The Kerala High Court recently comprising of a bench of Justice P.B. Sureshkumar and Justice C.S. Sudha observed that a teacher who has been discharged for reducing the number of posts and reappointed in a lower category would not be entitled to the wages and allowances applicable to the higher category in which he/she/they was at work earlier. ( Baby Letha K. v. State of Kerala & Anr.)
Facts of the case
In the present case, the applicant worked as a primary education teacher in the Eranholi East LP School and was promoted to principal of the school on 1 April 2010. on February 8, 2012, the school was closed because it had become ‘unprofitable’. Appellant/petitioner has been reappointed as a primary school teacher at Government High School, Aralam Farm. She retired on May 31, 2015 from the said school.
Issue before the Court
Whether a Headmistress in an aided Lower Primary School who was re-appointed as Lower Primary School Teacher in a Government school on account of the closure of the school, is entitled to the pay and allowances of the Headmistress in terms of Rule 52 of Chapter XIVA of the Kerala Education Rules (the Rules).
Contention of the Parties
The learned counsel for the petitioner argued that in terms of Rule 52 of Chapter XIVA of the Rules, teachers of aided schools thrown out from service on account of the closure of the school are eligible to draw the pay which they were getting at the time of such closure of the school, on being re-appointed. It was argued by the learned counsel that the said statutory provision has, however, been diluted by the Government by Ext.P5 circular. According to the learned counsel, Ext.P5 circular is bad inasmuch as the Government cannot modify or dilute the statutory provision contained in Rule 52 of Chapter XIVA of the Rules. It was submitted by the learned counsel that insofar as the petitioner is denied the benefit claimed by her on the strength of Ext.P5 circular which is bad, she is entitled to the relief claimed in the writ petition.
Per contra, the learned Government Pleader contended that the petitioner was re-appointed only as a Lower Primary School Teacher, and the petitioner, having accepted the said appointment, cannot be heard to contend that she is entitled to the pay and allowances as is applicable to the post of Headmistress. It was also pointed out by the learned Government Pleader that Ext.P5 circular does not, in any manner, dilute the statutory provision contained in Rule 52 of Chapter XIVA of the Rules as it was issued only with a view to explain the scope of Rule 52 and there is no impediment in law for the Government in issuing such clarificatory circulars. In short, the submission made by the learned Government Pleader is that the challenge against Ext.P4 order and Ext.P5 circular is without any basis and that the decision of the learned Single Judge is in order.
Courts Observation and Judgment
The bench dismissing the appeal remarked, “Let us assume that sub-rule (2) of Rule 52 applies to the case of the petitioner. A combined reading of the provisions contained in sub-rules (1) and (2) of Rule 52 would indicate that the purpose of the Rule is only that when teachers are re-appointed in situations covered by the Rule, they shall start on the same pay as they were getting at the time of relief or withdrawal of recognition, as the case may be. In other words, the purpose of the Rule is only to ensure that the reappointment shall not be treated as a fresh appointment, for if re-appointment is treated as a fresh one, the teacher would be entitled to receive only the pay and allowances applicable to the fresh appointee. We are fortified in the said view by the expression “start on the same pay as they were getting” contained in sub-rule (1) of Rule 52.
In other words, the Rule is intended only for granting pay protection to retrenched teachers on re-appointment in the same cadre and the same scale of pay and it does not enable a teacher who is relieved on account of reduction in the number of posts and re-appointed in a lower category to claim the pay and allowances applicable to the higher category in which he/she was earlier working. The contention of the petitioner that the petitioner is entitled to the pay and allowances applicable to the Headmistress for the period during which she was working as Lower Primary School Teacher on re-appointment in terms of Rule 52 of Chapter XIVA of the Rules is, therefore, unsustainable. Ext.P5 circular only explains the said position and the challenge against the same is also without any substance. The writ appeal is therefore, devoid of merits and the same is, accordingly, dismissed”
It was on this basis that the Court found that the intention of the Rule was only to grant pay protection to retrenched teachers on re-appointment in the same cadre and the same scale of pay. Thus, the writ appeal was dismissed.
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