GIRIJAKUMARI J. Vs. ASSISTANT EDUCATIONAL OFFICER

JUDGEMENT

(1.) The petitioner joined service in an aided school as Lower Primary School Assistant (LPSA) with effect from 1.6.1988. She was promoted as Headmistress on 1.6.1992. She was retired from service on 31.3.2019. She had filed W.P.(C) No.6970/2015 seeking grant of time bound higher grade in the post of Headmistress, taking note of her length of service. The writ petition was disposed of by Ext.P8 judgment directing the 1 st respondent to pass orders sanctioning higher grade to the petitioner, on completion of 10 years of service as Headmistress and the second higher grade on completion of 20 years of service as Headmistress, reckoning the date of appointment as Headmistress. Accordingly, the petitioner was granted the benefits and pay fixation was entered in her service book. However, when the pension proposal was sent up, it was held up on the contention that Government sanction was required and the pension proposal was returned. It is stated that Ext.P15 amendment was effected by Government Order dated 17.10.2018. However, Ext.P18 communication was issued by the Government on 19.12.2019 stating that in similar cases, where judgments had been obtained by incumbents and where the claims for higher grade had been finalised on the basis of the directions of the court, the same need not be reviewed. In cases, where the issue had not been settled alone, appeals were required to be filed.

(2.) The learned counsel for the petitioner would submit that the petitioner had been granted the benefits of Ext.P8 judgment and the fixation of pay had been effected and recorded in her service book. It was on the said basis that the petitioner's pension proposal had also been forwarded. It is, therefore, contended that the petitioner's case would come within the settled cases as referred to in Ext.P18 and that no review is contemplated. The learned counsel for the petitioner further contends that all the similarly situated teachers, who had been granted the benefit of higher grade on the basis of the Division Bench judgments and resultant directions issued by this Court, had been granted the pensionary benefits on the basis of such fixation of pay and pension and that the petitioner who had retired from service is also entitled to the very same benefit.

(3.) The learned Government Pleader would submit that the amendment effected to Rule 1 of Chapter XXVI of the KER is retrospective with effect from 8.9.1988 and that therefore the petitioner would not be entitled to the fixation of pay as has been granted to her on the basis of Ext.P8 judgment. It is further contended that the correctness of the judgment of the Division Bench in W.A. No.1577/2010 and connected cases has been doubted and the issue has been referred to be decided by a Full Bench by order of reference in W. A. No.2230/ 2019 dated 5.10.2020. I notice that in the mean while, the validity of the note inserted in Rule 1 of Chapter XXVI had been considered by a learned Single Judge in a decision reported in Vasanthakumari T. M. and another v. State of Kerala and others [2020 (4) KHC 731]. Relying on the judgment in W.A. No.1577/2010 and connected cases, the learned Single Judge held that the provisions of Rule 1 of Chapter XXVI of KER have no relevance for the grant of time bound higher grade and that the amendment, therefore, can have no application. The writ petition was, therefore, allowed. The learned Government Pleader would submit that the said judgment is also being subjected to an appeal. It is, therefore, contended that the issue of grant of time bound higher grade to head teachers in aided primary schools has not attained finality and as such, the relief sought for by the petitioner cannot be granted.