IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25435 of 2008(C)
1. K.P.ABDUSSAMAD, AGED 50 YEARS,
... Petitioner
2. P.SOBHANA, AGED 52 YEARS,
Vs
1. THE STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE ACCOUNTANT GENERAL (A &E) KERALA
3. THE ASSISTANT EDUCATIONAL OFFICER
4. THE HEADMASTER
5. THE HEADMASTER
For Petitioner :SRI.V.A.MUHAMMED
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.T.SANKARAN
Dated :20/10/2010
O R D E R
K.T.SANKARAN, J.
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W.P.(C).No.25435 OF 2008
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Dated this the 20th day of October, 2010
JUDGMENT
The petitioners, who are working as Full-time
Arabic Teacher and Sanskrit Teacher respectively in
two different schools challenge Exts.P3, P3(a) and
P3(b) audit objection. The audit objection was
issued based on Ext.P7 Circular dated 17.5.2002
issued by the General Education Department. In
Ext.P12 judgment dated 7th August, 2008 in WP(C)
No.20914 of 2003, this court held that Ext.P7
Circular cannot have the effect of amending a
notification and that too with retrospective
effect. The decision in OP No.23261 of 1998 was
also relied on in Ext.P12 judgment. It was held
that the pay fixed before Ext.P7 Circular issued in
2002 could not be revised based on the Circular
issued later in point of time. The audit objection
was held to be unfounded. It is submitted that
Ext.P12 judgment squarely applies to the facts in
W.P.(C).No.25435 OF 2008 2
the present case and therefore, the audit objection
impugned in this Writ Petition is unsustainable.
The learned counsel for the petitioners also
pointed out that after Ext.P12 judgment was passed,
Ext.P18 Circular No.26790/J2/07/G.Edn. dated 23rd
June, 2009 was issued. For the sake of
convenience, the Circular is extracted below:
” CIRCULAR
Sub:- General Education – Teaching Staff – Junior
Senior Anomaly in Pay Fixation-Modified
instruction- Issued
Ref:- Circular No. 59151/ J2/ 2000/ G.Edn. Dated
17.5.2002
As per the reference cited Government
have clarified that integrated/combined
seniority list of teachers maintained for
promotion to the post of Head Master/Head
Mistress cannot be a parameter for the
purpose of fixation of pay and pay of a
senior belonging to any of the category
cannot be stepped up to the level of pay of
the junior in another category since Junior
Language Teacher, Primary Department
Teacher, High School Assistant (Language)
and High School Assistant(core subjects)
belong to four different categories.
Now it has come to the notice of
Government that the Hon’ble High Court in
many judgments (eg. judgments in WP(C)
Nos.20914/03, 10482/04, 35325/05 & 21604/06)
observed that the directions contained in
the Circular read above is contrary to the
Pay Revision Order 1998 and the Hon’ble High
Court quashed Para 2 of the Circular. Also
W.P.(C).No.25435 OF 2008 3
as per Rule 34 of Chapter XIV A KER, every
management shall prepare and maintain a
staff list otherwise called the seniority
list of teachers specified thereunder for
promotion to the post Head Master/Head
Mistress.
In the circumstances, it is clarified
that the above seniority list will be the
criteria for rectifying junior senior
anomaly in pay fixation, with effect from
the Pay Revision Order 1998.
The Circular read above stands modified
to this extent.”
2. It is submitted by the learned counsel for
the petitioners that in the light of Ext.P12
judgment and Ext.P18 Circular, the audit objection
is liable to be quashed. The contention of the
petitioners is well founded. Accordingly, the Writ
Petition is allowed and Exts.P3, P3(a) and P3(b)
are quashed. The Assistant Educational Officer
shall pass consequential orders granting the
benefit to the petitioners at the earliest and at
any rate within a period of three months from the
date of receipt of a copy of the judgment.
K.T.SANKARAN,
JUDGE.
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