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Kerala High Court · body

2014 DIGILAW 227 (KER)

A. K. Mohammed v. Assistant Educational Officer

2014-03-11

A.M.SHAFFIQUE

body2014
Judgment : 1. Petitioner challenges Exts.P1, P2, P4 and P9 to the extent it denied to the petitioner, the scale of pay of Head Master with effect from 21/06/2004. 2. The facts involved in the case would disclose that the petitioner joined as Lower Primary School Assistant in Mappila Lower Primary School, an aided school, on 21/06/1986. He continued in service till 09/06/1993. He got an appointment in a Government School through Kerala Public Service Commission and joined there on 10/06/1993. He relieved from the service of the said Government school on 12/01/1994 and joined back the parent school on 13/01/1994. According to the petitioner, he had not resigned from the parent school and he had only relieved on getting an appointment in the Government School and therefore there is no break in service. The petitioner was appointed as Head Master with effect from 01/05/1996. As he being the senior most in the school he was granted higher grade with effect from 21/06/1999 by the 1st respondent. He was granted the scale of Head Master with effect from 21/06/2004 on completion of 15 years of total service as contemplated under Rule 1 of Chapter XXVI of Kerala Educational Rules (for short `KER'). 3. An objection seems to have been raised indicating that the petitioner cannot be paid the scale of pay of Head Master with effect from 21/06/2004 since there is break service and the petitioner did not have continuous service. According to the objection, since the petitioner rejoined service on 13/01/1994, he did not have 15 years of continuous service. The petitioner submitted Ext.P3 explanation to the report of the Deputy Director of Education. The matter was taken up before the Director of Public Instructions and Ext.P4 is the decision by which his claim was negatived. Petitioner challenged the matter before the Government and the Government passed Ext.P9 confirming the decision taken in the matter. 4. Heard the learned counsel for the petitioner and the learned Government Pleader. 5. According to the petitioner, Rule 1 of Chapter XXVI covers the issue which reads as under: "(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. 5. According to the petitioner, Rule 1 of Chapter XXVI covers the issue which reads as under: "(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." 6. The Government in Ext.P9 relies upon Rule 37 of Chapter XIVA of KER in order to contend that seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in that unit. There is no dispute about the fact that the petitioner was the senior most and was appointed as Headmaster in the said school. But, as far as granting of the scale of pay of Headmaster is concerned, the length of service has to be computed on the basis of Rule 1 of Chapter XXVI, which, according to the Government has to be read along with Rule 37 of Chapter XIVA which reads as under: "37. (1) Seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in that unit provided he is duly qualified for the post. (2) In the case of teachers in the same grade in the same unit whose date of commencement of continuous service is the same, seniority shall be decided with reference to the date of first appointment. If the date of first appointment is also the same, seniority shall be decided with reference to age, the older being the senior." 7. Learned Government Pleader also supports Ext.P9 to indicate that both the provisions are to be read together in order to find out as to whether the petitioner was having a minimum of 15 years of continuous service as teacher. Learned Government Pleader also supports Ext.P9 to indicate that both the provisions are to be read together in order to find out as to whether the petitioner was having a minimum of 15 years of continuous service as teacher. In so far as the petitioner did not have continuous service in a particular school in which he is working as Headmaster, and as there was break in service for a period from 10/06/1993 to 12/01/1994, the petitioner is not entitled for the continuous 15 years of service. But, on a perusal of Rule (1) of Chapter XXVI of KER, it is clear that the Headmaster of an aided Lower Primary School shall be given the scale of pay applicable to the Headmaster of a Government School when he has put a minimum 15 years of continuous service as teacher in "schools recognised by the department". Grant of scale of pay of aided school Headmaster is dealt with in a separate chapter where the requirement is 15 years continuous service as teacher in "schools" recognised by the department. In so far as the petitioner is concerned, though he joined another school namely Government school by way of appointment through KPSC, he did not have any break in service as he joined on the next day of being relieved from one school to another school and similarly he relieved from the Government school and joined the parent school on the next day of relieving and it cannot be taken as he did not have the continuous service as teacher in the school recognised by the Department. Seniority is considered by Rule 37 of Chapter XIVA which may not be applicable as far as Chapter XXVI is concerned which is an independent provision which has to be read in the light of the said provision itself. 8. Once a person has been appointed as Headmaster which is approved by the department, then the only question for consideration for fixing the pay scale is concerned is to find out whether he is having 15 years of continuous service as "teacher" in "schools" recognised by the Department. 8. Once a person has been appointed as Headmaster which is approved by the department, then the only question for consideration for fixing the pay scale is concerned is to find out whether he is having 15 years of continuous service as "teacher" in "schools" recognised by the Department. In so far as there is no break in service, the petitioner had a continuous service in schools recognised by the Government and therefore, I am of the view that Ext.P9 is liable to be set aside and it has to be declared that the petitioner is entitled for the relief sought for. In the result, this writ petition is allowed. Ext.P9 is set aside and there will be a direction to the respondents to provide the petitioner the scale of pay of Headmaster with effect from 21/06/2004. This may be done within a period of three months from the date of receipt of a copy of this judgment.