IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 7TH APRIL 2009 / 17TH CHAITHRA 1931 OP.No. 2413 of 2003(K) ---------------------- PETITIONER(S): --------------- 1. M.V.GOPINATHAN, HEADMASTER, P.M.M.U.P.SCHOOL, CHENTRAPPINNI P.O.CHENTRAPPINNI EAST THRISSUR DISTRICT. ADDITIONAL PETITIONERS: 2. K.N.JAYANTHI, W/O.M.V.GOPINATHAN, MAMPARAMBATH HOUSE, P.O.KAIPAMANGALAM, THRISSUR. 3. M.G.JINSY, D/O.M.V.GOPINATHAN, MAMPRAMBATH HOUSE, P.O.KAIPAMANGALAM, THRISSUR. 4. M.G.JIMCY, D/O.M.V.GOPINATHAN, MAMPARAMBATH HOUSE, P.O.KAIPAMANGALAM, THRISSUR. 5. M.G.JISANTH, S/O.M.V.GOPINATHAN, MAMPRAMBATH HOUSE, P.O. KAIPAMANGALAM, THRISSUR. (P2 TO P5 IMPLEADED AS PER ORDER IN I.A.NO.1020/04) BY ADV. SRI.K.B.GANGESH SRI.JOE JOSEPH KOCHIKUNNEL RESPONDENT(S): --------------- 1. THE ASSISTANT EDUCATIONAL OFFICER, OFFICE OF THE A.E.O, VALAPPAD, P.O.CHENTRAPPINNI, THRISSUR. 2. THE DEPUTY DIRECTOR (EDUCATION) OFFICE OF THE DEPUTY DIRECTOR, COLLECTORATE, THRISSUR. 3. THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SMT.SMITHA SUKUMAR FOR R1 TO R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 07/04/2009, THE COURT ON 07/04/2009 DELIVERED THE FOLLOWING: O.P.No. 2413/03. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE AUDIT REPORT FOR 99-2000. P2. COPY OF THE ORDER OF R3 DTD.6.11.02. P3. COPY OF THE ORDER DTD.5.11.97 OF R1. P4. COPY OF THE GOVT. ORDER DTD.28.6.97. P5. COPY OF THE REPRESENTATION DTD.16.9.02. P6. COPY OF THE GOVT. ORDER DTD.9.6.94. P7. COPY OF THE STATEMENT OF AMOUNTS TO BE REFUNDED. P8. COPY OF THE GOVT. ORDER DTD.5.4.03. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 2413 of 2003 ================== Dated this the 7th day of April, 2009 J U D G M E N T The issue involved in this original petition is regarding the validity of the fixation of pay of the petitioner pursuant 1992 pay revision order. The petitioner entered service as an aided school teacher with effect from 4.5.1970. He was promoted as headmaster on 4.5.1985. While he was continuing as headmaster, 1992 pay revision order came into force. There were certain discrepancies in the pay revision in respect of teachers who became headmasters before they became eligible for 25 years grade which is termed as selection grade in the case of primary school teachers. Therefore, in respect of such teachers the Government issued Ext.P6 Government Order, G.O (P).No.380/94(13)/Fin dated 9.6.1994, which provides as follows; “(ii) Teachers: (a) The higher grades of teachers are time bound and they are more or less regular promotion posts as no other promotion posts other than Headmaster post exist in their case. Considering this, Government Order that, in modification of the provisions in para 9 of the G.O. Read as 3rd paper above, teachers - both P.D. and Graduate teaches (H.S.A) will be permitted to opt the time bound grade fell due/granted first on or after 1.3.92 cancelling the option already exercised in respect of the post held immediately prior to 1.3.92. Excess salary drawn consequent on fixation of pay in the revised scale of the lower time bound grade post on the basis of the option already exercised, should be refunded in lump before accepting such re-options. In all these cases of re-options the guidelines issued in Circular No.46/90 Fin. dated 22.6.90 should be followed. (b) Teachers both primary and secondary, are entitled to time 2 bound higher grades for 10, 20 and 25 years of qualifying service. There are teachers who got promotion as Headmasters prior to 1.3.92 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 7.3.91 Government order as follows. (c) Teachers (P.D.), who were promoted as Headmasters prior to 1.3.92 and who would have been eligible for the selection grade of P.D. Teachers but for their promotion as Headmasters will be permitted to have their pay fixed notionally in the selection grade first on 1.3.92 or on the date on which they become eligible for the selection grade after 1.3.92, on the basis of the pay in the revised scale which they would have drawn had they continued as Senior Grade Primary Teachers and, then, 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 K.S.Rs.” Subsequently Government issued another order, viz., G.O(P). No.952/95/93 Fin. dated 5.12.1995, granting the same benefit of option given to teachers by Ext.P6, to Government servants also. Subsequently that benefit of option was modified by Ext.P4 Government order dated 28.6.1997. The petitioner opted for fixation of his pay in the scale of selection grade and headmaster with effect from 1.7.1997. On that basis, his pay was fixed following the three steps mentioned in Ext.P1, which are:. “(i) Fixation of pay in the pre-revised scale of pay of Rs.1250-2230 of selection grade of LPSA by applying Rule 28A KSRs Part I. (ii) Fixation of pay in the revised scale of pay of Rs.1600-2660 of selection grade of LPSA, as per pay Revision order 1992. (iii) Fixation of pay in the scale of pay of Rs.1640-2900 of Headmaster as per Rule 28A Part I KSR.” Subsequently, by Ext.P1 audit objection, the audit party objected to the above said fixation. According to them, the pay of the petitioner ought to have been fixed in accordance with the following steps. 3 With effect from Due - Rs. Scale of pay - Rs. Remarks 1.7.95 2150 1520-2660 Fixation in the revised scale of Sr. Gr. from 1992 PR. 1.7.95 220 1600-2660 Fixation in the scale of Sel. Grade by applying Rule 28 A 1.7.95 2360 1640-2900 Fixation in the scale of HM by applying Rule 28A. Therefore, they directed refixation of the pay of the petitioner accordingly. The said audit objection is challenged by the petitioner. 2. The petitioner's contention is that although in Ext.P6, fixation of his scale of pay in the selection grade has to be on the basis of the revised scale, by virtue of Ext.P4 he was permitted to continue in the pre-revised scale till the date of option. The petitioner, therefore, submits that in view of the benefit granted by Ext.P4, the petitioner was entitled to have his scale of pay in the selection grade fixed in the pre-revised scale, which only has been done and therefore, the original fixation is valid and proper, and the audit objection is liable to be set aside. 3. A counter affidavit has been filed opposing the contentions of the petitioner. The learned Government Pleader would contend that the Government orders subsequent to Ext.P6 are only regarding dates of option and not regarding fixation of pay as such. As far as the primary school teachers are concerned, fixation of pay has to be done in accordance with clause (c) of Ext.P6, which has been quoted above. Going by the same, the scale of pay of a teacher who had been 4 promoted as headmaster before he could get promotion to selection grade is only notional fixation in the revised scale applicable to selection grade. Therefore, the fixation of the scale of the petitioner in the pre-revised scale applicable to the selection grade is clearly unsustainable is the contention of the learned Government Pleader. 4. I have considered the rival contentions in detail. I am of opinion that the whole imbroglio arose only because giving the benefits given to the teachers by Ext.P6, to Government servants also without realising that the case of primary school teachers arose because of a peculiar situation unique to them which is totally absent in the case of other government servants. By Ext.P6, a primary school teacher who never had come into the scale of pay applicable to selection grade was given a chance to get the selection grade also before fixing his pay in the revised scale of pay applicable to headmaster. If the contention of the petitioner is accepted, then he necessarily should have a pre- revised scale as selection grade primary school teacher. Admittedly the petitioner never had a pre-revised scale in the grade of selection grade. He all along continued in the senior grade and before becoming eligible to get selection grade he was promoted as headmaster. It is to give the benefit of intermediate benefit of selection grade also to such teachers Ext.P6 has been issued. That being so, the fixation of pay has to be strictly in accordance with clause (c) in Ext.P6. Clause (c) specifically says that the pay of the teacher who holds the post of 5 headmaster without coming into the intermediate scale of selection grade primary teacher has to be first notionally fixed in the revised scale of selection grade P.D. Teacher and then the pay has to be fixed in the revised scale of pay applicable to headmaster. That fixation does not contemplate a fixation of pay in the pre-revised scale applicable to selection grade P.D. Teachers. That being so, clearly the first step in the original fixation of pay of the petitioner is clearly unsustainable. If that is unsustainable then the fixation suggested by the audit party in Ext.P1 is the correct fixation. In the above circumstances, I do not find that Ext.P1 is in any way unsustainable. For that reason, the original petition is liable to be dismissed. I do so. 5. However, during the pendency of the original petition the petitioner had died and, the widow and the children of the petitioner are prosecuting the original petition. The pay of the petitioner was fixed in the year 1997. Objection was first raised only on 15.5.2002. In view of the peculiar circumstances of the case, I direct that if any amounts became liable to be refunded by the petitioner on account of the re-fixation as per the audit objection, the same shall not be recovered from the additional petitioners. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 2413 of 2003-K ================== J U D G M E N T 7th April, 2009