IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 19446 of 2005(M)
1. K.S.ABDUL RAHMAN,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED
... Respondent
2. THE ACCOUNTANT GENERAL (A & E)
3. THE DEPUTY DIRECTOR OF EDUCATION,
4. THE HEADMASTER,
For Petitioner :SRI.V.A.MUHAMMED
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :26/09/2007
O R D E R
S. SIRI JAGAN, J.
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W.P.(C)No.19446 OF 2005
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Dated this the 26th day of September, 2007
JUDGMENT
The petitioner was a High School Assistant at the time when
he filed this writ petition. Prior to his becoming a HSA, he had
primary service for the period from 4.2.1975 to 30.9.1976. He
was granted higher grade as High School Assistant taking into
account the primary service also and his pay was fixed
accordingly. Later on the respondents, took the stand that in
view of the Full Bench Division in Krishna Panicker Vs. State of
Kerala (1993(2) KLT 1058), the petitioner’s primary service
cannot be added to the High School service for the purpose of
higher grade, against which the petitioner approached this Court
and by Ext.P10 judgment, a learned Single Judge of this Court,
relying on the Division Bench judgment in W.A.No.24/04 held
that the petitioner is entitled to get his higher grade fixation
taking into account the primary service also. Both Ext.P10
judgment as well as the writ appeal judgment referred to therein
were taken in appeal to the Supreme Court and the appeals were
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dismissed. Consequently the petitioner has become entitled to
the original fixation of higher grade is the contention raised by
the petitioner. However, now by Ext.P13 order the same has
again been denied to him on a fresh ground that his personal
pay cannot be counted for the purpose of higher grade. The
petitioner’s contention is that since Ext.P10 judgment has
become final, the petitioner cannot be denied his original
fixation on a different ground which the respondents could
have and had not raised while passing Ext.P10 judgment.
2. The learned Government pleader on the basis of the
counter affidavit filed would submit that notwithstanding
Ext.P10, the respondents are entitled to re-fix his higher grade
in accordance with law. Going by the Government orders in
question, the petitioner is not entitled to fixation of higher
grade taking in to account his personal pay also is the
contention raised.
3. I have considered the rival contentions in detail.
Assuming that the contention of the learned Government
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pleader that the personal pay cannot be taken into account, is
correct, such a contention is not available to the respondents
after Ext.P10, since originally the petitioner was granted the
benefit without any reduction of the personal pay, which was
later cancelled and that cancellation was held to be bad by
Ext.P10 judgment which has become final. Therefore, if at all
the respondents could take a contention that special pay could
not have been included for the purpose of fixation that
contention ought to have been taken by them in the original
petition in which Ext.P10 judgment was passed. By virtue of
principles of res judicata the respondents cannot take such a
contention now. That being so, the impugned orders are liable
to be set aside. I do so. There would be a further direction to
give all the benefits due to the petitioner based on the original
fixation of pay in the higher grade which was the subject
matter of Ext.P10 judgment without taking into account
Ext.P13. It is now reported that the petitioner had
subsequently retired on 31.3.06 and he has been granted only
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the benefits minus the amounts directed to be recovered by
virtue of Ext.P13 order.
4. In the above circumstances, I direct the
respondents to re-compute the retirement benefits due to the
petitioner in accordance with the original fixation which was
upheld in Ext.P10 judgment and disburse the arrears due to
the petitioner. On the basis of the impugned orders any
benefits given have been recovered from the petitioner it shall
also be refunded to him. This shall be done within a period of
two months from the date of receipt of a copy of this
judgment.
The writ petition is disposed of as above.
S. SIRI JAGAN, JUDGE
Acd
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