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Kerala High Court
Sukumaran E.V. vs District Educational Officer on 2 July, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 2893 of 2009()


1. SUKUMARAN E.V., RETIRED PRINCIPAL,
                      ...  Petitioner

                        Vs



1. DISTRICT EDUCATIONAL OFFICER,
                       ...       Respondent

2. DEPUTY DIRECTOR OF EDUCATION, THRISSUR.

3. PRINCIPAL SECRETARY TO GOVT. OF KERALA,

4. ACCOUNTANT GENERAL, KERALA,

5. STATE OF KERALA, REPRESENTED BY THE

                For Petitioner  :SRI.N.N.SUGUNAPALAN (SR.)

                For Respondent  : No Appearance

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice P.S.GOPINATHAN

 Dated :02/07/2010

 O R D E R

C.N.Ramachandran Nair & P.S.Gopinathan, JJ.
============================================
W.A.Nos.2893/09 & 704/10
============================================
Dated this the 2nd day of July, 2010.

COMMON JUDGMENT

Gopinathan, J.

1.Assailing the judgment of the learned single

Judge in W.P.(C).915 of 2007 dated 24.6.2009,

these appeals were filed by both parties.

W.A.No.2893 of 2009 was filed by the writ

petitioner. The other appeal was preferred by

the respondents. Hereinafter the parties are

referred as they are arrayed in the writ

petition. The writ petitioner died pending the

appeals. His legal heirs were impleaded as per

the order in I.A.No.53 of 2010 in W.A.No.2893 of

2009. The writ petitioner was a High School

Teacher in S.N.Vilasam High School, Aloor. While

so, on 2.5.1996 he was promoted as Headmaster.

He would complete 20 years of service on

31.5.1996 and would have been entitled to a

higher grade had he not been promoted as

W.A.Nos.2893/09 & 704/10.

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Headmaster. His regular increment, but for

promotion, would have fallen due on 1.7.1996.

Hoping for consequential benefit, he preferred an

option for fixation of his pay in the cadre of

Headmaster with effect from 1.7.1996. If it is

allowable, he would be entitled to a grade on

1.6.1996 with fixation and then a re-fixation in

pursuance of the regular increment due on

1.7.1996. If fixation in the post of Headmaster

is done thereafter, he would get another jumping

of the salary. It is with this in mind he

preferred to opt for Headmaster’s salary after

1.7.1996. Without considering the legality of

the option, his pay was fixed by the authorities

as opted by him. Audit party objected the same.

Though he did not get a copy of the audit

objection, against oral information, he preferred

Exts.P1 and P2 objections assailing the audit

objection. In the eve of retirement, according

to the petitioner, without considering the

W.A.Nos.2893/09 & 704/10.

-: 3 :-

objection filed, steps were ahead to sustain the

audit objection. The District Educational

Officer communicated audit objection to the writ

petitioner through Ext.P3. Writ petitioner filed

Ext.P4 objection stating that he is entitled to a

re-option as per G.O.(P)No.615/(138)/97/Fin.

dated 28.6.1997, copy of which was produced as

Ext.P6. While so, the petitioner retired from

service on 31.3.2002. Rejecting the objection

raised by the petitioner, his salary was reduced

to Rs.7,950/- from Rs.8,550/-. Consequent

reductions were made in the pension as well as in

the D.C.R.G. Writ petitioner moved this Court

with W.P.(C)No.35556 of 2005. This Court

directed the respondents to consider the

objection filed by the petitioner. The D.E.O.,

in the light of the direction given by this

Court, examined the matter and by Ext.P8 order

dated 21.4.2006 found that earlier the salary of

the petitioner was correctly fixed in accordance

W.A.Nos.2893/09 & 704/10.

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with the re-option exercised by him as per G.O.

(P)No.615/(138)/97/Fin. Dated 28.6.1997.

However, the D.E.O. forwarded Ext.P8 order to the

Government for approval. The Government, by

Ext.P10 dated 31.8.2006, rejected the objection

raised by the petitioner. Following Ext.P10, the

Deputy Director, by Ext.P9 dated 21.9.2006,

issued an order rejecting the objection raised by

the petitioner. Assailing Exts.P3, P9 and P10

this writ petition was moved. By an interim

order, again this Court issued a direction to re-

consider the objection raised by the petitioner.

In pursuance of that direction, the Government

again considered the matter and issued Exts.P11

and P12 orders again rejecting the objection

raised by the writ petitioner. Thereafter, writ

petition was amended to assail Exts.P11 and P12

also.

2.The learned single Judge by the impugned judgment

W.A.Nos.2893/09 & 704/10.

-: 5 :-

arrived at a finding that the claim made by the

writ petitioner as well as the objection raised

by the respondents are not sustainable. It was

further found that the writ petitioner, who was a

P.D. Teacher, is entitled to a higher grade on

completion of 20 years of service by 31.5.1996

and he is entitled to a re-option with effect

from 1.6.1996. The request to opt to

Headmaster’s pay with effect from 1.7.1996 was

turned down and the writ petition was disposed of

directing the writ petitioner to file a formal

option for the purpose of clause (c) of sub-

clause (ii) of Ext.P14 order with date of option

as 1.6.1996 and further ordered that the

petitioner’s pay should be fixed within two

months in accordance with that option. Now these

appeals.

3.We heard Government Pleader as well as counsel

for the writ petitioner. The fact that the writ

W.A.Nos.2893/09 & 704/10.

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petitioner was a graduate teacher is not

disputed. However, it was mistakenly mentioned

in the impugned judgment that he was a P.D.

Teacher. Hence we record that the petitioner is

a graduate teacher. Going by Exts.P13 and P14

Government Orders, we find that whether the

petitioner is a graduate teacher or a P.D.Teacher

makes no difference as regards the claim advanced

by the writ petitioner. On his promotion as

Headmaster on 2.5.1996, he is entitled to get his

salary fixed in the scale applicable to

Headmasters. Exts.P13 and P14 Government Orders

entitle a graduate teacher to get a higher grade

on completion of 20 years of service,

irrespective of promotion as Headmaster on

2.5.1996. Therefore, in the light of Exts.P13

and P14 Government Orders, without an option, the

writ petitioner is entitled to a re-fixation on

1.6.1996 when he completed 20 years service as a

graduate teacher. That position is not at all

W.A.Nos.2893/09 & 704/10.

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disputed by the respondents. The learned counsel

for the writ petitioner submitted that the

petitioner would be satisfied by that

declaration.

4.Though the writ petitioner has got a contention

that he is entitled to file an option in the

light of Ext.P5 order to switch over to the scale

of Headmasters at a later stage, we fail to find

that there is any such right of option. The writ

petitioner, having been promoted on 2.5.1996, is

bound to get his salary as Headmaster fixed from

that date onwards. The right of option to change

over to the scale of pay arises only in respect

of the existing scale of pay in the existing

cadre as on the date of the pay revision order.

Once pay revision implementing orders are issued,

the subsequent promotees and appointees are bound

by the scale of pay fixed for the post concerned.

That being so, we find that the permission

W.A.Nos.2893/09 & 704/10.

-: 8 :-

granted to the writ petitioner to file a re-

option to switch over to the Headmaster’s salary

with effect from 1.6.1996 is not sustainable.

Whereas, as mentioned earlier, the writ

petitioner is entitled to higher grade on

completion of 20 years service as graduate

teacher and for re-fixation of his pay in the

light of Exts.P13 and P14 Government Orders. But

for Exts.P13 and P14, the writ petitioner is not

entitled to a re-fixation on 1.6.1996 because

grade is usually sanctioned in lieu of promotion

and the petitioner, having obtained promotion

before he being entitled to get a higher grade.

If the petitioner was not promoted on 2.5.1996,

he would have got his grade on 1.6.1996 and the

salary fixed in the higher grade and then he

would have been entitled to a re-fixation on

1.7.1996, on which day he is entitled to a

regular increment. Here, in this case, since the

writ petitioner was promoted on 2.5.1996, he is

W.A.Nos.2893/09 & 704/10.

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entitled to have fixed his salary as Headmaster

on the existing scale as on the date of

promotion. On 1.6.1996, he is entitled to a

higher grade in the light of Exts.P13 and P14 and

consequently he is entitled to have a fixation on

that date and his salary as Headmaster would be

re-fixed accordingly. His next increment would

fall due only on 1.6.1997. He is not entitled to

opt the commencement of salary as Headmaster

either on 1.6.1996 or on 1.7.1996. The impugned

judgment requires such interference.

5.We notice that, in State service, every incumbent

is given his or her basic pay fixed with

reference to the date of his entry in service or

promotion. Consequently, the annual increment,

grade, re-fixation of salary pursuant to pay

revision had to commence individually resulting

administrative workload in every office as well

as dispute thereon regarding the fixation of pay.

W.A.Nos.2893/09 & 704/10.

-: 10 :-

Recently, the Government has unified the date of

retirement. In the event, commencement of

service and promotion is unified to a particular

date in an year, irrespective of entry to service

or promotion, rather than giving individual

dates, we find that much dispute and consequent

litigation regarding pay fixation could be

avoided. However, it is for the State to decide

and we direct the Government to consider the

proposal. A copy of this judgment shall be

forwarded to the Secretary, Finance as well as

Secretary to the Pay Revision Commission for

considering the above proposal.

In the result, WA.No.704/2010 is allowed. The

impugned judgment permitting the petitioner to

opt to the salary of the Headmaster with effect

from 1.6.1996 is set aside. It is further

declared that the salary of the petitioner as

Headmaster would be fixed as on 2.5.1996, the

W.A.Nos.2893/09 & 704/10.

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date when he took charge as Headmaster. In the

light of Exts.P13 and P14, he is entitled to a

grade with effect from 1.6.1996 and to get his

salary re-fixed with routine increments and other

benefits. The other appeal would stand disposed

as above.

C.N.Ramachandran Nair, Judge.

P.S.Gopinathan, Judge.

sl.


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