Allowed

A.v.Jose v. State of Kerala

Kerala HC8 Dec 2016WP(C)/14035/2012

Case brief

AI extract

What is this about?

This writ petition challenged the denial of third time bound Higher Grade promotion to an assistant teacher. The court held the petitioner entitled to the grade by reckoning total service in entry and promoted posts, relying on a Division Bench decision, and directed payment of dues.

What did the court decide?

Petitioner entitled to third time bound Higher Grade by combining service as Peon and LPSA; respondent directed to sanction grade and pay dues within 3 months.

A.v.Jose Vs State of Kerala — Pension and Retirement Benefits | 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 MRS. JUSTICE ANU SIVARAMAN

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THURSDAY, THE 8TH DAY OF DECEMBER 2016/17TH AGRAHAYANA, 1938

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WP(C).No. 14035 of 2012 (D)

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PETITIONER :

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A.V.JOSE, AGED 45, S/O VARGHESE, LOWER PRIMARY SCHOOL, ASSISTANT (LPSA), ST. THOMAS LPS NADUKANI (PROTECTED TEACHER), KOTHAMANGALAM.

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BY ADVS.SRI.P.V.MOHANAN SRI.BIJU.P.N.

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY SECRETARY, GENERAL EDUCATION (N) DEPARTMENT, THIRUVANANTHAPURAM -695 001

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2. THE DISTRICT EDUCATIONAL OFFICER, ALUVA -683 101

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3. THE ASSISTANT EDUCATIONAL OFFICER, ANGAMALY -683 572

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BY SR GOVERNMENT PLEADER SRI.BIJOY CHANDRAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C).NO.14035/2012

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1 COPY OF THE ORDER OF APPOINTMENT AS PEON DATED 17/10/85.

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P2 COPY OF THE PROCEEDINGS NO.M2/16673/98/DPI DATED 2/6/1998

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P3 COPY OF THE ORDER OF APPOINTMENT AS LPSA DATED 15/7/2004

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P4 COPY OF THE ORDER OF GO(P) 3000/98/FIN DATED 25/11/1998

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P5 COPY OF THE ORDER OF GO(P) 145/2006/FIN DATED 25/03/2006

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P6 COPY OF THE JUDGMENT IN WPC.NO.21090/2008 DATED 24/11/2011

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P7 COPY OF THE ORDER OF NO.C-38/2012 DATED 6/2/2012.

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RESPONDENT'S EXHIBITS: NIL

/TRUE COPY/

P.A.TO JUDGE

sts

ANU SIVARAMAN, J.

W.P.(C) No.14035 of 2012

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Dated this the 8^th day of December, 2016

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JUDGMENT

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Prayers in this writ petition are as follows:-

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(a) To call for the records leading to Ext.P7 proceedings dated 06.02.2012 and set aside the same by issuing a Writ of Certiorari or other appropriate Writ, Order or Direction.

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(b) To issue a Writ of Mandamus, Order or Direction commanding the respondents to grant third Higher Grade of promotion/fixation of pay on completion of 23 years of total service.

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It is contended by the petitioner that he was

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appointed as Peon in an aided school on 17.10.1985. He was

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granted Time Bound Higher Grade on completion of 10 and 18 years of service. He was promoted as LPSA with effect from 15.07.2004 and his appointment was duly approved. On the strength of Ext.P4 Pay Revision Order dated 25.11.1998 the petitioner claims that he is entitled to third time bound Higher

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W.P.(C) No.14035 of 2012 -2-

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Grade on completion of 23 years of service in the entry post and the regular promotion post taken together. The said grade promotion was denied to the petitioner on the ground that his appointment as LPSA was not a promotion post and therefore he was not entitled to the third time bound Higher Grade. The petitioner challenges Ext.P6 proceedings, rejecting his claim.

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Heard the learned counsel for the petitioner and

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the learned Government Pleader appearing for the respondents.

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Counter affidavit has been filed on behalf of the third respondent, stating that eighteen years grade was sanctioned to the petitioner in the post of Peon by Ext.P5 order dated 28.07.2010. It is stated that thereafter, the petitioner was promoted as LPSA with effect from 15.07.2004. It is further stated that the petitioner would be eligible for time bound Higher Grade in the post of LPSA, only on completing 10 years of service in the said post.

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The learned counsel appearing for the petitioner would contend that the provisions contained in paragraph 5(1)

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W.P.(C) No.14035 of 2012

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-3-

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(b) of Ext.P4 pay revision order make it perfectly clear that the petitioner is entitled to be placed in the third Higher Grade in the scale of pay of LPSA taking into account his total service in the cadre of peon and LPSA taken together. The learned counsel relies on a decision of a Division Bench of this Court in WA No.1681/12 in WP(c) No.19513/10 to contend that the Clause 5(1)(b) of Ext.P4 Government Order has been specifically made applicable to the teachers of aided schools and it has been held that the regular promotion granted to a teacher will not take away his claim for the third time bound Higher Grade on reckoning his service in the entry post and the promoted post taken together.

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The learned Government Pleader would on the other hand contend that a plain reading of Ext.P4 itself would show that the teachers of Government schools and the aided schools are not governed by the provisions of Clause 5(1)(b) of the said Government Order. Clause 7 of Ext.P4 Government Order states that teachers would be allowed three Grade Promotions on completion of 10, 18 and 23 years of service

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W.P.(C) No.14035 of 2012

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-4-

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instead of the existing 10, 20 and 25 years and that existing scheme of time bound promotion of Headmasters of Primary and Secondary Schools will continue as such. The learned Government Pleader therefore contends that the provisions of Paragraph 5 are specifically not made applicable to teachers and teachers would therefore be governed by the rules which were existing in prior pay revision orders with regard to teachers for reckoning the period of service for time bound Higher Grade. It is further contended that Clause 11 of Paragraph 6 provides that those who get regular promotion or appointment to higher posts within a period specified for each time bound higher grade will not be granted further time bound higher grade during that period.

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I have considered the contentions advanced on

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either side and also gone through the materials on record as well as the judgments relied on by the learned counsel appearing on either side. It is clear from a reading of the judgment of the Division Bench in WA No.1681/12 that the question which was considered in WPC 19513/10 was with

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W.P.(C) No.14035 of 2012 -5-

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regard to the time bound higher grade of teaching staff of aided schools. WPC No.19513/10 was filed by a Headmaster of an aided school seeking the benefit of Paragraph 5(1)(b) of Ext.P4 Government Order. The learned Single Judge had allowed the claim against which the Government had filed WA.No.1681/12. After considering the contentions advanced from either side, it was held that the teacher is entitled to time bound Higher Grade as contemplated in paragraph 5(1)(b) of Ext.P4, taking into account the service put in by him in the entry post as well as the first promoted post taken together. It is contended by the learned Government Pleader that the question of inapplicability of Paragraph 5(1)(b) was not specifically pointed out either before the learned Singe Judge or the Division Bench and that the judgment of the Division Bench is being taken up before the Apex Court in a Special Leave Petition. However, as things stand now, I am bound by the decision of the Division Bench of this Court in WA.No.1681/12, which has been relied upon by the learned counsel for the petitioner.

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W.P.(C) No.14035 of 2012 -6-

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In the above view of the matter, the question whether paragraph 5(1)(b) of Ext.P4 Government Order is applicable to teachers is covered in favour of the petitioner. In the above view of the matter, the petitioner is also entitled to third time bound Higher Grade, on reckoning the period of service putting by him as Peon as well as LPSA taken together. It is so declared. The third respondent is directed to pass consequential orders and to calculate and disburse the amounts due to the petitioner, on the sanctioning of the third time bound Higher Grade, within a period of three months from the date of receipt of a copy of this judgment.

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Writ petition is disposed of as above.

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Sd/ANU SIVARAMAN, JUDGE

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A.v.Jose v. State of Kerala

Case brief

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A.v.Jose v. State of Kerala

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