Kerala High Court
Ibraheem Vadakkekara Thazhathu vs State Of Kerala on 4 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 4TH DAY OF AUGUST 2021 / 13TH SRAVANA, 1943
WP(C) NO. 858 OF 2020
PETITIONER:
IBRAHEEM VADAKKEKARA THAZHATHU,
AGED 50 YEARS, CLERK, B.Y.K.VOCATIONAL HIGHER SECONDARY
SCHOOL, VALAVANNUR, MALAPPURAM DISTRICT.
BY ADVS.
GEORGE ABRAHAM
SRI.JOSEPH GOPURAN
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY SECRETARY, GENERAL
EDUCATION DEPARTMENT, THIRUVANANTHAPURAM - 695 001.
2 DIRECTOR OF GENERAL EDUCATION,
JAGATHY, THIRUVANANTHAPURAM - 695 033.
3 DEPUTY DIRECTOR OF EDUCATION,
MALAPPURAM - 676 505.
4 DISTRICT EDUCATIONAL OFFICER,
THIRURANGADY, MALAPPURAM - 676 306.
BY ADV. SRI.V.VENUGOPAL, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 858 OF 2020
-2-
JUDGMENT
The petitioner, who is stated to be working as
a Clerk in "B.Y.K. Vocational Higher Secondary
School", Malappuram, has approached this Court
impugning Exts.P3 and P4, as per which, the
benefit of service weightage already granted to
him was ordered to be withdrawn.
2. The petitioner says that the only reason
stated in Ext.P4 is that earlier reckoning of the
broken spells of service rendered by him is
incorrect; and consequently, that he has been
directed to give back the benefits obtained under
the said sanction.
3. The petitioner says that Rule 6A Chapter
XIVA of the Kerala Education Rules (KER)
stipulates without doubt that the broken periods
of duty within a continuous period of two years
can be reckoned for declaration of probation, and
WP(C) NO. 858 OF 2020
that Rule 61(4) thereafter mandates that the duty
in a post on a time scale, whether continuous or
interrupted, shall count for increment in the said
time scale. The petitioner thus prays that Exts.P3
and P4 be set aside and the respondents be
directed not to take any action against him for
recovery of the amounts already obtained.
4. I have heard Dr.George Abraham - learned
counsel appearing for the petitioner and
Sri.V.Venugopal - learned Government Pleader
appearing for the official respondents.
5. Dr.George Abraham - learned counsel
appearing for the petitioner, supplemented the
afore contentions of his client by asserting that
the issues in this case are squarely covered by
the judgments of this Court, namely, Khadeeja A.
v. State of Kerala and Another [2014 (4) KLT 349]
and Latha S. v. State of Kerala in W.P.(C)No.7171
of 2013. He submitted that, therefore, his client
WP(C) NO. 858 OF 2020
- identically situated as the petitioners in the
afore precedents - is also deserving the same
benefits; and thus reiteratingly prayed that this
writ petition be allowed.
6. In response, the learned Government Pleader
- Sri.V.Venugopal, submitted that the issues
noticed by this Court in Khadeeja (supra) and
Latha (supra) were with respect to the question
whether the broken periods of service can be
reckoned; but he asserted that it did not take
into account the specific factual difference
involved in this case, namely, that petitioner had
served in a leave vacancy. He submitted that,
therefore, the afore two cited precedents cannot
applied to the case of the petitioner, as has been
asserted by Dr.George Abraham. He resultantly
prayed that this writ petition be dismissed.
7. When I hear the learned Government Pleader
as above, it becomes obvious that unless there is
WP(C) NO. 858 OF 2020
a difference in law as regards the spells of
service rendered by the petitioners in Khadeeja A.
(supra) and Latha (supra) and the spell served by
the petitioner herein, this Court will be enjoined
to follow the said precedents.
8. The only contention of the learned
Government Pleader is that the petitioner in this
case was on leave vacancy; while the petitioners
in the afore precedents were on part-time service.
However, going by the Pay Revision Order, service
for the purpose of the relevant Rule, has been
defined to be full-time regular service, including
broken periods of service qualifying for normal
increments in a pay scale. In fact, on an earlier
occasion, in W.P.(C)No.17912 of 2010, a learned
Judge of this Court had considered this Rule and
declared as under:
"12. The said argument at the first
blush is attractive. But, when we come to
the scheme of Rules for Fixation of Pay,
one thing that is discernible is that
wherever specific exclusions had to be
WP(C) NO. 858 OF 2020
mentioned, the same were being specifically
provided in the Rules for Fixation of Pay
in the Revised Scale. Therefore, in respect
of past Pay Revisions, the part-time
service was not being reckoned in the light
of the exclusionary clauses mentioned in
the rules for fixation, as far as the
scheme for schoo1 teachers are concerned. A
reading of the relevant clauses will show
that certain other types of service have
also been excluded and when we come to
Ext.P1, it can be seen that certain types
of service have been excluded on the ground
that they were not accounted for normal
increments. A true test for the
interpretation of the Note will therefore
be that the service that will be qualified
for normal increments will be reckoned for
counting service weightage and that is the
manner in which the general clause has been
introduced in the Note and, as noted
already part-time service which was
reckoned for the purpose of increment has
not been specifically excluded. If the real
intention was to exclude the same, it could
have been easily provided under any of the
clauses, which is not done as it was being
done before."
9. It is, therefore, ineluctable that the
submission of the learned Government Pleader, that
the nature of the spell served by the petitioner
is different from the one rendered by the
petitioners in the afore cited precedents, cannot
find favour in any manner whatsoever.
In the afore circumstances, following Khadeeja
WP(C) NO. 858 OF 2020
(supra) and Latha (supra), I allow this writ
petition and set aside Exts.P3 and P4; thus,
declaring that no recovery shall be effected
against the petitioner, in any manner whatsoever,
based on the said orders.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
akv
WP(C) NO. 858 OF 2020
APPENDIX OF WP(C) 858/2020
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE FIXATION OF PAY IN THE
REVISED SCALE OF PAY SUBMITTED BY THE
PETITIONER DATED 4/9/2018.
EXHIBIT P2 TRUE COPY OF THE STATEMENT OF FIXATION
OF PAY IN THE REVISED SCALE AS PER
ANNEXURE II(B).
EXHIBIT P3 TRUE COPY OF THE ORDER PASSED BY THE
DEPUTY DIRECTOR OF EDUCATION,
MALAPPURAM DATED 20/5/2019.
EXHIBIT P3 (A) TRUE COPY OF THE ENGLISH TRANSLATION OF
EXHIBIT P3.
EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DATED
6/12/2019.
EXHIBIT P4(A) TRUE COPY OF THE ENGLISH TRANSLATION OF
EXHIBIT P4.
RESPONDENT'S/S EXHIBITS : NIL.
//TRUE COPY//
P.A. TO JUDGE
