High Court Kerala High Court

K.S.Abdul Rahman vs The State Of Kerala on 26 September, 2007

Kerala High Court
K.S.Abdul Rahman vs The State Of Kerala on 26 September, 2007
       

  

  

 
 
  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.
                  ---------------------------------
                   W.P.(C)No.19446 OF 2005
                 -----------------------------------
             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

W.P.(c)no.19446/05 2

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

W.P.(c)no.19446/05 3

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

W.P.(c)no.19446/05 4

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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