IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 15539 of 2002(Y)
1. M.P.KHASKARAN, HEADMASTER,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.KALEESWARAM RAJ
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :27/02/2009
O R D E R
S. Siri Jagan, J.
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O.P. No. 15539 of 2002
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Dated this, the 27th February, 2009.
J U D G M E N T
The petitioner retired as Headmaster of a Government School
on 31-5-2002. He started service as a P.D teacher since 18-11-1969.
He was promoted as Headmaster on 16-9-1990. He was granted
selection grade in the cadre of P.D. Teacher on 1-3-1992. Pursuant to
1992 revision of pay, the petitioner submitted option and pay was
fixed. Noting that there was some mistake in the fixation of pay, the
same was later revised in accordance with Ext. P4 Government
Order. Alleging that on account of such revision of fixation of pay, the
petitioner stood to lose money, he filed Ext. P1 representation before
the Government. This Court, by Ext. P2 judgment, directed the
Government to consider his representation . That resulted in Ext. P3
order of the Government, whereby the petitioner’s claim was rejected.
The petitioner now does not dispute the fact that the re-fixation of pay
of the petitioner is in accordance with Ext. P4 Government Order.
His grievance now is that he was promoted with effect from 16-9-
1990, whereas three teachers, namely, V. Kunhiraman, P.V.
Narayanan and Smt. K.C. Thamkam who became
Headmasters/Headmistres only on 4-6-1998, 10-6-1998 and 4-6-1998
respectively, were drawing more pay than the petitioner, which is a
clear anomaly, which requires to be remedied. According to the
petitioner, when he got promotion as Headmaster eight years earlier
to those teachers, whatever be the fixation of pay whether correct or
not, that should not result in the petitioner drawing less pay than
those teachers who got promotion far later than the petitioner. The
petitioner submits that such a principle has been accepted by the
Supreme Court, which has been followed by this Court in Kamala
Devi v. Kerala State Financial Enterprises Ltd., [2002 (1) KLT
157]. The petitioner would further submit that the principle has been
O.P. No. 15539/2002 -: 2 :-
incorporated in Ruling 1 to Rule 28A of Part I of Kerala Service Rules.
2. The learned Government Pleader would dispute the
contention of the petitioner. According to the learned Government
Pleader, the question of stepping up of the petitioner’s pay in tune
with the pay of his juniors was never a question raised by the
petitioner, particularly in Ext. P1 representation and as such
Government never had any occasion to consider that question. Ext.
P3 was only in respect of the correctness of the re-fixation made in
accordance with Ext. P4. In so far as it is not now disputed that the
petitioner’s fixation of pay has been strictly in accordance with Ext.
P4, the petitioner cannot now raise a different claim, is the contention
raised by the learned Government Pleader.
3. I have considered the rival contentions in detail.
4. The petitioner now does not dispute the fact that going by
Ext. P4 Government Order, the petitioner’s pay has been correctly
fixed in the cadre of Selection Grade P.D. Teacher and Headmaster.
As per Ext. P4, in cases where P.D. Teachers were promoted as
Headmaster prior to 1-3-1992 who would have been eligible for
Selection Grade of P.D. Teachers but for their promotion as
Headmasters would be permitted to have their pay fixed notionally
in the Selection Grade first on 1-3-1992 or on the date on which they
became eligible for the Selection Grade after 1-3-1992 on the basis of
the pay in the revised scale which they would have drawn had they
continued as Senior Grade P.D. Teachers and, then, based on the pay
so fixed in the Selection Grade, their pay in the revised scale of pay of
Headmaster will be fixed under Rule 28A Part I K.S.R. The petitioner
also does not dispute the fact that the pay of his juniors mentioned
above has been correctly fixed. But, if, in fact, such fixation has
resulted in his juniors drawing more pay than the petitioner, then
O.P. No. 15539/2002 -: 3 :-
certainly that would be an anomaly.
5. In the judgment in Kamala Devi’s case, this Court held
thus in paragraph 8:
“8. Even without going into the nuances of law relating to
classification, it is apparent that the present case is a clear case of
plain discrimination in as much as the appellant’s junior is drawing
higher salary than her without any reasonable reason whatsoever.
So, the appellant is entitled to have her salary stepped up with
effect from the date her junior started to draw higher pay than her.
This view taken by us finds support from two decisions of the
Supreme Court in Union of India & Ors. v. P. Jagdish & Ors.
((1997) 3 SCC 176) and in Calcutta Municipal Corn. & Anr. v. Sujit
Baran Mukherjee & Ors. ((1997) 11 SCC 463). In the first
decision, the Supreme Court has held as follows:
“This principle becomes applicable when the junior officer
belong to the same category and the post from which they have been
promoted and in the promoted cadre the junior officer on being
promoted later than the senior officer gets a higher pay. This is being
the principle of stepping up contained in the Fundamental Rules and
admittedly the respondents being senior to several other Senior Clerks
and the respondents having been promoted earlier than many of their
juniors who have promoted later to the post of Head Clerks, the
principle of stepping up should be made applicable to the respondents
with effect from the date of their juniors in the erstwhile cadre of
Senior Clerks get promoted to the cadre of Head Clerks and their pay
was fixed at a higher slab than that of the respondents. The stepping
up should be done in such a way that the anomaly of juniors getting
higher salary than the seniors in the promoted category of head Clerk
would be removed and the pay of the seniors like the respondents
would be stepped up to a figure equal to the pay as fixed for their
junior officer in the higher post of Head Clerk. In fact the Tribunal by
the impugned order has directed to apply the principle of stepping up
and we see no infirmity with the same direction subject to the aforesaid
clarifications . . . . .”.”
In fact, this principle has been adopted in the K.S.R itself by Ruling
No. 1 under Rule 28A, which reads as follows:
“In cases where the application of the rule would give rise to
anomalies in as much as an officer officiating in a higher post could
get his pay refixed at a stage higher than the pay drawn by another
who stands confirmed in the higher post on the same scale of pay,
the anomaly will be removed by refixing the pay of the seniorO.P. No. 15539/2002 -: 4 :-
officer at the stage equal to that fixed for the junior officer in the
higher post, the orders of refixation being issued by the competent
authority under Rule 34, Part I, Kerala Service Rules. The re-
fixation of pay in such cases will be made subject to the following
conditions.
(a) Both the junior and senior officers should belong to the
same cadre and the posts in which they have been promoted or
confirmed, as the case may be, should be identical and in the same
cadre.
(b) The scale of pay of the lower post in which they would
have drawn their pay but for their promotion or confirmation
should be identical.
(c) The anomaly should be directly as a result of the
application of Rule 28-A. For example, if the junior officer draws
from time to time a higher rate of pay than the senior by virtue of
fixation of pay under the normal rules or any advance increment
granted to him, the provision contained in this ruling should not be
invoked to step up the pay of the senior officer.
(d) The re-fixation of pay of the senior officer should be
done with effect from the date of re-fixation of pay of the junior
officer. The next increment of the senior officer will however be
drawn on the date on which it would have fallen due but for this re-
fixation of pay.”
Since, as per Ext. P4, the petitioner’s pay in the cadre of Headmaster
has been fixed under Rule 28A, Part I of K.S.R, Ruling 1 gets directly
attracted. In the above circumstances, I am of opinion that the
petitioner’s case has to be examined in accordance with the
abovesaid Division Bench decision as also Ruling 1 under Rule 28A of
Part I of K.S.R. Therefore, the original petition is disposed of as
follows:
Ext. P3 order, to the extent the petitioner’s claim for stepping
up of his pay on par with that of is juniors has not been considered, is
hereby set aside. Government is directed to re-consider the matter in
accordance with the above findings and on the basis of the Division
Bench decision as well as Ruling 1 of Rule 28A of Part I of K.S.R.
O.P. No. 15539/2002 -: 5 :-
Orders in this regard shall be passed and arrears of pay and
retirement benefits disbursed to the petitioner as expeditiously as
possible, at any rate, within three months from the date of receipt of a
copy of this judgment.
Sd/- S. Siri Jagan, Judge.
Tds/