IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 WP(C).No. 19754 of 2005(B) -------------------------- PETITIONER(S): --------------- O.JANARDHANAN, H.S.A.(SOCIAL STUDIES), C.M.C. HIGH SCHOOL, ELATHUR, CALICUT. BY ADV. MR.O.K.MURALEEDHARAN MR.GEORGE ABRAHAM RESPONDENT(S): ----------------------- 1. THE DISTRICT EDUCATIONAL OFFICER, CALICUT. 2. THE DEPUTY DIRECTOR OF EDUCATION, CALICUT. 3. THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 4. THE STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 5. M.G. RAJANI, H.S.A.(NATURAL SCIENCE), C.M.C.HIGH SCHOOL, ELATHUR, CALICUT. 6. THE ACCOUNTANT GENERAL, AGS OFFICE, THIRUVANANTHAPURAM. R1 TO R4 & R6 BY GOVERNMENT PLEADER SMT.T.B. REMANI. R5 BY ADV. MR.C.A.CHACKO. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/11/2009, THE COURT ON 30/11/2009 DELIVERED THE FOLLOWING: WP(C) NO. 19754/2005-B APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER DATED 17/04/2002 ISSUED BY THE DY. DIRECTOR OF EDUCATION. EXT.P2: COPY OF THE REPLY DATED 30/09/2002 SUBMITTED BY THE HEADMISTRESS TO DEO. EXT.P3: COPY OF THE COMMUNICATION DATED 27/02/2004 ISSUED BY THE HEADMASTER OF THE CMC BOYS HIGH SCHOOL. EXT.P4: COPY OF THE COMMUNICATION DATED 07/02/2004 ISSUED BY THE 1ST RESPONDENT. EXT.P5: COPY OF THE CIRCULAR DATED 16/05/2002 ISSUED BY THE 3RD RESPONDENT. EXT.P6: COPY OF THE APPEAL DATED 06/05/2004 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT. EXT.P7: COPY OF THE JUDGMENT IN WP(C) NO. 15371/04 OF THIS HONOURABLE COURT DATED 24/05/2004. EXT.P8: COPY OF THE G.O.(RT)NO.1229/05/GEN.EDN. DATED 28/03/2005. EXT.P9: COPY OF THE GOVERNMENT LETTER NO.6041/K.4/2001 DATED 21/04/2001. EXT.P10: COPY OF THE JUDGMENT IN WP(C) NO. 20914/2003 (M) DATED 07/08/2006. RESPONDENT'S EXHIBITS: EXT.R1: COPY OF THE STATEMENT SHOWING THE DIFFERENCE BETWEEN SENIOR AND JUNIOR HSSTS PAY FIXATION. //TRUE COPY// P.S. TO JUDGE rs. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 19754 of 2005-B - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of November, 2009. JUDGMENT The petitioner who is now working as H.S.A. (Social Studies), is aggrieved by the audit objection raised consequent on the implementation of the pay revision with effect from 1.3.1997. The necessary facts for the disposal of the writ petition are the following: He was initially appointed as L.P.S.A. and thereafter was promoted as UPSA with effect from 15.6.1983. He was promoted as H.S.A. in a vacancy which arose on 1.7.990 under Rule 43 of Chapter XIV-A K.E.R. Another teacher, viz. Smt. M.G. Rejani was also promoted under Rule 43 on 13.1.1994, but she was drawing a higher pay when the pay revision order was implemented. 2. After noticing the above anomaly, it was rectified in terms of the pay revision order dated 25.11.1998 and the scale of pay of the petitioner was stepped up to that of his junior. The junior was also promoted as H.S.A. (Natural Science) with effect from 13.1.1994 only, whereas the petitioner was promoted as H.S.A. (Social Studies) with effect from 1.7.1990. Based on the ratification, the pay fixation was given to the petitioner with effect from the introduction of the revised pay scale. An wpc 19754/2005 2 objection was raised by the audit which was communicated by Ext.P1 and a reply was given by the Headmistress as per Ext.P2. By Ext.P4, the petitioner was informed that the pay of petitioner cannot be stepped up to the level of the junior, on the ground that both the petitioner and Smt. M.G. Rejani are under two categories. According to the petitioner, both of them come under the same category, viz. Core Subjects. Reliance is placed on Ext.P5 circular, wherein it is stated that H.S.A. (Natural Science) and H.S.A. (Social Studies) are coming under the Core Subjects and belong to the same category. 3. The appeal filed by the petitioner as per Ext.P6, was rejected as per Ext.P8. The petitioner is aggrieved by Ext.P8. In Ext.P8, the stand taken is that stepping up of the pay of the senior to that of junior as per para 6(ii) of Annexure III of G.O.(P) No.600/93/Fin. Dated 25.9.1993 and other pay revision orders is applicable only if both the senior and junior belong to the same category. In the particular case, they are working in different categories. 4. Learned counsel for the petitioner relied upon the judgment of a learned Single Judge of this Court, produced as Ext.P10, to contend for the position that the stand taken by the respondents is not correct. It is submitted that the situation considered by this Court in the said judgment wpc 19754/2005 3 and the situation herein are clearly identical. 5. It is explained in the counter affidavit filed by the respondents that the petitioner’s junior was promoted as H.S.A. against leave vacancies for the period from 13.1.1994 to 25.3.1994, 15.10.1996 to 16.12.1996, 1.7.1997 to 29.8.1997 and from 3.10.1997 to 5.12.1997. She was promoted as H.S.A. against a permanent vacancy with effect from 1.6.1998. Until then, she holds her lien in the lower post as U.P.S.A. Therefore, it is contended that she was not appointed as H.S.A. before 1.3.1997, i.e. the date of effect of 1997 pay revision and therefore they do not fall under the same category. She was granted H.S.A. scale of pay with effect from 1.6.1998 only. It is therefore contended that none of the provisions of the pay revision orders regarding stepping up of pay will apply in the case of the petitioner. The stand taken therefore will have to be examined in the light of G.O.(P) No.3000/98/Fin. Dated 25.11.1998. The relevant provisions of the said Govt. Order is extracted in para 4 of the writ petition which is reproduced below: “In cases, where a senior government servant promoted to a higher post before 1.3.1997 draws less pay in the revised scale than his junior promoted to the higher post after 1.3.1997, the pay of the senior employee shall be stepped up to the level of the pay of the junior with effect from the date on which the wpc 19754/2005 4 junior draws more pay provided that: (i) the senior and junior employees who belonging to the same category and should have been promoted to the same category of post; (ii) the pre-revised and revised scale of pay of the lower and higher posts in which they are entitled to draw pay should be identical; (iii) senior government servant at the time of promotion have been drawing equal or more pay than the junior; (iv) the anomaly arising directly as a result of the introduction of the revised scale of pay.” 6. The question is whether the rectification of anomaly can therefore apply to the facts of this case. The matter has to be examined in the light of Ext.P10 judgment relied upon by the petitioner. The facts of the said case show that the petitioner therein was an H.S.A. (Malayalam). His pay was stepped up to that of her junior. But later, an audit objection was raised stating that it is not in tune with the relevant Govt. Order and the contention was that the rectification can be done only if both the junior and senior belong to the same category. After considering the relevant rule, viz. Rule 37 of Chapter XIV-A K.E.R., it was held thus: “The seniority is not determined category-wise in the light of Rule 37 of Chapter XIV-A KER and in the light of the Division Bench decision of this court as cited supra, it has to be held that Ext.P3 circular purported to refix the criteria for determining the seniority is wpc 19754/2005 5 contrary to Rule 37 and has no legal force. Further, in so far as the Government order (pay revision order) does not contain any clause in the matter of stepping up of the pay and to restrict the benefit only if both senior and junior belong to the same category,. The circular cannot have the effect of amending a notification that too with retrospective effect.” Accordingly, it was held that the audit objection cannot survive. The principle that is accepted by this court is that the senior is entitled for stepping up of pay to that is sanctioned in respect of the junior. The above judgment was followed in W.P.(C) No.10482/2004. Therein, the petitioner was an Arabic Teacher and the junior was working as UPSA. An objection was raised relying upon Ext.P3 circular dated 17.5.2002. Following Ext.P10 judgment herein, the writ petition was allowed. 7. We are concerned with the situation wherein admittedly there is an anomaly and the only objection raised is that both of them should have been promoted prior to 1.3.1997, so that they will be working in the same category. The question whether an anomaly like this, will result in arbitrariness, was considered by a Division Bench of this Court in Kamala Devi v. Kerala State Financial Enterprises Ltd. (2002 (1) KLT 157). Therein, the legal right of a senior to step up the pay in terms of the pay that wpc 19754/2005 6 is drawn by the junior, was considered. It was held thus in para 6: “Art. 14 guarantees equality before law and equal protection of laws, but the same does not prohibit classification. A classification will not be hit by Art. 14, if the same satisfies the twin tests:- (1) there is an intelligible differentia between those included in one group and those excluded from it; (2) it has a rational nexus with the object of the law. The Supreme Court has held that if the classification suffers from the vice of under-inclusiveness, the same will be hit by Art. 14.” It was finally held thus in para 8: “Even without going into the nuances of law relating to classification, it is apparent that the present case is a clear case of plain discrimination, in as much as the appellant's junior is drawing higher salary than her without any reasonable reason whatsoever. So, the appellant is entitled to have her salary stepped up with effect from the date her junior started to draw higher pay than her. This view taken by us finds support from two decisions of the Supreme Court in Union of India & others v. P. Jagdish & others {(1997) 3 SCC 176} and in Calcutta Municipal Corpn. & another v. Sujit Baran Mukherjee & others {(1997) 11 SCC 463). 8. Therefore, the question is whether the provisions of G.O.(P) No.3000/98/Fin. Dated 25.11.1998 alone need be looked into to rectify an anomaly like this. It is true that clause 6 provides for a particular method wpc 19754/2005 7 of rectifying the anomaly. It does not mean that if there is a clear anomaly in terms of the pay fixation granted to a junior, the same cannot be rectified by modes other than those resorted to in the Govt. Order dated 25.11.1998. The larger question is whether the senior is entitled for stepping up of pay in tune with that of his junior. Herein, admittedly the junior was promoted for different spells prior to 1.3.1997 also. Even if they fell into different category, viz. UPSA and HSA, if as a result of the pay revision the junior is getting a higher pay on her promotion as HSA, that anomaly will have to be rectified. In fact, the rectification has been made effective only from the date 1.7.1998, on which date the 5th respondent was promoted as H.S.A. The petitioner was promoted as H.S.A. on 1.7.1990. Inter-se seniority is governed by Rule 37(1) of Chapter XIV-A K.E.R. In such circumstances, the benefits of service based on his seniority, have to be granted to him, as otherwise it will result in gross discrimination under Article 14, as held in Kamala Devi's case (supra). In Ext.P10 judgment as well as in the judgment in W.P.(C) No.10482/2004, this Court held that the audit objection raised relying upon Ext.P2 circular therein, cannot be sustained. On that ground also, the petitioner is also entitled for the said benefits. 9. For all these reasons, the petitioner is entitled to succeed in the writ petition. Therefore, the writ petition is allowed. The impugned orders, wpc 19754/2005 8 viz. Exts.P1, P4 and P8 are quashed. There will be a consequential declaration that the fixation of pay given by the department to the petitioner after stepping up of pay with that of his junior, is legal and there will be a direction to the respondents to grant consequential monetary benefits to the petitioner within a period of two months from the date of receipt of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) kav/