IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 WA.No. 2893 of 2009() --------------------- AGAINST THE JUDGEMENT IN WPC.915/2007 Dated 24/06/2009 .................... APPELLANT/ PETITIONER:- ------------------------------------- SUKUMARAN E.V., RETIRED PRINCIPAL, S.N.VILASAM HIGH SCHOOL, ALOOR, RESIDING AT EDATHADAN HOUSE, ALOOR P.O., VIA KALLETTUMKARA, THRISSUR DISTRICT, PIN 680 683. BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SRI.S.SUJIN RESPONDENT(S)/RESPONDENTS:- ---------------------------------------------- 1. DISTRICT EDUCATIONAL OFFICER, IRINJALAKKUDA. 2. DEPUTY DIRECTOR OF EDUCATION, THRISSUR. 3. PRINCIPAL SECRETARY TO GOVT. OF KERALA, FINANCE DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 4. ACCOUNTANT GENERAL, KERALA, THIRUVANANTHAPURAM. 5. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SMT.T.B.REMANI. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11/06/2010, ALONG WITH WA NO. 704 OF 2010 , THE COURT ON 02/07/2010 DELIVERED THE FOLLOWING: C.N.Ramachandran Nair & P.S.Gopinathan, JJ. ============================================ W.A.Nos.2893/09 & 704/10 ============================================ Dated this the 2nd day of July, 2010. COMMON JUDGMENT Gopinathan, J. 1.Assailing the judgment of the learned single Judge in W.P.(C).915 of 2007 dated 24.6.2009, these appeals were filed by both parties. W.A.No.2893 of 2009 was filed by the writ petitioner. The other appeal was preferred by the respondents. Hereinafter the parties are referred as they are arrayed in the writ petition. The writ petitioner died pending the appeals. His legal heirs were impleaded as per the order in I.A.No.53 of 2010 in W.A.No.2893 of 2009. The writ petitioner was a High School Teacher in S.N.Vilasam High School, Aloor. While so, on 2.5.1996 he was promoted as Headmaster. He would complete 20 years of service on 31.5.1996 and would have been entitled to a higher grade had he not been promoted as W.A.Nos.2893/09 & 704/10. -: 2 :- Headmaster. His regular increment, but for promotion, would have fallen due on 1.7.1996. Hoping for consequential benefit, he preferred an option for fixation of his pay in the cadre of Headmaster with effect from 1.7.1996. If it is allowable, he would be entitled to a grade on 1.6.1996 with fixation and then a re-fixation in pursuance of the regular increment due on 1.7.1996. If fixation in the post of Headmaster is done thereafter, he would get another jumping of the salary. It is with this in mind he preferred to opt for Headmaster's salary after 1.7.1996. Without considering the legality of the option, his pay was fixed by the authorities as opted by him. Audit party objected the same. Though he did not get a copy of the audit objection, against oral information, he preferred Exts.P1 and P2 objections assailing the audit objection. In the eve of retirement, according to the petitioner, without considering the W.A.Nos.2893/09 & 704/10. -: 3 :- objection filed, steps were ahead to sustain the audit objection. The District Educational Officer communicated audit objection to the writ petitioner through Ext.P3. Writ petitioner filed Ext.P4 objection stating that he is entitled to a re-option as per G.O.(P)No.615/(138)/97/Fin. dated 28.6.1997, copy of which was produced as Ext.P6. While so, the petitioner retired from service on 31.3.2002. Rejecting the objection raised by the petitioner, his salary was reduced to Rs.7,950/- from Rs.8,550/-. Consequent reductions were made in the pension as well as in the D.C.R.G. Writ petitioner moved this Court with W.P.(C)No.35556 of 2005. This Court directed the respondents to consider the objection filed by the petitioner. The D.E.O., in the light of the direction given by this Court, examined the matter and by Ext.P8 order dated 21.4.2006 found that earlier the salary of the petitioner was correctly fixed in accordance W.A.Nos.2893/09 & 704/10. -: 4 :- with the re-option exercised by him as per G.O. (P)No.615/(138)/97/Fin. Dated 28.6.1997. However, the D.E.O. forwarded Ext.P8 order to the Government for approval. The Government, by Ext.P10 dated 31.8.2006, rejected the objection raised by the petitioner. Following Ext.P10, the Deputy Director, by Ext.P9 dated 21.9.2006, issued an order rejecting the objection raised by the petitioner. Assailing Exts.P3, P9 and P10 this writ petition was moved. By an interim order, again this Court issued a direction to re- consider the objection raised by the petitioner. In pursuance of that direction, the Government again considered the matter and issued Exts.P11 and P12 orders again rejecting the objection raised by the writ petitioner. Thereafter, writ petition was amended to assail Exts.P11 and P12 also. 2.The learned single Judge by the impugned judgment W.A.Nos.2893/09 & 704/10. -: 5 :- arrived at a finding that the claim made by the writ petitioner as well as the objection raised by the respondents are not sustainable. It was further found that the writ petitioner, who was a P.D. Teacher, is entitled to a higher grade on completion of 20 years of service by 31.5.1996 and he is entitled to a re-option with effect from 1.6.1996. The request to opt to Headmaster's pay with effect from 1.7.1996 was turned down and the writ petition was disposed of directing the writ petitioner to file a formal option for the purpose of clause (c) of sub- clause (ii) of Ext.P14 order with date of option as 1.6.1996 and further ordered that the petitioner's pay should be fixed within two months in accordance with that option. Now these appeals. 3.We heard Government Pleader as well as counsel for the writ petitioner. The fact that the writ W.A.Nos.2893/09 & 704/10. -: 6 :- petitioner was a graduate teacher is not disputed. However, it was mistakenly mentioned in the impugned judgment that he was a P.D. Teacher. Hence we record that the petitioner is a graduate teacher. Going by Exts.P13 and P14 Government Orders, we find that whether the petitioner is a graduate teacher or a P.D.Teacher makes no difference as regards the claim advanced by the writ petitioner. On his promotion as Headmaster on 2.5.1996, he is entitled to get his salary fixed in the scale applicable to Headmasters. Exts.P13 and P14 Government Orders entitle a graduate teacher to get a higher grade on completion of 20 years of service, irrespective of promotion as Headmaster on 2.5.1996. Therefore, in the light of Exts.P13 and P14 Government Orders, without an option, the writ petitioner is entitled to a re-fixation on 1.6.1996 when he completed 20 years service as a graduate teacher. That position is not at all W.A.Nos.2893/09 & 704/10. -: 7 :- disputed by the respondents. The learned counsel for the writ petitioner submitted that the petitioner would be satisfied by that declaration. 4.Though the writ petitioner has got a contention that he is entitled to file an option in the light of Ext.P5 order to switch over to the scale of Headmasters at a later stage, we fail to find that there is any such right of option. The writ petitioner, having been promoted on 2.5.1996, is bound to get his salary as Headmaster fixed from that date onwards. The right of option to change over to the scale of pay arises only in respect of the existing scale of pay in the existing cadre as on the date of the pay revision order. Once pay revision implementing orders are issued, the subsequent promotees and appointees are bound by the scale of pay fixed for the post concerned. That being so, we find that the permission W.A.Nos.2893/09 & 704/10. -: 8 :- granted to the writ petitioner to file a re- option to switch over to the Headmaster's salary with effect from 1.6.1996 is not sustainable. Whereas, as mentioned earlier, the writ petitioner is entitled to higher grade on completion of 20 years service as graduate teacher and for re-fixation of his pay in the light of Exts.P13 and P14 Government Orders. But for Exts.P13 and P14, the writ petitioner is not entitled to a re-fixation on 1.6.1996 because grade is usually sanctioned in lieu of promotion and the petitioner, having obtained promotion before he being entitled to get a higher grade. If the petitioner was not promoted on 2.5.1996, he would have got his grade on 1.6.1996 and the salary fixed in the higher grade and then he would have been entitled to a re-fixation on 1.7.1996, on which day he is entitled to a regular increment. Here, in this case, since the writ petitioner was promoted on 2.5.1996, he is W.A.Nos.2893/09 & 704/10. -: 9 :- entitled to have fixed his salary as Headmaster on the existing scale as on the date of promotion. On 1.6.1996, he is entitled to a higher grade in the light of Exts.P13 and P14 and consequently he is entitled to have a fixation on that date and his salary as Headmaster would be re-fixed accordingly. His next increment would fall due only on 1.6.1997. He is not entitled to opt the commencement of salary as Headmaster either on 1.6.1996 or on 1.7.1996. The impugned judgment requires such interference. 5.We notice that, in State service, every incumbent is given his or her basic pay fixed with reference to the date of his entry in service or promotion. Consequently, the annual increment, grade, re-fixation of salary pursuant to pay revision had to commence individually resulting administrative workload in every office as well as dispute thereon regarding the fixation of pay. W.A.Nos.2893/09 & 704/10. -: 10 :- Recently, the Government has unified the date of retirement. In the event, commencement of service and promotion is unified to a particular date in an year, irrespective of entry to service or promotion, rather than giving individual dates, we find that much dispute and consequent litigation regarding pay fixation could be avoided. However, it is for the State to decide and we direct the Government to consider the proposal. A copy of this judgment shall be forwarded to the Secretary, Finance as well as Secretary to the Pay Revision Commission for considering the above proposal. In the result, WA.No.704/2010 is allowed. The impugned judgment permitting the petitioner to opt to the salary of the Headmaster with effect from 1.6.1996 is set aside. It is further declared that the salary of the petitioner as Headmaster would be fixed as on 2.5.1996, the W.A.Nos.2893/09 & 704/10. -: 11 :- date when he took charge as Headmaster. In the light of Exts.P13 and P14, he is entitled to a grade with effect from 1.6.1996 and to get his salary re-fixed with routine increments and other benefits. The other appeal would stand disposed as above. C.N.Ramachandran Nair, Judge. P.S.Gopinathan, Judge. sl.