Shivadasan N.K. & Ahammad P.M. v. State of Kerala & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 8TH DAY OF FEBRUARY 2012/19TH MAGHA 1933** **WA.No. 1316 of 2011** **-------------------AGAINST THE JUDGMENT IN WPC.17158/2007 DATED 09-06-2011** ## **APPELLANT/PETITIONERS:** **------------------------** **1. SHIVADASAN.N.K., HEADMASTER, GOVT. LOWER PRIMARY SCHOOL, PURAKKAL PARAKKAD, MUDADI NORTH KOZHIKODE DISTRICT.** **2. AHAMMAD.P.M., HEADMASTER, GOVT. LOWER PRIMARY SCHOOL, KUNNASSERY, CHANGAROTH.P.O. KUNNUMMAL, PRESENTLY WORKING AT THUNERI, MUDAVANTHERI, NADAPURAM, KOZHIKODE** **BY ADVS.SRI.THOMAS ANTONY SRI.M.P.PRAKASH** ## **RESPONDENTS/RESPONDENTS:** ## **--------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECREATRY TO THE GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM.** **2. ASSISTANT EDUCATIONAL OFFICER,** **KUNNUMMAL, VATTOLI.P.O.,KOZHIKODE DIST-673510.** **3. DEPUTY DIRECTOR OF EDUCATION,KOZHIKODE- 673 001.** **R1 TO R3 BY GOVERNMENT PLEADER SRI. GEORGE MECHERIL** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28.11.2011, THE COURT ON 08.02.2012 DELIVERED THE FOLLOWING:** **jma** ***CR*** ## **C. N. RAMACHANDRAN NAIR & K. VINOD CHANDRAN, JJ ---------------------------------------------------W.A No. 1316 of 2011 ---------------------------------------------------Dated this the 8[th] day of February , 2012** ## **J U D G M E N T** ## Vinod Chandran, J The appellants were the petitioners before the learned Single Judge. The appellants in the writ petition claimed the scale of pay of Primary School Headmasters which was denied to them despite their being promoted as such. The denial of the scale of pay was on the ground that they did not have 15 years of continuous service as on the date of promotion, since, during their permanent service, they had availed of leave without allowances for obtaining employment abroad and the period in which they were on leave cannot be included in the computation of “15 years of continuous service”. 2. The undisputed facts are that the first appellant joined service as PD teacher on 6.6.1985 and availed leave for the purpose of taking up employment abroad between 1.4.1998 to 31.5.2005. The first appellant rejoined duty on 1.6.2005 and was promoted as Headmaster and posted in a Writ Appeal No.1316/2011 : 2 : Lower Primary School by Ext.P2 order dated 24.8.2005. The second appellant joined service as PD teacher on 20.1.1986 and remained on leave without allowances between1.2.1994 to 30.1.1999 and from 30.3.1999 to 15.6.2003. The second appellant rejoined duty on 15.6.2003 and was also promoted as Headmaster as per Ext.P2 order dated 24.8.2005. The claim for scale of pay applicable to Headmasters was rejected on the ground that the appellants did not satisfy the prescription of 15 years continuous service as the period they continued on leave without allowances necessarily has to be excluded. It is not disputed that the appellants were granted leave without allowances in the light of Rule 88 of Part I Kerala Service Rules read with Appendix XIIA. In Clause 4 it was specified that during the currency of the period of leave the officer shall loose service benefits such as earning of leave including half pay leave, pension, gratuity increment etc., and also promotion chances that may arise with reference to their seniority in that grade for and during the currency of the leave period. The State before the learned Single Judge as also Writ Appeal No.1316/2011 : 3 : before this Court contended that the appellants having been sanctioned leave subject to the above conditions and they having always been aware of the conditions under which leave was granted cannot now turn around and seek otherwise especially since they accepted the said condition and proceeded on leave and remained as such till they rejoined duty. The learned Single Judge found favour with the contention of the Government and after an elaborate discussion of various precedents on the point dismissed the writ petition. 3. Before us, the learned counsel for the appellants, Sri.M.P.Prakash would contend that pay fixation has to be made on being promoted to a post and the promotee is entitled to pay attached to the post. The appellant's counsel would contend that going by Rule 28(A) of Kerala Service Rules as also the definition of pay and allowance the benefit of fixation cannot be altered by Ext.P17 and P18 Government Orders. The appellants, both of whom had voluntarily made applications for leave proceeded on such leave and continued Writ Appeal No.1316/2011 : 4 : as such; well aware of the condition imposed by the order which granted sanction. The appellants did not challenge the said condition at the time of sanctioning of the same nor during the period in which they were continuing on leave. The appellants having enjoyed the benefit of the leave without allowances for the entire period, in which it was sanctioned, joined for duty and was later promoted by Ext.2 order to the post of Headmaster. The cause of action according to the appellants arose when Government declined to grant them the scale of pay applicable to the Headmasters. It is then that they choose to challenge Exts.P17 and P18 orders which according to them are unconstitutional and inoperative and cannot apply to their detriment in the matter of pay fixation. 4. The appellants having applied for leave without allowances with their eyes open and having availed of the benefit subject to specific conditions under Rule 88 of Part I KSR read with Appendix XII A and having never challenged the condition imposed on them cannot at a later point turn around and claim the benefit of service during the period in Writ Appeal No.1316/2011 : 5 : which they remained on leave for the purpose of pay fixation. In addition is the inordinate delay in challenging the condition imposed on them; which in fact is the challenge made, though styled as one against denial of pay fixation in the promoted post. This Court has considered the issue in a number of cases cited by the learned Single Judge and held against such period of leave without allowance being treated for availing of benefits specifically flowing from the service rendered by an employee. In **Krishnapillai v. State of Kerala reported in 1998(2) KLT(106)** , a Division Bench of this Court considered the question in the context of the State and Subordinate Services Rules and held that the expression “any other service benefits” includes benefit of service rendered during the period of absence. It was held that the absence of the employee in the said case, as in this case also, is not because of the grant of leave but because of the application made by the employee for taking up employment abroad. The grant itself was only incidental. The factum of the grant or sanction cannot by itself ensure the benefits flowing from service to the Writ Appeal No.1316/2011 : 6 : employee during the period in which he/she continues on leave. The said proposition was noted with approval in a Full Bench decision of this Court reported in Lucos V. State of Kerala (1995(2)KLT 285). The learned Single Judge also referred to **Abdul Razak v.State of Kerala 2006(1)KLT818** to decline the prayer for higher grade made by the appellants. 5. The counsel for the appellant would urge the principle of “equal pay for equal work” relying on the decision of this Court reported in **Kamala Devi V. Kerala State Financial Enterprises Ltd.(2002(1)KLT157)** . The said decision is one rendered with respect to an admitted junior drawing more pay than a senior employee. The disparity in the said case arose due to the grant of an additional increment by the employer to rectify an anomaly in pay fixation caused on implementation of a binding settlement. The provisions of the scheme, by which anomaly was sought to be rectified, granted an increment to the junior while declining the same to the senior. It was in this context, that this Court found the classification attempted by the employer to be bad and held it Writ Appeal No.1316/2011 : 7 : to be a clear case of discrimination. The facts of the instant case are in no way similar to the facts of the said decision and the principle is not applicable to the appellants. One other decision placed before us by the counsel for the appellants is the one reported in **Sivaprasad v. Kerala Public Service Commission 2007(4)KLT 1023** . The proposition regarding loss of service benefits while availing leave was upheld by this Court in the said decision. The benefit for appointment by way of transfer was allowed by the Division Bench only on the specific ground that the criterion was entirely different and only condition prescribed was the rendering of service in the Government for a minimum period of 5 years. We are afraid, the said decision also does not support the case of the appellants. The decision of the Supreme Court reported in ## **Mohammed Abdulla V, State of Kerala(2008(1)KLT712** was also on an interpretation of paragraph 4 of Appendix XII A of the KSR but only for the purpose of deciding the seniority of an officer who proceeded on leave without allowance and the decision was also rendered in view of the special rules in the Writ Appeal No.1316/2011 : 8 : Kerala Local Fund Audit Special Rules which prescribed eligibility to the post on the basis of merit and ability and provided for consideration of seniority only on merit and ability being approximately equal. 6. The controversy appears to be in the prescription of 15 years continuous service for being eligible to be granted the pay scale applicable to the Headmasters. The appellants in the writ petition would contend that Ext.P16 G.O; has been held to be violative of the equality clause enshrined in Article 14 of the Constitution of India by this Hon'ble Court and stood quashed by judgment dated 24.6.1981 in OP No.3260 of 1980. We are of the view that the judgment in the said writ petition as also the subsequent Full Bench of this Court in **Indira M.** **Vs. State Of Kerala reported in (1998(2)ILR 771)** have some bearing in the dispute raised herein and a short description of the controversy therein and the decisions rendered would be useful to decide the present appeal. 7. The Government had by G.O(Ms)55/73/S.Edn. dated 24.4.1973(Ext.P14) introduced a new pay scale for Writ Appeal No.1316/2011 : 9 : Headmasters of Lower Primary and Upper Primary Schools with effect from 1.6.1973. Subsequently, G.O(Ms) 242/74/G.Edn. dated 11.12.1974 (Ext.P16) was issued ordering that the Headmasters of **Aided** Primary Schools shall be eligible for the special grade brought in by Ext.P14 only after they complete their minimum 15 years of service in the Primary School. One D. Ambikakumari Amma, who was appointed as Headmistress in an Aided Upper Primary School on 26.3.1975 challenged the said prescription of minimum 15 years of service in O.P No. 3260/80. According to the said teacher she was entitled to the scale of pay of the Headmistress ever since her date of appointment. The State, however, contended that she, having not completed 15 years of completed service, is not entitled to the same. The learned Single Judge of this Court found that G.O(Ms)55/73/S.Edn. dated 24.4.1973 was intended for the Headmasters of both U.P and L.P Schools in the State and ensured parity to both departmental and aided schools. However, G.O(Ms) 242/74/G.Edn dated 11.12.1974 was in alteration of the said Writ Appeal No.1316/2011 : 10 : parity and was confined to the teachers of aided schools thus making it discriminatory; held the learned Single Judge. However, the learned Single Judge also considered the further contention of the Government based on G.O(P)191/18/G.Edn. Dated 18.11.1980(Ext.P18), by which minimum service of 15 years prescribed by the Government order dated 1.12.1974 was extended to the departmental school teachers also and gave it retrospective effect from 1.7.1978. It was the contention of the State that the Government Order dated 18.11.1980 effectively extinguished the discrimination which vitiated the earlier Government Order and hence the teacher was dis-entitled by virtue of the Government Order dated 18.11.1980. The learned Single Judge in the judgment dated 24.6.1981 held that the Government Order dated 18.11.1980 is in conformity with Chapter XXVI Rule (1) of the Kerala Education Rules. However, the learned Single Judge found that the said Government Order of 1980 takes effect only from 1.7.1978 and Smt. Ambikakumari Amma became Headmistress on 2.6.1975. In the context of Government Writ Appeal No.1316/2011 : 11 : Order dated 11.12.1974 having been set aside as discriminatory, the only rule that could hold the field on the date of the teacher's appointment was the Rule recognized in Chapter XXVI Rule(1) and the Government Order dated 24.4.1973. Hence, it was held that the teacher had to be sanctioned the scale of pay of Headmaster in her school from the date of her appointment. In essence the findings of the learned Single Judge was that G.O(P)191/80/G.Edn. dated 18.11.1980, produced and challenged herein as Ext.P18 is in conformity with Chapter XXVI Rule(1) of the KER and that the said Government Order can be said to have taken effect only from 1.7.1978. The setting aside of Government Order dated 11.7.1974 as discriminatory hence does not have a bearing in the instant case and Ext.P18 so far as its effect from 1.7.1978 has been recognized by this Court as valid. 8. The above mentioned issue was again under anxious consideration of various Benches of this court. It ultimately culminated in reference by a Division Bench leading to the above referred Full Bench decision. By the time it came up Writ Appeal No.1316/2011 : 12 : before the Full Bench the Government had issued another Government Order bearing G.O(P)136/88/G.Edn dated 8.9.88 giving retrospective effect to the “15 year” prescription from 1.6.1973 thus effectively substituting G.O dated 11.12.1974, which was held to be discriminatory in OP No.3260/1980. The question that fell for consideration before the Full Bench was whether the denial of Headmaster's scale of pay to the teachers who were petitioners before the Court on the ground of their not satisfying the qualifying experience in terms of the Government Order dated 8.9.1988 effective from 1.6.1973 was legal and justified. While considering the said issue the Full Bench approved the decision in OP No.3260/1980 and held in paragraph 12 as follows: “It seems to us that Ext.P5(in O.P No.301 of 1988), Judgment in O.PNo.3260 of 1980 should have given a quietus to the dispute as to the eligibility of the petitioners' claim for the Headmaster's scale of pay.” Noticing the fact that the Government Order dated 8.9.1988 merely replaced the Government Order dated 11.12.1974 and Writ Appeal No.1316/2011 : 13 : made the prescription of minimum years effective from 1.6.1973, the Full Bench held that Government Order dated 8.9.1988 did not and cannot take away rights accrued on the teachers even though the subsequent Government Order gave retrospectivity to the prescription of 15 years. The Court noticed in Paragraph 15 of the judgment that it was only considering the applicability of Ext.P11(G.O of 8.9.1988) to the petitioners involved in the OPs before the Full Bench. The Government's prerogative to enact a rule and give it retrospective effect though held to be not in dispute, however the same was held to be subject to the limitation that such power shall not effect or take away an accrued or vested rights. The petitioners before the Full Bench were held to be entitled to the pay scale of headmaster, even though they did not have 15 years service, only for reason of their having been promoted to the post of Headmaster before the issuance of the Government Order of 1988 that is before 8.9.1988. The decision of the Full Bench also hence was limited to the retrospective operation of the Government Orders. Writ Appeal No.1316/2011 : 14 : 9. The very same contention was raised in a batch of writ petitions and eventually writ appeals; which were decided by a Division Bench of this Court on 8.2.1991 in Writ Appeal No.519 of 1988 and connected appeals. The Division Bench noticed that G.O(Ms)242/74/G.Edn. Dated 11.12.1974 stood replaced by identical provisions incorporated by the Kerala Education(Amendment) Rules, 1988 by which sub rule (1) of Rule 1 of Chapter XXVI of the Kerala Education Rules, 1959 stood substituted as follows:- “(i) Teachers of Aided Lower Primary, Upper Primary, High and Training Schools, shall be paid the scale of pay applicable to teachers of Government Lower Primary, Upper Primary, High and Training Schools. The Headmaster of an Aided Lower Primary School, or the Headmaster of an Aided Upper Primary School shall be given the scale of pay applicable to the Headmaster of Government School only if he has put in a minimum of 15 years continuous service as teacher in schools recognised by the Department. Those Headmasters who have not put in this Writ Appeal No.1316/2011 : 15 : minimum service shall be given their grade pay and supervision allowance as may be fixed by Government until they complete the prescribed minimum service”. The Division Bench found that the prescription was not discriminatory or violative of article 14 and 16 of the Constitution and following an earlier Division Bench decision dismissed the above mentioned writ appeals. This was again followed by another judgment dated 24.2.1995 rendered by another Division Bench in Writ Appeal No. 215 of 1995. It is pertinent that the Full Bench also noticed the substitution of sub Rule (1) of Rule 1 in Chapter XXVI of KER by the notification dated 8.9.1988 incorporating the same as a statutory rule. The decision of the Full Bench as noticed above was only with respect to, the applicability of the said substitution with respect to the petitioners before the Full Bench, who had accrued rights by operation of Rules which did not prescribe the period of 15 years continuous service and were appointed to the post of Headmasters prior to the introduction of such conditions. It is too late in the day to take Writ Appeal No.1316/2011 : 16 : a contention that the pay fixation prescribed by rules cannot be modified by Government Orders in view of the substitution made to the statutory rule. The appellants have no accrued rights as in the case of the petitioners before the Full Bench. In this circumstances, we are of the opinion that the judgment of the learned Single Judge requires no interference and the writ appeal is liable to be dismissed, however without cost. Sd/- ## **C. N. RAMACHANDRAN NAIR** **(Judge)** Sd/- **K. VINOD CHANDRAN (Judge)** jma //true copy// P.A to Judge