IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 WP(C).No. 1647 of 2009(U) ------------------------------------- PETITIONER(S): ---------------------- K. HAMZA, H.S.A (ARABIC), G.H.S, MANKADA, MANKADA.P.O, MALAPPURAM - 679 324. BY ADV. MR.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI MR.BRIJESH MOHAN MR.T.R.SADEESAN RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. 3. THE ACCOUNTS OFFICER, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. R1 TO R3 BY GOVERNMENT PLEADER MR.N. MANOJKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 1647/2009-U APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PROCEEDINGS NO.268A/94 DATED 27/10/94 ISSUED BY THE HEADMASTER, GHS, KADIRUR. EXT.P2: COPY OF THE CIRCULAR NO.59151/J2/2000 G.EDN. DATED 17/05/2002 ISSUED BY THE 1ST RESPONDENT. EXT.P3: COPY OF THE ORDER NO.F5/9745/08 DATED 15/04/2008 ISSUED BY THE 2ND RESPONDENT. EXT.P4: COPY OF THE ENDORSEMENT OF THE HEADMISTRESS AND REMARKS OF THE 3RD RESPONDENT DATED 22/12/2008. EXT.P5: COPY OF THE JUDGMENT DATED 22/08/2008 IN WP(C) NO. 20777/2008 OF THIS HONOURABLE COURT. EXT.P6: NIL EXT.P7: COPY OF THE ORDER NO.15943/S2/95/G.EDN. DATED 19/06/1998 ISSUED BY THE 1ST RESPONDENT. EXT.P8: COPY OF THE ORDER NO.641/K4/2001/G.EDN. DATED 21/04/2001 ISSUED BY THE 1ST RESPONDENT. EXT.P9: COPY OF THE RELEVANT EXTRACT OF G.O.(P)3000/98/FIN. DATED 25/11/1998 ISSUED BY THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.1647 OF 2009 --------------------------------------- Dated this the 11th day of August, 2009. J U D G M E N T The petitioner is aggrieved by the cancellation of Exhibit P1 whereby his pay was stepped up to that of his junior in service. The cancellation was based on Exhibit P2 circular which was issued eight years after the pay was stepped up by Exhibit P1. 2. The petitioner entered service as Junior Language Teacher (Arabic) in the year 1978. He was promoted as Full Time Junior Language Teacher (Arabic) in the year 1979. He was promoted as H.S.A (Arabic) with effect from 08.10.1990. His pay was fixed at Rs.1380/- with effect from 01.03.1992. Sri.V.Sadanandan, P.D. Teacher is junior to the petitioner and his pay was fixed at Rs.1400/- with effect from 01.04.1992. It is submitted that the petitioner is senior to the said P.D. Teacher by five years. The petitioner represented the matter before the Government when Exhibit P3 order was passed cancelling the benefit granted by Exhibit P1. By Exhibit P4, the petition was W.P.(C) No.1647/2009 2 again forwarded to the Headmaster. 3. The petitioner is relying upon Exhibit P5 judgment of this Court in W.P.(C) No.20777/2008 whereby, according to the petitioner, Exhibit P2 was quashed. Learned counsel for the petitioner relied upon the principles settled by a Division Bench of this Court in Kamala Devi vs. Kerala State Financial Enterprises Ltd. (2002 (1) KLT 157). It is submitted that in the light of the principles stated therein, the petitioner is entitled to succeed. 4. Learned Government Pleader submitted that even going by the pay revision order, stepping up of pay is allowed in terms of paragraph 7 of Annexure III of G.O.(P) No.600/93/Fin. dated 25.09.1993. The circumstances where stepping up of pay can be allowed are specified in paragraph 7. Paragraph 7 provides thus: “In case where a senior employee promoted to a higher post before 1st March, 1992 draws less pay in the revised scale than his junior who is promoted to the higher post on or after 1st March 1992, the pay of the senior employee will be stepped upto that of the Junior with effect from the date on which the junior draws more pay”. 5. Going by the first proviso to the said provision, the W.P.(C) No.1647/2009 3 Senior and the Junior employees should belong to the same category and should have been promoted to the same category of post. There are two other provisos also. The objection taken by the respondents is that the petitioner and his junior V.Sadanandan do not belong to the same category. 6. Learned counsel for the petitioner submitted that the petitioner entered service as Junior Language Teacher and thereafter promoted to the higher post. It is submitted that the anomaly is patent, arbitrary and discriminatory also. In Kamala Devi's case (supra), this Court examined the question in the light of Article 14 of the Constitution of India. It was held therein that the Supreme Court has held that if the classification suffers from the vice of under-inclusiveness, the same will be hit by Article 14. In paragraph 8 it was held thus: “Even without going into the nuances of law relating to classification, it is apparent that the present case is a clear case of plain discrimination, in as much as the appellant's junior is drawing higher salary than her without any reasonable reason whatsoever. So, the appellant is entitled to have her salary stepped up with effect from the date her junior started to draw higher pay than her.....”. W.P.(C) No.1647/2009 4 Reliance is placed therein on the decisions of the Apex Court in Union of India & Ors. vs. P.Jagdish & Ors. ((1997) 3 SCC 176) and in Calcutta Municipal Corpn. & Anr. vs. Sujit Baran Mukherjee & Ors. ((1997) 11 SCC 463). Therefore, apparently, the reason stated to deny the benefit to the petitioner cannot be sustained. 7. The question is whether in the light of paragraph 7 of the pay revision order, the petitioner could get the benefit. In the light of the principles settled by the Division Bench in Kamala Devi vs. Kerala State Financial Enterprises Ltd. (2002 (1) KLT 157), I am of the view that the effect of paragraph 7 cannot adversely affect the interest of the petitioner. Obviously, the case of the persons like the petitioner has not been considered while adopting the said general condition. Even without considering the validity of paragraph 7 of G.O.(P) No.600/93/Fin. dated 25.09.1993, I am of the view that in the light of the dictum laid down by the Division Bench in Kamala Devi's case (supra), the petitioner is entitled to succeed. In the light of the above, Exhibits P3 and P4 are quashed. Accordingly, the pay fixation will be made in terms of Exhibit P1 W.P.(C) No.1647/2009 5 and consequential benefits will be granted within a period of three months from the date of receipt of a copy of this judgment. This writ petition is disposed of as above. T.R. RAMACHANDRAN NAIR JUDGE smp