## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR. JUSTICE P.D.RAJAN**
## **WEDNESDAY, THE 27TH DAY OF AUGUST 2014/5TH BHADRA, 1936**
## **WP(C).No. 30934 of 2005 (G)**
**----------------------------**
## **PETITIONER :**
**--------------------**
**VASANTHA M., HEADMISTRESS (RETIRED) PSM UP SCHOOL, PS NAGAR, RESIDING AT “GREESHMAM” TC. 41/969, MANACAUDMRA, MRA 115, THIRUVANANTHAPURAM.**
**BY ADVS.SRI.MILLU DANDAPANI SRI.M.RAMACHANDRAN (KALOOR)**
**RESPONDENT(S) :**
**----------------------------**
**1. STATE OF KERALA, REPRESENTED BY THE SECRETARY GENERAL EDUCATION (H) DEPARTMENT TRIVANDRUM - 695 001.**
**2. THE DIRECTOR OF PUBLIC INSTRUCTIONS (KERALA), TRIVANDRUM.**
**3. THE ASSISTANT EDUCATIONAL OFFICER, TRIVANDRUM SOUTH, TRIVANDRUM.**
**4. SECRETARY, MUNICIPAL CORPORATION TRIVANDRUM, IN HIS CAPACITY AS THE EX-OFFICIO MANAGER OF**
**PSM UP SCHOOL, MUTTATHARA, TRIVANDRUM.**
**R1 TO R3 BY GOVT. PLEADER SRI. T.R.RAJESH R4 BY ADV. SRI.N.NANDAKUMARA MENON, SC**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**Mn**
**...2/-**
**WP(C).No. 30934 of 2005 (G)**
## **APPENDIX**
## **PETITIONER'S EXHIBITS :**
**EXT.P1 : COPY OF ORDER NO. B-2209/97/K.DIS DATED 3-9-1997 ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER, TRIVANDRUM SOUTH. EXT.P2 COPY OF APPOINTMENT ORDER DATED 3-9-1997 ISSUED BY THE MANAGER/SECRETARY, CORPORATION OF TRIVANDRUM. EXT.P3 COPY OF ORDER NO. R5/21013/04/DPI DATED 27-7-2004 ISSUED BY THE DIRECTOR OF EDUCATION, TRIVANDRUM TO THE ASSISTANT EDUCATIONAL OFFICER, TRIVANDRUM SOUTH.**
**EXT.P4 COPY OF HEARING NOTES SUBMITTED BY THE PETITIONER BEFORE THE DIRECTOR OF PUBLIC INSTRUCTIONS, KERALA.**
**EXT.P5 COPY OF ORDER NO. R-5-21013/04/DPI DATED 18-2-2005.**
**EXT.P6 COPY OF APPEAL DATED 7-4-2005 SUMITTED BY PETITIONER BEFORE THE SECRETARY, DEPARTMENT OF GENERAL EDUCATION, TRIVANDRUM.**
**EXT.P7 COPY OF ORDER NO. GO(RT) NO. 4133/05/G.EDN DATED 22-8-2005 ISSUED BY THE GOVERNMENT.**
**EXT.P8 COPY OF COMPLAINT DATED 7-12-2000 LODGED BY SRI.T.J. SATHISH CHANDRAN TO ACCOUNTANT GENRAL.**
**EXT.P9 COPY OF ORDER NO. P-10/PEN/324/AK/05-06/806 DATED 5-10-2005 ISSUED BY THE ACCOUNTANT GENERAL TO ASSISTANT EDUCATIONAL OFFICER, TRIVANDRUM SOUTH.**
**EXT.P10 COPY OF GO(MS) NO. 250/99/G.EDN DATED 6-10-1999 ISSUED BY FIRST RESPONDENT.**
**(Contd...)**
## **WP(C).No. 30934 of 2005 (G)**
## **RESPONDENT'S EXHIBITS :**
**EXT.R1(a) : G.O.(MS) NO. 55/73/G.EDN. DATED 24.4.1973. EXT.R1(b) G.O.(MS) NO. 230/99/G.EDN. DATED 6.10.99. EXT.R1(c) G.O.(MS) NO. 32/71/S.G.EDN. DATED 19.03.71. EXT.R1(d) G.O.(MS) NO. 147/92/G.EDN. DATED 2.8.1992. EXT.R1(e) G.O.(MS) NO. 97/73/S.G.EDN. DATED 22.6.1973. EXT.R2(a) G.O.(MS.) 97/73/G.EDN. DATED 22-6-1973. EXT.R2(b) G.O.(MS.) 250/99/G.EDN. DATED 6-10-99.**
## **//TRUE COPY//**
**P.A. TO JUDGE Mn**
## **P.D. RAJAN, J.**
------------------------------------------W.P (C) No.30934 of 2005 ---------------------------------------------Dated this the 27[th] day of July, 2014
## **JUDGMENT**
This writ petition is filed under Article 226 of the
Constitution of India by the petitioner seeking the following
reliefs:
“ia) Issue a writ of certiorari or any other appropriate writ or order or direction, quashing Ext.P10”.
ii) Issue a Writ of Mandamus or any other appropriate writ or order or direction, commanding the respondents to restore the pay scale attached to HM (5500-9075) to the petitioner with effect from 1.6.1997 as rightly found by the 4th respondent in Ext.P1.
iii) A Writ of Mandamus or any other appropriate writ or order or direction, commanding the respondents to revise pension and other terminal benefits entitled to the petitioner as per the last pay drawn by her in the scale of HM after taking into account 18 senior grade and 23 year selection grades.
iv) Declare that the petitioner is entitled to draw the pay scale of HM with effect from 1.6.1997.”
W.P.(C)No.30934/05
2
2. The petitioner is a retired Headmistress from an aided upper primary school managed by the Secretary Municipal Corporation, Thiruvananthapuram. She entered into service as UPSA on 1.6.1982 basically as a graduate teacher. Subsequently, she was promoted as Headmistress on 1.6.1997. Consequent to the retirement of Headmistress (M.Thappasimuthu), on 31.3.1997, the petitioner was the only graduate teacher appointed as Probationary Headmistress with effect from 1.4.1997 under Rule 45, Chapter XIVA of KER. The petitioner had 15 years service as a teacher when she was appointed as Headmistress on 1.6.1997. Altogether, she has 23 years of total service. The petitioner completed 15 years of continuous service as a teacher and eligible for higher scale of pay. She contended that she is entitled to draw pay scale of Headmistress with effect from 1.6.1997.
3
W.P.(C)No.30934/05
3. In the counter affidavit filed by the 2[nd] respondent, it is stated that the petitioner was promoted and posted as Headmistress with effect from 1.4.1997 by the 4[th] respondent under Rule 45, Chapter XIVA KER. It is admitted that two teachers namely, Smt. K. Rajeswari and Smt. C. Swayamprabha, the undergraduate teachers were senior to the petitioner and the petitioner was appointed as Headmistress overlooking their seniority. The petitioner had broken service from 4.11.1981 to 31.3.1982. As such the petitioner has 15 years, 2 months and 28 days service as on the date of occurrence of vacancy. But, in paragraph 6, it is submitted that the petitioner was allowed to continue as Headmistress only after completion of 15 years as a teacher as per Rule 1 of Chapter XXVI of KER. Thus, she had been allowed Headmistress 's scale of pay with effect from 1.6.1997 after the completion of 15
W.P.(C)No.30934/05
4
years continuous service as per Ext.P2 order by the 3[rd] respondent. But from the introduction of a time scale of Rs.175-315 from 1.6.73 as per G.O.(MS) No.55/73/G.Edn. Dated 24.4.73 for the primary school Headmasters, Graduate Headmasters of U.P. Schools were prevented from enjoying that time scale as per G.O.(MS) No.97/73/S.Edn. Dated 22.6.73. As per Ext.P5 order, the pay of the petitioner was already revised and refixed as per order No.C/1118/04 dated 7.6.2005 by the 3[rd] respondent. The pension proposal submitted in the revised scale has been accepted by the Accountant General, Kerala and pension has already been sanctioned to the petitioner.
4. Rule 1 of Chapter XXVI of KER reads as follows:
“(1) 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
W.P.(C)No.30934/05
5
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 recognized by the Department. Those Headmasters who have not put in this minimum service shall be given their grade pay and supervision allowance as may be fixed by Government until they complete the prescribed minimum service.”
A close reading of the above rule shows that 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 15 years continuous service as teacher in school recognized by the Department. Scales of pay of Aided School teachers are provided under Chapter XXVI of KER. 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,
W.P.(C)No.30934/05
6
High and Training Schools. Those teachers who have become Headmaster without completing 15 years of service as teachers are entitled to receive their grade pay and allowance as be fixed the supervision may by Government until they complete prescribed minimum service. According to this provision, Exts.R2(a) and R2(b) were issued by the 1[st] respondent. The petitioner contended that she was entered into regular service on 1.6.1982 and completed her 15 years service on 1.6.1997. Before that, on 1.4.1997 she was appointed as Probationary Headmistress by virtue of Ext.P2 order and subsequently, promoted as Headmistress, after completing 15 years service. Therefore, a close scrutiny of the service, after regularising the petitioner, shows that she had completed 15 years of service. Therefore, the technical reason mentioned in Exts.R2(a) and R2(b) is not binding on the
W.P.(C)No.30934/05
7
petitioner. On a reading of Ext.R2(a) G.O.(MS)97/73 Edn. Dated 22.6.193, it is seen that they exceeded their jurisdiction given under the Statute.
5. The provision with regard to the application of Rule (1) of Chapter XXVI was explained by this Court in
> **A.K. Mohammed** v. **The Assistant Educational Officer & Ors** .
## [2014(2) KLJ 881], in which it is held as follows:
“8. Once a person has been appointed as Headmaster which is approved by the department, then the only question for consideration for fixing the pay scale is concerned is to find out whether he is having 15 years of continuous service as “teacher” in “schools” recognized by the Department. In so far as there is no break in service, the petitioner had a continuous service in schools recognized by the Government and therefore, I am of the view that Ext.P9 is liable to be set aside and it has to be declared that the petitioner is entitled for the relief sought for.”
## Rule 37 of Chapter XIVA of KER reads as follows:
“37 (1) Seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in
W.P.(C)No.30934/05
8
that unit provided he is duly qualified for the post.
Provided that the period of service rendered in the parent school or in another school by a teacher, who is relieved under rule 52, shall be reckoned for seniority on his reappointment to the parent school.
(2) In the case of teachers in the same grade in the same unit whose date of commencement of continuous service is the same, seniority shall be decided with reference to the date of first appointment. If the date of first appointment is also the same, seniority shall be decided with reference to age, the older being the senior.”
Exts.R2(a) and R2(b) orders issued by the 1[st] respondent are also subject to the statutory provision enacted by the Legislature. If there is any violation of such subordinate legislation, it will become invalid and non-operative. If that be the position, since the petitioner has got 15 years continuous service as teacher, she is eligible for pensionary benefits as stated under Rule 1 of Chapter XXVI.
Hence, this petition is allowed and the respondents
are directed to give pensionary benefits and other
9
W.P.(C)No.30934/05
allowances to the petitioner as per the above Rule, within six months from the date of receipt of a copy of this judgment.
**P.D. RAJAN, JUDGE.**
acd
W.P.(C)No.30934/05 10
