IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 WP(C).No. 28019 of 2007(I) -------------------------------------- PETITIONER(S): ---------------------- K.P. BALACHANDRAN, PHYSICAL EDUCATION TEACHER, GOVT.H.S.SCHOOL,SASTHAMCOTTA, KOLLAM DISTRICT. BY ADV. MR.M.V.THAMBAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT DEPARTMENT OF GENERAL EDUCATION THIRUVANANTHAPURAM. 2. DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3. THE PRINCIPAL, GOVT.HIGHER SECONDARY SCHOOL, SASTHAMKOTTA, KOLLAM. * ADDL. R4 AND R5 IMPLEADED ADDL. R4: THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. ADDL. R5: THE DEPUTY DIRECTOR (EDUCATION), KOLLAM. * IS IMPLEADED AS PER ORDER DATED 13/02/2008 IN I.A.2095/2008. R1 TO ADDL.R5 BY GOVERNMENT PLEADER SMT.T.B. REMANI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 28019/2007-I APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE CERTIFICATE DATED 16/12/2005 ISSUED BY THE PRINCIPAL GOVT. H.S.S., SASTHAMCOTTA TO THE PETITIONER. EXT.P2: COPY OF THE JUDGMENT DATED 07/07/2006 IN WP(C) NO. 32797/2001-D OF THIS HONOURABLE COURT. EXT.P3: COPY OF THE G.O.(MS)NO.3/93/G.EDN. DATED 04/01/1993. EXT.P4: COPY OF THE REPRESENTATION DATED 17/12/2005 FILED BY THE PETITIONER BEFORE THE GOVT. EXT.P5: COPY OF THE REPRESENTATION DATED 02/01/2006 FILED BY THE PETITIONER BEFORE THE CHAIRMAN PAY COMMISSION, THIRUVANANTHAPURAM. EXT.P6: COPY OF THE JUDGMENT DATED 17/08/2006 IN WP(C) NO. 21926/2006. EXT.P7: COPY OF THE CERTIFICATE DATED 21/12/2006 ISSUED BY THE PRINCIPAL. EXT.P8: COPY OF THE GO(RT)NO.1490/2007/G.EDN. DATED 03/04/2007. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. P.N.RAVINDRAN,J. --------------------------- W.P.(C) No. 28019 OF 2007 -------------------------- Dated this the 17th day of February, 2010 J U D G M E N T By a notification published in the Kerala Gazette dated 27.7.1993, the Kerala Public Service Commission (hereinafter referred to as the “Commission” for short) invited applications from eligible persons for appointment to the category of Physical Education Teacher (High School) in the General Education Department in the scale of pay of Rs. 845-1370. The recruitment was district-wise and applications were invited for appointment in Kollam, Pathanamthitta, Alappuzha, Palakkad, Malappuram and Kozhikode revenue districts. The number of vacncies notified in Kollam district was one. The petitioner, who is an ex-service man applied pursuant to the said notification for appointment in Kollam district. After the notification inviting applications was issued, the scale-of-pay of Primary Departmental Teachers (PD teachers) was revised from Rs.845-1370 to Rs.1125-1720 with effect from 1.3.1992. The petitioner was selected and included in the ranked list published thereafter. He was advised by memo dated 5.6.1998 for appointment as Physical Education Teacher (High School) in the W.P.(C) No.28019/07 2 scale-of-pay of Rs.1125-1720. He was appointed by order dated 22.6.1998 and he joined duty as Physical Education Teacher (High School) on 2.7.1998. 2. After the petitioner entered service, the scale of pay of Government employees including aided school teachers was revised as per G.O.(P) No.3000/98/Fin dated 25.11.1998. By that order, the scale of pay of Specialist Teachers was revised from Rs.1125-1720 to Rs.4000-6090. The petitioner's pay was accordingly fixed in the said scale of pay. He thereafter moved the Deputy Director of Education, Kollam, claiming that he is entitled to be placed in the scale of pay of Rs.4500-7000 with effect from 2.7.1998, the date of his appointment. He also claimed payment of arrears of salary and allowances in the said scale of pay. He thereafter filed O.P. No.27113 of 2001 in this Court. By judgment delivered on 13.9.2001, a learned single Judge of this Court directed the Deputy Director of Education, Kollam to consider the said representation and pass orders thereon within one month form the date of receipt of a copy of the judgment. The Deputy Director of Education considered the petitioner's request and by Ext.P5 order passed on 3.10.2001, held that the petitioner is entitled to salary in the scale of pay of PD W.P.(C) No.28019/07 3 teacher only. The petitioner thereupon filed O.P. 32797 of 2001 in this Court praying for a writ in the nature of mandamus commanding the respondents to refix his pay in the scale of pay of Rs.4500-7000 and to pay him arrears thereof with effect from 2.7.1998, the date on which he joined duty as Physical Education Teacher (High School). 3. By Ext.P2 judgment dated 7.7.2006, the learned single Judge of this Court allowed the said writ petition. The respondents in O.P. No. 32797 of 2001 thereupon filed Writ Appeal No.1491 of 2006 in this Court. By judgment delivered on 2.1.2009 a Division Bench of this Court set aside the judgment of the learned single Judge and dismissed O.P. No.32797 of 2001. It was held that the petitioner can claim salary in the scale of pay of Rs.4000-6090 only and that he is entitled to the scale of pay of Rs.4500-7000 only on completion of 10 years of service as Physical Education Teacher (High School) when he becomes entitled to the first time bound higher grade promotion in terms of paragraph 5 of the Government order dated 25.11.1998. 4. In the meanwhile, the Higher Secondary section was started in the school, where the petitioner is working. Since the petitioner had to impart physical education to students in the Higher Secondary section also, he was sanctioned payment of Rs.50/- per W.P.(C) No.28019/07 4 month as special allowance. The petitioner thereafter moved the Government claiming the scale of pay applicable to Higher Secondary School Teachers. That request was ultimately rejected by the Government as per Ext.P8 order dated 3.4.2007. Ext.P8 is under challenge in this writ petition. The petitioner contends that as he has to attend to 48 periods of work per month out of which 24 hours is in the Higher Secondary section, he is entitled to have his pay revised and fixed at par with Higher Secondary School Teachers. He contends that denial of higher pay to him is arbitrary. 5. The respondents have filed a counter affidavit reiterating the stand taken by them in Ext.P8. It is stated that the post of Physical Education Teacher is not a category in the Kerala Higher Secondary Education State Service and Subordinate Service and therefore the petitioner cannot claim salary in the scale of pay of Higher Secondary School Teacher. It is also stated that since the post of Physical Education Teacher is not a post sanctioned in Higher Secondary Schools, the petitioner cannot contend that the post of Physical Education Teacher (High School) should be made as a feeder category for the post of Physical Education Teacher in the Higher Secondary School section. W.P.(C) No.28019/07 5 6. I have considered the submissions made at the Bar by the learned counsel appearing on either side. By G.O.(Ms) 145/90/G.Edn. dated 3.7.1990 two periods per week were allotted for Physical Education in Higher Secondary classes. By Government Letter No. 41760/J3/91/G/Edn. dated 7.1.1992, the Government directed that four periods of Physical Education in Higher Secondary classes will be reckoned for determining retention of the existing post of Physical Education Teacher in the school during the staff fixation, but not for creation of a new post. Physical Education classes in Std.XI and Std.XII were thus being handled by Physical Education Teachers borne in the Higher Secondary section of the schools. The Government thereafter issued G.O.(Ms) 3/93/G.Edn dated 4.1.1993 directing that Physical Education Teachers in the schools who are engaged to handle Physical Education classes in Std.XI and Std.XII of Higher Secondary sections will be paid a special allowance of Rs.50/- per month with effect from 4.1.1993. These aspects are noticed in Ext.P8. On the basis of the Government order dated 4.1.1993, referred to above, the petitioner was being paid special allowance of Rs.50/- per mensem from 2.7.1998 onwards. That payment was discontinued when the Kerala Higher Secondary W.P.(C) No.28019/07 6 Education State Service Rules, 2001 and the Kerala Higher Secondary Education Subordinate Service Rules, 2001 were brought into force. As per the said rules, the post of Physical Education Teacher is not a post sanctioned in the Higher Secondary Schools Since the post of Physical Education Teacher is not a post sanctioned in Higher Secondary Schools, the petitioner cannot contend that he should be placed in the scale of pay of Higher Secondary School Teacher. The claim of the petitioner in that regard was therefore rightly rejected by the Government. For the same reason, the petitioner's claim for promotion as Physical Education Teacher (Higher Secondary School) cannot also be granted. However, it is evident from Ext.P8 order that the petitioner has to impart Physical Education to Higher Secondary students after the school hours. It is for the reason that two periods are allocated to impart Physical Education in the higher secondary section. In my opinion, if the petitioner has to impart Physical Education to Higher Secondary School students, after the normal school hours, even though the claim of the petitioner for payment of salary in the higher scale of pay cannot be granted, the Government should seriously consider whether the special allowance that was paid to teachers like W.P.(C) No.28019/07 7 the petitioner pursuant to G.O.(Ms) 3/93/G.Edn dated 4.1.1993, should be restored. I accordingly dispose of this writ petition upholding Ext.P8 but reserving liberty with the petitioner to move the Government seeking restoration of the special allowance at the the rate stipulated in G.O.(Ms) 3/93/G.Edn dated 4.1.1993 or at a higher rate, if the petitioner is conducting Physical Education classes in the Higher Secondary section. In the event of the petitioner filing an appropriate representation in that regard before the Secretary to Government, General Education Department, along with a certified copy of this judgment, the Government shall consider the same and take a decision thereon within three months thereafter. The Government shall also afford the petitioner a reasonable opportunity of being heard. The contentions of the petitioner in that regard are kept open. P.N.RAVINDRAN, (JUDGE) vps W.P.(C) No.28019/07 8