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