NALINAM Vs. STATE OF KERALA

JUDGEMENT

(1.) There are two petitioners in this original petition. Both of them are working at present as Lecturers in Private Colleges owned and managed by the Nair Service Society. The petitioners were originally appointed as Junior Lecturers on 12-10-1970. After having functioned as such for the rest of the academic year both the petitioners were relieved from service on 31 3-1971 on which date the Colleges concerned were closed for the summer recess. They were both subsequently reappointed as Junior Lecturers on 15-7-1971. Subsequently by orders dated 26-4-1972 the management promoted the petitioners as Lecturers with effect from 1-4-1972. The request of the management for grant of approval to the action taken by it for so promoting the petitioners was pending with the Kerala University for more than three years Ultimately by the orders evidenced by Exts P1 and P2 passed on 21-10-1975 and 24-9-1975 respectively the Vice Chancellor of the University granted approval to the promotion of the petitioners as Lecturers with effect from 1-4-1972 itself. He, however, superadded a condition in those orders that "the teacher will not be eligible for back arrears consequent on this promotion", the scheme for direct payment of the salaries of teachers of Private Colleges was brought into force on 1-9-1972 Even though the petitioners ware then actually working as Lecturers they were granted only the salaries applicable to the Junior Lecturer's, probably on account of the fact that the orders have not been passed by the University for promotion to the category of Lecturers. The petitioners thereupon made representations to the State Government but no orders are said to have been passed on those representations even till now.

(2.) On 4-8-1975 the Government acting on a representation made before it by the All Kerala Private College Teachers' Association passed the order Ext. P3 whereunder, amongst other things, concurrence was accorded by the Government to the Kerala and Calicut Universities to approve the promotions of 34 Junior Lecturers who had been promoted by the management of the N. S. S. Colleges to the category of Lecturers with effect from 1-4-1972 subject to the condition that no payment of back arrears will be allowed to such teachers. Subsequently on 4-9-1975 the Government issued further orders in the matter in modification of the terms of Ext. P3. Clause.2 contained in Ext. P4 reads:

(3.) On behalf of the 1st respondent State of Kerala the learned Government Pleader contended before us that the petitioners would be entitled to the benefit of Clause.2 of Ext. P4 only with effect from the dates on which they completed two years of continuous service in the category of Junior Lecturers and in view of the fact that there was a break in their service from 31-3-1971 till 15-7-1971 the petitioners can be deemed to have become entitled to automatic promotion to the grade of Lecturer only with effect from 15-7-1971. This contention advanced by the Government Pleader is not supported by the language used by Government in Clause.2 of Ext. P4. Going by the words used in Clause.2 the only condition for eligibility for the benefit of the said clause is that a Junior Lecturer should have put in two years of service There is no stipulation that such service should be continuous. So long as the service put in by the concerned Junior Lecturer was regular in character he is entitled to have the totality of the period of such service taken into account irrespective of any break therein since the adjective 'continuous' has not been used in Clause.2 to qualify the word 'service'. We have therefore no hesitation to reject this argument advanced by the Government Pleader. The stand taken in the counter affidavit is quite different from what is now contended by the Government Pleader. The defence put forward in the counter affidavit is that under the terms of Ext. P3 which alone has been referred to in the counter affidavit (totally ignoring the fact that those terms have been modified under Ext. P4) the petitioners would become eligible for the grant of salary in the grade of Lecturers only after they complete three years of service in the category of Junior Lecturers. It is unfortunate that greater care has not been taken by the Department in instructing counsel for the Government at the stage of preparation of the counter affidavit and the fact of passing the G.O. Ext. P4 had not been made known to the counsel who drafted the counter affidavit