IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 23RD JANUARY 2008 / 3RD MAGHA 1929 WP(C).No. 20419 of 2005(E) --------------------------------------- PETITIONER: ------------------- P.N. SOBHANA, ASSISTANT TEACHER (UPSA), A.U.P. SCHOOL, CHERUKARA, MALAPPURAM DISTRICT. BY ADV. SRI.K.GOPALAN. RESPONDENTS: ------------------------ 1. ASSISTANT EDUCATIONAL OFFICER, PERINTHALMANNA, MALAPPURAM DISTRICT. 2. DEPUTY DIRECTOR (EDUCATION), MALAPPURAM. 3. THE HEADMASTER, A.U.P.SCHOOL, CHERUKARA. 4. DIRECTOR OF PUBLIC INSTRUCTION, TRIVANDRUM. 5. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT, SECRETARIAT, TRIVANDRUM. BY GOVERNMENT PLEADER SRI. M.P. SREEKRISHNAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/01/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.20419/2005-E: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE OPTION DT. 23/02/99 SUBMITTED BY THE PETITIONER ELECTING THE REVISED SCALE OF PAY W.E.F. 01/03/1997. EXT.P.2: COPY OF THE STATEMENT OF FIXATION OF PAY DT. 23/02/99 FIXING PETITIONER'S PAY AT RS. 4500/- W.E.F. 01/03/97 IN THE REVISED SCALE. EXT.P.3: COPY OF THE OPTION DTD. 23/02/99 EXERCISE BY THE JUNIOR TEACHER, M.P. KRISHNAN UNNI, ELECTING THE REVISED SCALE OF PAY W.E.F. 01/03/1997. EXT.P.4: COPY OF THE STATEMENT OF FIXATION OF PAY DT. 23/02/99 FIXING M.P. KRISHNAN UNNI'S PAY AT RS. 4500/- W.E.F. 01/03/1997 IN THE REVISED SCALE BY THE R.1. EXT.P.5: COPY OF THE STATEMENT OF FIXATION OF PAY ORDER NO. K. DIS/C/99 DT. 09/07/99 RECTIFYING THE JUNIOR-SENIOR ANOMALY. EXT.P.6: COPY OF THE OPTION DT. 14/11/2000 EXERCISED BY PETITIONER FOR SENIOR GRADE W.E.F. 09/11/2000 ON COMPLETION OF 18 YEARS OF SERVICE. EXT.P.7: COPY OF THE STATEMENT OF FIXATION OF PAY ORDER NO. K. DIS/C/123/2001 DT. 01/02/2001 GRANTING SENIOR GRADE TO PETITIONER, FIXING HER PAY AT RS. 5125/- W.E.F. 09/11/2000. EXT.P.8: COPY OF THE OPTION DT. 30/03/2002 SUBMITTED BY M.P. KRISHNAN UNNI FOR SENIOR GRADE W.E.F. 02/04/2002. EXT.P.9: COPY OF THE STATEMENT OF FIXATION OF PAY ORDER NO. K. DIS/C/2042/02 DT. 16/05/02 GRANTING SENIOR GRADE TO M.P. KRISHNAN UNNI, FIXING HIS PAY AT RS. 5375/- W.E.F. 02/04/2002. EXT.P.10: COPY OF THE REPRESENTATION DT. 23/11/2002 SUBMITTED BY THE PETITIONER TO THE R.1. EXT.P.11: COPY OF THE LETTER NO. L. DIS. 5380/03/F5 DT. 11/09/03 FROM DY. DIRECTOR (EDUCATION ) MALAPPURAM TO THE A.E.O. PERINTHALMANNA. EXT.P.12: COPY OF THE G.O. NO. (P) 773/99/10/FIN. DTD 05/03/99. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No.20419 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of January, 2008 JUDGMENT Petitioner challenges Ext. P11 and seeks a direction to command the first respondent to re-fix the petitioner's pay at Rs.5375/- to be on par with that of her junior Sri.M.P. Krishnan Unni with effect from 2.4.2002 rectifying the anomaly in their pay pursuant to Exts.P7 and P9 pay fixation orders respectively, in terms of Rule 9(2) of Annexure III to Go.O. (P) No. 3000/98/Fin dated 25.11.1998. 2. The short case of the petitioner is as follows: Petitioner is working as Assistant Teacher. One Sri.M.P.Krishnan Unni was also an Assistant Teacher in the same School. He is junior to the petitioner. When the General Pay Revision, 1997 came into effect the pay of the petitioner and her junior was fixed at Rs.4500/- (Exts.P1, P2, P3 and P4). The next dates of increment of the petitioner as per Ext.P2 pay fixation order was 1.11.1997 and 1.11.1998. In the case of Sri.M.P.Krushnan Unni the increment dates were 1.4.1997 and 1.4.1998. On the basis of paras 6 and 9(2) of Annexure III Government Order dated 25.11.1998, by Ext.P5, taking note of the date of increment of the junior, the pay of the petitioner was fixed at Rs.4600/- with effect from 1.4.1997. WPC.20419/2005. 2 Petitioner completed 18 years service on 8.11.2000. She elected to come over to the Senior Grade with effect from 9.11.2000 ans he submitted Ext.P6 option dated 14.11.2000. Senior Grade was given and her pay was fixed at Rs.5125/- with effect from 9.11.2000. Ext.P7 is the statement of fixation. The normal date of next increment of the petitioner as per Ext.P7 was 1.11.2001. Her junior Sri.M.P.Krishnan Unni, however, on completing 18 years has got his senior grade with effect from 2.4.2002 on the basis of the option dated 30.3.2002. His pay was fixed at Rs.5375/-. The normal date of increment as per Ext.P9 was 1.4.2003. Petitioner's pay as on 2.4.2002 was Rs.5250/-, while her junior's pay was Rs. 5375/- in the same scale of pay. Petitioner preferred Ext.P10 representation to rectify the senior-junior anomaly. This came to be rejected by Ext.P11. It reads as follows: “I am to inform you that the proposal has been returned by the Director of Public Instruction stating that the request is inadmissible as per existing rules. The service book of the teacher is forwarded herewith.” Petitioner has produced Ext.P12 Government Order dated 5.3.1999. It reads as follows: “As per rule 7 of the rules for fixation of pay in Annexure III of the Government Order read above employees WPC.20419/2005. 3 who were promoted between 1.3.1997 and to the date of issue of orders were permitted to opt the revised scale of pay of the promoted post, i.e., the next immediate promotion post assumed on or after 1.3.1997. A doubt has arisen whether the next immediate promotion includes ratio/time bound higher grades also. Government are pleased to clarify that the next immediate promotion includes ratio/time bound higher grades also. It is also clarified that the Government employees and teachers who got time bound higher grade under the pre-revised scheme alone will be allowed to opt the revised scale of pay of the higher grade with effect from the date of effect of higher grade sanctioned between 1.3.1997 and 25.11.1998. In such cases the next increment will be allowed in completion of one year from the date of option to come over to the revised scale.” 3. Counter affidavits have been filed by the respondents. No reply affidavit is seen filed. 4. I heard learned counsel for the petitioner and the learned Government Pleader. 5. Learned counsel for the petitioner relies on para 9(2) of Annexure III of the Government Order. It is the admitted position that on the basis that the petitioner's junior got increment with effect from 1.4.1997, the pay of the petitioner was fixed with effect from 1.4.1997. What the WPC.20419/2005. 4 petitioner is seeking is the benefit of the fixation obtained by her junior in the Senior Grade upon completion of 18 years. Petitioner completed 18 years on 18.11.2000. The junior completed 18 years service and he, by his option dated 30.3.2002 opted for Senior Grade with effected from 2.4.2002. Petitioner on her volition submitted her option vide Ext.P6 opting for Senior Grade with effect from 9.11.2000. Therefore the anomaly is not one which brought about by the pay fixation as such. The anomaly is brought about by the option exercised by the junior of the petitioner with effect from a particular date and the option exercised by the petitioner with reference to an earlier date. It is true that the words 'next immediate promotion' will include grade promotion also and time promotion. But Ext.P12 makes itself clear that the teachers who got time bound higher grade under the pre- revised scale alone will be allowed to opt the revised scale of pay of the higher grade with effect from the date of effect of higher grade sanctioned between 1.3.1997 and 25.11.1998. As pointed out in the counter affidavit int he case of the petitioner, her pay in the senior grade was not fixed in the pre-revised scale. Senior Grade of the petitioner fell on 9.11.2000 and it is apparently not between 1.3.1997 and 25.11.1998 as mandated in Ext.P12. Therefore, the petitioner cannot claim the said benefit on the basis of Ext.P12. I do not think that the petitioner can claim the benefit of WPC.20419/2005. 5 paragraph 9(2). In fact she has rightly been given the benefit of the said provision by way of stepping up his pay with effect from 1.4.1997 on par with the date of increment of her junior. It cannot be said that the said provision will come to the aid of the petitioner in the context of the choice exercised by the petitioner with reference to the date of claiming the senior grade. I find no merit in the writ petition. Accordingly, it is dismissed. (K.M. JOSEPH, JUDGE) sb