IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 7TH FEBRUARY 2008 / 18TH MAGHA 1929 OP.NO. 34168 OF 2000(P) ----------------------- PETITIONER: ------------ 1. C.PADMANABHAN, H.S.A., V.P.P.M.K.P., SMARAKA GOVT.HIGH SCHOOL, P.O. TRIKARPUR, KASARGOD DIST. 2. N.BALAN, H.S.A., V.P.P.MK.P.SMARAK GOVT.HIGH SCHOOL, P.O.TRIKARPUR, KASARGOD DIST. 3. T.K.KUNHIRAMAN, H.S.A.(MATHS), G.H.S. SOUTH TRIKARPUR, ELAMBACHI (P.O.), KASARGOD. BY ADV. SRI.M.P.ASHOK KUMAR SRI.P.NARAYANAN RESPONDENTS: ------------- 1. HEAD MASTER, V.P.P.M.K.P., SMARAKA GOVT.HIGH SCHOOL, P.O. TRIKARPUR, KASARGOD DIST. 2. HEAD MASTER, G.H.S. SOUTH TRIKARPUR, ELAMBACHI (PO), KASARGOD. 3. DISTRICT EDUCATIONAL OFFICER, KASARGOD. 4. DEPUTY DIRECTOR OF EDUCATION, KASARGOD. BY GOVERNMENT PLEADER SHRI SANDESH RAJA THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 07/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.56368/2000 IN O.P.NO.34168/2000 //DISMISSED// 7.2.08 SD/- P.N.RAVINDRAN, JUDGE. APPENDIX IN OP.NO. 34168 OF 2000(P) PETITIONERS' EXTS: EXT.P1: RELEVANT PORTION OF G.O.(P)600/93/FIN.TRIVANDRUM DATED 25.9.93. EXT.P2: STATEMENT OF FIXATION OF PAY OF 1ST PETITIONER AND RATIFICATION ORDER PASSED BY 3RD RESPONDENT. EXT.P3: STATEMENT OF FIXATION OF PAY OF 2ND PETITIONER AND RATIFICATION ORDER PASSED BY 3RD RESPONDENT. EXT.P4: STATEMENT OF FIXATION OF PAY OF 3RD PETITIONER AND RATIFICATION ORDER PASSED BY 3RD RESPONDENT. EXT.P5: ORDER NO.F3/4601/99 DATED 18.5.1999 PASSED BY 4TH RESPONDENT. EXT.P6: COPY OF THE AUDIT OBJECTION AGAINST THE 1ST PETITIONER'S PAY FIXATION. EXT.P7: COPY OF REPLY SUBMITTED BY 1ST PETITIONER. EXT.P8: PORTION OF AUDIT OBJECTION NO.F1/10774/2000 DATED 22.6.2000 OF DEPUTY DIRECTOR OF EDUCATION, KASARGOD, RAISED AGAINST THE 1ST PETITIONER. EXT.P9: RELEVANT PORTION OF AUDIT OBJECTION NO.F1/10774/2000 DATED.22.6.2000 OF DEPUTY DIRECTOR OF EDUCATION, KASARGOD, RAISED AGAINST THE 2ND PETITIONER. EXT.P10: RELEVANT PROTION OF AUDIT OBJECTION NO.F1/2473/99 DATED 20.2.1999 OF DEPUTY DIRECTOR OF EDUCATION, KASARGOD RAISED AGAINST EH 3RD PETITIONER. EXT.P11: COPY OF THE PROCEEDINGS OF ASST. IN CHARGE OF GOVT.HIGH SCHOOL, KUTTAMATH. P.N.RAVINDRAN, J. ---------------------------------------- O.P.No.34168 OF 2000-P ------------------------------------- DATED THIS THE 7TH DAY OF FEBRUARY, 2008 J U D G M E N T The petitioners are High School Assistants in Government Service. They entered service on 27.2.1986, 22.1.1986 and 27.2.1986 respectively. 2. Prior to the pay revision introduced with effect from 1.3.1992, by Exhibit P1 Government order dated 25.9.1993, the scale of pay of HSAs was Rs.1000-1710. By Exhibit P1 Government order, the scale of pay was revised as Rs.1350- 2200. The petitioners were eligible for the next increment on 1.10.1992, 1.1.1993 and 1.2.1993 respectively. The immediate junior of the petitioner in service was Shri P.Subramanian, who joined service on 28.2.1986. 3. Consequent on Exhibit P1, the pay of the petitioners was fixed as per the statements evidenced by Exhibits P2, P3 and P4 and the pay fixation was also approved and ratified by the District Educational Officer. Shri P.Subramanian referred to above was eligible for the next increment on 1.4.1992. Hence, O.P.No.34168/2000-P 2 when the pay of the petitioners was fixed pursuant to Exhibit P1, taking note of the fact that the said Shri Subramanian who is junior to the petitioners was entitled to the next increment on 1.4.1992 and would thereby be drawing Rs.1410/- as the basic pay in the revised scale of pay of Rs.1350-2200., the pay of the petitioners was stepped up to the basic drawn by their junior Shri Subramanian and fixed at Rs.1410/- with effect from 1.4.1992.. Years later, the said fixation was held under objection on the ground that there was no draft seniority list of High School Assistants in Government service and that the increment date of petitioners' junior Shri Subramanian who joined duty on 28.2.1986 cannot be relied upon to step up the pay of the petitioners, for the reason that in his case, his provisional service under Rule 9(a) (I) was also taken into account for fixing his pay and for determining the date of his increment. Exhibits P8, P9 and P10 are the audit objections whereby the fixation of pay of the petitioners made as per Exhibits P2, P3 and P4 were held under objection. The petitioners have aggrieved by Exhibits P8, P9 and P10 filed this Original Petition seeking the following O.P.No.34168/2000-P 3 reliefs. (i) Call for the records leading to Exhibits P8, P9 and P10. (ii) Issue a writ of prohibition restraining the respondents from effecting any recovery from the petitioners' pay, on the basis of Exhibits P8, P9 and P10 audit objections. (iii) Declare that the petitioners are entitled to the benefit of stepping up of the pay equal to the pay of their junior Shri Subramanian, HSA, Kayoor GHS, taking the date of increment as on 1.4.1992, on the strength of Exhibit P1 pay fixation order. (iv) Direct the respondents to drop Exhibits P8, P9 and P10 audit objections against the petitioners' pay fixation, after accepting the petitioners' explanations. 4. I have heard Shri P.Narayanan, the learned counsel appearing for the petitioners and Shri K.Sandesh Raja, the learned Government Pleader appearing for the respondents. The learned counsel appearing for the petitioners drew my attention to Rule 6 of Annexure III to Exhibit P1 and contended that the fixation of pay as per Exhibits P2, P3 and P4 was perfectly in order and there is no merit in the objections raised in Exhibits O.P.No.34168/2000-P 4 P8, P9 and P10. The learned counsel submitted that as the petitioners' junior Shri P.Subramaniam was entitled to the next increment on 1.4.1992 in the revised scale of pay sanctioned as per Exhibit P1, the petitioners are entitled to have their pay stepped up and fixed at a stage equal to the pay of their junior from the date on which the junior becomes entitled to higher pay. From Exhibits P2, P3 and P4 it can be seen that after the petitioners pay as on 1.3.1992 was fixed in the revised scale of pay sanctioned as per Exhibit P1, taking note of the fact that their juniors would have drawn his next increment on 1.4.1992, the pay of the petitioners was also stepped up and fixed at the same stage in the same scale of pay with effect from 1.4.1992. The learned counsel for the petitioners submitted that there is no merit in the objection based on the provisional service rendered by the petitioner's junior Shri P. Subramaniam. Shri K.Sandesh Raja, the learned Government Pleader appearing for the respondents on the other hand contended that Rule 6 of Annexure III to Exhibit P1 cannot be interpreted in the manner suggested by the counsel for the petitioners and that the O.P.No.34168/2000-P 5 petitioners are not entitled to draw increments in the revised scale of pay on a date earlier than the date on which they were entitled to the annual increment in the ordinary course. 5. I have considered the rival contentions. I shall, for the purpose of convenience, extract Rule 6 of Annexure III to Exhibit P1. “6. Date of increment. (i) The next increment of an employee in the revised scale shall be granted on the date he would have drawn increment had he continued in the existing scale. (ii) If an employee draws his next increment in the revised scale under sub rule (1) above and thereby becomes eligible for higher pay than his senior whose next increment falls due at a later date, then the pay of such senior shall be refixed equal to the pay of the junior from the date on which the junior becomes entitled to higher pay. Note:- In case where the pay of an employee is stepped up in terms of clause (ii) above and Rule 7 below, the next increment shall be granted after completing the requisite qualifying service for the next increment.” 6. It is evident from Rule 6(ii) referred to above that if Shri P.Subramanian draws his next increment in the revised scale of pay on 1.4.1992 and thereby becomes eligible for higher pay than the petitioners, whose next increment fell due on a later O.P.No.34168/2000-P 6 date, then the pay of the petitioners has to be stepped up and fixed so as to equate it with the pay of Shri P.Subramaniam from the date on which he becomes entitled to higher pay. The wordings in Rule 6 are crystal clear and there is no ambiguity in the wordings therein. The intention of the State Government when it issued Exhibit P1 of which Rule 6 quoted above is an integral part, was to protect the pay of the senior and to step it up to the pay drawn by the junior. Otherwise, it would have the effect of demoralising seniors who will have to draw lesser pay than their juniors. I am therefore of the opinion that the pay of the petitioners was rightly fixed in terms of Rule 6 in Exhibits P2, P3 and P4. 7. The learned Government Pleader contended relying on the Note to Rule 6 that when the pay of the petitioners is stepped up in terms of Clause 6(ii) the next increment shall be granted after completing the requisite qualifying service for the next increment. In other words, the contention of the learned Government Pleader was that the next increment can be granted to the petitioners only on 1.10.1993, 1.1.1994 and 1.2.1994 O.P.No.34168/2000-P 7 respectively and that in the case on hand they were illegally given the next increment on 1.4.1993, well in advance of the due dates. I am afraid that there is no merit in the contention as well. The Note to Rule 6 referred to above, does not stipulate that in case the pay of an employee has been stepped up in terms of Rule 6(ii) the next increment shall be granted only as per the original date. The respondents also do not have a case either in Exhibit P6, P8, P9 or P10 or in the counter affidavit that the next increment due to the petitioners after 1.4.1992 was granted before they completed the requisite qualifying service for the next increment. The contention of the respondents that the Note to Rule 6 was violated when the petitioners' pay was revised and emoluments disbursed is without any merit and is plainly untenable. 8. For the reasons stated above, I hold that there is no merit in the objection raised by the respondents to the fixation of pay in Exhibits P2, P3 and P4. Accordingly, I quash Exhibits P6, P8, P9 and P10 and declare that the pay of the petitioners are rightly and properly fixed as per Exhibits P2, P3, and P4. O.P.No.34168/2000-P 8 8. The learned counsel appearing for the petitioners brought to my notice that the second petitioner who retired from service during the pendency of the Original Petition had, refunded the excess payment referred to in Exhibit P9. In the view that I have taken and as I have quashed Exhibit P9, the respondents shall take steps to refund to the second petitioner, the amounts recovered from him pursuant to Exhibit P9. Such payment shall be effected within one month from the date of receipt of a copy of this judgment. Needless to say that the retirement benefits of the second petitioner shall also be refixed and the arrears paid on the basis that his pay was rightly fixed as per Exhibit P3. The Original Petition is allowed as above. No costs. P.N.RAVINDRAN, JUDGE. dsn O.P.No.34168/2000-P 9 If the interpretation attempted to be placed by the learned Government Pleader on Note (ii) to Rule 6 is accepted, it would mean that the petitioners will draw their next increment only after their junior Shri P.Subramanian draws his next increment on 1.4.1993 and will draw lesser salary than their junior on and with effect from 1.4.1993. In my opinion, it was to avoid any such eventuality that Rule 6 was incorporated in Exhibit P1. The Note to Rule 6 extracted above only means that after 1.4.1992, the petitioners will not draw another increment on 1.10.1992, 1.1.1993 or 1.2.1993 as the case may be, but will draw their next increment only on the completion of the requisite qualifying service for the next increment, namely, on completion of one year from 1.4.1992. In other words, the Note to Rule 6 is intended only to prevent the senior drawing two increments within a span of one year and by virtue of the Note, the date on which the senior (the petitioners herein) starts drawing the next increment will be the same date as the date on which the junior (Shri P.Subramanian) draws his next increment. In other words, after 1.4.1992, the petitioners and their junior Shri O.P.No.34168/2000-P 10 P.Subramanian will draw their next increment on the same date. There is in effect a preponement of the date of increment only once, i.e., from 1.10.1992, 1.1.1993 and 1.2.1993 to 1.4.1992 respectively. O.P.No.34168/2000-P 11 P.N.RAVINDRAN,J. ----------------------- O.P.No. 34168/00 -P J U D G M E N T 07.02.2008