High Court of KeralaSingle Judge2021-07-02Writ petitions allowed; Ext.P3 set aside; direc...

Zareena A. v State of Kerala; Smitha S. v State of Kerala (WP(C) Nos. 6264/2019 and 31095/2019)

Case / Petition Number:WP(C) Nos. 6264/2019; 31095/2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Devan Ramachandran
Judgment Date: 2021-07-02
Court Decision / Holding: Writ petitions allowed; Ext.P3 set aside. The respondents are directed to issue appropriate orders reckoning the earlier broken service for weightage and increment, de hors the objections in Ext.P2, and to issue such orders within three months from the date of receipt of a copy of this judgment.
Final Disposition: Writ petitions allowed; Ext.P3 set aside; directions to reckon earlier broken service for weightage and increment; orders to be issued within three months.

Parties to the Case

Appellants / Petitioners

Zareena A.
Smitha S.

Respondents

The State of Kerala represented by the Secretary to Government, Department of General Education, Government Secretariat, Thiruvananthapuram, PIN-695 001
The Director of Public Instructions, The Directorate of Public Instruction, Thiruvananthapuram, PIN-695 001
The Deputy Director of Education, Malappuram, PIN-676 505
The Assistant Educational Officer, Malappuram, Malappuram District, PIN-676 505
The Manager, A.M.U.PSchool, Valluvambram, Malappuram District, PIN-673 642
The Headmaster, AKHMUPS, Chathrathodi, Parambilpeedika, Malappuram, PIN-676317
The District Educational Officer, UP Hill, Malappuram (for WP31095/2019)
The Deputy Director of Education, Kottapadi, Down Hill, Malappuram, PIN-676519
The Assistant Educational Officer, Vengara, Malappuram, PIN-676304
The Manager, AKHMUPS, Chathrathodi, Parambilpeedika, Malappuram, PIN-676317
The Headmaster, AKHMUPS, Chathrathodi, Parambilpeedika, Malappuram, PIN-676317

Legal Representation & Advocates

Counsels for Petitioners

• K. Rakesh

Counsels for Respondents

• Sri. P.M.Manoj - Sr.GP

Case Synopsis & Summary

Two writ petitions by teachers challenge orders of Educational Authorities that either denied or did not grant weightage for earlier broken service while calculating pay scale and increments upon their current posts. The petitioners contend that their prior service, though rendered under different management, must be reckoned for fixation of pay, in line with Rule 61, Chapter XIVA of the Kerala Education Rules (KER) and Government Order G.O.(P) No.145/2006/Fin dated 25 March 2006. They rely on Khadeeja A. v. State of Kerala and another (2014 (4) KLT 349), which allegedly recognizes a right to weightage independent of Rules 10 and 11 of Chapter XIVA. The respondents submit that the decisive issue is whether the petitioners accepted subsequent employment with the permission of the competent Educational Authority; Rule 11(1) requires prior approval of the District Educational Officer and consent of the schools for transfer, and there is no evidence of such consent on record, making the impugned orders defensible. The court, however, finds substantial force in the petitioners’ interpretation, noting that Khadeeja A. declares the weightage right flows from Rule 61 read with GO 145/2006, and need not be tied to Rules 10/11. It concludes that the petitioners are entitled to have their earlier broken service reckoned for weightage, notwithstanding potential non-compliance with Rule 11, and directs the authorities to issue appropriate orders within three months, thereby allowing the writ petitions.

Provisions of Law Cited

Rule 61, Chapter XIVA, Kerala Education Rules (KER)Rule 11(1), Chapter XIVA, KERRule 10, Chapter XIVA, KERGovernment Order G.O.(P)No.145/2006/Fin dated 25/03/2006

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants’ counsel submitted that Khadeeja A. v. State of Kerala (2014 (4) KLT 349) holds that the right to reckon the prior broken service for weightage in pay arises under Rule 61, Chapter XIVA, read with Government Order G.O.(P)No.145/2006/Fin, and not from Rules 10 or 11. They relied on Ext.P3 and contended that weightage should be granted even if the transfer did not strictly comply with Rule 11(1). It was argued that Rule 11(1) requires DEO consent and school consent for transfer, but non-compliance cannot bar the petitioners’ legitimate claim to weightage. The petitioners urged the court to allow their writ petitions and direct fixation of pay with weightage for earlier service, as per Rule 61 and GO 145/2006, notwithstanding any technical lapse. The relief sought was to set aside the impugned orders and permit expeditious issuance of corrective orders.

Contentions of Respondents

The respondents contended the primary issue is whether petitioners accepted subsequent employment with the required permission of the competent Educational Authority. They argued Rule 11(1) mandates prior approval of the DEO and consent of schools for transfer; there is no record of such consent, rendering the impugned orders defensible. They argued the authorities were justified in denying weightage if transfer procedures were not followed and that the petitions cannot override the express requirements of Rule 11. They maintained that Khadeeja A. cannot automatically override the statutory framework of Rules 10/11 and that the relief requested would unsettle the established transfer and pay-fixation norms.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Khadeeja A. v. State of Kerala and another	2014 (4) KLT 349	Positive	The court relies on Khadeeja A. to hold that weightage for prior broken service flows from Rule 61 read with GO 145/2006, not from Rules 10/11.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 2[ND] DAY OF JULY 2021 / 11TH ASHADHA, 1943** **WP(C) NO. 6264 OF 2019** ## **PETITIONER:** ZAREENA.A., AGED 42 YEARS W/O. KUNHIMOHAMMED KADAVAN, KADAVAN HOUSE, VALLUVAMBRAM P.O., MALAPPURAM DISTRICT,PIN-673 642 BY ADV K.RAKESH ## **RESPONDENTS:** 1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, TRIVANDRUM, PIN-695 001 2 THE DIRECTOR OF PUBLIC INSTRUCTIONS, THE DIRECTORATE OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM, PIN-695 001 3 THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM,PIN-676 505 4 THE ASSISTANT EDUCATIONAL OFFICER, MALAPPURAM, MALAPURAM DISTRICT,PIN-676 505 5 THE MANAGER, A.M.U.P.SCHOOL, VALLUVAMBRAM P.O., MALAPPURAM DISTRICT,PIN-673 642 BY ADV GOVERNMENT PLEADER SRI. P.M.MANOJ - SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.07.2021, ALONG WITH WP(C).31095/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C)Nos.6264 & 31095/2019 2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 2[ND] DAY OF JULY 2021 / 11TH ASHADHA, 1943 WP(C) NO. 31095 OF 2019** ## **PETITIONER:** SMITHA S., AGED 44 YEARS D/O.NAKULAN S., 'SWARAM', AZHINHILAM, MALAPPURAM DISTRICT. BY ADV K.RAKESH ## **RESPONDENTS:** 1 THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, TRIVANDRUM, PIN- 695014. 2 THE DISTRICT EDUCATIONAL OFFICER, UP HILL, MALAPPURAM, PIN- 676505. 3 THE DEPUTY DIRECTOR OF EDUCATION, KOTTAPADI, DOWN HILL, MALAPPURAM, PIN- 676519. 4 THE ASSISTANT EDUCATIONAL OFFICER, VENGARA, MALAPPURAM, PIN- 676304. 5 THE MANAGER, AKHMUPS, CHATHRATHODI, PARAMBILPEEDIKA P.O., MALAPPURAM, PIN- 676317. 6 THE HEADMASTER, AKHMUPS, CHATHRATHODI, PARAMBILPEEDIKA P.O., MALAPPURAM, PIN- 676317. SRI. P.M.MANOJ - SR.GP SRI. P.M.MANOJ - SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.07.2021, ALONG WITH WP(C).6264/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C)Nos.6264 & 31095/2019 3** ## **JUDGMENT** The petitioners in these two cases – which have been heard together on account of identical nature of the factual circumstances pleaded and reliefs sought - are stated to be working as teachers and have approached this Court impugning the orders issued by the competent Educational Authorities, either rejecting or interdicting fixation of pay scale, reckoning their earlier broken service in another School under different management. 2. Sri.Rakesh K., learned counsel appearing for the petitioners in both these cases, submitted that the issues impelled herein have already been answered by a learned Judge of this Court in _**Khadeeja A. vs. State of Kerala and another [2014 (4) KLT 349]**_ . He added that this judgment has been produced as Ext.P3 in W.P.(C) No.31095/2019 and argued that it has been held by this Court that teachers like the petitioners herein are entitled to have pay fixed, reckoning their previous ## **WP(C)Nos.6264 & 31095/2019 4** service, on account of Rule 61,Chapter XIVA of the Kerala Education Rules (KER for short) and the Government Order dated 25/03/2006. The learned counsel, therefore, prayed that these writ petitions be allowed and the impugned order/proceedings be set aside. 3. In response Sri.P.M.Manoj – learned Senior Government Pleader, submitted that the singular issue in these cases is whether petitioners had accepted their subsequent employment in the present schools, after serving broken periods of service in different schools earlier, obtaining the permission of the competent Educational Authority and that this is crucial because the provisions of Rule 11, Chapter XIVA of KER is vitally attracted. He argued that as per Rule 11(1), a teacher serving in a school can be transferred to another only with the previous approval of the District Educational Officer (DEO for short) and with the consent of the schools. He submitted that there is nothing on record to ## **WP(C)Nos.6264 & 31095/2019 5** show that any such consent had been obtained by the petitioners or by the Managements of the schools where they are presently working, from the competent DEO to enable their transfer. He, therefore, argued that the orders impugned in these cases are without fault and that the competent Educational Authorities were without error in having objected to and denying the weightage claimed by the petitioners with respect to their earlier broken services under different managements. 4. Sri.K.Rakesh, in reply, submitted that the afore argument of the learned Senior Government Pleader can be of no avail because, in _**Khadeeja A.**_ **(Supra),** this Court has already declared that right of a teacher to claim the weightage of the earlier broken periods of service in different schools is not referable to Rule 10 or Rule 11 of Chapter XIVA of the KER, but is based on Rule 61, Chapter XIVA thereof, read with the Government Order bearing number G.O(P)No.145/2006/Fin. dated **WP(C)Nos.6264 & 31095/2019 6** 25/03/2006. He, therefore, vehemently submitted that the contention of non-compliance of Rule 11, even if true, cannot stand in the way of the petitioners being granted their legitimate claims. He then added to this submission by saying that, in any event of the matter, going by the impugned orders/proceedings in these cases, there is not even a whisper that petitioners have been denied weightage of their broken service on account of violation of Rule 11(1), Chapter XIVA of the KER. He, therefore, prayed that these writ petitions be allowed. 5. I find substantial force in the afore submissions of Sri.K.Rakesh because, as rightly stated by him, in _**Khadeeja A.(Supra),**_ this Court had declared unequivocally that right of a teacher to claim weightage of previous broken service in a different school, is not referable to Rule 10 or Rule 11 of Chapter XIVA of the KER, but flows from Rule 61, Chapter XIVA thereof, _juxtaposed_ by the mandate of the Government Order referred above. ## **WP(C)Nos.6264 & 31095/2019 7** Obviously, therefore, even if, for the sake of argument, it is assumed that petitioners were transferred to their present school without following the mandate of Rule 11(1) of Chapter XIVA of the KER, it would not stand in the way of their claim being acceded to. 6. That said, from any angle, as also rightly contended by Sri.K.Rakesh, even the impugned orders/proceedings before this Court do not show that petitioners' claims have been interdicted or denied on account of violation of Rule 11(1), Chapter XIVA of the KER. I cannot, therefore, find favour with the submissions of the learned Senior Government Pleader. In the afore circumstances, following the judgment of this Court in _**Khadeeja A. (Supra)**_ , I deem it appropriate to allow these writ petitions. Consequently, **==> picture [388 x 12] intentionally omitted <==** respondents 1 to 4 are directed to issue ## **WP(C)Nos.6264 & 31095/2019 8** appropriate orders, reckoning the earlier broken service of the petitioner in a different school, for calculation of service weightage and increment, _de hors_ the objections in Ext.P2; and to issue such orders as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. (b) W.P.(C).No.6264/2019 is allowed and Ext.P3 is set aside. Consequently, the competent official respondents are directed to issue appropriate orders reckoning the earlier broken service of the petitioner in a different school; and to issue such orders as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. **Sd/-** ## **DEVAN RAMACHANDRAN JUDGE** ## **MC/07.07** **WP(C)Nos.6264 & 31095/2019 9** ## **APPENDIX OF WP(C) 6264/2019** PETITIONER ANNEXURE EXHIBIT P1 TRUE COPY OF THE STATEMENT OF FIXATION OF PAY IN THE HIGHER GRADE ISSUED ORDER DECLARING THE PROBATION OF THE PETITIONER ISSUED BY THE 4TH RESPONDENT EXHIBIT P2 TRUE COPY OF THE STATEMENT OF FIXATION OF PAY SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED,27-72018 EXHIBIT P3 TRUE COPY OF THE COMMUNICATION DATED,31.12.2018 ISSUED BY THE 4TH RESPONDENT WITH NO.C/5468/2018 **WP(C)Nos.6264 & 31095/2019 10** ## **APPENDIX OF WP(C) 31095/2019** PETITIONER ANNEXURE EXHIBIT P1 TRUE COPY OF THE REPLY SENT BY THE HEADMASTER OF THE SCHOOL TO THE 3RD RESPONDENT. EXHIBIT P2 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 4TH DATED 30.01.2019. EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN KHADEEJA A VS.STATE OF KERALA AND ANOTHER CITED IN 2014(4)KLT 349.