IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 27TH FEBRUARY 2009 / 8TH PHALGUNA 1930 OP.No. 15539 of 2002(Y) ----------------------- PETITIONER(S): --------------- M.P.KHASKARAN, HEADMASTER, GOVERNMENT L.P.SCHOOL, VALVAKKAD, P.O.ELAMBACHI-671311. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATIONAL SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SMT. SMITHA SUKUMAR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 27/02/2009, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 15539/02 ------------------------------------------------------------- EXT.P1 TRUE COPY OF REPRESENTATION DT. 22-12-2000. EXT.P2 JUDGMENT IN O.P.NO. 32164/2001 OF THIS COUORT. EXT.P3 ORDER DT. 13-5-2002. EXT.P4 ORDER DT. 9-6-1994. [TRUE COPY] P.S. TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 15539 of 2002 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 27th February, 2009. J U D G M E N T The petitioner retired as Headmaster of a Government School on 31-5-2002. He started service as a P.D teacher since 18-11-1969. He was promoted as Headmaster on 16-9-1990. He was granted selection grade in the cadre of P.D. Teacher on 1-3-1992. Pursuant to 1992 revision of pay, the petitioner submitted option and pay was fixed. Noting that there was some mistake in the fixation of pay, the same was later revised in accordance with Ext. P4 Government Order. Alleging that on account of such revision of fixation of pay, the petitioner stood to lose money, he filed Ext. P1 representation before the Government. This Court, by Ext. P2 judgment, directed the Government to consider his representation . That resulted in Ext. P3 order of the Government, whereby the petitioner's claim was rejected. The petitioner now does not dispute the fact that the re-fixation of pay of the petitioner is in accordance with Ext. P4 Government Order. His grievance now is that he was promoted with effect from 16-9- 1990, whereas three teachers, namely, V. Kunhiraman, P.V. Narayanan and Smt. K.C. Thamkam who became Headmasters/Headmistres only on 4-6-1998, 10-6-1998 and 4-6-1998 respectively, were drawing more pay than the petitioner, which is a clear anomaly, which requires to be remedied. According to the petitioner, when he got promotion as Headmaster eight years earlier to those teachers, whatever be the fixation of pay whether correct or not, that should not result in the petitioner drawing less pay than those teachers who got promotion far later than the petitioner. The petitioner submits that such a principle has been accepted by the Supreme Court, which has been followed by this Court in Kamala Devi v. Kerala State Financial Enterprises Ltd., [2002 (1) KLT 157]. The petitioner would further submit that the principle has been O.P. No. 15539/2002 -: 2 :- incorporated in Ruling 1 to Rule 28A of Part I of Kerala Service Rules. 2. The learned Government Pleader would dispute the contention of the petitioner. According to the learned Government Pleader, the question of stepping up of the petitioner's pay in tune with the pay of his juniors was never a question raised by the petitioner, particularly in Ext. P1 representation and as such Government never had any occasion to consider that question. Ext. P3 was only in respect of the correctness of the re-fixation made in accordance with Ext. P4. In so far as it is not now disputed that the petitioner's fixation of pay has been strictly in accordance with Ext. P4, the petitioner cannot now raise a different claim, is the contention raised by the learned Government Pleader. 3. I have considered the rival contentions in detail. 4. The petitioner now does not dispute the fact that going by Ext. P4 Government Order, the petitioner's pay has been correctly fixed in the cadre of Selection Grade P.D. Teacher and Headmaster. As per Ext. P4, in cases where P.D. Teachers were promoted as Headmaster prior to 1-3-1992 who would have been eligible for Selection Grade of P.D. Teachers but for their promotion as Headmasters would be permitted to have their pay fixed notionally in the Selection Grade first on 1-3-1992 or on the date on which they became eligible for the Selection Grade after 1-3-1992 on the basis of the pay in the revised scale which they would have drawn had they continued as Senior Grade P.D. Teachers and, then, based on the pay so fixed in the Selection Grade, their pay in the revised scale of pay of Headmaster will be fixed under Rule 28A Part I K.S.R. The petitioner also does not dispute the fact that the pay of his juniors mentioned above has been correctly fixed. But, if, in fact, such fixation has resulted in his juniors drawing more pay than the petitioner, then O.P. No. 15539/2002 -: 3 :- certainly that would be an anomaly. 5. In the judgment in Kamala Devi's case, this Court held thus in paragraph 8: “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 & Ors. v. P. Jagdish & Ors. ((1997) 3 SCC 176) and in Calcutta Municipal Corn. & Anr. v. Sujit Baran Mukherjee & Ors. ((1997) 11 SCC 463). In the first decision, the Supreme Court has held as follows: “This principle becomes applicable when the junior officer belong to the same category and the post from which they have been promoted and in the promoted cadre the junior officer on being promoted later than the senior officer gets a higher pay. This is being the principle of stepping up contained in the Fundamental Rules and admittedly the respondents being senior to several other Senior Clerks and the respondents having been promoted earlier than many of their juniors who have promoted later to the post of Head Clerks, the principle of stepping up should be made applicable to the respondents with effect from the date of their juniors in the erstwhile cadre of Senior Clerks get promoted to the cadre of Head Clerks and their pay was fixed at a higher slab than that of the respondents. The stepping up should be done in such a way that the anomaly of juniors getting higher salary than the seniors in the promoted category of head Clerk would be removed and the pay of the seniors like the respondents would be stepped up to a figure equal to the pay as fixed for their junior officer in the higher post of Head Clerk. In fact the Tribunal by the impugned order has directed to apply the principle of stepping up and we see no infirmity with the same direction subject to the aforesaid clarifications . . . . .”.” In fact, this principle has been adopted in the K.S.R itself by Ruling No. 1 under Rule 28A, which reads as follows: “In cases where the application of the rule would give rise to anomalies in as much as an officer officiating in a higher post could get his pay refixed at a stage higher than the pay drawn by another who stands confirmed in the higher post on the same scale of pay, the anomaly will be removed by refixing the pay of the senior O.P. No. 15539/2002 -: 4 :- officer at the stage equal to that fixed for the junior officer in the higher post, the orders of refixation being issued by the competent authority under Rule 34, Part I, Kerala Service Rules. The re- fixation of pay in such cases will be made subject to the following conditions. (a) Both the junior and senior officers should belong to the same cadre and the posts in which they have been promoted or confirmed, as the case may be, should be identical and in the same cadre. (b) The scale of pay of the lower post in which they would have drawn their pay but for their promotion or confirmation should be identical. (c) The anomaly should be directly as a result of the application of Rule 28-A. For example, if the junior officer draws from time to time a higher rate of pay than the senior by virtue of fixation of pay under the normal rules or any advance increment granted to him, the provision contained in this ruling should not be invoked to step up the pay of the senior officer. (d) The re-fixation of pay of the senior officer should be done with effect from the date of re-fixation of pay of the junior officer. The next increment of the senior officer will however be drawn on the date on which it would have fallen due but for this re- fixation of pay.” Since, as per Ext. P4, the petitioner's pay in the cadre of Headmaster has been fixed under Rule 28A, Part I of K.S.R, Ruling 1 gets directly attracted. In the above circumstances, I am of opinion that the petitioner's case has to be examined in accordance with the abovesaid Division Bench decision as also Ruling 1 under Rule 28A of Part I of K.S.R. Therefore, the original petition is disposed of as follows: Ext. P3 order, to the extent the petitioner's claim for stepping up of his pay on par with that of is juniors has not been considered, is hereby set aside. Government is directed to re-consider the matter in accordance with the above findings and on the basis of the Division Bench decision as well as Ruling 1 of Rule 28A of Part I of K.S.R. O.P. No. 15539/2002 -: 5 :- Orders in this regard shall be passed and arrears of pay and retirement benefits disbursed to the petitioner as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. Sd/- S. Siri Jagan, Judge. Tds/