IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 WP(C).No. 22525 of 2006(F) --------------------------------- PETITIONER(S): ------------------- T.P. PADMANABHAN, H.S.A. (MATHS), NADUVIL HIGH SCHOOL, P.O. NADUVIL, KANNUR DIST. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): -------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, KANNUR. 3. THE DISTRICT EDUCATIONAL OFFICER, KANNUR. 4. P.MUSTHAFA, H.S.A. (MATHS), AZHIKODE HIGH SCHOOL, AZHIKKODE, KANNUR DIST. R1-3 BY GOVT.PLEADER SRI.BIJOY CHANDRAN R4 BY ADVS. SRI.M.K.SUMOD SRI.KAUSER EDAPPAGATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 22525/2006 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE CERTIFICATE DATED 27/04/2006 ISSUED BY THE HEADMASTER OF NADUVIL HIGH SCHOOL TO THE PETITIONER. P2: COPY OF THE ORDER DATED 18/10/1999. P3: COPY OF THE STATEMENT DATED 15/11/1999 REGARDING THE FIXATION OF PAY OF THE PETITIONER. P4: COPY OF THE FORM OF OPTION FOR SELECTION GRADE SUBMITTED BY THE PETITIONER TOGETHER WITH CONNECTED DECLARATIONS AND STATEMENT OF FIXATION OF PAY. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 22525 of 2006 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of August, 2011 J U D G M E N T The petitioner is a High School Assistant (Maths) in Naduvil High School, Naduvil in Kannur District. He entered service on 15.07.1976. The 3rd respondent joined service on 16.07.1976 and is working as High School Assistant (Maths) in Azhikkode High School. The petitioner's grievance in this writ petition is that, the 4th respondent is drawing more basic pay than the petitioner. The petitioner seeks stepping up of the pay of the petitioner on par with that of the 4th respondent. The petitioner's contention is not based on any rule applicable to senior-junior fixation. The petitioner basically relies on a decision of a Division Bench of this Court in Kamala Devi v. K.S.F.E. Ltd. [2002 (1) KLT 157], wherein this court held that when there is no apparent reason for the junior to draw higher pay than the senior, the senior is entitled to W.P.(C)No. 22525 of 2006 -2- have her salary stepped up with effect from the date her junior started to draw higher pay than the senior. 2. A counter affidavit has been filed by the 2nd respondent controverting the contentions of the petitioner. 3. I have considered the rival contentions of the parties. 4. The decision in Kamala Devi's case start with the following paragraph: “The point that arises for consideration in this Writ Appeal is whether the drawal by the junior of higher pay than his admitted senior is arbitrary and is in violation of Art. 14 of the Constitution in the facts and circumstances of the case. There cannot be any universal rule that a junior can in no circumstance draw higher pay than his senior. Where the junior is a promotee and the senior is a direct recruit to a particular cadre, the junior will be drawing higher pay. There may be a variety of similar circumstances justifying the drawal of higher pay by a junior. Therefore, the decision on the point raised by the appellant will largely depend upon the facts of this case. The minimum facts necessary for the decision of the case are the following:” Therefore each case has to be considered on the basis of facts available in that case. In the counter affidavit, in paragraphs 3 & 4 the 2nd respondent has explained the difference in salary as follows: W.P.(C)No. 22525 of 2006 -3- “3. Teachers are granted promotion on completion of prescribed years of qualifying services. Periods of leave without allowances other than on Medical Certificate shall be excluded while reckoning qualifying service. The petitioner has availed 73 days of L.W.A. other than on Medical Certificate during his service. Accordingly the grade promotions on completion of 10 years and 20 years of service were granted to the petitioner excluding those period. As such there was no much difference in the basis pay of the petitioner an the 4th respondent till the revision of pay w.e.f. 1.3.1992. The rates of basic pay, upto 1999 continued at par without much difference. 4. The Government, from time to time are issuing orders allowing re-option of Pay Revisions to its employees in order to give them a chance to avail the benefits of pay revision on a more beneficial terms on certain conditions. Employees are at liberty to avail or not to avail those chances, according to their will and future prospects. Government have issued G.O. (P) No.399/99 (178) Fin. dated 5.2.99 allowing a chance for exercising re-option of P.R.92 employees and Teachers, subject to certain conditions. The 4th respondent has availed this chance for re-option of pay revision already exercised by him as on 1.3.92 to a later date ie, 16.7.96, in accordance with the orders issued in G.O. (P) No.399/99 (178) Fin., dated 5.2.99. The fixation of his pay was revised accordingly after refunding the excess salary drawn by him, as stipulated in the G.O. dated 5.2.99. The 4th respondent has re-opted Pay Revision 97 also in accordance with G.O. (P) 1527/99/(123) Fin., dated 28.6.99 from 1.3.97 to 1.7.98. It is as a result of these re-option, the pay of the 4th respondent was revised and refixed at a higher rate, which was admissible to him, as per the rules for fixation of pay. The petitioner has not exercised any re-option in terms of the above Government orders and as such his pay was not subjected to any revision or re-fixation. The pay of the petitioner remained at a lesser rate than the 4th respondent, not because of any wrong or irregular fixation on the part of the 3rd respondent or anybody else. The 4th respondent has exercised judicious re-option of pay revision in terms of Government Orders in a manner in which he could draw more pay than the existing rate. But the petitioner has not availed any such chance even though the benefit of the Government orders on re-option are available to all eligible employees, including the petitioner himself. Before exercising the re-option of pay revision on 22.3.99, the pay of the petitioner and 4th respondent were as shown below: W.P.(C)No. 22525 of 2006 -4- 28.9.96 2240 (1640-2900) 16.7.96 2240 (1640-2900) Senior Grade 1.3.97 6625 1.3.97 6625 (655-10550) It is, as a result of the re-option exercised by the 4th respondent, his pay was revised and refixed as shown below at a stage above than the petitioner. Senior Grade: As on 16.7.96 (Pre-revised Scale) Rs.2230/- (1130-2555) Pay Revision 92 re-option on 16.7.96 Rs.2430/- (1640-2900) pay revision 97 re-opted on 1.7.98 Rs.7850/- (5550-9075) The difference in the basic pay is caused after the above re- fixation of the pay, consequent to the exercise of re-option by the 4th respondent in accordance with G.O. (P) 399/99 dated 5.2.99.” Therefore obviously the difference in pay between the petitioner and the 4th respondent is because of the re-option made by the 4th respondent which the petitioner did not. Therefore, I am of opinion that the ratio of the decision in Kamala Devi's case is not applicable to the petitioner's case insofar as the facts of the two cases are clearly distinguishable. The 2nd respondent has given a plausible explanation for the difference in salary between the two. Insofar as the petitioner is not raising his right for stepping W.P.(C)No. 22525 of 2006 -5- up of pay on par with the pay of the 4th respondent on the basis of any rule, I do not find any merit in the contention raised by the petitioner, since the difference in salary occurred because of the re-option made by the junior. Accordingly the writ petition is dismissed. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/