IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 WP(C).No. 2415 of 2009(K) ------------------------------------ PETITIONER(S): ------------------------ K.RAMLA BEEVI, 44 YEARS, D/O.K.A.MOIDEENKUTTY HAJI ARABIC TEACHER, V.R.U.P.SCHOOL MUTHUKURISI PO., ELAD, PERINTHALMANNA, MALAPPURAM. BY ADVS. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. DEPUTY DIRECTOR OF EDUCATION MALAPPURAM. 3. ASSISTANT EDUCATIONAL OFFICER, PERINTHALMANNA. 4. HEADMISTRESS, V.R.U.P. SCHOL, MUTHUKURISSI PO.ELAD, PERINTHALMANNA, MALAPPURAM. R1 TO R3 BY GOVERNMENT PLEADER SRI.SANDESH RAJA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/10/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.2415/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE STATEMENT OF FIXATION DTD. NIL. P2:- COPY OF THE OBJECTION OF ASST. EDL. OFFICER DT.D NIL. P3:- COPY OF THE LETTER NO.95210/PRC.C3/07/FIN. OF THE GOVERNMENT DTD. 28.1.2008. P4:- COPY OF THE DECISION REPORTED IN 2002 (1) K.L.T. 157. DTD. 19.10.2001. P5:- COPY OF THE ANNEXURE III OF G.O.(P) NO.3000/98/FIN. OF THE GOVERNMENT DTD. 25.11.1998. P6:- COPY OF THE CIRCULAR NO.59151/J2/2000/G.EDN. OF THE GOVERNMENT DTD. 17.5.2002. P7:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN OP. NO.23261/1998 DTD. 10.12.2001. P8:- COPY OF THE CIRCULAR NO.15943/B2/95/G.EDN. OF THE GOVERNMENT DTD. 19.6.1998. P9:- COPY OF THE CIRCULAR NO. F4/28516/98 OF THE GOVERNMENT DTD. 19.3.1999. P10:- COPY OF THE LETTER NO.6041/K4/2001/G.EDN. OF THE GOVERNMENT DTD. 21.4.2001. P11:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P. (C) NO.20914/2003 DTD. 7.8.2006. P12:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC. 10482/2004 DTD. 1.9.2006. P13:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC. NO.35325/2005 DTD. 6.10.2006. P14:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC. NO.17135/2006 DTD. 13.11.2006. P15:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC. NO.20539/08 DT.D 16.12.2008. P16:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC. NO.11635/2008 DTD. 2.11.2008. RESPONDENT'S EXHIBITS R3:- COPY OF THE CIRCULAR NO.59151/2000 G.EDN. DTD. 16.5.2002. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 2415 of 2009-K - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of October, 2010. JUDGMENT The petitioner herein is aggrieved by Ext.P3 order by which the Government rejected the request to step up her pay to that of her junior, relying upon a circular dated 17.5.2002. Learned counsel for the petitioner submitted that this Court by Ext.P11 judgment rendered in a similar case, has found that the circular will not apply and in implementation of the dictum laid down by this Court, the Government has issued another circular No.26790/J2/07/G.Edn. dated 23.6.2009, modifying the circular dated 17.5.2002 and therefore the petitioner is entitled for the benefits claimed. 2. The petitioner entered service as Arabic Teacher in V.R.U.P. School, Muthukurissi on 10.9.1990. Smt.A. Geethamoni entered service as Assistant Teacher on 19.10.1992. She is junior to the petitioner. In implementation of the G.O.(P) No.3000/98/Fin. dated 25.11.1998 (1997 pay revision) the petitioner's basic pay with effect from 1.6.1997 was fixed at Rs.4090/-, whereas the basic pay of Smt. Geethamoni was fixed at Rs.4090/- with effect from 1.4.1997. The petitioner therefore represented before the Asst. Educational Officer, Perinthalmanna and the salary was wpc 2415/2009 2 refixed as per Ext.P1. She was granted subsequent increments also on 1.4.1998, 1.4.1999, 1.4.2000, 1.4.2002 and so on. The Asst. Educational Officer objected to the fixation of pay given as per Ext.P1, on the basis of the circular dated 17.5.2002. Ext.P2 is the copy of the objection. The pay fixation was issued in April 1999 and the objection was raised in 12/2006. Therefore, the petitioner approached the Government in the matter and the Government rejected the request as per Ext.P3. The petitioner is relying upon the decisions of this Court, viz. Exts.P4, P7 and P11 to P16 to submit that the view taken by the Government in Ext.P3 has been found against in various decisions of this Court. 3. The principle adopted by this Court in Ext.P7 judgment is that a circular cannot override the pay revision order. The same question was considered by this Court in Ext.P11, wherein the validity of the circular dated 17.5.2002 itself was under challenge. This Court after examining the matter, was found as follows in para 2: “The circular produced as Ext.P3 is dated 17.5.2002 much after the fixation of the pay scale of the petitioner evidenced by Ext.P1. Ext.P3 circular states that the provision to step up the pay of the senior to the level of the junior asper para 6 (ii) of Annexure III of G.O.(P) 600/93/Fin. Dated 25.9.1993 and other pay revision orders is applicable only in cases where both the junior and senior wpc 2415/2009 3 belong to the same category.” In para 3 of the said judgment, after referring to the relevant rules, it was held as follows: “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 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.” It was further held that the pay of the petitioner therein has been fixed as per Ext.P1 in 1999 whereas Ext.P3 circular was issued in 2002 and therefore the fixation of pay cannot be revised based on the subsequent circular issued three years after and accordingly it was held that the audit objection is absolutely unfounded. 4. Evidently, the circular dated 17.5.2002 has been modified by a recent circular dated 23.6.2009 in the light of the above judgment. It was clarified therein that the seniority list will be the criteria for rectifying junior senior anomaly in pay fixation, with effect from the pay revision wpc 2415/2009 4 order 1998. In that view of the matter, the petitioner is entitled to succeed in this writ petition. 5. Therefore, the writ petition is allowed. Exts.P2 and P3 are quashed. There will be a direction to the third respondent to grant the fixation as per Ext.P1 and release the monetary benefits due to the petitioner by applying the dictum laid down in Ext.P7 and in terms of the findings contained herein as also the circular dated 23.6.2009. Appropriate orders will be passed 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/