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2019 DIGILAW 874 (KER)

State of Kerala, Rep. by Its Secretary, General Education Department v. M. J. Anandavally

2019-10-29

A.M.SHAFFIQUE, T.V.ANILKUMAR

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JUDGMENT : A.M. SHAFFIQUE, J. These appeals arise out of the judgment of the learned Single Judge in W.P.(C)No.23659 of 2012. The writ petition was filed by the appellant in W.A. No.1473 of 2019 and W.A. No.2151 of 2018 has been filed by the State and its respondents. 2. The short facts of the case would disclose that the writ petitioner was appointed by the Manager as Principal of a Higher Secondary School as per Ext.P1 order dated 08.07.2005. She attained the age of superannuation on 31.10.2005. She continued in service upto 31.03.2006. In the meantime, the Government issued G.O.(MS) No.11/2006/G.Edn. dated 06.01.2006, by which sanction has been given for appointing Principals in all Higher Secondary Schools with a scale of pay of Rs.7200-11,400 for Higher Secondary Schools in the district. In other words, the posts were created only as per the said order dated 06.01.2006. After retirement, the petitioner claimed that since she was appointed as Principal in terms of Ext.P1, she is entitled for fixation of scale of pay of the Principal in terms with the Government Order dated 06.01.2006 for the period from 12.07.2005 to 31.03.2006. It is also borne out from Ext.P2 dated 31.03.2006 that the Manager has appointed Smt.K.R. Jyothi as Principal of their school. 3. The above claim was objected to by the educational authorities inter alia contending that in so far as the petitioner was appointed as Principal by the Manager based on an earlier Government Order No.G.O.(MS) No.122/2002/G.Edn. dated 21.05.2002, whatever benefits were available as on the said date alone applies to the fact situation. After 31.10.2005 and even if there is any change in scale of pay, the petitioner cannot claim any benefit in terms of Rule 60(c) of KSR part-I. The learned Single Judge, however, observed that in so far as the post of Principal was in existence as on the date of appointment of the petitioner, she cannot be denied the benefits of fixation of scale of pay, which was made available as per Government order dated 06.01.2006 and directed that the petitioner should be provided with the enhanced scale of pay from 06.01.2006, and other consequential benefits. 4. The learned Government Pleader while impugning the aforesaid judgment placed his reliance on Government order No.122/2002/G.Edn. dated 21.05.2002, Government order No. G.O.(MS) No.11/2006/G.Edn. 4. The learned Government Pleader while impugning the aforesaid judgment placed his reliance on Government order No.122/2002/G.Edn. dated 21.05.2002, Government order No. G.O.(MS) No.11/2006/G.Edn. dated 06.01.2006 and Rule 60(c) of KSR Part-I in order to substantiate the contention that in so far the post of Principal having an enhanced scale of pay has been created only after 06.01.2006 and in the meanwhile, the petitioner has reached the age of superannuation, the benefit of enhanced scale of pay cannot be made applicable in terms of Rule 60(c) of KSR Part-I. 5. On the other hand, the learned counsel appearing for the petitioner submits that while supporting the judgment of the learned Single Judge and it is contended that in so far the petitioner was working as Principal upto 31.03.2006, the petitioner was entitled for all benefits that had arisen in terms of Government order dated 06.01.2006. In the appeal filed by the appellant, it was contended that the petitioner was entitled for the benefits of higher scale of pay from 12.07.2005 and not from 06.01.2006, as directed by the learned Single Judge. 6. The issue that has arisen for consideration is regarding the scale of pay that the petitioner was entitled as on the date of her retirement. There is no dispute about the actual date of superannuation. Rule 60(c) of KSR Part-I reads as under: “Rule 60(c) The teaching staff of all Educational Institutions (including Principals of Colleges) who complete the age of 56 years during the course of an academic year shall continue in service till the last of day of the month in which the academic year ends; but the extended period of service shall not be reckoned for any service benefits such as increment, higher grade, accrual of leave, promotion and pay revision effective from a date after the date of superannuation under sub-rule(a) of rule 60. The period shall not be counted as qualifying service for pension and the pay received during the period shall not be reckoned for computing average emoluments or pensionary benefits or commuted value of pension. If they are on leave on the day they attain the age of 56 years and fails to rejoin duty on the first working day immediately after the date of superannuation, they shall be retired with effect from the date of superannuation under sub-rule(a) of rule 60. If they are on leave on the day they attain the age of 56 years and fails to rejoin duty on the first working day immediately after the date of superannuation, they shall be retired with effect from the date of superannuation under sub-rule(a) of rule 60. But, in cases where officers coming under this rule are under suspension on the date of superannuation or thereafter, but before the closing day of the academic year, they shall be retired from service on the date of superannuation or on the date of suspension, whichever is later. xxx xxx xxx 7. It is clear from the aforesaid Rule that a person who completes the age of superannuation during the course of an academic year, has to continue in service till the last day of the month in which the academic year ends and the extended period of service shall not be reckoned for any service benefits, including pay revision effective after the date of superannuation. It is apparent from the materials placed on record, that the scale of pay of the Principal had been fixed only from 01.06.2006. Going by Rule 60(c) of KSR Part-I, the petitioner who had already attained the age of superannuation on 31.10.2005, cannot aspire for any fixation of scale of pay after the date of superannuation. The fact that she had continued upto 31.03.2006 is not a reason to grant any enhanced scale of pay, as she had already reached her age of superannuation on 31.10.2005. 8. The learned Single Judge proceeded on a different basis. It is true that creation of post of Principals was a mandatory requirement while the Higher Secondary was linked to the schools. But, it took some time for the Government to issue orders regarding the appointment of Principal in the usual cadre. No posts were created, whereas the Government by G.O.No.122/2002/G.Edn. Dated 21.05.2002 had directed that the senior most among the HSST has to act as Principal and certain benefits had been given to the said posts. It is also mentioned that the Principal has to do the teaching work as well. Only after the judgment of the Full Bench in Aided Higher Secondary School Teachers Association v. State of Kerala [ 2005(1) KLT 94 ] that the Government had issued the order dated 06.01.2006. It is also mentioned that the Principal has to do the teaching work as well. Only after the judgment of the Full Bench in Aided Higher Secondary School Teachers Association v. State of Kerala [ 2005(1) KLT 94 ] that the Government had issued the order dated 06.01.2006. But it is a fact that until 06.01.2006, the scale of pay had not been enhanced and the said scale of pay applies only prospectively, it cannot be given any retrospective operation. In the case of the petitioner, since she had already reached the age of superannuation on 31.10.2005, in the light of the provisions under Rule 60(c) of KSR Part-I, the petitioner cannot aspire for any pay fixation based on Government order dated 06.01.2006. 9. The learned Government Pleader has relied on judgment in State of Kerala v. Alphonsa Engratida in W.A.No.950 of 2010, wherein almost a similar issue was considered by a Division Bench and it was held that the benefit arising from the Government order dated 06.01.2006 will apply only prospectively. In the result, W.A. No.1473 of 2019 is dismissed. W.A. No.2151 of 2018 is allowed, we set aside the judgment of the learned Single Judge and the writ petition stands dismissed.