IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 OP.No. 5170 of 2003(M) ---------------------------- PETITIONER(S): --------------- K.P.MUHAMMED, S/O.AYIMMEDKUTTY, AGED 46 YEARS, TEACHER, M.M.U.P. SCHOOL, NEW MAHE, NEW MAHE P.O., TELLICHERRY VIA. BY ADV. MR.BABU JOSEPH KURUVATHAZHA MR.C.P.SIVADASAN NAIR RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DEPUTY DIRECTOR OF EDUCATION, KANNUR. 3. ASSISTANT EDUCATIONAL OFFICER, THALASSERY (SOUTH). 4. AUDIT AND ACCOUNTANT GENERAL OF KERALA, THIRUVANANTHAPURAM. GOVERNMENT PLEADER MS. SMITHA SUKUMAR FOR R1 TO 4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 08/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 5170 of 2003 ORDER ON C.M.P.NO.9120 OF 2003 IN O.P.NO.5170 OF 2003 CLOSED. 8.4.2009. SD/- S. SIRI JAGAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF OBJECTION OF THE ACCOUNTANT GENERAL (AUDIT) KERALA, THIRUVANANTHAPURAM DATED 14.5.2001. EXT.P2: COPY OF REPRESENTATION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 6.8.2001. EXT.P3: COPY OF CIRCULAR NO.F4.28516/98 DATED 19.3.99 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, MALAPPUARAM. EXT.P4: COPY OF ORDER NO.15943/B2/95/G.EDN. DTD 19.6.98 ISSUED BY THE 1ST RESPONDENT. EXT.P5: COPY OF PROCEEDING NO.B-313/01 DATED 14.10.2001 ISSUED BY THE 3RD RESPONDENT. EXT.P6: COPY OF REPRESENTATION DATED 1.11.2001 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P7: COPY OF PROCEEDING NO.B/313/2001 DATED 25.6.2001 ISSUED BY THE 3RD RESPONDENT. EXT.P8: COPY OF THE PROCEEDING NO.B/313/2001 DTD 16.10.2002 ISSUED BY THE 3RD RESPONDENT. EXT.P9: COPY OF ORDER BEARING NO.B/313/2002/DATED 30.11.2002 ISSUED BY THE 3RD RESPONDENT. EXT.P10: COPY OF PROCEEDING OF THE 3RD RESPONDENT BEARING ENDT. ON.B/313/2001 DTD 30.1.2007. EXT.P11: COPY OF LETTER NO.6041/K4/2001/G.EDN. DATED 21.4.2001 ISSUED BY THE 1ST RESPONDENT. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No.5170 OF 2003 ---------------------------------------- Dated this the 8th day of April, 2009 JUDGMENT The petitioner is an Urdu teacher working in MMUP School, New Mahe. Another teacher M.K. Ibrahim was working in Dharmadam Coronation B.U.P. School. The two schools are under the management of different educational agencies. During 1992 pay revision, while fixing the pay of the petitioner on the ground that the Junior Teacher Sri. M.K. Ibrahim was drawing higher salary than the petitioner, the petitioner’s pay was stepped up on par with that of Sri. M.K.Ibrahim. The audit party raised objections and Ext.P1 inspection report was issued which reads thus: “Sri. K.p. Muhammed, Urdu teacher, M.M.U.P.S was drawing Rs.1250 in the scale of pay of Rs.1000-1710 with effect from 1-10-91. On 1.3.92 his pay was fixed at Rs.1380 in the revised scale of pay of Rs.1350-2200 with DNI as 1- 10-92. But he was granted increment raising his pay to Rs.1410 with effect from 1-7-92 by stepping up his pay equal to the pay of Shri N.K. Ibrayi, Urdu teacher, Dharmadam Caronation B.U.P.School. As MMUPS and DCBUPS are under separate managements, the stepping up of pay is irregular O.P.No.5170/03 2 resulting in drawal of excess pay and allowances amounting to Rs.8052 (approx) during the period from 1-7-92 to 28.2.2001. The mater may be examined and the result intimated”. Although the petitioner challenges Ext.P1, he has a further contention to the effect that even otherwise, a U.P.S.A. working in MMUP School itself namely Smt. T. Thara, who is junior to the petitioner is drawing a higher pay than the petitioner and therefore, the petitioner is entitled to stepping up of pay on par with that of Smt.Thara. The same is also being denied to the petitioner on the ground that the Assistant Teachers and Junior Language Teachers do not fall in the same category so as to be considered for stepping up of pay. According to the petitioner, as is clear from Ext.P3 Government Order, the Assistant Teachers and Junior Language Teachers formed the same category and therefore stepping up of pay as between the two is permissible. He further points out that, that has been the view all along adopted by the Government as is clear from Ext.P4 order. The petitioner further points out that the fact that the UPSA and Specialist Teachers formed one category is accepted by the Government again in Ext.P11 letter. In spite of the said legal position, by Ext.P5, the petitioner’s request for stepping up O.P.No.5170/03 3 of pay on par with that of Smt. Thara, UPSA was rejected. The petitioner's claim in this regard has been further rejected by Exts.P7 to P9 also. The petitioner therefore seeks the following reliefs: “a) issue a writ of certiorari or any other appropriate writ, order or direction, quashing Exhibits P1, P5 and P7 to P9; b) issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents not to recover the salary disbursed to the petitioner, on the basis of the Exhibit P1 audit objection; c) issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents to step up the salary of the Petitioner, to that of Smt. P. Thara, the Assistant Teacher of MMUP School New Mahe, where the petitioner teaches; d) issue a writ of mandamus or any other appropriate writ, order or direction, commanding the 2 nd respondent to consider and dispose of Exhibit P6 representation, forthwith”. 2. The learned Government Pleader supports the impugned orders with the help of a counter affidavit filed by the 1st respondent. 3. As far as Ext.P1 audit objection is concerned, I do not find any merit in the contentions of the petitioner. The question of stepping up of pay can be only as between the teachers of the same school. The petitioner and Sri. M.K.Ibrahim are teachers in O.P.No.5170/03 4 two different Schools under different managements. That being so, the fact that Sri. M.K.Ibrahim, who became a teacher subsequent to the petitioner is drawing higher pay, is no ground for the petitioner to seek stepping up of pay on par with that of Sri. M.K.Ibrahim. 4. But regarding the other contention, I find considerable merit. In Ext.P3 circular issued by the Deputy Director of Education it is stated thus: “The fixation of pay of Assistant teachers and junior language teachers considering them as included in one category as per para 6 (ii) of Annexure III of G.O. Cited first were held under objection in several cases in this District on the plea that they do not actually include in same category. Govt. as per their letter 2nd cited have clarified that the Asst.teacher and junior language teachers can be considered as included in the same category and fixation of pay can be done accordingly. In the circumstances all the AEOs and DEOs are requested to take urgent steps for getting dropped the audit objection as stated above”. In Ext.P4 in the case of a teacher similarly situated, the Government has stated thus: “Inviting your attention to the reference into a copy of the petition cited is enclosed herewith you are requested to refix the pay of Sri. K.P. Sayeed Full time Arabic Teacher, AUPS Eriyad to that of Sri. P. Abdul Gafoor, Assistant teacher, AUPS Eriyad with effect from 1-6-1992 as per para 6(ii) Annexure III of G.O.(P) No.600/93/Fin. dt.25.9.93”. O.P.No.5170/03 5 In Ext.P11 again the Government has held thus: “In inviting your attention to the reference cited I am to inform you that the pay and allowances of both the categories of UPSA and specialist are equal. Hence the petitioner is eligible for Senior/Junior fixation irrespective of category such as UPSA/Specialist teacher/language teacher etc. I am to request you to re-examiner the case once again and take necessary steps to raise the objection raised by you and to fix the pay of the petitioner, Smt. T. Lalitha Sewing teacher in per with Smt. Indulekha UPSA, who is Junior to Smt. T. Lalitha”. Here, in this case, the petitioner is a language teacher and Smt. P. Thara is a UPSA. Smt. Thara is junior to the petitioner and she is drawing higher pay than the petitioner. That being so, the above Government orders apply to the petitioner’s case also. Accordingly, Exts.P5 and P7 to P9 are quashed and the original petition is allowed to the extent of directing the respondents to refix the petitioner’s pay on par with that of his junior Smt. P. Thara with effect from 1.3.1992, if Smt. Thara was in service on that date. Orders in this regard shall be issued as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. S. SIRI JAGAN, JUDGE Acd O.P.No.5170/03 6