(2014) 362 KLW 668
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
MONDAY, THE 30TH DAY OF JUNE 2014/9TH ASHADHA, 1936
WP(C).No. 15906 of 2013 (K)
PETITIONER
A.KADEEJA
BY ADV. DR.GEORGE ABRAHAM
RESPONDENTS
1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM - 676 505.
3. THE ASSISTANT EDUCATIONAL OFFICER, KUTTIPURAM - 676 121.
R1 TO R3 BY GOVERNMENT PLEADER SMT. M.J.RAJASREE
JUDGMENT
The petitioner is working as UPSA in Aided Muslim Upper Primary School, Irimbiliyam, Malappuram District. The petitioner is working in the above post since 18.6.1990. Prior to this appointment, she had a broken period of service from 04.10.1989 to 27.3.1990 as UPSA at Aided Upper Primary School, Patterkulam. This broken period of service was reckoned initially for service weightage during fixation of pay as per 1997 Pay Revision Order. Later, the period of broken service was also taken into consideration in 2004 pay revision for computing service weightage and pay was fixed accordingly.
2. It appears that an order was passed by the Deputy Director of Education, Malappuram on account of the fact that the period of service of the petitioner from 4.10.1989 to 27.3.1990 is under another management. The matter through various proceedings got attention of the Government of Kerala and the Government of Kerala passed Ext.P5 order rejecting the revision sustaining the objection of the Deputy Director of Education. It is challenging Ext.P5 order passed by the Government, this writ petition is filed.
3. Heard the learned counsel for the petitioner and the learned Government Pleader.
4. The only objection in Ext.P5 is that the appointment of the petitioner in second management school is not as per
Rule 10 or Rule 11 under Chapter XIV A of the Kerala Education Rules
(hereinafter referred to as "KER"), which allows pay protection under Rule 13 of Chapter XIV A of the KER. It is because of change of management, her prior service is held not to be reckoned for the purpose of increment and other service weightage.
5. There is no dispute even in Ext.P5 that had the petitioner continued with the same management, she would have entitled for the service weightage. The question is whether the change of management would deprive the service weightage. The relevant provisions governing the matter is the Government Order dated 25.3.2006, which is extracted herein below:
5(1) To the pay so fixed, one increment for each completed four years of service, subject to a maximum of 4 increments in revised scale will be added. (2) If the amount arrived at under rule 5(1) above is more than the maximum of the revised scale, the pay shall be fixed at the maximum of the revised scale and the difference shall be treated as personal pay. Such personal pay will not be absorbed in future increase in pay on account of earning of increments. This personal pay will count for all purposes, namely, subsequent fixation of pay, leave salary, drawal of allowances including Dearness Allowance and pension. Note: 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."
"Increment: Subject to Rule (1A), the Educational Officer shall be competent to sanction the increments when they fall due to teachers (including Headmasters). The Headmaster will move the Educational Officer through the Manager for sanction of the increments as and when they fall due and the Manager shall forward the increment certificates within a month (with his remarks, if any on the conduct of the teacher).
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7. Rule 61 of the KER read with the Government Order as above, would clearly indicate that the right of the petitioner is not referable to Rule 10 or Rule 11 read with Rule 13 A of Chapter XIVA of the KER. There is nothing in the Government Order to the effect that change of management would deprive from claiming service weightage. Therefore, mere change of management will not deprive the petitioner's claim of the service weightage. Therefore, I am of the view, Ext.P5 is liable to be set aside.
Accordingly, Ext.P5 is set aside. There shall be a direction to the second respondent to pass appropriate orders in the light of discussions as above granting service weightage to the petitioner by reckoning broken period of service. This shall be done within six weeks from the date of receipt of a copy of this judgment.