State of Kerala vs Radhamony Amma and Another

Paripoornan, J.—Respondents 1 to 3 in O.P.No. 9495 of 1934 are the Appellants in this writ appeal. The sole Petitioner in the O.P. is the first Respondent in this Writ appeal. The 4th Respondent in the O.P.-the school Manager-is the second Respondent herein. The Original Petition was filed to quash Exts. P-2, P-3, P-4 and P-6 and also to declare that the training period of the Petitioner should be treated as qualified service for granting all service benefits. The Petitioner has also prayed that she is entitled for salary in the scale of High School Assistant during the period from 24th July 1978 to 1st October 1982, the period during which she performed her duties as High School Assistant.

The learned Single Judge, by judgment dated 21st August 1989, allowed the Original Petition. The State has come up in writ appeal.

We heard the Senior Government Pleader Mr. Janardhanan, counsel for the Appellants. The teacher (1st Respondent herein-Petitioner in the O.P.) joined as a lower grade Hindi Teacher in the school on 23rd July 1973. She was relieved from the school on 3rd July 1977 for training during the year 1977-78. She rejoined duty on 23rd May 1978. She passed the training examination. She was promoted as High School Assistant (Hindi) on 24th July 1978. This was approved by the District Educational Officer. But", the Deputy Director of Education held that the promotion was illegal. The order of the Deputy Director of Education was upheld in revision by the Government. The Government passed the order on 16th August 1982. Thereafter, the Petitioner was reverted by the 4th Respondent-Manager on 1st October 1982. So, on facts, it is clear that the Petitioner worked as a High School Assistant from 24th July 1978 to 1st October 1982. The Deputy Director had granted increments to the Petitioner with effect from 1st July 1978 treating the training period as on duty. The learned Single Judge, adverting to the above facts, held that the teacher having worked in a higher grade, she is entitled to the salary due for that grade for that period. The teacher did not intend to perform the duties of an H.S.A. gratuitously. The manager of the school received the benefit of the Petitioner''s service and so the teacher (Petitioner in the O.P.) is liable to be compensated for the same with the scale of pay due to an H.S.A. The learned Single Judge relied on the earlier Bench decision of this Court in O.P. No. 2272 of 1977 and the judgment of another learned Judge in O.P. No. 4607 of 1982 to hold that when a teacher has worked in a higher grade she is entitled to be paid the salary due for that grade. On these premises, it was held that the Petitioner in the O. P. is entitled to be paid the salary due for an H.S.A. for the period from 24th July 1978 to 1st October 1982. We see no error in the said reasoning and conclusion of the learned Single Judge.

The only other question, that arose for consideration, was whether the Petitioner in the O.P. (teacher) should be given the benefit of training. It is common ground that when the Petitioner was deputed for training the period of absence was treated as on duty. The authorities have also granted an increment taking into account the period of training. After noticing the above features, the learned Single Judge held that the revocation of the grant of increment to the Petitioner from 1st July 1978 and the direction to refund the excess amount drawn are both illegal. We are of the view that the said finding is in accord with Rule 12(7) of Part I of the Kerala Service Rules and Note 5 thereof. The finding and conclusion in that regard are unassailable.

The direction to refund the excess amount drawn is totally vitiated since the order in that regard can be made only by the Government or the Director of Public Instruction or the Deputy Director (Education), in view of Rule 1A of Chapter XXVI of the Kerala Education Rules. In this case, a perusal of Exts. P-2 and P-3 will show that the order was passed by the District Educational Officer. It is totally unauthorised. On this fundamental ground, the direction to refund the excess amount drawn, is unsustainable.

We are of the view that the learned Single Judge was justified in holding that the Petitioner is entitled to get the increment from 1st July 1978 and that she was entitled to be paid the salary due for a High School Assistant (Hindi) for the period from 24th July 1978 to 1st October 1982. Exts. P-2, P-3, P-4 and P-6 were rightly quashed by the learned Single Judge.

We see no merit in this writ appeal. It is dismissed.