IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 24TH FEBRUARY 2009 / 5TH PHALGUNA 1930 WP(C).No. 19377 of 2006(F) -------------------------------------- PETITIONER: ------------------- P.N.BHAVANI, TEACHER, TRIBAL NURSERY SCHOOL, (KINTER GARTEN), PUCHRAPRA, DEVARUPARA.P.O, IDUKKI. BY MR. P.RAVINDRAN, SENIOR ADVOCATE. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REP. BY ITS SECRETARY, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, SCHEDULED TRIBE DEVELOPMENT DEPARTMENT, THIRUVANANTHAPURAM. R1 & R2 BY GOVT. PLEADER MR. MUHAMMED FAZIL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.19377/2006-F: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE REPRESENTATION PREFERRED BY THE PETITIONER BEFORE THE R.1. DTD. 20/01/99. EXT.P.2: COPY OF THE GOVERNMENT ORDER DTD. 12/07/99. EXT.P.3: COPY OF THE ORDER OF THE R.1. DTD. 21/07/99. EXT.P.4: COPY OF THE JUDGMENT IN O.P. 21917/99 DTD. 19/01/2006. EXT.P.5: COPY OF THE ORDER DTD. 08/05/2006. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE G.O.(MS).NO.21/94(4) FIN. DTD. 06/01/94. EXT.R1.B: COPY OF THE FIXATION DETAILS OF SMT. P.N. BHAVANI. //TRUE COPY// P.S. TO JUDGE. Prv. HARUN-UL-RASHID,J. --------------------------- W.P.(C).NO.19377 OF 2006 ---------------------------- DATED THIS THE 24TH DAY OF FEBRUARY, 2009 JUDGMENT Petitioner is a Nursery School Teacher. It is an undisputed fact that the Nursery School Teachers and PD Teachers are considered in all respects for the purpose of service benefits. In all the pay revision orders upto 1993, the scale of pay and other benefits given to both are identical. The departure came only when by Government Order dated 6/1/1994, the PD Teachers alone were granted higher scale of pay and corresponding higher grade. The learned counsel for the petitioner pointed out that this was an anomaly. Considering the grievance the Government by Ext.P2 order granted Nursery School Teachers also the same scale of pay as applicable to the PD Teachers. 2. This Court in Ext.P4 judgment observed that since PD Teachers enjoyed the benefit of a higher grade, there is absolutely no reason why the Nursery School Teachers should be denied a -2- W.P.(C)No.19377/2006 corresponding grade I post restricting them to a higher grade scale as provided under Schedule 1 of Paragraph 3(B) of G.O.No.930/93(2)/Fin. Dated 8/12/1993. Therefore, this Court quashed Ext.P3 order and directed the lst respondent to consider the matter afresh in the light of the observations contained therein. 3. Pursuant to Ext.P4 judgment the Government considered the matter and passed Ext.P5 order dated 8/5/2006, wherein it is stated that in respect of Nursery School Teacher although parity at entry level is that of PD Teacher Grade II, there are no further higher posts in respect of Nursery School Teacher as in the case of PD Teacher. Hence they are eligible for higher grade scales as provided in Table 1 of Pay Revision Orders. Ext.P5 is under challenge. 3. The learned counsel for the petitioner submitted that the contention of the lst respondent that there is no grade I post in the department is absolutely untenable. It is his submission -3- W.P.(C)No.19377/2006 that the very same reason stated in Ext.P3 is re-stated in Ext.P5 to deny the benefit to the petitioner. According to him, the mistake subsists for the period from 1/7/92 to 1/3/1997 in the matter of fixation of higher grade. The petitioner further submitted that she is entitled to enhancement of remuneration as well as the monetary benefits consequential to re-fixation of her pay including arrears of pay. 4. The learned Government Pleader on the basis of averments in the counter affidavit and Exts.R1(a) and R1(b) contended that the scale of pay of the Nursery School Teachers as per 1992 pay revision order was Rs.1050-1660. This scale had not been modified subsequently, though the scale of pay of PD Teacher was revised as Rs.1125-1720 as pay revision G.O.(MS). No.21/94/(4)/Fin. dated 6/1/194. At the same time the Government by G.O(P).No.1562/99/(2)/Fin. dated 12/7/1999 modified the scale of pay of all categories of Teaching Staff including Nursery School Teachers as Rs.4000-6090 we.f. -4- W.P.(C)No.19377/2006 3/12/1991, examined the re-fixation of pay in the scale of Rs.1350-2200 put in by the petitioner and rejected as it was not admissible. The Government Pleader also submitted that the revised scale of pay of all categories of Teaching Staff including Nursery School Teachers has been modified as Rs.4000-6090 with effect from 1/3/1997. But as per the existing norms regarding grant of time bound higher grade, in the absence of promotion post in a department, higher grade will be granted in the scale shown in the tables contained in the pay revision orders. Since there is no promotion post for the post of Nursery School Teachers in the direct line of promotion, the petitioner is eligible for higher grade in the scale of pay as specified in Ext.R1(b) i.e. Rs.1200-2040 with effect from 1/7/92. 5. The pay of Nursery School Teachers was being consistently revised keeping it on par with that of PD Teachers. There is no justification for not correcting the anomaly in the fixation of pay. It is noted that the pay of Nursery School -5- W.P.(C)No.19377/2006 Teacher Grade II having parity with PD Teacher Grade II has been revised as Rs. 4000-6090 by Ext.P2 G.O. The petitioner has been granted a time bound higher grade on her completion of 10 years' service. Therefore, it is contended that the petitioner is entitled to the scale of pay applicable to PD Teachers in Grade I. The question was not considered in the right perspective. It is further pointed out by the learned counsel for the petitioner that fixation details of the petitioner is produced as Ext.R1(ab). In the column relates to Ist time bound higher grade, the existing scale of pay was written as 1125-1720, the revised scale of pay fixed is an anomaly and the correct scale of pay ought to have been fixed at Rs.1350-2200. The said mistake was carried out in future and therefore she lost the benefit of pay and other allowances for the period from 1993 to 1997. 6. In the result, I quash Ext.P5 order. The petitioner is at liberty to submit a detailed representation along with a copy of this judgment before the lst respondent whereupon the lst -6- W.P.(C)No.19377/2006 respondent shall consider the matter afresh in the light of the observations and findings made above and after affording an opportunity of being heard to the petitioner, pass appropriate orders within a period of three months from the date of receipt of a copy of this judgment. If it is found that the petitioner is entitled to the benefits, the same shall be granted within a period of one month thereafter. Writ Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv.