Partly allowed

State of Kerala v. a.Abida Beevi

Kerala HC27 Oct 2016RP/227/2016

Case brief

AI extract

What is this about?

The Court reviewed an order regarding a retired Headmistress's pay scale and grade. It held she was not entitled to departmental scale before completing 16 years of service but allowed reckoning of UPSA tenure for total service to claim higher grade.

What did the court decide?

Allowance of Headmistress granted from 23.09.1999 till 07.06.2000 and departmental scale from 07.06.2000; higher grade granted based on aggregation of UPSA service.

State of Kerala Vs a.Abida Beevi — Education and Admissions | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THURSDAY, THE 27TH DAY OF OCTOBER 2016/5TH KARTHIKA, 1938

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RP.No. 227 of 2016 (C)

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WP(C) 21870/2009 DATED 19-11-2015 -----------

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REVIEW PETITIONER(S)/RESPONDENTS 1 - 4 IN WPC:

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1. STATE OF KERALA,

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REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.

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3. THE DEPUTY DIRECTOR OF (EDUCATION), KOLLAM.

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4. THE DISTRICT EDUCATIONAL OFFICER, PUNALUR.

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BY GOVERNMENT PLEADER SMT VINEETHA HARIRAJ

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RESPONDENT(S)/PETITIONER & 5TH RESPONDENT IN WPC:

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1. A.ABIDA BEEVI, HEADMISTRESS (RETIRED FROM AKM HS & VHS THADIKAD) RESIDING AT KETTIDATHIL, THADIKKADU P.O. ANCHAL VIA. KOLLAM DISTRICT. 691 306.

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2. THE HEADMASTER, A.K.M.HIGH SCHOOL, THADIKKADU P.O. ANCHAL (VIA). KOLLAM DISTRICT - 691 306.

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R1 BY ADVS. SRI.M.V.THAMBAN

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SRI.R.REJI

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THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 27-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K.V.

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RP NO 227 OF 2016:

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APPENDIX

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PETITIONERS EXHIBITS: NIL

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RESPONDENTS EXHIBITS:

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R1 (A): COPY OF THE EXTRACT OF THE SERVICE BOOK OF THE PETITIONER.

/TRUE COPY/

P.A.TO JUDGE

K.V.

K. VINOD CHANDRAN, J

Review Petition No.227 of 2016

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W.P(C) No. 21870 of 2009

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Dated this the 27^th day of October, 2016

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O R D E R

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The review has been filed on two grounds; one

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with respect to the grant of regular scales of pay to the writ

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petitioner as Headmistress(for short “HM” only) from 23.09.1999 and a direction to grant higher grade, which she

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is not entitled to since she retired on 31.05.2007.

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The grievance agitated before this Court in

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the writ petition was the claim of the petitioner's

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regularisation as HM from an earlier date, which she was

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found entitled, when a rival claimant's writ petition and

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appeal were rejected by this Court. There was also a

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question of leave vacancy of HM, which incumbent who

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RP 227/2016

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: 2 :

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had proceeded on leave had sought for reversion to the

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post of teacher. The incumbent who joined after leave,

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joined as a teacher on 23.09.1999 and this Court found that

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at least from that day, there is a vacancy available in the school. It is in such circumstance that the petitioner was directed to be regularised as HM from 23.09.1999 and also granted higher grade.

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The review filed against that, is grounded on

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Rule 44 A of Chapter XIV A and Rule 3 of chapter XXVI of

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the Kerala Education Rules. Rule 44 A of Chapter XIV A prescribes that for appointment as HM in a High School, inter alia, the minimum service qualification shall be 12 years of continuous graduate service. The petitioner in the

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writ petition obviously satisfies all other conditions in Rule

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44A. The petitioner was appointed to the school as UPSA

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RP 227/2016

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: 3 :

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on 14.09.1982 and was promoted as HSA on 08.06.1984 and

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hence satisfies 12 years of service as HSA. Though the petitioner was entitled to be appointed as HM on 23.09.1999, Rule 3 of Chapter XXVI provides that a teacher

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appointed as HM in an aided school would be given the departmental scale of pay only if he has put in a minimum of 16 years of continuous service as graduate teacher and persons who were qualified as per Rule 44A having 12 years of continuous service of graduate teachers, would

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only be entitled to the allowance as may be fixed by the Government. The short contention raised by the Government is that as on 23.09.1999, the petitioner did not

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have 16 years of continuous service as graduate teacher since the appointment as HSA was on 08.06.1984.

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The learned Counsel for the writ petitioner

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however, would contend that the petitioner had an earlier

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service as HSA from 16.07.1979 to 30.09.1982 in another

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aided school which according to her has to be treated as graduate service making her eligible for appointment as HM on 23.09.1999 itself, when the vacancy arose, in the department scale of pay; since she satisfies the 16 years of continuous service as graduate teacher. An alternate contention taken is that even the period spent as UPSA can be taken into account, since the petitioner was a graduate who was appointed as UPSA. The said contention is raised drawing a distinction between the words employed in Rule 44 A of Chapter XIV A and Rule 3 of Chapter XXVI, i.e: 'graduate service' and 'graduate teacher' respectively. A 'graduate service' would be as defined under Explanation I of Rule 44A but a 'graduate teacher',

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would be any teacher who has a graduation; argues

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Counsel.

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The learned Counsel for the writ petitioner

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would contend that graduate service indicates only service

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in posts where graduate qualification is an essential qualification and hence graduate service as reckoned under Explanation I would be only continuation as HSA. However, a graduate teacher as indicated in Rule 3 of Chapter XXVI would also take in other services as UPSA or LPSA if the incumbent has a graduate degree at the time of such service. This Court is not inclined to accept

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such contention since there is no such distinction seen from the reading of Rule 3 of Chapter XXVI. Rule 3 speaks of 16 years of “continuous service as graduate teacher” and “qualifying service of 12 years as graduate

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teacher”. Hence the words “service” and “teacher” are used alternatively with the same intention in mind.

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In this context, it is also to be observed that

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the qualification required for getting the department scale is also continuous service. There is no question of reckoning the prior service of the petitioner as HSA since after that the petitioner joined in the present school as UPSA, her service as HSA stood broken for the purpose of Rule 44A and Rule 3. Hence the petitioner's service as

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HSA from 08.06.1984 alone can be reckoned. If that is taken, on 23.09.1999 the petitioner qualifies to be appointed as HM with 12 years continuous graduate service. However, the petitioner does not become entitled to the departmental Headmaster's scale of pay, since she had not completed 16 years of continuous service as

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graduate teacher. Hence the petitioner would be only

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entitled to the allowances of a HM from 23.09.1999 till she

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completed her 16 years; ie., till 07.06.2000. The petitioner would be entitled to the departmental scale of pay from 07.06.2000. The review to that extent has to be allowed.

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The further contention raised is with respect

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to the higher grade. Again, Government contends that 7 years service as HSA for the purpose of higher grade can be taken only from the date of her regular appointment to

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the post, i.e, from 07.06.2000. The petitioner retired on

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31.05.2007 and hence falls short of three months from

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getting the higher grade. In this context, the learned Counsel for the writ petitioner produces before me G.O(P) No.3000/98/fin. Dated 25.11.1998 in which clause (b)

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indicates as herein.:

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RP 227/2016

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“Headmasters of Secondary Schools will be

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allowed Higher Gr or completion of 7 years

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service as Headmaster/AEO or 27 years of total

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service as Teacher and Headmaster/AEO

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together.”

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Hence 27 years total service as Headmaster, teacher and AEO together would entitle a person to a higher grade.

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Government in their review petition has stated

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that though the prior period as HSA could be reckoned, the period spent as UPSA cannot be reckoned and hence the petitioner on the date of her retirement, i.e, on 31.05.2007 fall short of 27 years since she has only 26 years, 1 month and 23 days total qualifying service as HSA

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. This is correct without reckoning the period spent as UPSA; which reckoning however is permissible going by

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: 9 :

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the aforesaid G.O.; which takes in the total service of the

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teacher. The writ petitioner has two years of service as

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UPSA in the present school; which is to be reckoned for

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the purpose of higher grade.

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In such circumstance, definitely the petitioner

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would be entitled to the higher grade prior to the date of her retirement. The period spent as UPSA will also be reckoned for the purpose of granting the higher grade and the petitioner would be entitled to the higher grade, from

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the date reckoned; calculating 27 years as computing the entire period spent as HSA in another school and period spent as UPSA, HSA and HM in the present school.

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The review petition is allowed only to the extent of modifying the judgment; granting the writ petitioner allowance of HM from 23.09.1999 till 07.06.2000

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RP 227/2016

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on which date, she completes the 16 year period and departmental scale of pay from 07.06.2000.

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The entire benefits shall be recomputed and

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disbursed within a period of two months from the date of receipt of a certified copy of this Order.

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Ordered accordingly.

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Sd/(K. VINOD CHANDRAN, JUDGE)

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jma

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//true copy//

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P.A to Judge

State of Kerala v. a.Abida Beevi

Case brief

What is this about?

What did the court decide?

State of Kerala v. a.Abida Beevi

Case brief

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What did the court decide?

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