IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 RP.No. 861 of 2010(M) --------------------- AGAINST THE JUDGEMENT/ORDER IN OP.7055/1990 Dated 23/03/1992 .................... REVIEW PETITIONER(S): ---------------------- P.V.SIVAN, RTD. TECHNICAL ASSISTANT GRADE I, (RESIDING AT C/O.C.K.DIVAKARAN, CHENNATTU HOUSE, SAMOOHAMADOM ROAD, THODUPUZHA P.O., IDUKKI DISTRICT. BY ADV. SMT.P.V.ASHA RESPONDENT(S)/PETITIONERS & RESPONDENTS: --------------------------------------- 1. V.D.VAMADEVAN, DISTRICT EDUCATION MEDIA OFFICER (RTD.), O/O. THE DISTRICT MEDICAL OFFICER OF HEALTH, CIVIL STATION, CALICUT. 2. C.D.RICHARD BENZER, DEPUTY DISTRICT EDUCATION MEDIA OFFICER (RTD.), OFFICE OF THE DISTRICT MEDICAL OFFICER OF HEALTH, MANJERI, MALAPPURAM DISTRICT (RESIDING AT ANUGRAHA, KAMALA GARDENS, PEROORKADA, THIRUVANANTHAPURAM-5). 3. STATE OF KERALA, REP. BY CHIEF SECRETARY TO GOVT., GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 4. DIRECTOR OF HEALTH SERVICES(GENERAL & PUBLIC HEALTH), TRIVANDRUM. 5. DIRECTOR OF HEALTH SERVICES (FAMILY WELFARE & INDIA POPULATION PROJECT III), THIRUVANANTHAPURAM. ADV. SRI.G.SUDHEER FOR R2 GOVERNMENT PLEADER SHRI.ANTONY MUKKATH FOR R3, R4 ADV.ELVIN PETER.P.J. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 23/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.SIRI JAGAN, J. ================== R.P.No. 861/2010 in O.P.No. 7055/1990 ================== Dated this the 23rd day of September, 2010 O R D E R The petitioner seeks review of the judgment dated 23.3.1992 in O.P.No.7055/1990. That judgment reads thus; 'Petitioners were first appointed as District Extension Educators on the advice of the Public Service Commission. The appointment was in the Family Planning Wing of the Health Services Department. The post of District Extension Educator was re-designated in 1975 as Deputy Mass Education and Information Officer. The qualification for the post is Master's Degree in Social Sciences, Social Work or Education. In the absence of candidates possessing the said qualification, those with Bachelors Degree with Diploma in Social Sciences would be appointed. In implementation of the Multi-purpose Workers' Scheme, the State issued Ext.P2 order dated 1.6.1983. By that, Government redesignated the post upto the District level. The post of Mass Education and Information Officer in the Family Welfare Wing and the post of District Media Education Officer in the General Health Wing were combined into one post and re-designated as District Education Media Officer. The post of Deputy Mass Education and Information Officer in the Family Welfare Wing was re-designated as Deputy District Education Media Officer. The post of District Health Educator was re- designated as Technical Assistant (Health) Grade I and post of Supervisor (Malaria) was re-designated as Technical Assistant (Health) Grade II. The post of Mass Education and Information Officer and Deputy Mass Education and Information Officer came under the Family Welfare Scheme of the Health Services Department. While fixing scales of pay for the re-designated posts, errors crept in. To have those errors rectified, petitioners and others moved this Court by filing O.P.No.8602 of 1983. While disposing of that Original Petition, this Court observed as follows: “3. In Ext.P2 certain posts have been integrated and re- designated. The posts of Mass Education Information Officer and District Education Officer were integrated and re-designated as District Education Media Officers. The District Education Officers are the promotion posts of District Health Educators. The District Health Educators' post were redesignated as Technical Assistant Grade I. These Technical Assistants Grade I were on the scale of pay of Rs.520-900. After the rationalisation brought out by Ext.P2, they were placed in the scale of pay of Rs.700-1270. But the District Education Media Officers who were in the scale of pay of Rs.650-1150 were directed to continue in the same scale. This means the District Health Educators who were in a lower grade than the District Health Education Officers, on getting re-designated as Technical Assistant Grade I, are placed in the scale of pay of Rs.700-1270. Promotees from that cadre along with the Mass Education and Information Officers, re-designated as District Education Media Officers are placed in a lower scale, viz. 650-1150, without any change in the scale of pay. It appears to be a patent error. The r.p.861/10 2 Deputy Mass Education and Information Officers were redesignated as Deputy District Education Media Officers. They were in the scale of pay of Rs.520-900. That scale of pay is retained for the redesignated post also. But their juniors, Health Supervisors (Malaria) were redesignated as Technical Assistant Gr.II and were placed in a higher scale of pay, viz. 650-1150. When Mass Education and Information Officers on redesignation were directed to continue in the same scale of pay, viz. 520-900, there is no noticeable reason for placing their juniors, who were also in the same scale, to the higher scale, viz. 650-1150. This also apepars to be an anomaly. The post of Health Supervisor (Malaria) was two ranks lower to the District Health Education Officers. Health Supervisor (Malaria) on getting promotion becomes the District Health Educator and on further promotion becomes District Health Education Officer. The post of Health Supervisor (Malaria)was redesignated as Technical Assistant (Health) Grade II. That post was given a hike in the scale of pay, viz. 520-900 to 650-1150. That means, Technical Assistant (Health) Grade II was given the same scale of pay as District Education Media Officer. The post in between the District Health Educator and District Health Education Officer was placed in a higher scale of pay of Rs.700- 1270. This is also a patent irregularity. These irregularities and mistakes have to be rectified. I direct the respondents, the State of Kerala and the Director of Health Services, to look into the above mentioned anomalies in the scales of pay fixed under Ext.P2 and to pass appropriate orders rectifying the mistakes as expeditiously as possible.” Purporting to be in compliance with the direction given by this court in the above judgment, Government issued Ext.P4 order holding that there is no anomaly in the scale of pay. That order is under challenge. 2. A detailed counter-affidavit has been filed on behalf of the State. The stand taken in the Counter-affidavit is that this Court while disposing of Original Petition No.8602 of 1983 found that there is prima facie substance in the contention of the petitioners and came to the conclusion that the anomaly/mistake in the matter of prescription of scales of pay for the re-designated posts have to be rectified by the Government. This Court directed the Government to look into the anomalies and to pass appropriate orders rectifying the mistakes. Government came to a bona fide conclusion that as a matter of fact, there is no anomaly in granting scales of pay to the various re- designated categories mentioned in Ext.P2. The re-organisation and re-designation brought about by Ext.P2 does not protect the officers in the Mass Education Unit except change of designation of Deputy Mass Education and Information Officer as Deputy District Education Media Officers and Mass Education and Information Officers as District Education Media Officers and integrating the District Health Education Officers in the scale of Rs.650-1150 with District Education Media Officers. Except this amalgamation, Mass Education Unit and the r.p.861/10 3 Public Health Unit continue to be separate Units for all purposes as before re-organisation. Deputy District Education Media Officers and District Education Media Officers have not suffered any disadvantage on account of the re-designation and integration by Ext.P2. The Mass Media Officers had urged claims before the Fifth Pay Commission for higher scales of pay on par with Technical Assistant Grade II and Grade I respectively. But the Pay Commission did not accept the claim as is seen from the prescription of the different scales of pay for Media Officers and Technical Assistants as before. Therefore, the Government came to the conclusion that there is no real anomaly or mistake in the prescription of pay scales. 3. District Health Education Officer/District Food Inspector/Chief Food Inspector were the promotion posts of Health Inspector Grade I/District Health Educator/Health Supervisor. The first category was re-designated as District Education Media Officer. There was no change in the scale of pay, ie., the scale of pay for that cadre continued to be Rs. 650-1150. Out of the 3 lower posts, posts of District Health Educator was re-designated as Technical Assistant (Health) Grade I in the scale of pay of Rs. 700-1270. Next category in the lower cadre viz. The post of Health Supervisor was re-designated as Technical Assistant (Health) Grade II. Scale of pay was changed from Rs. 520-900 to Rs. 650-1150. The Mass Education and Information Officers/District Health Education Officers who were in the scale of pay of Rs. 650-1150 were ordered to be continued in the same scale even though they were re-designated as District Education Media Officers. The post lower to Mass Education and Information Officers, viz., Deputy Mass Education and Information Officer who were in the scale of pay of Rs. 520-900 on re-designation as Deputy Education Media Officer continued to be in the same scale. These are anomalies which were directed to be rectified by the Government in Ext.P3 judgment. Government have taken the view that in Ext.P3 judgment, this court took only a tentative conclusion regarding the anomalies and the Government were directed to examine the same. On such examination Government, it is alleged bona fide came to the conclusion that there was no anomaly to be rectified. This view taken by the Government does not appear to be correct. This court directed the Government to pass appropriate orders rectifying the mistakes as expeditiously as possible. It means that this Court came to a final conclusion that there existed mistakes. That conclusion reached by this Court is not to be interfered with by the Government. Government have no authority to vary this court's judgment or sit in judgment over it. If the Government were aggrieved by the decision, they ought to have challenged the same in appeal. Ext.P3 judgment has not been taken in appeal. It has become final. It is binding on the Government. Government are not to turn round and contend that the issue was left at large by this court for them to take a decision. 4. In support of Ext.P4 order, Government take the stand that the Fifth Pay Commission went into the entire issue regarding the alleged anomaly and came to the conclusion that there is no anomaly to be r.p.861/10 4 rectified. No part of the Pay Commission report has been placed before this Court in support of this contention. No portion of the report of the Pay Commission has been referred to in the Counter Affidavit either. Learned Govt. Pleader has not placed before this Court any portion of the report of the Fifth Pay Commission in support of the Government's stand that the anomalies mentioned above were specifically dealt with by the Commission. In such a situation, I have no hesitation in holding that the issue dealt with by this Court in Ext.P3 judgment was not considered by the Fifty Pay Commission. Consequently, I hold that the Government are in error in taking the view that the grievance of the petitioners were dealt with by the Pay Commission and denied to them. 5. In view of what has been stated above, I quash Ext.P4 order and direct the first respondent to rectify the anomalies mentioned earlier. The anomalies can be rectified by enhancing the scale of pay of the post of District Education Media Officers at a higher level than that of Technical Assistant (Health) Grade I and that of Deputy District Education Media Officers at the same level as that of Technical Assistant (Health) Grade I respectively, with effect from the date of Ext.P2 order. This direction is given only because respective position held by the officers prior to Ext.P2 order. On such rectification, the benefit of the subsequent Pay Commission reports must also be granted to the petitioners. Final order in this regard must be issued rectifying the mistakes within 3 months from the date of receipt of a copy of this judgment. Original Petition is ordered in the above terms. I direct the parties to suffer their costs.' The petitioner is not a party to the original petition. According to him, based on the judgment in the original petition, the scale of pay of the petitioner has been reduced. From the judgment sought to the reviewed, I do not find any direction to reduce the scale of pay of the petitioner. On the other hand, what has been directed is that the anomalies can be rectified by enhancing the scale of pay of the post of District Education Media Officers at a higher level than that of the Technical Assistant (Health) Grade I and that of the Deputy District Education Media Officers at the same level as that of Technical r.p.861/10 5 Assistant (Health) Grade I respectively, with effect from the date of Ext.P2 order. That does not contain any direction to reduce the scale of pay of Technical Assistant (Health) Grade I, which the petitioner was at the relevant time. As such, I do not find any ground to review the judgment. If the petitioner's scale of pay has been reduced contrary to that judgment, it is for the petitioner to take up the matter appropriately and challenge such action. Therefore, without prejudice to that right, this review petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge