IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34514 of 2007(H)
1. MUHAMMED ASLAM.P.A.,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED
... Respondent
2. THE DEPUTY DIRECTOR OF EDUCATION,
3. THE ASSISTANT EDUCATIONAL OFFICER,
For Petitioner :SRI.BABU S. NAIR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :16/07/2009
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) No.34514 of 2007-H
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Dated this the 16th day of July, 2009.
JUDGMENT
The petitioner is aggrieved by the audit objection raised against him
regarding the fixation of Headmaster’s scale of pay and consequential orders
passed by the authorities rejecting his objections.
2. The service particulars of the petitioner show the following: The
petitioner was initially appointed as a U.P.S.A. in a leave vacancy on
14.10.1986 which continued up to 10.1.1987. During the said period he
was absorbed and appointed as regular U.P.S.A., from 11.12.1986.
According to the petitioner, he continued as UPSA, but without salary
during the vacation from 1.4.1987 to 31.5.1987 and was subsequently
promoted and appointed as Headmaster on 1.5.1995 in accordance with the
qualification and seniority.
3. Ext.P1 is the pay fixation by which he was granted the
Headmaster’s scale on completion of 15 years service, on 13.12.2001. In
the year 2005 an audit objection was raised to the effect that he is entitled
for Headmaster’s scale only from 1.6.2002. His objections submitted as
Ext.P2 was rejected by Ext.P3. He filed an appeal against the same by way
wpc 34514/2007 2
of Ext.P4 and meanwhile, by Ext.P5 the second respondent directed the
third respondent to revise the fixation and to refund the excess amount
drawn by the petitioner, as per Ext.P5. The appeal was rejected as per
Ext.P6 and by Ext.P7, again directions have been issued to refund the
excess amount.
4. In Ext.P3, the reason for rejection of the objection is that his initial
appointment as UPSA was for the period from 11.12.1986 to 31.3.1987
and he was reappointed from 1.6.1987. Hence, there is break in service for
the period from 1.4.1987 to 31.5.1987. Fifteen years’ continuous service can
be reckoned only from 1.6.1987.
5. Heard learned counsel for the petitioner and learned Govt. Pleader.
6. Mainly it is contended by the learned counsel for the petitioner
that it is only in the light of Rule 49 of Chapter XIV-A K.E.R. that he was
denied vacation salary, but the service was continuous from 11.12.1986 and
his appointment as UPSA continued even after the reopening, in the same
vacancy. It is therefore submitted that the period has to be reckoned from
the date of original appointment and the pay fixation that was originally
done is perfectly justified. It is further contended that after long lapse of
time, the pay fixation cannot be objected and in support of the same,
reliance is placed on a decision of the Supreme Court in Aleyamma
wpc 34514/2007 3
Varghese v. Secretary, General Education Department (2007 (3) KLT
700 SC).
7. The following facts emerge from the counter affidavit of the first
respondent. The petitioner was appointed as leave substitute from
14.10.1986 to 10.1.1987 which was approved by the Asst. Educational
Officer. While continuing as such, he was again appointed by the Manager
as Assistant Teacher from 11.12.1986 to 31.3.1987 in the vacancy of one
Shri Ramakrishnan K. Kuniyil who had resigned from service. The
Manager appointed the petitioner as probationary UPSA with effect from
1.6.1987 and that appointment was also approved. Hence, the continuous
service of the petitioner started from 1.6.1987 only. His appointment as
UPSA from 11.12.1986 was not continuous and hence he is not eligible to
get any salary from 1.4.1987 to 31.5.1987. The period of appointment was
completed on 31.3.1987 and hence it cannot be said that there was denial of
vacation salary from 1.4.1987 to 31.5.1987.
8. It is also contended that the Headmaster’s scale was given
considering the broken period of service from 14.10.1986 to 31.3.1987 and
he completed 15 years of service only on 31.5.2002. Under Rule 1(1) of
Chapter XXVI K.E.R., 15 years continuous service is required to grant
Headmaster’s scale.
wpc 34514/2007 4
9. The crucial question is whether the petitioner is having continuous
service as enjoined by sub-rule 1 of Rule 1 of Chapter XXVI K.E.R. The
said rule is extracted below:
“1. (1) Teachers of Aided Lower Primary, Upper Primary, High and
Training schools shall be paid the scale of pay applicable to teachers
of Government Lower Primary, Upper Primary, High and Training
Schools. The Headmaster of an Aided Lower Primary School, or the
Headmaster of an Aided Upper Primary School shall be given the
scale of pay applicable to the Headmaster of Government School only
if he has put in a minimum of 15 years continuous service as teacher
in schools recognised by the Department. Those Headmasters who
have not put in this minimum service shall be given their grade pay
and supervision allowance as may be fixed by Government until they
complete the prescribed minimum service.”
Therefore, the requirement is that there should be a minimum of 15 years
continuous service. The word ‘continuous’ is important. Even though the
petitioner claims that his appointment from 11.12.1986 is continuous, on a
scrutiny of the details furnished in the counter affidavit, it is evident that the
petitioner was given a fresh appointment starting from 1.6.1987. The
appointment as Assistant Teacher from 11.12.1986 to 31.3.1987 made by
the Manager was approved as such. It is evident that he was given a fresh
wpc 34514/2007 5
appointment as a probationary Assistant Teacher from 1.6.1987 and that
appointment has also been approved. It should have been advantageous if
the said orders were produced in this writ petition. But still, going by para 2
of the counter affidavit, these facts are clearly stated. Those have not been
disputed by the petitioner by filing a reply affidavit also. Therefore, as
things stand, the petitioner’s continuous service starts from 1.6.1987 only.
Evidently, the term of his appointment as Assistant Teacher ended on
31.3.1987. Therefore, the contention raised by the learned counsel for the
petitioner based on Rule 49 of Chapter XIV-A K.E.R. cannot be sustained.
The eligibility of the petitioner for Headmaster’s scale can be reckoned only
from 1.6.1987.
10. Learned counsel for the petitioner relied upon the decision of a
Division Bench of this court in Director of Public Instructions v. Mini
Joseph (2009 (1) KLT 923) regarding the interpretation of Rules 7A and 49
of Chapter XIV-A K.E.R. Reliance is placed also on the decision of a Full
Bench of this court in Manager, Trikkur Panchayat Sarvodaya High
School v. Suma (2003 (2) KLT 62 (FB)) regarding the scope of Rule 51-A
of Chapter XIV-A K.E.R. It is true that Rule 49 provides that qualified
teaches except Headmasters appointed in vacancies which are not
wpc 34514/2007 6
permanent which extend over the summer vacation and who continue in
such vacancies till the closing date shall be retained in the vacancies during
the vacation, if their continuous service as on the closing day is not less than
eight months. The teachers so retained shall be entitled to the vacation
salary. But still going by the facts of this case, as already held, Rule 49 will
not apply here. Therefore, the principles stated in those decisions will not
apply to the facts of this case.
11. Lastly it is contended that in the light of the decision of the
Supreme Court in Aleyamma Varghese’s case (2007 (3) KLT 700 SC), the
recovery from pay on account of wrong fixation, is not proper. In para 6 of
the judgment, their Lordships have held that a mistake apparent on the face
of the record may be rectified. But on the facts of the case, it was held that
the amount sought to be recovered, may not be recovered from the
appellant. Herein, going by the facts of the case, as noticed already, the
entitlement of the petitioner is to count 15 years service from 1.6.1987
only. The mistake in reckoning the earlier period was sought to be rectified
by the audit. This cannot be said to be illegal. Now by Exts.P5 and P6 it
has been held that he is eligible for Headmaster’s scale with effect from
1.6.2002 only. In that view of the matter, I am of opinion that the
wpc 34514/2007 7
recovery ordered cannot be said to be illegal.
The writ petition fails and the same is dismissed.
(T.R. Ramachandran Nair, Judge.)
kav/