IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 2ND JANUARY 2009 / 12TH POUSHA 1930 WA.No. 1491 of 2006(E) ---------------------- AGAINST THE JUDGEMENT/ORDER IN OP.32797/2001 dated 7/07/2006 .................... APPELLANT(S): RESPONDENTS IN THE O.P: ------------------------------------------------------------------ 1. THE STATE OF KERALA REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM. 3. THE PRINCIPAL, GOVERNMENT HIGHER SECONDARY SCHOOL, SASTHAMCOTTA, KOLLAM. BY GOVERNMENT PLEADER RESPONDENT(S): PETITIONER IN THE O.P. ----------------------------------------------------------------- K.P.BALACHANDRAN, PHYSICAL EDUCATION TEACHER (H.S.), GOVERNMENT H.S.S., SASTHAMCOTTA, KOLLAM. ADV. SRI.M.V.THAMBAN FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24/07/2008, THE COURT ON 2/01/2009 DELIVERED THE FOLLOWING: Kss J.B. Koshy, Ag. C.J. & P.N.Ravindran, J. ==================== W.A. No.1491 of 2006 ===================== Dated this the 2nd day of January, 2009. JUDGMENT Ravindran, J. The appellants are the respondents in O.P.No.32797 of 2001 and the sole respondent is the petitioner therein. The parties are referred to as they are arrayed in the Original Petition. The brief facts of the case are as follows: 2. By Annexure A1 notification published in the Kerala Gazette dated 27.7.1993, the Kerala Public Service Commission, hereinafter referred to as the “Commission” for short, invited applications from eligible persons for appointment to the category of Physical Education Teacher (High School) in the General Education Department in the scale of pay of Rs.845-1370. The recruitment was district-wise and applications were invited for appointment in Kollam district, Pathanamthitta district, Alappuzha district, Palakkad district, Malappuram district and Kozhikode district. The number of vacancies notified in Kollam district was one. The petitioner, who is an Ex-serviceman applied pursuant to the said notification for appointment in Kollam district. After Annexure A1 notification was issued, the scale of pay of Primary Departmental WA 1491/06 -: 2 :- Teachers (PD Teachers) was revised from Rs.845-1370 to Rs.1125-1720 with effect from 1.3.1992. The petitioner was selected and included in the ranked list published thereafter. Later, by Ext.P1 memo dated 5.6.1998, the Commission advised the petitioner for appointment to the post of Physical Education Teacher (High School) in the scale of pay of Rs.1125-1720. Thereupon, by Ext.P2 order dated 22.6.1998, the Deputy Director of Education, Kollam appointed the petitioner as Physical Education Teacher (High School) and he joined duty on 2.7.1998. His probation in the category of Physical Education Teacher (High School) was declared satisfactorily completed with effect from 11.7.2000 by order dated 17.7.2000 passed by the Deputy Director of Education, Kollam. 3. In the meanwhile, pursuant to the recommendations of the Pay Revision Committee appointed by the State Government, the Government issued G.O.(P) No.3000/98/Fin dated 25.11.1998 revising the scales of pay of Government employees with effect from 1.3.1997. By the said Government order, the scale of pay of Specialist Teachers was revised from Rs.1125-1720 to Rs.4000-6090. The pay of the petitioner was accordingly refixed in the scale of pay of Rs.4000-6090 with effect from 2.7.1998. He thereafter submitted Ext.P4 representation dated 20.5.2001 before the Deputy Director of Education, Kollam claiming that as per the Government order dated 25.11.1998, he is entitled to be placed in the scale of pay of Rs.4500-7000 with effect from 2.7.1998, the date of his appointment. He also claimed arrears of pay and allowances WA 1491/06 -: 3 :- in the said scale of pay. He thereafter filed O.P.No.27113 of 2001 in this Court. By judgment delivered on 13.9.2001, a learned Single Judge of this Court disposed of O.P.No.27113 of 2001 with a direction to the Deputy Director of Education, Kollam to consider Ext.P4 representation and pass orders thereon within one month from the date of receipt of a copy of the judgment. The Deputy Director of Education, Kollam considered the request made by the petitioner in Ext.P4 and by Ext.P5 order passed on 3.10.2001, rejected the petitioner's request. The Deputy Director of Education, Kollam held that the petitioner is entitled only to the scale of pay of PD teacher. He thereupon filed O.P. No.32797 of 2001challenging Ext.P5 and praying for a writ in the nature of mandamus commanding the respondents to refix his pay in the scale of pay of Rs.4500-7000 and to pay him arrears thereof with effect from 2.7.1998, the date on which he joined duty as Physical Education Teacher (High School). 4. The appellants resisted the Writ Petition contending inter alia that Physical Education Teachers are Specialist Teachers, that appointment of Specialist Teachers in departmental and aided schools is governed by the provisions contained in Rule 6B of Chapter XXIII of the Kerala Education Rules, hereinafter referred to as the “KER” for short, that the qualification and method of appointment to the post of Physical Education Teacher in the Upper Primary section and High School section of departmental schools are the same, that the post of Physical Education WA 1491/06 -: 4 :- Teacher in the Upper Primary section and High School section is similar in status and scale of pay, that the petitioner was appointed as Physical Education Teacher (High School) in the scale of pay of Rs.1125-1720 which was revised by the Government order dated 25.11.1998 to Rs.4000-6090 and that the claim made by the petitioner in Ext.P4 is not tenable. By judgment delivered on 7.7.2006, the learned Single Judge upheld the contentions of the petitioner, quashed Ext.P5 and directed the respondents to fix the pay of the petitioner on the basis of the Government order dated 25.11.1998. Hence, this Writ Appeal. 5. The appellants have along with the Writ Appeal, produced Annexures A1 to A7. The appellants contend that Physical Education Teachers are Specialist Teachers as per Rule 3 of Chapter XXIII of the KER, that the post of Physical Education Teacher (High School) does not exist in the General Education Department, that in the year 1950, prior to the enactment of the Kerala Education Act, Instructors under the National Discipline Scheme were absorbed in the service of the State Government and allowed the scale of pay applicable to the post of High School Assistant. It is stated that some posts of Specialist Teachers were also likewise upgraded and they were also given the scale of pay of High School Assistant. It is further stated that the pay revision order dated 25.11.1998 does not take note of the post of Physical Education Teacher (High School) having the corresponding scale of pay of High School Assistant. The appellants also contend that in Annexure A1 notification WA 1491/06 -: 5 :- inviting applications for appointment to the post of Physical Education Teacher (High School) pursuant to which the petitioner applied, the scale of pay mentioned is Rs.845-1370, that after the said notification was issued, by Annexure A2 order dated 6.1.1994, the scale of pay was revised as Rs.1125-1720 with effect from 1.3.1992, that the petitioner was advised by Ext.P1 memo dated 5.6.1998 for appointment as Physical Education Teacher (High School) in the scale of pay of Rs.1125- 1720 only and not in the scale of pay of Rs.1350-2200 which was revised by Government order dated 25.11.1998 to Rs.4500-7000 with effect from 1.3.1997, that the petitioner is entitled only to the scale of pay of Specialist Teacher, namely, Rs.1125-1720 which was revised by Government order dated 25.11.1998 to Rs.4000-6090 and that the claim made by the petitioner for payment of salary and allowances in the scale of pay of Rs.4500-7000, is not tenable. The appellants contend relying on Annexures A4 to A6 that no other Physical Education Teacher (High School) appointed through the Commission was paid salary in the scale of pay of Rs.4500-7000 as claimed by the petitioner. They contend that Sri.B.R.Vinod was appointed on 1.1.2001 as Physical Education Teacher (High School) in Kollam district in the scale of pay of Rs.4000-6090 and that he continued to draw the salary in the said scale of pay till it was revised later to Rs.6680-10790. The appellants also refer to the case of Sri.Sudheesan A.P., Physical Education Teacher (High School) appointed on 3.6.1985 in Kollam district in the scale of pay of Rs.340-535. It is WA 1491/06 -: 6 :- stated that on completion of 10 years of service, Sri.Sudheesan A.P. was granted first time bound higher grade promotion in the scale of Rs.1350- 2200, which by Government order dated 25.11.1998 stood revised to Rs.4500-7000. The appellants further state that the petitioner will be entitled to go over to that scale of pay only on completion of 10 years of service in the year 2008. The appellants also refer and rely on the fixation of pay in the case of Sri.A.R.Dileep Kumar, Physical Education Teacher (High School) in Kollam district who was appointed on 21.7.1986. Relying on Annexures A1 to A6, the appellants contend that the decision taken by the Deputy Director of Education in Ext.P5 does not suffer from any infirmity or illegality and that the view taken by the learned Single Judge is not sustainable in law. 6. We have considered the submissions made at the Bar by Sri.Benny Gervacis, the learned Government Pleader appearing for the appellants and Sri.M.V.Thamban, the learned counsel appearing for the respondent. It is evident from the pleadings and materials on record that the petitioner was appointed as Physical Education Teacher (High School) in the scale of pay of Rs.1125-1720. When Annexure A1 notification inviting applications for appointment to the post of Physical Education Teacher (High School) was issued, the scale of pay of Physical Education Teacher (High School) was Rs.845-1370. After the said notification was issued, by Annexure A2 order dated 6.1.1994 the scale of pay was revised to Rs.1125-1720 with effect from 1.3.1992. The petitioner was WA 1491/06 -: 7 :- advised for appointment by Ext.P1 memo dated 5.6.1998 and in the advise memo also the scale of pay was shown as Rs.1125-1720. It is thus evident that the petitioner was appointed as Physical Education Teacher (High School) in the scale of pay of Rs.1125-1720 only. These facts are also not in dispute. Then the question is whether by virtue of the Government order dated 25.11.1998, the said scale of pay stood revised to Rs.4500-7000 as claimed by the petitioner. Since the full text of the Government order dated 25.11.1998 is not produced by either of the parties, the learned Government Pleader was directed to make available the full text thereof. We have perused the full text of the Government order dated 25.11.1998. Paragraph 2 of the Government order dated 25.11.1998 states that the existing scales of pay will be revised as shown in Annexure I thereto. It is further stated that the revised scale of pay for various posts is given in Annexure II. From Annexure I to the Government order dated 25.11.1998, it is seen that the scale of pay of Rs.1125-1720 stands revised to Rs.3590-5400. Therefore, on the terms of Annexure I to the Government order dated 25.11.1998 the petitioner's claim for pay and allowances in the scale of pay of Rs.4500-7000 with effect from 2.7.1998 is not tenable. 7. We shall now consider whether as per Annexure II to the Government order dated 25.11.1998 the petitioner is entitled to the scale of pay of Rs.4500-7000. The scales of pay of officers and staff of the General Education Department are set out in pages 44 to 56 of the WA 1491/06 -: 8 :- Government order dated 25.11.1998. The appellants contend that Physical Education Teachers are Specialist Teachers. They also refer to and rely on Rule 3 of Chapter XXIII of the KER in support the said contention. Going by Rule 3 of Chapter XXIII of the KER it is evident that Physical Education Teachers are Specialist Teachers. According to the appellants, Specialist Teachers are entitled only to the scale of pay of PD Teachers. The appellants also contend that Specialist Teachers wherever they are appointed, whether it be High School section or in the Upper Primary section, are similar in status and carry the same scale of pay. According to the appellants, the scale of pay of Specialist Teachers was revised from Rs.1125-1720 to Rs.4000-6090 as per the Government order dated 25.11.1998. Reference is made to the entry against Specialist Teacher Grade II at page 48 of the Government order dated 25.11.1998. On the other hand, the petitioner contends relying on the entry against Teacher (Physical Education/ Veena/ Commercial/ Hindustani-Urdu) occurring in page 46 of the aforesaid Government order, that the scale of pay of such teachers which was Rs.1350-2200 before the Government order dated 25.11.1998, stands revised to Rs.4500-7000. From the materials on record, it is evident that it is relying on the said entry that the petitioner claims payment of salary in the scale of pay of Rs.4500-7000. 8. From the materials on record, especially the documents produced as Annexures A1 to A6, we find force in the submission of the WA 1491/06 -: 9 :- appellants that the scale of pay of Physical Education Teachers (High School) which is the same as the scale of pay of Specialist Teachers prior to the Government order dated 25.11.1998 was Rs.1125-1720 and that by the said Government order it stood revised to Rs.4000-6090. We also find merit in the plea raised by the appellants that only a few Physical Education Teachers were earlier given the scale of pay of High School Assistant (Rs.1350-2200) and that such Physical Education Teachers alone are entitled to the scale of pay of Rs.4500-7000. Apart from relying on the entries in page 46 of the Government order dated 25.11.1998, the petitioner has not produced any material to show that he was appointed as Physical Education Teacher in the scale of pay of Rs.1350-2200 which stood revised by the Government order dated 254.11.1998 to Rs.4500-7000. Further the appellants have positively averred that no Physical Education Teacher (High School) in the Department was appointed in the scale of pay of Rs.1350-2200 either before or after the petitioner entered service. The petitioner had not produced any material to contradict the said contention. 9. For the reasons stated above, we hold that the claim made by the petitioner in Ext.P4 is not tenable. As rightly contended by the appellants, the petitioner can claim the scale of pay of Rs.4500-7000 only on completion of 10 years of service as Physical Education Teacher (High School) when he becomes entitled to the first time bound higher grade promotion in terms of paragraph 5 of the Government order dated WA 1491/06 -: 10 :- 25.11.1998. The decision taken by the Deputy Director of Education in Ext.P5, cannot therefore be said to be infirm. Accordingly, we allow this Writ Appeal, set aside the judgment of the learned Single Judge and dismiss the Original Petition. No costs. J.B. Koshy, Acting Chief Justice. P.N.Ravindran, Judge. ess 9/12