IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 WP(C).No. 29390 of 2007(W) -------------------------- PETITIONER(S): ------------------------- E.H.SHERIBA, AGED 55 YEARS, KORATTIPARAMBIL HOUSE, P.O.PUNNAVELI, KOTTAYAM DISTRICT, (RETIRED P.D.TEACHER, GOVERNMENT NEW U.P.SCHOOL, NEDUMKUNNAM). BY ADV.MR.ESM.KABEER RESPONDENT(S): --------------------------- 1. THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE ASSISTANT EDUCATIONAL OFFICER, KARUKACHAL. 3. THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM. 4. THE ACCOUNTANT GENERAL(A&E), THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER MR.MUHAMOOD.T.T. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.29390/2007 W APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PENSION PAYMENT ORDER. P1(A): COPY OF THE PENSION PAYMENT ORDER. P1(B): COPY OF THE PENSION PAYMENT ORDER. P2: COPY OF THE STATEMENT OF FIXATION OF PAY DTD. 9/03/1998. P3: COPY OF THE STATEMENT OF FIXATION OF PAY DTD. 16/09/2003. P4: COPY OF THE FORM OF OPTION ACCEPTED BY THE HEADMISTRESS OF THE SCHOOL DTD. 22/07/2006. P5: COPY OF THE STATEMENT OF FIXATION OF PAY DTD. 22/07/2006. P6: COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 1ST RESPONDENT DTD. 13/09/2006. P7: COPY OF THE PENSIONI PAYMENT ORDER DTD.21/04/2006. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.29390/2007-W ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 5th day of October, 2009 J U D G M E N T The issue raised by the petitioner is covered against him in the light of the Division Bench judgment of this Court in O.P.No.3365/2003 and connected cases, dated 15/02/2007, (namely, Valsamma Joseph vs. State of Kerala and others). 2. The petitioner retired from service as P.D Teacher on 31/05/2006 from Government New U.P. School, Nedumkunnam, Kottayam District. She started her service from 04/08/1970 in A.M.L.P School, Akkaraparamba and thereafter was a teacher in A.M.L.P. School, Klarimuchikkal in Malappuram District. The aided school service terminated on 15/12/1994 when the petitioner got appointment in the Government New U.P. School, Nedumkunnam. The tenure in the Government school started on 16/12/1994 and she continued there till the date of her retirement. Thus, the petitioner has got 14 years 11 months and 12 days service as P.D Teacher in the aided school and, in Government school upto retirement the petitioner is having 11 years 5 months and 16 days service as P.D. Teacher. When the pay revision was effected as per W.P.(C). No.29390/2007 -:2:- G.O.(P) No.145/06/Fin, dated 25/03/2006, the petitioner submitted the re- option with effect from 01/11/2004 (Ext.P4). The petitioner was granted 4 increments against 16 years service and was also granted weightage and accordingly, pay was fixed. Ext.P5 is the copy of the pay fixation statement. The petitioner also received the arrears of pay consequent to the fixation of pay. An objection was raised against the counting of aided school service along with Government school service. The weightage was restricted to two only. Consequently, the petitioner had to refund Rs.7,938/- being excess pay. The same resulted in the reduction of the monthly pay also. The petitioner submitted Ext.P6 representation in the matter. 3. The petitioner seeks for a direction to the respondent to count aided school service for the periods from 04/08/1970 to 15/12/1994 i.e., 14 years, 11 months and 12 days followed by Government school service from 16/12/1994 till 31/05/2006 i.e., 11 years 5 months and 16 days for increments and weightage. A further declaration is sought for that Rule 5(2) in G.O.(P) No.145/2006/Fin dated 25/03/2006 is violative of Article 14 of the Constitution of India. 4. An identical question was considered by the Division Bench in Valsamma Joseph's case (supra). In paragraph (6) it was held thus:- W.P.(C). No.29390/2007 -:3:- “6. When the pay revision order does not specifically include a particular service for the purpose of weightage, it cannot be counted for granting the said benefits. It it is not stated that the aided school service shall be reckoned for weightage, it cannot be counted. One can draw a benefit only when there is permission in the order. Therefore, the view of the learned Single Judge, that objection raised by the Accountant General is not justified, cannot be supported.” The same reasoning will apply to this case also. In G.O.(P). No.145/2006/Fin., there is no provision to reckon 4 increments as weightage by reckoning aided school service as Government school service. In the absence of it, the sanction of the same cannot be justified. Therefore, the objection raised survives. 5. In that view of the matter, the petitioner is not entitled for the declaration sought for in the writ petition. The writ petition is accordingly, dismissed. No costs. (T.R. Ramachandran Nair, Judge.) ms