IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 WA.No. 1077 of 2010() --------------------- AGAINST THE JUDGEMENT IN WPC.2150/2004 Dated 17/12/2009 .................... APPELLANT/RESPONDENT:- -------------------------------------- N.RABINDRANATH, LEKSHMY BHAVAN, KREEPPALLY (NEAR ST.JUDE), P.O.ALUMOODU, MUKHATHALA, KOLLAM-691 577. BY ADV. SRI.L.GOPALAKRISHNAN POTTI SRI.A.DINESH RAO RESPONDENT(S)/PETITIONERS:- -------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE GENERAL EDUCATION SECRETARY HIGHER SECONDARY EDUCATION SECTION, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. THE DIRECTOR, HIGHER SECONDARY EDUCATION, HOUSING BOARD BUYILDING THIRUVANANTHAPURAM. GOVT.PLEADER SMT.T.B.REMANI. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 0/07/2010, THE COURT ON 09/07/2010 DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. = = = = = = = = = = = = = = Writ Appeal No.1077 of 2010. = = = = = = = = = = = = = = Dated this the 9th day of July, 2010. J U D G M E N T Gopinathan, J. Respondent in WP(C).No.2150/2004 is the appellant. The respondent, who was a High School Assistant in State service, was appointed as a Higher Secondary School Teacher. At the time of appointment no pay scale was fixed for the post of Higher Secondary School Teachers. In lieu, Government issued orders sanctioning Rs.250/- as special pay to the salary in the lower post. Later, the pay was fixed with effect from 7.4.1992. The appellant requested for fixing his salary as Higher Secondary School Teacher reckoning the special pay, but was not successful. After his retirement he moved the Lokayuktha and obtained Ext.P3 order whereby the Lokayuktha had directed to fix his salary WA.No.1077 of 2010. -: 2 :- after reckoning the special pay and also to re-fix the pensionary benefits. The respondents assailed the same in the writ petition. The learned single Judge allowed the writ petition by judgment dated 17.12.2009 and Ext.P3 order was quashed. Now, this appeal. 2. We have heard the learned counsel Sri.L.Gopalakrishnan Poti appearing for the appellant and the Government Pleader. It is not disputed that special pay was granted at a time when no regular pay was fixed for the Higher Secondary School Teachers. On commencement of the regular pay scale, the appellant and other similarly placed persons were bound by the scale of pay. In fixing the salary in the higher pay scale, the appellant is not entitled to count the special pay granted in lieu of the higher pay scale. Going by Ext.P3 it appears that the claim of the appellant was allowed by the Lokayuktha on the basis of an order in Complaint No.28/2001, relevant portion of which is quoted in Ext.P3 reads as follows: WA.No.1077 of 2010. -: 3 :- "Also you are directed to revise all the petitioner's salary as Headmaster on the basis that they were drawing special pay of Rs.250/- as Higher Secondary School Teacher." We find that it was a case in which the salary of the Headmaster was fixed after reckoning the special pay granted. In the event the appellant was promoted as Headmaster while drawing special pay in lieu of a higher scale, sometimes, he is also entitled to reckon special pay in the lower scale for fixing the salary in the higher post. There is no rhyme or reason in claiming fixation of pay in the post of the Higher Secondary School Teacher on implementation of new pay scale in that post by reckoning special pay granted in lieu of the higher pay scale. In other way, the lower scale of pay with special pay was substituted by the new pay scale in the higher post. While fixing the salary in the higher post, what is legally permissible is to reckon the pay in the lower scale. Special pay being the one attached to the higher post, the appellant is not entitled to count the same for fixation of pay while changing from the lower post to the higher post on promotion. So, the WA.No.1077 of 2010. -: 4 :- appellant is not legally entitled to get such a fixation as demanded by him. The learned single Judge in deciding the issue had also taken note of the Government Order GO(MS) No.30/2002/G.Edn. dated 30.1.2002 which specifically stated that in fixing the pay in the time scale of pay sanctioned to Higher Secondary School Teachers, special pay in lieu of higher time scale of pay shall not be counted. It is a just and appropriate restriction imposed in fixing the salary relied upon by the learned single Judge. We find no error or illegality so as to be rectified in appeal. The appeal is devoid of merit. Accordingly, it is dismissed. C.N.RAMACHANDRAN NAIR, (Judge) P.S.GOPINATHAN, (Judge) Kvs/-