Viswanathan M v. Deputy Director of Education, Malappuram & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **MONDAY, THE 31ST OCTOBER 2011 / 9TH KARTHIKA 1933** **WP(C).No. 18334 of 2010(N)** **----------------------------------------** **PETITIONER(S):** **------------------------** **VISWANATHAN.M, P.D. TEACHER, DEVADAR GOVT. HIGHER SECONDARY SCHOOL, TANUR, MALAPPURAM DISTRICT.** **BY ADV. SRI.M.SASINDRAN SRI.V.VENUGOPAL** **RESPONDENT(S):** **---------------------------** **1. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM.** **2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM.** **R1 & R2 BY GOVERNMENT PLEADER SMT.M.T.SHEEBA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.18334/2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE ORDER DATED 27/1/1993 OF THE HEADMISTRESS OF THE SCHOOL** - **P2 COPY OF THE ORDER DATED 22/11/1995 ISSUED BY THE PRINICPAL DEVADAR GOVERNMENT HIGHER SECONDARY SCHOOL TANUR.** - **P3 COPY OF THE STATEMENT OF FIXATION OF PAY SANCTIONED PURSUANT TO THE PAY REVISION ORDER 2006.** - **P4 COPY OF THE EXTRACT FROM THE AUDIT OBJECTION IN RESPECT OF THE PETITIONER.** - **P5 COPY OF THE REPRESENTAION SUBMITTED BY THE PETITIONER DATED 22/10/2010.** - **P6 COPY OF THE ORDER DATED 10/7/2009 ISSUED BY THE DEPUTY DIRECTOR.** - **P7 COPY OF THE ORDER DATED 16/11/2009.** - **P8 COPY OF THE ORDER DATED 11/10/2010 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, TANUR.** ## **RESPONDENT'S EXHIBITS:** **R1(A) COPY OF THE CIRCULAR NO.23/06/FIN DATED 24/5/06.** **R1(B) COPY OF THE ORDER NO.R3/60791/07/DPI DATED 19/8/08.** ## **/TRUE COPY/** ## **P.S.TO.JUDGE** **sts** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No. 18334 of 2010-N** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 31st day of October, 2011.** ## **JUDGMENT** The petitioner's grievance is with regard to the non reckoning of a part of the period of provisional service for the purpose of increment and weightage. The main ground on which the said period of provisional service is not reckoned, is that the pay scale is different. Learned counsel for the petitioner submitted that the legal issue raised herein is covered by various judgments of this Court, especially, **Hussain v. Kerala Water Authority** (1996 (2) KLT 555) and **Jose Jacob v. State of Kerala** (1998 (2) KLT 873), wherein the view taken is that the change in pay scale due to pay revision cannot be taken to deny the benefit of reckoning the provisional service for the purpose of benefits. 2. The following are the periods of provisional service of the petitioner as P.D. Teacher: (i) From 16.6.1990 to 14.3.1991 in GMLP School, Puthiyakadappuram North in Tirur Sub District; (ii) From 11.7.1991 to 30.4.1992 in GMUP School, Tanur Town; and (iii) From 16.6.1992 to 14.12.1992 in GLP School, Ozhur. The continuous service based on the advice of the Public Service Commission is from 15.12.1992 at wpc 18334/2010 2 GMUP School, Varamthatta. 3. The petitioner was granted increments reckoning the temporary service, as per Ext.P1 order. During the 1992 pay revision, Ext.P2 order was passed whereby the service rendered by the petitioner in the scale of Rs.1125-1720 alone was taken into account for sanction of increment. When the 2006 pay revision was implemented, the entire provisional service was taken for granting weightage. Later, an audit objection was raised as per Ext.P4. Still later, the petitioner submitted a representation as per Ext.P5, in the light of Rule 22C of Part I K.S.R. According to the petitioner, the said provision enabled him to submit an application for reckoning the entire provisional service for increments. An order was passed by the Deputy Director of Education recognising the said right as per Ext.P6. But later the same was modified by the Deputy Director by Ext.P7 order, which is under challenge in this writ petition. 4. Learned counsel for the petitioner submitted that the view taken in Ext.P7 as well as in the proceedings Ext.P2 by reckoning a part of the provisional service alone for sanctioning increments, cannot be justified. It is submitted that the difference in scale is because of pay revision and learned counsel further points out that the very same issue has been considered in the decisions relied upon. wpc 18334/2010 3 5. A reading of the counter affidavit shows that the stand taken therein is that the service of the petitioner upto 28.2.1992 remained unchanged in the scale of pay of Rs.845-1370 and services from 1.3.1992 onwards brought under scale of pay of Rs.1125 - 1720. The Government Order, viz. G.O.(P) No.600/93/Fin. dated 16.9.1993 granted revised scale of pay to Government employees and teachers with effect from 1.3.1992 or from the date opted by the employee. Thus, it is pointed out that Ext.P2 order was issued revising the increment of the petitioner limiting the reckoning of provisional service from 1.3.1992 onwards which was not challenged by the petitioner at the appropriate time. When the service weightage was calculated by Ext.P3 order, the entire service was reckoned even though the period prior to 1.3.1992 does not qualify for weightage. It is pointed out that Ext.P7 order is passed validly. Ext.R1(b) order of the Director of Public Instruction is also relied upon in this context. 6. Therefore, evidently what has resulted in the reckoning of the provisional service in part is only because of the difference in the pay scale. Herein, the principle stated by this Court in the decisions relied upon by the learned counsel for the petitioner are relevant for consideration. The very same issue was considered in detail by a learned Single Judge of this Court in **Jose Jacob's case** (1998 (2) KLT 873), in para 9. Therein, it was held as wpc 18334/2010 4 follows: “Another contention put forth by the Government Pleader is with reference to the scale of pay. It is not disputed by the respondents that the respective petitioners got appointment in the same category of post which they did hold as provisional appointees. In other words, they were appointed later, on regular basis in the same category of post to which the qualification and method of appointment were one and the same. Because of an intervening pay revision or revisions, there was change in the scale of pay. This is admitted by the petitioners also. Such change of pay will not take the incumbent concerned from out of the definition to the term “same category” as contained in the Government Decision No.2 under R.33 Part I K.S.R. Because of such change in the scale of pay due to the pay revision, the incumbents cannot be denied of the benefits as are applicable in terms of the statutory rules. This aspect has been considered by this Court in more than one occasions.” Reliance is placed on an earlier decision of this Court in **Vijayan Warrier** **v. Director of Technical Education** (1989 (2) KLT 221) as well as of a Division Bench in **Hussain's case** (1996 (2) KLT 555) and finally it was held as follows: “Merely because there was a change in the scales of pay because of pay revisions, the petitioners who got regular appointments in the same category in which they held provisional appointment cannot wpc 18334/2010 5 be denied of increments reckoning the provisional service as at the material time Government Decision No.2 was applicable in their case.” The Government decision referred to therein, has been considered in para 7 of the judgment. 7. The situation herein is identical. In that view of the matter, the stand taken that the portion of the provisional service alone can be reckoned for increment, cannot be justified. Actually, in the case of the petitioner, his provisional service was reckoned for increment as per Ext.P1 order. Later, by Ext.P2 only part of the provisional service was reckoned. This was evidently corrected when weightage was granted by Ext.P3 order, reckoning the entire provisional service. 8. Rule 22-C enables an officer who wishes to get his prior service, whether provisional or regular, in any department/institution, counted for any service benefit on entering Government service, to submit an application and the proviso applies in the case of an officer who is already in service, to submit an application within two years, from the date of effect of the said rule. The same was notified as per Government Order dated 11.10.2007 and published on 22.10.2007, which has come into force with effect from 6.11.2008. Therefore, the petitioner was right in submitting an wpc 18334/2010 6 application for reckoning the entire provisional service for increment under three different spells, as per Ext.P5. In that view of the matter, the stand taken in the counter affidavit that the petitioner did not raise a challenge against Ext.P2, cannot hold good. 9. Based on Ext.P5, Ext.P6 order was passed validly. But still later, by Ext.P7 again it was sought to be modified by taking the view that only part of the provisional service can be reckoned for increment. In the light of the principles already stated in **Jose Jacob's case** (1998 (2) KLT 873), Ext.P7 cannot survive. In that view of the matter, the writ petition is allowed. Ext.P7 is quashed. There will be a declaration that the entire provisional service of the petitioner in the cadre of LPSA as admitted by the first respondent in Ext.P6, will be reckoned for the purpose of increment and weightage. Appropriate consequential benefits will be granted to the petitioner within a period of three months from the date of receipt of a copy of this judgment. No costs. ## **(T.R. Ramachandran Nair, Judge.)** ## **kav/**