IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 6TH DECEMBER 2011 / 15TH AGRAHAYANA 1933 WP(C).No. 16763 of 2006(U) ----------------------------------------- PETITIONER(S): ------------------------ K.R.KUNJUKRISHNA PILLAI, KARAL VEEDU, VENGA P.O. SASTHAMCOTTA, PIN-690 569, KOLLAM DISTRICT, RETD. HIGH SCHOOL ASSISTANT, GOVERNMENT HIGHER SECONDARY SCHOOL, KARUNAGAPALLY. BY ADV. SRI.P.K.SURESH KUMAR SRI.K.P.SUDHEER RESPONDENT(S): --------------------------- THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.NOBLE MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.16763/2006 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE GO(RT)NO.4216/96/G.EDN DATED 24/12/1996 ISSUED BY GOVT. OF KERALA, GENERAL EDUCATION DEPARTMENT. P2 COPY OF THE JUDGMENT DATED 4/3/2005 IN OP NO.10083/2006 ISSUED BY THIS HON'BLE COURT. P3 COPY OF THE GO(RT)NO.1177/2006/G.EDN DATED 18/3/2006 ISSUED BY GENERAL EDUCATION ® DEPT., GOVT. OF KERALA. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts S.SIRI JAGAN, J. ================== W.P.(C).No. 16763 of 2006 ================== Dated this the 6th day of December, 2011 J U D G M E N T The petitioner retired from service as a High School Assistant. Prior to becoming a High School Assistant, the petitioner had put in service as a primary teacher. The petitioner requested for counting of his service as a primary teacher also for the purpose of grant of higher grade in the post of High School Assistant. According to the petitioner, the petitioner is entitled to get the said relief in view of the Division Bench decision in Secretary to Government v. Mary, 2004 (2) KLT 1090. Seeking the said relief, the petitioner approached this Court by filing O.P.No.10083/1996, in which, this Court passed Ext.P2 judgment, which reads as follows: “The petitioner has approached this Court, praying for a declaration that he is entitled to get the scale of pay of H.S.A. Selection Grade with effect from 1.7.1995. He also prayed for a direction to the 1st respondent to consider Ext.P5 representation. During the pendency of the O.P. the petitioner's representation has been rejected by Ext.P6 order. So, he has amended the O.P., challenging Ext.P6 also. Now, the point whether the primary school service could also be counted for grant of higher grade to a High School Assistant is governed by the decision of this Court in Secretary to Government v. Mary (2004 (2) KLT 1090). In view of the above position, the Government is directed to reconsider Ext.P5, after affording an opportunity of being heard to the petitioner, in the light of the above judgment uninfluenced by the stand taken in Ext.P6. This, the 1st respondent shall do within four months from the date of receipt of a copy of this judgment. The Original Petition is disposed of as above.” Pursuant thereto, the Government has passed Ext.P3 order. The w.p.c.16763/06 - : 2 :- petitioner's grievance in this writ petition is that Ext.P3 order is not in accordance with the direction in Ext.P2 judgment, insofar as the applicability of the judgment in Mary's case (supra) has not even been considered in Ext.P3. 2. No counter affidavit has been filed by the respondent. But the learned Government Pleader seeks to support Ext.P3 order based on the Government orders on the subject. 3. I have considered the rival contentions in detail. 4. When this Court directed consideration of the petitioner's case in the light of the judgment in Mary's case (supra), the least the Government should have done was to say as to why the ratio of that decision is not applicable to the petitioner's case. In Ext.P3 order, there is absolutely no mention about the said judgment. That is not what the Government is expected to do while complying with a judgment of this Court. When this Court directed the Government to consider the petitioner's case in the light of Mary's case (supra), they are bound to do the same. Insofar as, while passing Ext.P3 order, that has not been done, Ext.P3 is liable to be quashed. I do so. The respondent is directed to reconsider the matter stating specifically as to why the judgment in Mary's case (supra) is not applicable to the petitioner's case. Fresh orders, after affording an opportunity of being heard to the petitioner, shall be passed, as expeditiously as possible, w.p.c.16763/06 - : 3 :- at any rate, within two months from the date of receipt of a certified copy of this judgment. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge