IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 17TH JUNE 2011 / 27TH JYAISHTA 1933 WP(C).No. 17331 of 2007(L) ---------------------------------------- PETITIONER(S): ------------------------- T.K.KALYANIKUTTY, 'SMITHA NIVAS', KULIKILIYADU, P.O.KOTTAPPARAM, VIA: SREEKRISHNAPURAM, PALAKKAD.(RTD HEAD MISTRESS ALP SCHOOL ARIYOOR) BY ADV. SRI.ELVIN PETER P.J. RESPONDENT(S): -------------------------- 1. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. 2. THE ASSISTANT EDUCATIONAL OFFICER, MANNARKKAD. * ADDL.R3 IMPLEADED *ADDL.R3: STATE OF KERALA, REP.BY THE SECRETARY TO GOVERNMENT,GENERAL EDUCATION DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. * IS IMPLEADED VIDE ORDER DATED 19/6/07 IN IA.NO.7969/07. R1 TO R3 BY GOVERNMENT PLEADER SRI.VTK.MOHANAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts 2/- -2- WP(C)NO.17331/2007 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE G.O. DATED 5/12/1995 OF THE GOVERNMENT. P2 COPY OF THE G.O. DATED 30/12/1995 OF THE GOVERNMENT. P3 COPY OF THE CIRCULAR DATED 29/12/1994 OF THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. P4 COPY OF THE OBJECTION DATED 23/1/2002 OF THE FIRST RESPONDENT. P5 COPY OF THE OBJECTION RAISED BY THE AUDITING OFFICER DATED 30/3/2002. P6 COPY OF THE REPRESENTATION DATED 26/12/2002 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. P7 COPY OF THE ORDER DATED 29/3/2003 OF THE FIRST RESPONDENT. P8 COPY OF THE JUDGMENT DATED 21/3/2007 IN WP(C)NO.34070 OF 2004. P9 COPY OF THE JUDGMENT DATED 21/3/2007 IN WP(C)NO.11456 OF 2004. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 17331 of 2007 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of June, 2011 J U D G M E N T The petitioner retired from service as a Headmistress. The petitioner was originally a Primary School Teacher. She was promoted as Headmistress on 01.04.1984, without getting the selection grade applicable to Lower Primary School Assistants. While so, the Government revised pay scales of Government employees and teachers with effect from 01.03.1992. On implementation of the pay revision order an anomaly arose in the sense that the Primary School Teachers who were promoted prior to 01.03.1992 who could not get a selection grade on fixation of pay as per the pay revision order, would get less salary than those Lower Primary School Assistants junior to those who were promoted and got revision of pay. Considering this anomaly, the Government issued an Order dated 09.06.1994, the operative portion of which reads as follows: “Teachers both primary and secondary, are entitled to W.P.(C)No. 17331 of 2007 -2- time bound higher grades for 10, 20 and 25 years of qualifying service. There are teachers who got promotion as Headmistress prior to 1.3.1992 without enjoying Selection Grade and as a result, they may draw less pay than their juniors. Based on the decision taken on earlier pay revision- vide G.O.(P)180/91/(100)/Fin dated 7.3.1991 Government order as follows:- (c) Teachers (P.D.) who were promoted as Headmistress prior to 1.3.1992 and which would have been eligible for the selection grade of P.D. Teacher but for their promotion as Headmistress will 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 Primary Teachers and, they 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, KSRs. Therefore, the petitioner was entitled to fixation of pay notionally in the selection grade scale of pay first on 01.03.1992 or on the date on which she became eligible for the selection grade after 01.03.1992 and then re-fixation of pay in the revised scales of pay of Headmistress under Rule 28A, Part I, K.S.R. The Government issued Ext.P1 order also, wherein, in paragraph 2 it was held thus: 2. After having examined the matter in detail Government are pleased to issue the following in partial modification of the orders issued in para 9 of the Government Order read as third paper above and in para 2 (i) of Government Order read as 4th paper above, that all State Government employees will be permitted to opt the time bound higher grade fell due/granted first on or after 1.3.1992, cancelling the option already exercised in respect of the post held by them prior to 1.3.1992. The option in such cases should W.P.(C)No. 17331 of 2007 -3- be exercised on the date of the time bound higher grade itself. Excess salary drawn consequent on fixation of pay in the revised scale of the lower post on the basis of the option already exercised should be refunded in lump before accepting such re- option. Arrears, consequent on such option will be allowed from the date of effect of such option. 2. The petitioner's pay was fixed giving the benefit of the earlier Government order as well as Ext.P1. Subsequently Ext.P4 order was passed by the Deputy Director of Education holding that the petitioner's fixation of pay was wrong and therefore on re-fixation the petitioner should refund the excess amount. Ext.P5 order was issued directing refund of Rs.15,756/-. The petitioner filed objections through Ext.P6, which was rejected by Ext.P7 order. It is under the above circumstances the petitioner has filed this writ petition seeking the following reliefs: (a) issue a writ of certiorari or other appropriate writ, order or direction calling for the records leading to Exts.P4, P5 and P7 and quashing the same. (b) issue a writ of mandamus or other appropriate writ, order or direction declaring that the pay of the petitioner fixed on re-option for 1992 pay revision is legal and valid. (c) issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to re-fix the pensionary benefits of the petitioner treating the fixation given to the petitioner on the basis of Exts.P2 and P3 as valid and disburse arrears of pension due to her forthwith. W.P.(C)No. 17331 of 2007 -4- 3. The petitioner's contention is that the fixation of pay of the petitioner was perfectly in accordance with Ext.P2 clarification and Ext.P3 circular dated 29.12.1994 issued by the Government and therefore there is no mistake in the fixation of pay. The petitioner also submits that in Exts.P8 & P9 judgments similar view has been taken by a learned Single Judge of this court, which is applicable to the petitioner also. 4. A counter affidavit has been filed wherein the stand taken is that the petitioner is not entitled to benefit of Ext.P1 insofar as the same does not apply to teachers. It is also submitted that Ext.P3 circular has been withdrawn with effect from 29.02.1994 itself, by the Government by order dated No.R1/18392/04/DPI dated 15.03.2004. 5. I have considered the rival contentions in detail. 6. The petitioner is certainly entitled to fixation of pay taking into account the Government order dated 09.06.1994 by which the petitioner is entitled to fixation of pay in the selection grade scale of pay notionally on the W.P.(C)No. 17331 of 2007 -5- date when it became due to the petitioner or on 01.03.1992 and thereafter fixation of pay in the revised scale of pay applicable to Headmistress. But Ext.P1 order does not relate to such fixation. As rightly pointed out by the learned Government Pleader who has produced before me a copy of the order dated 15.03.2004, Ext.P3 circular has been withdrawn by the Government with effect from 29.02.1994 itself. Ext.P2 is not applicable to persons like the petitioner, who comes under the separate category of persons covered by Ext.P1 order. Therefore the petitioner cannot rely on Ext.P1 and Ext.P3 circular for sustaining the original fixation. The result of the above discussion is that the petitioner is not entitled to challenge the re-fixation as such insofar as re-fixation is correct. Of course, the counsel for the petitioner relies on Exts.P8 & P9 judgments. Ext.P8 & P9 judgments are on identical terms which reads as follows: “The fixation made on the basis of circular (Ext.P4) by the Director of Public Instruction should govern the fate has been settled by several decision of this Court and one such judgment is the judgment dated 31.05.2006 in O.P. No.36634/2001. The impugned orders are quashed. It is declared that the fixation made based on Ext.P4 shall be W.P.(C)No. 17331 of 2007 -6- treated to have been made validly. The benefits, if any, due to the petitioner shall be disbursed to her within a period of three months from the date of production of a copy of this judgment.” I am unable to consider the said judgment as a precedent of universal application insofar as no facts are stated therein. It is not even known as to whether it relates to a Primary School Teacher promoted as Headmistress. It is also submitted before me that, against Ext.P8 judgment a review petition has been filed as R.P. No.897/2008 which is pending. In the above circumstances, I am unable to rely on Exts.P8 & P9 judgments to hold in favour of the petitioner, in any event. Now that I have decided the eligibility of the petitioner on merits, I do not have to ponder further on the subject. 7. The petitioner raises another contention, that even if the fixation is wrong, after so many years of fixation, the petitioner cannot be directed to refund such large amounts insofar as the petitioner is in no way responsible for the wrong fixation. The petitioner also relies on several decisions on the subject. Although the petitioner has not W.P.(C)No. 17331 of 2007 -7- stated the specific dates of original fixation, it appears that the fixation was done sometime in 1996. Ext.P4 has been issued only on 23.01.2002 about six years thereafter. In fact Ext.P3 was withdrawn by the Government, although retrospectively only on 15.03.2004. Taking into account all these aspects, I direct that although the re-fixation would stand the excess amount paid to the petitioner on account of the wrong fixation shall not be recovered from the petitioner. The writ petition is disposed of as above. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/