IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 20TH OCTOBER 2010 / 28TH ASWINA 1932 WP(C).No. 25435 of 2008(C) -------------------------- PETITIONER(S): --------------- 1. K.P.ABDUSSAMAD, AGED 50 YEARS, S/O. ABDULLA KUTTY, FULL TIME ARABIC TEACHER A.M.U.P.SCHOOL, EDATHANATTUKARA WEST, ALANELLOOR MANNARKAD, PALAKKAD DISTRICT 2. P.SOBHANA, AGED 52 YEARS, W/O. MANOHARAN, SANSKRIT TEACHER M.LAKSHMANA GUPTAN MEMORIAL U.P.SCHOOL, THACHANATTUKARA,MANNARKKAD,PALLAKKAD DISTRICT BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIAVANDRUM. 2. THE ACCOUNTANT GENERAL (A &E) KERALA TRIVANDRUM. 3. THE ASSISTANT EDUCATIONAL OFFICER MANNARKKAD, PALAKKAD DISTRICT 4. THE HEADMASTER A.M.U.P.SCHOOL, EDATHANATTUKARA WEST ALANELLOOR, MANNARKKAD, PALAKKAD DISTRICT 5. THE HEADMASTER M.LAKSHMANA GUPTAN MEMORIAL U.P.SCHOOL THACHANATTUKARA, MANNARKKAD, PALAKKAD DISTRICT BY GOVERNMENT PLEADER SMT.M.R.SREELATHA FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25435 of 2008(C) PETITIONERS EXTS: P1:-COPY OF STATEMENT OF FIXATION OF PAY OF P1 P2:- COPY OF -DO- P2 P3:- COPY OF OBJECTION OF AEO P3(a):- COPY OF LETTER DTD.7.7.08 P3(b):- COPY OF LETTER DTD.7.7.08 P4:- COPY OF DECISION REPORTED IN 2002(1) KLT 157 P5:- COPY OF ANNEXURE-III OF GO DTD.25.9.93 P6:- COPY OF ANNEXURE-III OF GO DTD.25.11.98 P7:- COPY OF CIRCULAR DTD.17.5.02 P8:- COPY OF JUDGMENT IN OP NO.23261/1998-T, DTD.10.12.01 P9:- COPY OF CIRCULAR DTD.19.6.98 P10:- COPY OF CIRCULAR DTD.19.3.1999 P11:- COPY OF LETTER DTD.21.4.01 P12:- COPY OF JUDGMENT IN WP(c) NO.20914/03 DTD.7-8-2006 P13:- COPY OF JUDGMENT IN WP(c) NO.10482/04 DTD.1.9.06 P14:- COPY OF JUDGMENT IN WP(c) NO.35325/05 DTD.6.10.2006 P15:- COPY OF JUDGMENT IN WP(c) NO.17135/06 DTD.13.11.06 P16:- COPY OF JUDGMENT IN WP(c) NO.21604/06 DTD.18.10.2006 P17:- COPY OF INTERIM ORDER IN WP(c) NO.20539/08 DTD.15.7.08 P18:- COPY OF CIRCULAR DTD.23.6.09 RESPONDENTS EXTS: NIL /TRUE COPY/ P.A.TO JUDGE K.T.SANKARAN, J. ------------------------------ W.P.(C).No.25435 OF 2008 ------------------------------ Dated this the 20th day of October, 2010 JUDGMENT The petitioners, who are working as Full-time Arabic Teacher and Sanskrit Teacher respectively in two different schools challenge Exts.P3, P3(a) and P3(b) audit objection. The audit objection was issued based on Ext.P7 Circular dated 17.5.2002 issued by the General Education Department. In Ext.P12 judgment dated 7th August, 2008 in WP(C) No.20914 of 2003, this court held that Ext.P7 Circular cannot have the effect of amending a notification and that too with retrospective effect. The decision in OP No.23261 of 1998 was also relied on in Ext.P12 judgment. It was held that the pay fixed before Ext.P7 Circular issued in 2002 could not be revised based on the Circular issued later in point of time. The audit objection was held to be unfounded. It is submitted that Ext.P12 judgment squarely applies to the facts in W.P.(C).No.25435 OF 2008 2 the present case and therefore, the audit objection impugned in this Writ Petition is unsustainable. The learned counsel for the petitioners also pointed out that after Ext.P12 judgment was passed, Ext.P18 Circular No.26790/J2/07/G.Edn. dated 23rd June, 2009 was issued. For the sake of convenience, the Circular is extracted below: “ CIRCULAR Sub:- General Education - Teaching Staff - Junior Senior Anomaly in Pay Fixation-Modified instruction- Issued Ref:- Circular No. 59151/ J2/ 2000/ G.Edn. Dated 17.5.2002 As per the reference cited Government have clarified that integrated/combined seniority list of teachers maintained for promotion to the post of Head Master/Head Mistress cannot be a parameter for the purpose of fixation of pay and pay of a senior belonging to any of the category cannot be stepped up to the level of pay of the junior in another category since Junior Language Teacher, Primary Department Teacher, High School Assistant (Language) and High School Assistant(core subjects) belong to four different categories. Now it has come to the notice of Government that the Hon'ble High Court in many judgments (eg. judgments in WP(C) Nos.20914/03, 10482/04, 35325/05 & 21604/06) observed that the directions contained in the Circular read above is contrary to the Pay Revision Order 1998 and the Hon'ble High Court quashed Para 2 of the Circular. Also W.P.(C).No.25435 OF 2008 3 as per Rule 34 of Chapter XIV A KER, every management shall prepare and maintain a staff list otherwise called the seniority list of teachers specified thereunder for promotion to the post Head Master/Head Mistress. In the circumstances, it is clarified that the above seniority list will be the criteria for rectifying junior senior anomaly in pay fixation, with effect from the Pay Revision Order 1998. The Circular read above stands modified to this extent.” 2. It is submitted by the learned counsel for the petitioners that in the light of Ext.P12 judgment and Ext.P18 Circular, the audit objection is liable to be quashed. The contention of the petitioners is well founded. Accordingly, the Writ Petition is allowed and Exts.P3, P3(a) and P3(b) are quashed. The Assistant Educational Officer shall pass consequential orders granting the benefit to the petitioners at the earliest and at any rate within a period of three months from the date of receipt of a copy of the judgment. K.T.SANKARAN, JUDGE. cms