IN THE HIGH COURT OF KERALA AT ERNAKULAM
T.R. Ramachandran Nair, J. W.P.(C) No. 17912 of 2010 Dated this the 10th day of October, 2011 Head Note:- Service – School Teachers - Part time service - Fixation of Pay - Grant of increments - When the Rules for fixation of emoluments and other benefits do not expressly exclude the reckoning of part-time service which was counted for grant of increments, the same had to be reckoned for the purpose of grant of service weightage. For Petitioner:-
For Respondents :
J U D G M E N T 1. The audit objection leading to refixation of pay of the petitioner is under challenge in this writ petition. Even though the petitioner approached the Government in the matter, the view taken by the Government as per Ext.P9 order is adverse to the pleas raised by the petitioner. 2. We are concerned with the benefit of weightage granted as per G.O. (P) .No . 145/2006/Fin, dated 25-03-2006 (2004 pay revision order). The pay and allowances of Government employees and teachers were revised with effect from 01-07-2004 as per the said Government Order. Annexure-2 to the said order contains the Rules for fixation of pay in the revised scale. Rule 5(1) provides for Service Weightage. The petitioner opted to come over to the revised scale with effect from 01-07-2004 and her pay was fixed at Rs. 8,990/- from the said date in the scale of pay of Rs.8390-13270/-. While fixing her pay, she was granted three increments as service weightage for 13 years of service of which nine years was as part-time teacher. Ext.P2 is the pay fixation statement. 3. This was objected by the audit as per Ext.P3 stating that part-time service cannot be reckoned for granting service weightage. 4. The petitioner filed Ext.P5 representation before the Government. The contention raised by the petitioner is that the Note to Rule 5(1) of Annexure-2 to Ext.P1 does not exclude part-time service which have been reckoned for normal increments, for the purpose of grant of weightage. What is specified under the said Note for granting weightage is the service qualifying for normal increments in the scale of pay. But the Government while disposing of the representation of the petitioner was of the view that even though part-time teachers are getting periodical increments in the scale of pay admissible to them, the part-time service cannot be reckoned for weightage as it was the practice during the past pay revisions also. 5. The learned counsel for the petitioner submitted that when the Rules for fixation of emoluments and other benefits do not expressly exclude the reckoning of part-time service which was counted for grant of increments, the same had to be reckoned and accordingly, it is contended that the pay fixation granted is perfectly in order. It is also pointed out that the general rules for fixation of pay has been reiterated in the Circular of the Deputy Director of Education (Ext.P6). 6. The contention raised in the counter affidavit which is reiterated by the learned Government Pleader in support of the order Ext.P9 is that even in respect of the past pay revisions, part-time service has not been reckoned for the purpose of grant of weightage and my attention was invited to 1978 as well as 1989 pay revision orders. 7. In the light of the contrary stand taken, it is necessary to analyse the terms of the Rules regarding fixation of pay contained in Annexure-2 of Ext.P1. "Service Weightage" is provided under clause 5(1). Going by Rule 5(1), one increment for each completed 4 years of service, subject to a maximum of 4 increments in the revised scale, will be added to the pay so fixed. The Note reads as follows:- "Service for the purpose of this rule means service (where protection of pay is allowed) including broken periods of service qualifying for normal increments in the scales of pay. Service during the period of bar on increment without cumulative effect and dies-non period will also be reckoned. Time spent on leave that will not count for normal increment will not be reckoned. Prior service of Government employees in aided educational institutions (and vice versa) will also not be reckoned for determining the length of service." A reading of the same shows that what is provided under the Note for granting weightage is service including "broken periods of service qualifying for normal increments in the scales of pay". Therefore, the idea conveyed is that any type of service which has been reckoned as qualifying service for normal increment will come within the meaning of the term "service". In fact, the Note also shows that the service during the period of bar on increment without cumulative effect and dies-non period will also be reckoned. It is specifically provided that time spent on leave that will not count for normal increment will not be reckoned. Prior service of Government employees in aided educational institutions (and vice versa) will also not be reckoned for determining the length of service. Therefore, specifically, the types of service which can be reckoned have been mentioned in the Note and the service which cannot be reckoned are also specifically provided therein. Going by the same, it can be seen that part-time service which have been reckoned as qualifying service for increments has not been specifically excluded in the Note or in the main part of the Rule. 8. When we consider the Rules for the fixation of pay for the 1978 Pay Revision, namely, G.O.(P). No.860/78/Fin., dated 16-12-1978, it can be seenthat a similar note was there to Rule 8 providing for grant of weightage. At that point of time, advance increments (weightage) at the rate of oneincrement for every completed 10 years of service, subject to a maximum of two such increments were being allowed. The monetary benefits of thetotal of such advance increments shall not be more than Rs.50/-. The Note therein defines service as service including broken periods of service,qualifying for normal increments in the scales of pay. It was specified that times spent on leave not counting for normal increments will not bereckoned. Then items (i) to (xvi) have been specified as service which will have to be taken into account for weightage. Learned Government Pleaderplaced reliance upon clause (ix) therein which concerns school teachers. It reads as follows:- "(ix) in case of school teachers (both aided and Government) the entire teaching service in Government and private schools, in full-time appointments including the following categories of service; (a) service in unaided, but recognised schools; (b) untrained service in the Malabar area which did not count for normal increments prior to 01-11-1956, unaided service in former Cochin State and unqualified service; (c) period of training for which stipend was given, provided such period of training is reckoned for normal increments; (d) non-stipendiary period of training, in cases where the selection for training was made while the teacher was in service provided he had rejoined duty after training in the same school or in another school at least during the next academic year; (e) pre-resignation teaching service, irrespective of the fact whether the resignation was to take up teaching appointment in another school or not; (f) service on fixed pay; (g) broken periods of teaching service, where the break does not exceed five years, excluding periods of suspension and leave not counting for normal increments; (h) service, if any, before attaining the age of 18 years, if it had been reckoned for normal increments; (i) service in Government schools and aided schools (including District Board/Municipal schools) in areas which formed part of the former T.C. or former Madras State prior to 01-11-1956." Therefore, the clause therein, namely, clause (ix) provides reckoning of full-time service alone. 9. Similarly, in respect of the 1989 Pay Revision ordered as per G.O. (P) .No.480/89/Fin., dated 01-11-1989 also similar clauses have been included as far as school teachers are concerned, specifying that in the case of school teachers (both aided and Government) the entire teaching service in Government and private schools, in full-time appointments including the categories of service mentioned therein will be reckoned (as per C1.(ix) in Appendix III). Therefore, it can be seen that whenever the Government wanted to specify that part-time service will not be reckoned under Rules of fixation, that was being done, by specifying that full time service will be reckoned. 10. In the order passed by the Government as per Ext.P9, the view taken is that in respect of past pay revisions also, part-time service has not been reckoned. Evidently, during the past pay revisions, the same was not being reckoned in the light of the specific exclusions therein as evident from clause (ix) quoted above in 1978 pay revisions as well as 1989 pay revisions. Significantly, as far as 2004 Pay Revision is concerned, there is no specific exclusion of part-time service. Even it is not provided that full-time service alone will be reckoned. 11. Learned Government Pleader submitted that the general rules with regard to pay fixation contained in the various earlier pay revision orders will automatically apply as far as 2004 Pay Revision also is concerned and, therefore, the restriction as contained in the previous pay revision orders, namely, Rules regarding fixation of pay will have to be read in to 2004 Rules also. 12. The said argument at the first blush is attractive. But, when we come to the scheme of Rules for Fixation of Pay, one thing that is discernible is that wherever specific exclusions had to be mentioned, the same were being specifically provided in the Rules for Fixation of Pay in the Revised Scale. Therefore, in respect of past Pay Revisions, the part-time service was not being reckoned in the light of the exclusionary clauses mentioned in the rules for fixation, as far as the scheme for school teachers are concerned. A reading of the relevant clauses will show that certain other types of service have also been excluded and when we come to Ext.P1, it can be seen that certain types of service have been excluded on the ground that they were not accounted for normal increments. A true test for the interpretation of the Note will therefore be that the service that will be qualified for normal increments will be reckoned for counting service weightage and that is the manner in which the general clause has been introduced in the Note and, as noted already part-time service which was reckoned for the purpose of increment has not been specifically excluded. If the real intention was to exclude the same, it could have been easily provided under any of the clauses, which is not done as it was being done before. 13. In that view of the matter, the arguments raised by the learned Government Pleader that the clauses in the previous pay revision orders will have automatic applications as well to Ext.P1, cannot be accepted. It is a case where a benefit is granted to various employees as well as teachers. Therefore, even if two interpretations are possible an interpretation which favours the subject alone can be adopted. But according to me, only one interpretation is possible. 14. Along with the counter affidavit, the respondents have produced Ext.R1(a) in justification of the plea that part-time service cannot be reckoned. A reading of Ext.R1(a) shows that therein also there is no clause providing that part-time service which was qualified for increments will not be reckoned. In fact, in para. 2 of Ext.R1(a) it is further mentioned that provisional service reckoned for increment alone will be reckoned as qualifying service for weightage. That also indicates that service which was reckoned for normal increments will be reckoned. Ext.R1(a) also do not help to support the contentions of the respondents. 15. Apart from that the petitioner has produced Ext.P11 which is the relevant portion of G.O.(P). No.85/2011/Fin, dated 26-02-2011 concerning rules for fixation of 2009 Pay Revision. Therein also, the same definition as contained in 2004 Pay Revision has been adopted. 16. In that view of the matter, the petitioner is entitled to succeed in the writ petition. Exts.P3 and P9 are quashed. It is declared that the petitioner is entitled for the benefit of weightage reckoning part-time service which was qualified for normal increments. Therefore, the fixation as per Ext.P2 will be treated as valid. It is submitted that the normal increments from 01/07/2009 are yet to be released to her. Appropriate steps will be taken to release any of the withheld amounts and the arrears will be sanctioned and disbursed within a period of two months from the date of receipt of a copy of this Judgment. The writ petition is allowed. No costs. |
