T. M. Vasanthakumari and K. Mini v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** ## **WEDNESDAY, THE 12TH DAY OF AUGUST 2020 / 21ST SRAVANA, 1942** ## **WP(C).No.29388 OF 2011(W)** ## **PETITIONERS:** **1 T.M.VASANTHAKUMARI, HEADMISTRESS, ALP SCHOOL, PANNIYAMKURISSI (EAST) CHERPLASSERY, PALAKKAD DISTRICT. 2 K.MINI, HEADMISTRESS, ALP SCHOOL PANNIYAKURISSI (WEST), CHERPLASSERY, PALAKKAD DISTRICT. BY ADVS. SRI.K.JAJU BABU (SR.) SRI.BRIJESH MOHAN SMT.DHANYA CHANDRAN SMT.M.U.VIJAYALAKSHMI** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, 695 001.** - **2 THE DEPUTY DIRECTOR OF EDUCATION PALAKKAD 678 014.** - **3 THE ASSISTANT EDUCATIONAL OFFICER CHERPLASSERY, PALAKKAD DISTRICT, 679 503. SMT.RANJITA.G, GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.29388 OF 2011(W)** **2** **“CR”** ## **JUDGMENT** **The writ petition has been filed praying to quash Exts.P3 and P4 and for a direction to the respondents to sanction Higher Grade to the petitioners in the cadre of Headmaster/Headmistress on completion of 8 years/10 years and Senior Grade on completion of 20 years and grant all consequential benefits. Petitioners are persons who are working as Headmistress(s) in Lower Primary School.** **2. Heard Sri Brijesh Mohan on behalf of the petitioners and Smt.Ranjita.G, Government Pleader on behalf of the respondents.** **3. According to the Counsel for the petitioners, the issue involved in this case is covered in favour of the petitioners by the judgment of a Division Bench of this Court in W.A.No.1577/2010 and connected cases. The judgment was rendered in appeals filed by the State,** **WP(C).No.29388 OF 2011(W)** **3** **challenging the judgments of the learned Single Judge granting similar reliefs in several writ petitions. The Division Bench dismissed the appeals and SLPs filed against the judgment of the Division Bench were also dismissed by the Apex Court.** **4. The Government Pleader submits that subsequent to the judgment in the writ appeals and the special leave petitions, the 1[st] respondent has issued G.O.(P)No.20/2018/GEDN dated 17.10.2018, whereby a Note was introduced in Chapter XXVI, Rule 1 of Kerala Education Rules with effect from** **8.9.1988, which has the effect of denying the benefits of the Division Bench decision to the petitioners herein.** **5. It is worthwhile to note that after the above judgment of the Division Bench, several writ petitions of similarly situated persons have been disposed of following the dictum. However, since the amendment is pressed into contention, I proceed to deal with the same. The Note that has been** **WP(C).No.29388 OF 2011(W)** **4** ## **introduced reads thus:** **“Note.- A teacher promoted and posted as Headmaster under these rules who has not completed the prescribed period of minimum continuous service specified in these rules shall be entitled and eligible to receive only the time bound higher grades of pay corresponding to scale of pay in the cadre of teacher, granted under the pay revision orders issued by the Government of Kerala in the first higher grade on completion of the required period of service specified in the said pay revision orders. A teacher promoted and posted as Headmaster under these rules shall be entitled and eligible to receive the first higher grade scale of pay in the cadre of Headmaster in accordance with the said pay revision orders only after completing the prescribed period of continuous service specified in these rules in the scale of pay of Headmaster.”** **6. According to the Government Pleader, the** **effect of the amendment is to take away the effect of the judgment of the Division Bench and that the petitioners cannot claim the relief granted in the Division Bench decision any longer.** **WP(C).No.29388 OF 2011(W)** **5** **7. I am unable to agree with the contention put forward by the Government Pleader. The Division Bench in the judgment aforesaid has considered the question whether the grant of time bound higher grade should be on the basis of completion of the prescribed residency period in a post or in a scale of pay and held that it should be in a post. A contention raised by the Government Pleader on the basis of Rule 1 of Chapter XXVI of the KER was rejected by the Division Bench. In paragraph 5 of judgment, the Division Bench held thus:** **“5. However, relying on the provisions of Rule 1 of Chapter XXVI of Kerala Education Rules, the learned Government Pleader attempted to impress upon us that for grant of higher scale, the residency should be in the lower scale. However, reading of Rule 1 of Chapter XXVI of KER would show that the prescriptions therein are for grant of higher scale and not for grant of time bound higher grade promotion as contemplated in the Government Order.** _**This means that the provisions of Rule 1 of Chapter XXVI of KER has no relevance, insofar as the grant of time bound higher grade promotion is concerned**_ **. According to us, the view taken in the judgments under** **WP(C).No.29388 OF 2011(W)** **6** **appeal is perfectly consistent with the provisions of the Government Order referred to above. Such an interpretation given in the judgments does not call for any interference. Appeals fail and are accordingly dismissed.”** **8. When it has already been held that Rule 1 does not have any relevance, it can never be contended that a Note added to Rule 1 will have any relevance on the issue. It is well settled that a Note appended to a statutory provision can only have a clarificatory effect and cannot alter the provisions contained in the rule in any manner. (** _**See the judgment in Saji C.M. and others v. State of Kerala and others reported in 2015 (4) KLT 452 (DB).**_ **I am of the opinion that the above amendment will not in any way affect the dictum laid down by the Division Bench in W.A.1577 of 2010 and connected cases.** **9. In the above circumstances, this writ petition is allowed and Exts.P3 and P4 are set aside. The respondents are directed to sanction** **WP(C).No.29388 OF 2011(W)** **7** **Higher Grade to the petitioners in the cadre of Headmaster/Headmistress on completion of 8 years/10 years and senior grade on completion of 20 years and grant all consequential benefits. Respondents are directed to work out the monetary benefits that will be due to the petitioners and pass consequential orders releasing the payment of such amounts found due to them within a period of 4 months from the date of receipt of a copy of this judgment. Since one of the petitioners has already attained the age or superannuation, it is also directed that the pensionery benefits will also be worked out on the basis of the re-fixation. In the circumstances of the case, there will be no order as to costs.** **Sd/-** ## **T.R.RAVI** **JUDGE** **Pn 12/08** **WP(C).No.29388 OF 2011(W)** **8** ## **APPENDIX** ## **PETITIONERS' EXHIBITS** **EXHIBIT P1** **COPY OF THE APPLICATION SUBMITTED BY THE 1ST PETITIONER FOR GRANT OF HIGHER GRADE IN THE POST OF HEADMASTER/HEADMISTRESS BEFORE THE 3RD RESPONDENT** **EXHIBIT P2** **COPY OF THE APPLICATION SUBMITTED BY THE 2ND PETITIONER FOR GRANT OF HIGHER GRADE IN THE POST OF HEADMASTER/HEADMISTRESS BEFORE THE 3RD RESPONDENT** ## **EXHIBIT P3** **COPY OF THE ORDER DATED 20.10.2011 PASSED BY THE 3RD RESPONDENT REJECTING EXT.P1** **EXHIBIT P4** **COPY OF THE ORDER DATED 18.10.2011 PASSED BY THE 3RD RESPONDENT REJECTING EXT.P2** **EXHIBIT P5 COPY OF JUDGMENT OF THIS HON'BLE COURT IN WP(C) NOS.23382/08 AND 19513/2010**