Kerala High Court
Jyothi N.P vs State Of Kerala on 17 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 17TH DAY OF FEBRUARY 2021 / 28TH MAGHA,1942
WP(C).No.25796 OF 2018(Y)
PETITIONER:
JYOTHI N.P
AGED 48 YEARS
L.P.S.A, NATTAKKAL A.L.P. SHCOOL, NATTAKKAL.P.O.,
VELLARIKUNDU, KASARAGOD DISTRICT, PIN-671534.
BY ADVS.
SRI.ELVIN PETER P.J.
SRI.K.R.GANESH
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,GENERAL EDUCATION
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 THE DIRECTOR OF PUBLIC INSTRUCTION
THIRUVANANTHAPURAM-695001.
3 THE DEPUTY DIRECTOR OF EDUCATION KASARAGOD-671121.
4 THE ASSISTANT EDUCATIONAL OFFICER
CHITTARIKKAL-671326.
5 THE MANAGER
NATTAKKAL.A.L.P.SCHOOL, NATTAKKAL.P.O, VELLARIKUNDU,
KASARAGOD DISTRICT, PIN-671534.
OTHER PRESENT:
SRI. P.M.MANOJ - SR.GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.25796 OF 2018(Y)
2
JUDGMENT
The petitioner is stated to be working as a Lower Primary
School Teacher in "Nattakkal A.L.P. School", Kasaragod; and
she has approached this Court impugning Ext.P11, as per which,
the objections raised by the competent Educational Authority
have been upheld saying that her Grade could have been fixed
only after completion of eight years in service, that is to say only
on 29.09.2005, while option had been exercised by her with
effect from 28.09.2005.
2. The petitioner says that Ext.P11 is egregiously
improper since it has not taken into account the fact that she had
broken spells of service from 07.07.1997 to 03.10.1997 and from
27.10.1997 to 31.03.1998 and asserts that if this had been
reckoned, then her original option was in order. The petitioner
relies on Ext.P5 Government Order, dated 22.10.2011, in
substantiation; and further contends that, since her broken spells
of service commenced from 07.07.1997, she is entitled to the 15
year Higher Grade on 01.07.2014, going by Rule 6(a) of Chapter
XIVA of the Kerala Education Rules (KER), but that this has also
WP(C).No.25796 OF 2018(Y)
been denied solely for the reason that her broken spells of
service cannot be reckoned for the purpose of declaration of
probation. The petitioner, therefore, prays that Ext.P11 be set
aside and the competent Authorities be directed to grant Senior
Grade to her with effect from 01.07.2014, counting the broken
period of service also.
3. In response to the submissions made on behalf of the
petitioner by her learned counsel - Smt.Priya Kaimal, the
learned Senior Government Pleader - Sri.P.M.Manoj, submitted
that, as per Rule 6(a) of Chapter XIVA of the KER, it has been
clarified that broken spells of duty within a continuous period of
two years alone can be reckoned for calculating one year of duty
period for probation and that, therefore, probation of the
petitioner could have been declared only on 29.09.1998 instead
of 28.09.1998. The learned Senior Government Pleader
submitted that this was so revised by the Manager; and that,
subsequently, when the 3rd respondent conducted an inspection
of the fixation of pay, it was found that petitioner had been
granted eight year Grade Pay with effect from 28.09.1998,
though her probation had been declared only on 29.09.1998. He
WP(C).No.25796 OF 2018(Y)
added that, consequently, directions were issued to her to refund
the excess amounts paid and that since there is no provision in
the Pay Revision Order of the year 2004 to make a re-option, the
date with effect from which the petitioner had made her earlier
option, namely 28.09.2005, was found to be irregular and
therefore, it was ordered to revise her fixation of Pay Revision of
the years 2004 and 2009, as also the Higher Grade and to
recover the consequential excess amounts paid to her. He then
submitted that the petitioner has addressed a representation to
the 1st respondent for clearing the audit objection and that the 3 rd
respondent had submitted her service book, along with a detailed
report for clarification regarding correction of option as
29.09.2005 instead of 28.09.2005. He says that Government,
after conducting a hearing in the matter, has issued Ext.P11
correctly upholding the objections raised by the Educational
Authorities. He, therefore, prayed that this writ petition be
dismissed.
4. In reply, Smt.Priya Kaimal - learned counsel for the
petitioner, conceded that there was a controversy as regards the
date of declaration of probation of her client and that this has
WP(C).No.25796 OF 2018(Y)
been set right by her after remitting the excess amount of pay
drawn for that one day. She submitted that, therefore, as far as
fixation of pay under the 2004 and 2009 Pay Revisions are
concerned, there could not have been any further objection
because, even going by Ext.P5 Government Order dated
22.10.2011, the broken periods of service qualifying for
increments will have to be reckoned for service weightage. She
submitted that since her client, admittedly, began her service on
07.07.1997, as per the mandate of Rule 6(a) Chapter XIVA of the
KER, she is entitled to be granted her Senior Grade with effect
from 01.07.2014, when she completed 15 years of continuous
service reckoning the broken periods of service also. Smt.Priya
Kaimal, therefore, prayed that Ext.P11 be set aside to such
extent and the competent respondents be directed to grant her
client the Senior Grade with effect from 01.07.2014 forthwith.
5. I have considered the afore submissions and have also
examined the various materials and pleadings available on
record.
6. As far as this case is concerned, there were broadly
two issues with respect to the petitioner, namely:
WP(C).No.25796 OF 2018(Y)
(a) Regarding her date of probation, since it was objected
to by the Educational Authorities saying that without reckoning
the broken spells of service, same could have been declared only
on 29.09.1998 and not on 28.09.1998. This objection, as
Smt.Priya Kaimal has already submitted, has been set right and
the probation has been now regularized with effect from
29.09.1998.
(b) However, during or after such exercise, an objection
was then raised with respect to the petitioner's eight year grade
payment on the ground that the date of option made by her was
28.09.2005 and that it cannot be modified as 29.09.2005.
7. That being said, what is important in this case is that
the petitioner seeks Higher Grade payment on completion of 15
years of service with effect from 01.07.2014, after counting her
broken spells of service. In fact, this aspect has been virtually
conceded to by the respondents in their counter affidavit,
wherein, they say that, as per Rule 6(a) Chapter XIVA of the
KER, broken spells of service within a continuous period of two
years can be reckoned for the purpose of service benefits.
WP(C).No.25796 OF 2018(Y)
8. Obviously, therefore, the petitioner's plea for Higher
Grade with effect from 01.07.2014 cannot be objected to and it
will have to be granted to her, going by the admitted facts.
9. As regards the contention against Ext.P11 is
concerned, I find favour with the petitioner because, even though
her original date of probation was shown as 28.09.1998, it had to
be revised with effect from 29.09.1998 solely because it was
found that the broken spells of service had also been counted
while doing so. This has been already rectified by the petitioner
and by the School and obviously, therefore, no further objection
can be raised against the petitioner with respect to the date of
probation.
10. However, as regards the exercise of option by the
petitioner with effect from 28.09.2005 in the Pay Revision Order
of the year 2004, it was only consequential to the original date of
probation, namely 28.09.1998 and therefore, I cannot find favour
with Ext.P11, which orders that the benefits granted based on
such option will have to be recovered from the petitioner. The
further directions to revise the fixation of Pay Revision for the
WP(C).No.25796 OF 2018(Y)
years 2004 and 2009 as also the Higher Grade and to refund the
alleged excess Pay and Allowances can certainly be not granted
imprimatur by this Court, for the afore reason, particularly
because the difference in the dates is only one day.
11. Further, as has been also virtually conceded in the
pleadings, the audit objections have already been answered by
the petitioner and forwarded to the 1 st respondent, while the 3rd
respondent has also submitted her service book along with a
detailed clarification. But it appears that the answers furnished
by the petitioner or by the 3rd respondent have not been
considered by the Government in Ext.P11 but they have gone
ahead and dismissed the same saying that, due to the change in
the date of probation from 28.09.1998 to 29.09.1998, the
benefits which the petitioner obtained through the Pay Revision
Orders 2004 and 2009 are ineligible.
In the afore circumstances, I order this writ petition and set
aside Ext.P11; with a consequential direction to the competent
respondent to issue orders granting the benefit of Senior Grade
to the petitioner with effect from 01.07.2014, after verifying
whether she has completed 15 years service as on that day,
WP(C).No.25796 OF 2018(Y)
adverting implicitly to the provisions of Rule 6(a) of Chapter
XIVA of the KER.
The afore exercise shall be completed, after affording an
opportunity of being heard to the petitioner as well as to the
Manager of the School - either physically or through video
conferencing - and a resultant order shall be issued, as
expeditiously as is possible but not later than two months from
the date of receipt of a copy of this judgment.
It is needless to say that if, after the afore exercise, the
petitioner is found eligible for any benefit, same shall be
disbursed without any avoidable delay but not later than three
months thereafter.
SD/-
DEVAN RAMACHANDRAN
rp JUDGE
WP(C).No.25796 OF 2018(Y)
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED
04/07/1995 OF THE PETITIONER.
EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER DATED
04/10/1995 OF THE PETITIONER.
EXHIBIT P3 TRUE COPY OF THE APPOINTMENT ORDER DATED
27/10/1997 OF THE PETITONER.
EXHIBIT P4 TRUE COPY OF THE APPOINTMENT ORDER DATED
01/06/1998 OF THE PETITIONER.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 22/10/2011 ISSUED BY
THE GOVERNMENT.
EXHIBIT P6 TRUE COPY OF THE STATEMENT OF FIXATION OF PAY OF
THE PETITIONER.
EXHIBIT P7 TRUE COPY OF THE OBJECTION RAISED BY THE 3RD
RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE REPLY GIVEN BY THE MANAGER TO
THE OBJECTION RAISED BY THE 3RD RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE REPLY GIVEN BY THE PETITONER TO
THE OBJECTION RAISED BY THE 3RD RESPONDENT.
EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 29/08/2017 IN
W.P.(C)NO.27442/2017 OF THIS HON'BLE COURT.
EXHIBIT P11 TRUE COPY OF THE ORDER DATED 07/06/2018 ISSUED BY
THE 1ST RESPONDENT.
