A. Muhamed Mustaque, J.

1. The petitioner is working as UPSA in Aided Muslim Upper Primary School, Irimbiliyam, Malappuram District. The petitioner is working in the above post since 18.6.1990. Prior to this appointment, she had a broken period of service from 04.10.1989 to 27.3.1990 as UPSA at Aided Upper Primary School, Patterkulam. This broken period of service was reckoned initially for service weightage during fixation of pay as per 1997 Pay Revision Order. Later, the period of broken service was also taken into consideration in 2004 pay revision for computing service weightage and pay was fixed accordingly.

2. It appears that an order was passed by the Deputy Director of Education, Malappuram on account of the fact that the period of service of the petitioner from 4.10.1989 to 27.3.1990 is under another management. The matter through various proceedings got attention of the Government of Kerala and the Government of Kerala passed Ext.P5 order rejecting the revision sustaining the objection of the Deputy Director of Education. It is challenging Ext.P5 order passed by the Government, this writ petition is filed.

3. Heard the learned counsel for the petitioner and the learned Government Pleader.

4. The only objection in Ext.P5 is that the appointment of the petitioner in second management school is not as per Rule 10 or Rule 11 under Chapter XIV A of the Kerala Education Rules (hereinafter referred to as "KER"), which allows pay protection under Rule 13 of Chapter XIV A of the KER. It is because of change of management, her prior service is held not to be reckoned for the purpose of increment and other service weightage.

5. There is no dispute even in Ext.P5 that had the petitioner continued with the same management, she would have entitled for the service weightage. The question is whether the change of management would deprive the service weightage. The relevant provisions governing the matter is the Government Order dated 25.3.2006, which is extracted herein below:

"Service weightage

5(1) To the pay so fixed, one increment for each completed four years of service, subject to a maximum of 4 increments in revised scale will be added. (2) If the amount arrived at under rule 5(1) above is more than the maximum of the revised scale, the pay shall be fixed at the maximum of the revised scale and the difference shall be treated as personal pay. Such personal pay will not be absorbed in future increase in pay on account of earning of increments. This personal pay will count for all purposes, namely, subsequent fixation of pay, leave salary, drawal of allowances including Dearness Allowance and pension.

Note: Service for the purpose of this rule means service (where protection of pay is allowed) including broken periods of service qualifying for normal increments in the scales of pay. Service during the period of bar on increment without cumulative effect and dies-non period will also be reckoned. Time spent on leave that will not count for normal increment will not be reckoned. Prior service of Government employees in aided educational institutions (and vice versa) will also not be reckoned for determining the length of service."

6. As per Rule 61 of Chapter XIV A of the KER, all broken services can also be counted for increment if it is in that time scale. The relevant provision in Rule 61 of the KER, reads as follows:

"Increment: Subject to Rule (1A), the Educational Officer shall be competent to sanction the increments when they fall due to teachers (including Headmasters). The Headmaster will move the Educational Officer through the Manager for sanction of the increments as and when they fall due and the Manager shall forward the increment certificates within a month (with his remarks, if any on the conduct of the teacher).

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4. All duty in a post on a time scale whether continuous or interrupted, shall count for increments in that time scale."

7. Rule 61 of the KER read with the Govern