IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 23RD NOVEMBER 2010 / 2ND AGRAHAYANA 1932 WP(C).No. 23827 of 2008(J) -------------------------- PETITIONER(S): --------------- 1. T.T. RAJAN, AGED 42 YEARS, S/O CHEKKAYI, UPPER PRIMARY SCHOOL ASSISTANT, A.M.U.P. SCHOOL, KUTTITHARAMMEL,VENGARA, MALAPPURAM DISTRICT. 2. N.P. RAVI, AGED 48 YEARS, S/O ACHU UPPER PRIMARY SCHOOL ASSISTANT,A.M.U.P. SCHOOL, KUTTITHARAMMEL, VENGARA MALAPPURAM DISTRICT. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMSA RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM DISTRICT. 3. THE ASSISTANT EDUCATIONAL OFFICER, VENGARA, MALAPPURAM DISTRICT. 4. THE HEADMASTER, A.M.U.P. SCHOOL, KUTTITHARAMMEL, VENGARA, MALAPPURAM DISTRICT. GOVERNMENT PLEADER SRI.T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.23827 of 2008 --------------------------------------------- Dated this the 23rd day of November, 2010 JUDGMENT Exhibit P3 audit objection dated 17.5.2008 is under challenge in this Writ Petition. It is submitted that the issue involved in the Writ Petition is covered by Exhibit P19 judgment in W.P.(C) No.25435 of 2008. 2. Exhibit P3 audit objection was raised on the basis of Circular No.59151/J2/2000/G.Edn. dated 17.5.2002. In the judgment dated 7th August, 2006 in W.P.(C) No.20914 of 2003, it was held that the said Circular cannot have the effect of amending a Notification and that too with retrospective effect. It was held that the pay fixed before the issue of the Circular could not be revised based on the Circular issued later in point of time. Accordingly, the audit objection was held to be unfounded. After the judgment in W.P.(C) No.20914 of 2003 was passed, Circular No.26790/J2/07/G.Edn. dated 23rd June 2009 was issued. The Circular is extracted below : W.P.(C) No.23827/2008 2 “ 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 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. W.P.(C) No.23827/2008 3 The Circular read above stands modified to this extent.” The judgment in W.P.(C) No.20914 of 2003 was followed in W.P.(C) No.25435 of 2008, that is, Exhibit P19. In view of Exhibit P19 judgment, the petitioner is entitled to the same benefits. Accordingly, Exhibit P3, in so far as it relates to the petitioners, is quashed. The Assistant Educational Officer shall pass consequential orders, 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 csl