Kerala High Court
Ajitha Kumari R K vs State Of Kerala on 23 May, 2025
Author: D. K. Singh
Bench: D. K. Singh
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W.P. (C) No. 45602 of 2024
2025:KER:35679
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE D. K. SINGH
FRIDAY, THE 23RD DAY OF MAY 2025 / 2ND JYAISHTA, 1947
WP(C) NO. 45602 OF 2024
PETITIONERS:
AJITHA KUMARI R K
AGED 59 YEARS
PLAVANNARA PUTHEN MATOM THULAMPARAMBU CENTRE
HARIPAD., PIN - 690 514.
BY ADVS.
BINNY THOMAS
P.SREEKUMAR (SR.)
HELEN P.A.
ATHUL ROY
INDRAJITH DILEEP
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY GENERAL EDUCATION
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM.,
PIN - 695 001.
2 DEPUTY DIRECTOR OF EDUCATION
OFFICE THE DEPUTY DIRECTOR OF EDUCATION,
ALAPPUZHA.,
PIN - 688 001.
3 ASSISTANT EDUCATIONAL OFFICER
OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER,
HARIPAD., PIN - 690 514.
4 THE HEADMISTRESS
ST MARY'S LOWER PRIMARY SCHOOL, CHERUTHANA,
AYAPARAMBU., PIN - 690 517.
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W.P. (C) No. 45602 of 2024
2025:KER:35679
BY ADV.
V. VENUGOPAL - GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
23.05.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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W.P. (C) No. 45602 of 2024
2025:KER:35679
D. K. SINGH, J.
--------------------------
W.P.(C) No. 45602 of 2024
-------------------------
Dated this the 23rd day of May, 2025
JUDGMENT
1. The petitioner retired as Headmistress from an Aided Lower
Primary School on 30.04.2017. She has approached this Court in the
present writ petition impugning the orders in Exhibits P-8 and P-9
whereby her request for higher grade on completion of 8 years of
service after promotion to the post of Headmistress w.e.f. 15.04.2006
has been rejected.
2. The learned Counsel for the petitioner as well as Mr. V. Venugopal,
the learned Government Pleader are in consensus ad idem in submitting
that the issue involved in this writ petition is squarely covered by the
Judgment of the Full Bench of this Court in State of Kerala v. C.
Kunhikkamma [2024 (3) KHC 24 (FB)]. Paragraph Nos. 13, 18, 19, 20
and 21 of the aforesaid order which are relevant, on production would
read as under;
13. Clause-6 in Annexure-3 Scheme for time bound higher grade
promotion covers similar situations. As in the case of a U.D.Clerk
getting promotion directly as a Junior Superintendent, a
Headmaster, who gets an appointment by the application of the
enabling provision in Rule 44A of Chapter XIV-A of the KER, can draw
the pay of a teacher alone until he puts in 16 years of service.
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Drawing that analogy, a Headmaster of an Aided Secondary School,
who gets the salary of teacher alone till he completes service of 16
years, cannot claim that service for higher grade in the post of
Headmaster. He needs to put in 7 years of service in the pay scale of
the Headmaster to be eligible for higher grade of the Headmaster.
18. A Full Bench of this court in Indira v State of Kerala [ILR 1998 (2)
Ker.771] considered the contention that Rule 3 of Chapter XXVI was
discriminatory as violative of Article 14 and 16 of the Constitution of
India. The contention was that Headmasters of both aided and
departmental schools are discharging the same duties and
postponement of allowing a Headmaster's scale of pay till an
incumbent completes 16 years of service despite his appointment
as Headmaster after he puts in 12 years of service is discriminatory.
The view taken by a Division Bench in W.A.No.519 of 1988 and
connected cases was quoted with approval by the Full Bench, which
is as follows:
"A higher scale of pay is granted only when the teacher
completes 15 years of service. Thus, it becomes clear
that lower emoluments are paid to a Headmaster who
does not have 15 years of service as a teacher and that
the Headmaster who has 15 years of service as a
teacher is entitled to higher emoluments. Though the
Headmaster with a lesser teaching experience and
Headmaster with longer teaching experience discharge
the same functions as Headmaster on his promotion to
that cadre, there is difference in the quality of service
between the two classes of Headmasters. The
experience makes a person more efficient and
competent. That is also a reason why higher
emoluments are paid depending upon the number of
years a person puts in a particular service. It cannot,
therefore, be said that the length of service is not a
relevant criteria in the matter of fixing different
emoluments."
Observing so, the Division Bench repelled the challenge to the
validity of Rule 3 of Chapter XXVI of the KER. The Full Bench affirmed
the said view. A Division Bench of this Court in Shivadasan v. State of
Kerala [2012 (2) KLT 121] followed the said proposition. Therefore,
the plea of the learned counsel for the respondent that the denial of
scale of Headmasters to those who does not complete service of 16
years and denial of higher grade unless completes 7 years of service
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in the scale of pay of the Headmaster is discriminatory and violative
of Article 14 and 16 of the Constitution of India cannot be accepted.
19. We held above that Ext. P7 judgment was rendered without
adverting to the provisions of Rule 3 of Chapter XXVI of the KER and
clause-6 in Annexure 3 scheme for time bound higher grade
promotion. Also, such a view was taken without considering the
judgment rendered by an earlier Division Bench in W.A.No.1886 of
1997, which in our view laid down the correct preposition of law.
20. In Sandeep Kumar Bafna v. State of Maharashtra [(2014) 16 SCC
623] the Apex court held that a decision or a judgment would be per
incuriam if it is not possible to reconcile its ratio with that of a
previously pronounced judgment of a co-equal or a larger Bench. A
Constitution Bench of the Hon'ble Supreme Court in National
Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680] held
that a later coordinate bench holding differently from the earlier one
cannot be taken as a binding precedent. A Bench of coordinate
strength is expected to follow the view taken by an earlier Bench. It
was further held that a decision will be per incuriam when any
provision in a statute, rule or regulation was not brought to the notice
of the Court and also if it is not possible to reconcile its ratio with that
of a previously pronounced judgment of a coequal or larger Bench.
21. Viewed so, Ext.P7 (judgment in W.A.No.1577 of 2010 and
connected cases) is per incuriam and we declare so. We affirm the
view taken by the Division Bench in W.A.No. 1886 of 1997 dated
10.12.1999 that completion of 7 years service in the pay scale of
Headmaster is the requirement for getting the first grade pay for
Headmasters of Aided Complete Secondary School. The reference
is answered accordingly.
As the issue is covered against the petitioner, the writ petition is
hereby dismissed.
Sd/-
D. K. SINGH
JUDGE
Svn
2025:KER:35679
APPENDIX OF WP(C) 45602/2024
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 2.6.1997
ISSUED TO THE PETITIONER
EXHIBIT P2 TRUE COPY OF THE ORDER OF APPOINTMENT OF THE
PETITIONER AS HEADMISTRESS
EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN W P C 34575 OF 2010
EXHIBIT P4 TRUE COPY OF THE REQUEST SUBMITTED BY PETITIONER
DATED 23.2.2018
EXHIBIT P5 TRUE COPY OF THE REQUEST SUBMITTED BY PETITIONER
DATED 4.3.2020
EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN W P C NO 28623 OF
2020 DATED 21.12.2020
EXHIBIT P7 A TRUE COPY OF THE HEARING NOTE SUBMITTED BY THE
PETITIONER DATED 30.03.2021
EXHIBIT P8 A TRUE COPY OF THE ORDER DATED 15.11.2022 ISSUED
BY THE 1ST RESPONDENT
EXHIBIT P9 A TRUE COPY OF THE COMMUNICATION DATED 18.4.2023
RECEIVED FROM THE 2ND RESPONDENT
EXHIBIT P10 A TRUE COPY OF THE REVIEW PETITION DATED
28.11.2023 SUBMITTED BY THE PETITIONER BEFORE THE
1ST RESPONDENT
