T. P. Sobhi v. State of Kerala & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN THURSDAY, THE 5TH DAY OF JANUARY 2017/15TH POUSHA, 1938 WP(C).No. 24430 of 2011 (C) --------------------------------- PETITIONER: --------------- T.P. SOBHI, RETIRED HEADMISTRESS, P M S L P SCHOOL, SELLIAMPARA (RESIDING AT PANAMKUZHIYIL ADIMALY, IDUKKI DISTRICT-685 561. BY ADV. SRI.V.A.MUHAMMED RESPONDENTS: - ----------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM-695 001. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-695 014. 3. THE DEPUTY DIRECTOR OF EDUCATION, IDUKKI AT THODUPUZHA-686 584. 4. THE ASSISTANT EDUCATIONAL OFFICER, ADIMALY, IDUKKI DISTRICT-685 561. 5. THE MANAGER, P M S L P SCHOOL, SELLIAMPARA, P.O. VELLATHOOVAL, (VIA) ADIMALY, IDUKKI DISTRICT-685 563. R5 BY ADVs. SRI.K.B.GANGESH SMT.SMITHA CHATHANARAMBATH R1-R4 BY SMT.MARY BEENA JOSEPH, SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## W.P.(C) No.24430/2011 A P P E N D I X PETITIONER'S EXHIBITS: EXT.P1 : COPY OF ORDER OF APPOINTMENT OF THE PETITIONER DTD.6.6.79. EXT. P1(a) : COPY OF RELEVANT PAGE OF SERVICE BOOK. EXT.P2 : COPY OF ORDER No.23815/J1/88/G.EDN. OF GOVT. DTD.9.5.88. EXT.P3 : COPY OF G.O.(MS) No.63/89/G.EDN. OF GOVT. DTD.8.6.89. EXT.P4 : COPY OF G.O.(P)127/99/G.EDN. OF GOVT. DTD.4.5.99. EXT.P5 : COPY OF G.O.(P) 138/2005/G.EDN. OF GOVT. DTD.4.5.05. EXT.P6 : COPY OF REVISION FILED BEFORE GOVT. DTD.26.9.05. EXT.P7 : COPY OF G.O.(Rt) 3988/07/G.EDN OF GOVT. DTD.31.8.07. EXT.P8 : COPY OF ORDER No.E/5138/07/K.DIS. OF ASST.EDL.OFFICER DTD.4.1.08. EXT.P9 : COPY OF ORDER No.E5/5043/09 OF DEPUTY DIRECTOR DTD.1.12.09. EXT.P10 : COPY OF APPEAL FILED BEFORE GOVT. DTD.12.1.10. EXT. P11 : COPY OF G.O(Rt) 1469/2010/G.EDN. OF GOVT. DTD.30.3.10. EXT. P11(a) : COPY OF ORDER No.E/4108/08 OF ASST.EDL. OFFICER, ADIMALY DTD.17.9.10. EXT.P12 : COPY OF JUDGMENT IN O.P.34644/2002-Y DTD.22.1.08. EXT. P13 : COPY OF JUDGMENT IN W.P.(C) 17055/2005(E) DTD.21.12.09. EXT. P14 : COPY OF REVIEW PETITION FILED BEFORE GOVT. DTD.28.4.11. W.P.(C) No.24430/2011 EXT.P15 : COPY OF G.O.(Rt) 851/2013/G.EDN. DTD.22.2.13 OF GOVT. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A to Judge. smp ## **Anu Sivaraman, J.** ----------------------------------- W.P.(C) No.24430 of 2011 -----------------------------------Dated this the 5[th] day of January, 2017 ## **J U D G M E N T** The petitioner was appointed as Headmistress in an incomplete L.P school which was started in the year 1979. Her appointment was initially approved as Teacher-in-charge. Thereafter it is submitted that the petitioner's appointment as Headmistress was approved by order of the Assistant Educational Officer dated 09.11.1985. Ext.P1(a), copy of the Service Book, is produced to show that the petitioner had been appointed as Headmistress and the said appointment was approved. The petitioner being a Teacher who was appointed as Headmistress before 15.09.1988 was entitled to scale of pay of Headmistress. By Ext.P7 order dated 31.08.2007, the Government found that WP(C) No.24430/2011 2 since the petitioner had passed the Account Test Examination conducted by the Public Service Commission in 1989, she had acquired the qualification for appointment as Headmistress within the period of exemption granted by the Government. She was therefore held to be entitled to approval of appointment in the post of Headmistress with effect from the date she became so qualified. 2. In pursuance to Ext.P7, Ext.P8 order was issued by the Assistant Educational Officer approving the appointment of the petitioner as Headmistress with effect from 23.07.1982 and sanctioning arrears of salary from the said date. However, by Ext.P9 communication dated 01.12.2009, the grant of scale of pay of H.M with effect from 23.07.1982 was held in objection and it was stated that G.O (P) No.3988/07/Gl.Edn. dated 31.08.2007 does not permit exemption from minimum service of 15 years for drawing the scale of pay of H.M. Therefore, the Assistant WP(C) No.24430/2011 3 Educational Officer was directed to revise the erroneous pay fixation granted to the petitioner and to recover the excess amount drawn. 3. The petitioner retired from service on 31.03.2010. The petitioner had preferred Ext.P10 appeal before the Government which was dismissed by Ext.P11 order dated 30.03.2010 holding that the petitioner became entitled to the scale of pay of H.M only with effect from 06.06.1994. Pursuant to Ext.P11, Ext.P11(a) proceedings proposing recovery of amounts allegedly drawn in excess by the petitioner was issued by the Assistant Educational Officer. These orders are under challenge in this writ petition. 4. Heard the learned counsel for the petitioner and the learned Government Pleader. 5. It is submitted by the learned counsel for the petitioner that this Court had, by Ext.P12 judgment, held that a school having only two standards would also be a Lower Primary school WP(C) No.24430/2011 4 and would therefore be entitled to have a post of H.M. The petitioner therefore claims that she was entitled to be granted the scale of pay of H.M with effect from her initial appointment as Teacher-in-charge i.e. with effect from 06.06.1979. It is further contended by the learned counsel for the petitioner that the recovery of amounts which were allegedly drawn in excess by the petitioner was incompetent in view of the decision of the Apex Court in _**State of Punjab** vs._ _**Rafiq Masih (White Washer)**_ (2015 (1) KLT 429(SC)). 6. Learned Government Pleader, on the other hand, submitted that the petitioner would become entitled to the scale of pay of H.M only with effect from 06.06.1994, after 15 years of service since her initial appointment was on 06.06.1979. It is submitted that the revision and fixation of pay of petitioner had been objected by the 3[rd] respondent pointing out that Ext.P4 Government Order is intended only for teachers appointed as H.M WP(C) No.24430/2011 5 upto 15.09.1988. It is stated that the 5[th] respondent appointed the petitioner as H.M only with effect from 06.06.1994 and therefore she would not be eligible for the benefits of the Government. 7. I have considered the contentions advanced and also the pleadings and materials on record. It is evident from consideration of documents produced by the petitioner that she had been appointed as Headmistress in the incomplete L.P school in 1979 itself. Appointment was initially approved only as Teacher-in-charge. However, it is specifically pleaded by the petitioner that orders approving her appointment as Headmistress were issued in the year 1985. The petitioner's appointment as Headmistress was therefore approved from the academic year 1984-85 onwards. By Ext.P7 order, Government had found that the petitioner is entitled to appointment as Headmistress with effect from the date on which she became WP(C) No.24430/2011 6 qualified for such appointment. Pursuant to the said Government Order, the District Educational Officer had passed orders granting the petitioner the scale of pay of H.M with effect from 23.07.1982. Benefits had also been disbursed. It is this fixation which has been held in objection by Ext.P9 communication of the 3[rd] respondent. 8. Exts.P3 and P4 Government Orders would specifically provide that the teachers who had been appointed as H.M before 15.09.1988 are entitled to scale of pay of H.M with effect from the date of their appointment. In the instant case, the petitioner had admittedly been appointed as Headmistress with effect from 01.06.1985. This aspect which is specifically pointed out by the petitioner in the writ petition has not been controverted by the respondents in their counter affidavit. Ext.P1(a) Service Book of the petitioner would also show that the petitioner's appointment as Headmistress had been approved from 01.06.1985. WP(C) No.24430/2011 7 9. In the above view of the matter, the contentions raised in the counter affidavit to the effect that the petitioner would be entitled to scale of pay of H.M only with effect from 06.06.1994 cannot be countenanced. It appears that based on this specific reasoning that Ext.P9 objection has been raised and the fixation of the petitioner's pay has been objected to. It is clear from the pleadings that Ext.P7 order had been issued by the Government granting the petitioner the benefit of approval of scale of pay of H.M with effect from the date when she became qualified to hold the post. 10. It is not in dispute that the school in which the petitioner was appointed as H.M became a complete L.P school in the year 1982-83. The petitioner acquired the qualification of Account Test within the period of exemption granted by the Government. In the above view of the matter, she would be entitled to approval of appointment as Headmistress with effect WP(C) No.24430/2011 8 from 23.07.1982 as has been done in Ext.P8 order. 11. In the above view of the matter, I am of the opinion that there is no illegality in fixation of pay done by the Assistant Educational Officer in Ext.P8 order on the strength of Ext.P7 which stands undisturbed. 12. In the above circumstances, the objection raised by the Deputy Director of Education by Ext.P9 communication was incompetent. Ext.P9 and all proceedings taken thereto are therefore illegal and unsustainable. The impugned orders are therefore quashed. The pensionary benefits due to the petitioner and any arrears there of shall be calculated and disbursed to her within a period of three months from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly. Sd/- Anu Sivaraman, Judge smp