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2003 DIGILAW 575 (KER)

Annet D Cunha v. State of Kerala

2003-09-02

J.B.KOSHY, K.THANKAPPAN

body2003
Judgment :- 1. Petitioners in these Original Petitions are working as Headmasters in various Lower Primary and Upper Primary Private Aided Schools. They challenge R.1, Chap.26 of the Kerala Education Rules (hereinafter referred to as'the Rules') as amended by S.R.O. No.1108/88, G.O. (P) No.136/88/G. Edn. dated 8th September 1988, introducing 15 years service as Teacher for being eligible to get the scale of pay of Headmasters. 2. Prior to the amendment, R.1 read as follows: "(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. Headmasters of Aided Lower Primary Schools shall be eligible for the scale of pay or the scales of pay plus supervision allowance, as may be, applicable to the Headmasters of Government Upper Primary Schools." 3. By the impugned amendment in 1988, the rule is as follows: "(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." The above rule is challenged under three heads: First contention is that once they were appointed as Headmasters after they became qualified to be appointed as Headmasters, job of the Headmasters are the same and there cannot be any discrimination between the Headmasters of Aided Schools and they are entitled to the salary of Headmasters. Second contention is that at the time they were appointed as teachers, there was no stipulation that 15 years service was required for getting the scale of pay of Headmasters. Second contention is that at the time they were appointed as teachers, there was no stipulation that 15 years service was required for getting the scale of pay of Headmasters. Thirdly, it was contended that a Full Bench of this Court has considered the matter and the observations of the Full Bench would show that in Indira v. State of Kerala (ILR 1998 (2) Kerala 771 (FB)) that discrimination of pay between Headmasters of Aided and Government Schools is unconstitutional. Therefore, contention of the petitioners is, in effect, that prescription of 15 years service for getting the scale of pay of Headmasters is unconstitutional and is liable to be struck down. 4. A learned Single Judge of this Court (Mr.M.R.Hariharan Nair, J.) in S.Ramachandran v. State of Kerala O.P. No. 27056 of 2001 considered the very same provision and held that R.1 of Chap.26 of K.E.R. in so far as it stipulates 15 years service for getting the scale of pay of Headmasters is illegal, unconstitutional and void. When these Original Petitions came up before another learned Single Judge, (Mr.M.Ramachandran, J.) expressing difference of opinion with the decision in Ramachandran's case (supra), referred the matter to a Division Bench. So, the correctness of the decision in O.P. No.27056 of 2001 also has to be considered by this Court. It is also submitted by the learned Government Pleader that a Review Petition has been filed against the judgment in O.P. No.27056 of 2001 and is pending. 5. While disposing of O.P. No.27056 of 2001, the learned judge was of the opinion that a Private High School Headmaster and Government High School Headmaster cannot be discriminated. The learned judge held as follows: ".... Hence, there cannot be any discrimination with regard to the grant of pay and other emoluments between the Headmasters and Government and Aided Schools. They do similar work and have the same qualification. Naturally, their pay should also be the same. Depriving Headmasters of Aided Schools of the benefit of the scale fixed for the purpose will certainly amount to arbitrary discrimination and a violation of Art.14 and 16 of the Constitution." The learned Government Pleader points out that the above observations are factually incorrect. By Government Order dated 8th September, 1988, Government prescribed 15 years service for getting the scale of pay of Headmasters in Government L.P. and U.P. Schools also. By Government Order dated 8th September, 1988, Government prescribed 15 years service for getting the scale of pay of Headmasters in Government L.P. and U.P. Schools also. It is further pointed out that the amendment did not make any change. Government sanctioned new scale of pay to Headmasters of U.P. and L.P. Schools with effect from 1st June, 1973 by G.O. dated 24th April, 1973. By Government Order dated 12th April, 1974, a minimum service of 15 years was prescribed for drawing the scale of pay of Headmasters of Aided Primary Schools. The above was not incorporated in the K.E.R. The Government Order dated 8th September, 1988 prescribes a minimum period of service of 15 years for drawing the scale of pay of Headmasters in Government Schools also. Concerned amendment was made in the K.E.R. by the impugned provision. In W.A. No.519 of 1988, Government Order dated 8th September, 1988 prescribing 15 years of service as a teacher for getting the scale of pay of Headmasters was considered in detail and the court held as follows: "A higher pay is granted only when the teacher completes 15 years of service. Thus, it becomes clear that lower emoluments are paid to a Headmaster who does not have 15 years of service as a teacher and that the Headmaster who has 15 years of service as a teacher is entitled to higher emoluments. Though the Headmaster with a lesser teaching experience and Headmaster with longer teaching experience discharge the same functions as Headmaster on his promotion to that cadre. There is difference in the quality of service between the two classes of Headmasters. The experience makes a person more efficient and competent. That is also a reason why higher emoluments are paid depending upon the number of years a person puts in a particular service. It cannot, therefore, be said that the length of service is not a relevant criteria in the matter of fixing different emoluments." There the learned judges found that the above provision is not discriminatory and violative of Arts.14 and 16 of the Constitution. It cannot, therefore, be said that the length of service is not a relevant criteria in the matter of fixing different emoluments." There the learned judges found that the above provision is not discriminatory and violative of Arts.14 and 16 of the Constitution. It is true that once a teacher is qualified under the rules for appointment as Headmaster on acquiring the requisite qualification and experience and also passing obligatory test prescribed for the Headmasters on their appointment, perform the same duties and discharge the same responsibilities irrespective of the number of years of service they have rendered as teachers. But, at the same time, a person who has put in longer number of years of continuous service will be qualified than one who has lesser number of years of service. Therefore, number of years of continuous service in a particular cadre or in the feeder category is taken into account in the matter of sanctioning a higher scale of pay. It cannot be stated that the State has taken an irrelevant factor for consideration for the purpose of fixation of appropriate scale of pay. We are of the opinion that the amendment made with effect from 15th September, 1988 in R.1 of Chap.26 of K.E.R. will not make any difference. Before the impugned amendment also Aided School Headmasters are entitled to get same salary of Headmasters of Government Schools. In Government Schools also for getting the scale of pay of Headmasters, 15 years service was made compulsory by the Government Order, dated, 8th September 1988. It is true that a Teacher in Government School can ordinarily become a Headmaster after getting more than 15 years service. But, in private schools where the number of teachers are less, there is a likelihood that a teacher may get promotion as Headmaster early before completing 15 years of service. But, the rule for getting the scale of pay of the Headmasters is the same in Government and Aided Schools. There is no discrimination between the Government School Headmaster and Private Aided L.P.S. or U.P.S. also before or after 8th September 1988. A teacher who is appointed as Headmaster after 8th September 1988 will get the scale of pay of Headmaster only after completion of 15 years of service. Before that, apart from the teachers salary, he is entitled to get a supervisory allowance. A teacher who is appointed as Headmaster after 8th September 1988 will get the scale of pay of Headmaster only after completion of 15 years of service. Before that, apart from the teachers salary, he is entitled to get a supervisory allowance. Here, in Aided Schools also, because of the provision they will get the scale of pay of Headmasters as soon as they complete 15 years of teaching experience. It is true that apart from teaching experience, Headmasters have to do administrative work also. That is why they are given a supervisory allowance. The Full Bench of this Court did not say that fixing of 15 years of service for getting the scale of pay of Headmasters is discriminatory or illegal. It was only held that Teachers/ Headmasters in the Aided schools are entitled to parity in the matter of salary, allowance etc. with their counterparts in the Government Schools. Only the retrospective operation of the Government Order, dated 8th September, 1988 and R.1 of Chap.26 fixing 15 years of service for getting the scale of pay of Headmaster alone was struck down by the Full Bench. The Full Bench held as follows: "As we have already said, it is not in dispute that the Government can enact a rule and give it retrospective effect, which is, however, subject to the limitation, that it shall not affect, or take away the accrued or vested rights, that could not be justified even on the plea of public interest as now advanced by the learned Government Pleader. The impugned amendment of the rule, by G.O. (P) No.136/88/G. Edn., dated 8th September, 1988 (Ext.P11 in O.P. No.301 of 1988) we declare is bad and unsustainable as against the petitioners and persons similarly placed inasmuch as it has sought to take away their vested right to the new scale of pay for Headmasters from the date of their respective appointment to the said post. We direct the respondents to pay and disburse the petitioners the salary and allowance due to them as Headmistresses, within two months from the date of receipt of a copy of the judgment." Therefore, only teachers who were already appointed as Headmasters on the date of the Government Order had got the benefit as per the decision of the Full Bench. Here also, the rule can act only prospective. Here also, the rule can act only prospective. Before the impugned amendment of the rules also, right of getting the scale of pay of Headmasters was on par with Government Schools. Retrospective operation of G.O. dated 8th September, 1988 as well as the impugned rule in this case was held to be bad and unconstitutional by the Full Bench and further held that Headmasters in Private Aided Schools who were appointed prior to 8th September, 1988 are not affected by the impugned amendment of R.1 of Chap.26. 6. With regard to the contention that at the time when they entered service as teachers, there was no such stipulation etc. are of no help to the petitioners. As held by the Supreme Court in State of J. and K. v. Shiv Ram Sharma (1999 (3) SCC 653) I.C.A.R. v. Sathis Kumar (1998 (4) SCC 219) and Chairman, Railway Board v. Rangadhamaiah (1997 (6) SCC 623 ) it is settled law that service conditions are liable to be altered and there is no vested right for any one to insist that the conditions on the date of entry into service should remain as such. But, those qualified teachers who were promoted as Headmasters before 15th September, 1988 had acquired a vested right to receive the salary and, as the Full Bench has held, the impugned amendment is not applicable to them. 7. In view of the above discussion, we hold that: (i) The provisions in R.1 of Chap.26 of K.E.R. as amended by G.O. (P) No.136/88/G. Edn. dated 8th September, 1988 is valid. It is not discriminatory or unconstitutional. (ii) The Judgment in O.P. No.27056 of 2001 is not correctly decided. (iii) R.1 of Chap.26 of K.E.R. is not applicable retrospectively and those Headmasters who were appointed prior to 18th September, 1988 are entitled/to the scale of pay of Headmasters even if they are not having 15 years service as held by the Full Bench in Indira's case (Supra). (iv) Headmasters in private Aided Schools and Government Schools are entitled to parity in pay and allowances as held by the Full Bench following the observations of the Apex Court in State of H.P. v. H.P. State Recognised and Aided Schools Managing Committees and others (1995 (4) SCC 507). (iv) Headmasters in private Aided Schools and Government Schools are entitled to parity in pay and allowances as held by the Full Bench following the observations of the Apex Court in State of H.P. v. H.P. State Recognised and Aided Schools Managing Committees and others (1995 (4) SCC 507). Government will be free to adjust the excess salary given on the basis of interim orders of this Court to the Headmasters who were promoted after 8th September, 1988 from their future salary in easy instalments. All the Original Petitions are dismissed with the above observations.