. She was then re-appointed as probationary HSA (English) in Vimala Hridaya GHSS, Kollam with effect from 13.11.2008 against the vacancy of Smt. Lissa Mary Fernandez who left the service as she secured PSC appointment. The DEO vide order dated 12.02.2009 approved her **WP(C) NO. 13283 OF 2021 4** appointment in the said relief vacancy w.e.f. 13.11.2008 onwards. b) It is stated that the Corporate Manager, the 4th respondent herein, initially declared the probation of the petitioner from 13.11.2009 and consequently, a time-bound higher grade was sanctioned from 13.11.2015 on completion of seven years. Later, the 4th respondent re-declared her probation with effect from 13.11.2008 reckoning the broken services rendered for 1 year and 3 days. c) In pursuance to the same, the petitioner approached the 3rd respondent seeking refixation of time-bound higher grade with effect from 10.11.2014. The 3rd respondent directed the petitioner to secure a redeclaration from the 4th respondent reckoning the broken period as well. The 4th respondent, based on Exhibit P4 representation submitted by the petitioner, modified the order of declaration and re-declared the same with effect from 18.11.2008. The petitioner then approached the 3rd respondent, who considered the request. However, the same was returned along with the service book as per Exhibit P5 order with a direction to the Principal of the School to produce orders if any from higher authorities for re-determining the higher grade. The petitioner is then stated to have preferred Ext.P6 appeal, dated 14.01.2020, against Ext.P5 before the 2nd respondent DDE. The 2nd respondent, on receipt of Ext.P6 appeal, sought a report from the 3rd respondent. Based on the report, the 2nd respondent by Exhibit P7 order reiterated that the petitioner was entitled to a **WP(C) NO. 13283 OF 2021 5** higher grade with effect from 10.11.2014 if the broken service in leave vacancy from 11.6.2007 to 13.6.2008 is considered, but however, further stated that as per Chapter XIV A Rule 6(a) of the KER broken service in leave vacancy cannot be considered for probation. The 2nd respondent directed the 3rd respondent to examine the request of the petitioner and re-assign a time-bound higher grade, if eligible, in the light of the Government order dated 31.10.2019. Pursuant to Ext.P7 order, the 3rd respondent issued Ext.P8 rejecting the request of the petitioner. It is in the afore circumstances that the petitioner is before this court seeking the following reliefs: 1. To declare that the Petitioner is entitled to time bound higher grade with effect from 10.11.2014 reckoning the broken service from 11.6.2007 to 13.6.2008 in accordance with the findings of the first respondent in Exhibit P7 order issued by the Respondent 2. 2. To issue a writ of certiorari or any other writ or order or direction calling for records leading to Exhibit P8 issued by the Respondent No.3 and to quash the same. 3. To compelling and commanding the Respondent No.3 to sanction time bound higher grade with effect from 10.11.2014 reckoning the broken period of service from 11.6.2007 to 13.6.2008, and to pay all consequential benefits thereof. 3. The learned Government Pleader has filed a counter-affidavit on behalf of the 3rd respondent. It is stated that the request of the petitioner was rejected in the light of the Government Order G.O(P) No.145/2019/Finance dated 31.10.2019 referred to in Ext.P7 order, which is produced as Ext.R3(a). The said Government Order sets a period of limitation for filing requests for revision of time-bound higher grades. It is submitted that according to the Government **WP(C) NO. 13283 OF 2021 6** Order, the request ought to have been filed within 5 years from the date of acquisition of eligibility or within 2 years from the date on which the relevant pay revision order came into force, whichever is earlier. 4. It is further stated that the petitioner acquired the eligibility for reassignment of time-bound higher grade with effect from 10.11.2014 whereas the request was submitted on 15.11.2019, after a lapse of five years. It is also stated that the pay revision order applicable on 10.11.2014 was issued on 20.01.2016 and the limitation period expired on 19.01.2018. It is stated that for the said reasons the request of the petitioner is not liable to be considered as the same is barred by limitation. It is also stated that the broken service rendered against leave vacancy cannot be considered for the purpose of declaration of probation in the light of Rule 6(a) of Chapter XIV A of KER. 5. I have heard Sri. Johnson Gomez, the learned counsel appearing for the petitioner and Sri. Bejoy Chandran, the learned Government Pleader. 6. Having considered the submissions advanced, the short question before this Court is whether Ext.P8 order passed by the DEO can be sustained under law. 7. By Ext.P8 order, the application filed by the petitioner for re-fixing time bound higher grade was rejected by the DEO on two grounds; - (i) the first ground being that broken services rendered in leave vacancies **WP(C) NO. 13283 OF 2021 7** cannot be considered for declaration of probation under Chapter XIV A Rule 6(a) of the KER, and (ii) that the application submitted for reconsideration of higher grade dated 25.10.2019 was submitted beyond the period of limitation set by the G.O. (P)145/2019/Fin. dated 31.10.2019. 8. Chapter XIV A deals with conditions of service of aided school teachers. Rule 3 of the said Chapter states that initial appointment of qualified teachers shall be on probation. Proviso to the Rule says that qualified teachers in service on the date on which the rule had come into force and those who have a satisfactory continuous service of not less than one year shall be deemed to have completed their probation. Rule 6 provides for the specifics of probation of teachers appointed under Rule 3. It reads as follows: 6(a) Teachers appointed under Rule 3 shall be on probation for a total period of one year on duty within a continuous period of two years. Such teachers shall, within the period of probation, pass short term computer course having a duration of not less than 45 hours approved by the Government if they have not already acquired such or higher qualification. Qualified teachers in the lower grade promoted to the higher grade under Rule 43 before completing their probation shall be on probation in the higher grade as if appointed under Rule 3 in that category. At the end of the period of probation the manager may issue an order declaring him to have satisfactorily completed his probation; Explanation:- Broken periods of duty within a continuous period of two years **WP(C) NO. 13283 OF 2021 8** can be reckoned for calculating the one year duty period. In such cases satisfactory completion of probation of the teacher concerned shall be declared by the Manager with retrospective effect from, the date on which he is found eligible/suitable for such declaration of completion of probation]. 9. The explanation says that broken periods of duty within a continuous period of two years can be reckoned for calculating the one year duty period and on satisfactory completion of probation of the teacher concerned, she/he shall be declared by the Manager with the retrospective effect from the date on which he is found eligible/suitable for such declaration of completion of probation. 10. Rule 61 of Chapter XIVA of the KER provides for sanctioning of increments to teachers including Headmasters as and when they fall due. Rule 61(4) says that all duty in a post on a time scale, whether continuous or interrupted, shall count for increment in that time scale. In **Kadeeja A. v. State of Kerala** [2014(4) KLT 349], it was held by this Court that broken services can also be counted for increment if it is in that time scale. 11. A learned Single Judge of this Court in **Ushakumari v. State of Kerala** (2019 (1) KLT 472), had occasion to hold that any break in service less than five years can be reckoned for the purpose of a higher grade. 12. In the judgment dated 14.2.2018 in W.P.(C) No.351 of 2018, a learned Single Judge of this Court while considering whether the broken services put in **WP(C) NO. 13283 OF 2021 9** by the teacher in leave vacancies can be counted for probation or increment, had occasion to hold that the period of broken service put in by the teacher can be counted for declaring the probation and also for increments in terms of Rules 6(a) and 61(4) of Chapter XIV A of the KER. 13. The law laid down by this Court in the judgments cited above would unmistakably show that broken periods of service can in fact be reckoned for the purpose of grant of higher grade as well as for increments. The provisions of Rule 6(a) of Chapter XIVA does not place an embargo to reckon broken periods of service for the purpose of declaration of probation. In that view of the matter, the stand taken by the respondents contrary to what has been stated above cannot be accepted. 14. The next contention revolves around Ext.R3(a) Government Order. Placing reliance on the same, the learned Government Pleader asserts that the request made by the petitioner is much beyond time. It is borne out from Ext.P8 order itself that the application filed by the petitioner for refixing the Time Bound Higher Grade with effect from 10.11.2014 was submitted by the petitioner on 25.10.2019. Ext.R3(a) Government Order is seen issued only on 31.10.2019. It is settled by now that there cannot be any executive order with retrospective effect. In that view of the matter, the request made by the petitioner could not have been rejected on the ground that it was beyond time. In view of the above discussion, I am of the considered opinion that the **WP(C) NO. 13283 OF 2021 10** petitioner is entitled to succeed. Ext.P7 and P8 will stand quashed. There will be a direction to the 3rd respondent to sanction Time Bound Higher Grade to the petitioner with effect from 10.11.2014 reckoning the broken period of service from 11.6.2007 to 13.6.2008 and pay all consequential benefits thereof. This writ petition will stand allowed. Sd/- ## **RAJA VIJAYARAGHAVAN V** **JUDGE** ps **WP(C) NO. 13283 OF 2021 11** ## **APPENDIX OF WP(C) 13283/2021** PETITIONER (S) EXHIBITS : Exhibit P1 A TRUE COPY OF THE APPOINTMENT ORDER NO.1461/2007/EDN DATED 11.6.2007 ISSUED BY THE RESPONDENT NO.4. - Exhibit P2 A TRUE COPY OF THE APPOINTMENT ORDER NO.1461/2007/EDN DATED 16.6.2008 ISSUED BY THE RESPONDENT NO.4. - Exhibit P3 A TRUE COPY OF THE APPOINTMENT ORDER NO.1461/2007/EDN DATED 13.11.2008 ISSUED BY THE RESPONDENT NO.4. - Exhibit P4 A TRUE COPY OF THE REPRESENTATION DATED 8.08.2019 SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO.4. - Exhibit P5 A TRUE COPY OF THE ORDER - NO.B3/7489/2019/L.DS DATED 1.1.2020 ISSUED BY THE RESPONDENT NO.3. - Exhibit P6 A TRUE COPY OF THE APPEAL DATED 14.1.2020 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT NO.2. - Exhibit P7 A TRUE COPY OF THE ORDER NO.B3/799/2020 DATED 20.5.2020 ISSUED BY THE RESPONDENT NO.2. Exhibit P8 A TRUE COPY OF THE ORDER NO.B3/1103/2020 DATED 14.12.2020 ISSUED BY THE RESPONDENT NO.3. RESPONDENT (S) EXHIBITS : Exhibit R3(a) TRUE COPY OF THE G.O.(P)No.145/2019/FINANCE DATED 31.10.2019.