IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 19TH OCTOBER 2009 / 27TH ASWINA 1931 WA.No. 709 of 2008() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.35409/2005 Dated 17/10/2007 .................... APPELLANT(S): RESPONDENTS IN THE W.P.(C). ----------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF FINANCE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, IDUKKI. 3. THE ACCOUNTANT GENERAL (A & E)KERALA, THIRUVANANTHAPURAM. BY SPL GOVERNMENT PLEADER SHRI.N.MANOJ RESPONDENT(S): PETITIONER IN TH W.P.(C) --------------------------------------- B.INDIRA (RETD.H.S.A.G.H.S.S.KALLAR) RESIDING AT PRASAD BHAVAN, KALLAR.P.O.IDUKKI DISTRICT. SMT.P.V.ASHA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 19/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------ WA No.709 of 2008 ------------------------------------------------------------------ Dated 19th October 2009 Judgment Balakrishnan Nair, J. The respondents in the Writ Petition are the appellants. The writ petitioner is the respondent herein. The brief facts of the case are the following : 2. The respondent was appointed in the General Education Department as Primary Departmental Teacher on 19.10.1978. She was later promoted as HSA (Malayalam) on 04.09.1981. She has already retired from service on 31.03.2005. 3. The respondent was granted the first higher grade in the post of HSA (Malayalam) on 04.09.1991. She submitted option to come over to the scale of pay of the Higher Grade with effect from 01.07.1992. Soon thereafter, the Government introduced pay revision as per order dated 25.09.1993, with retrospective effect from 01.03.1992. Thereupon, the petitioner re-opted to come over to the scale of pay of the Higher Grade of HSA with effect from 04.09.1991 and opted to come over to the revised scale of pay with effect from 01.09.1993. WA NO.709/09 2 4. As per the pay revision introduced on 25.11.1998, the respondent was granted weightage, reckoning her service in the cadre of PD Teacher also. At the time of verification of her service records for the purpose of computation of pensionary benefits, various objections were raised. Those objections are contained in Exts.P1. Based on those objections, the salary of the respondent was re-fixed as per Ext.P2. The aggrieved respondent moved the Government. The Government called for remarks from the Deputy Director. Thereupon, the said Officer submitted Ext.P4 clarification for the perusal of the Government. In that clarification, the dispute regarding weightage was raised, which did not find a place in Ext.P1. The Government rejected her objection by Ext.P5. So, the Writ Petition was filed, challenging Exts.P2 and P5. The learned Single Judge, after hearing both sides, allowed the Writ Petition. The respondents in the Writ Petition, feeling aggrieved by the said Judgment, have preferred this appeal. 5. The learned Special Government Pleader, who appeared for the appellants, mainly canvassed two points before us. The first point raised is regarding the sustainability of Objection No.3 in Ext.P1. According to the learned Special Government Pleader, without WA NO.709/09 3 submitting any option in time with reference to a Government order, permitting such option, her pay was fixed/re-fixed. Her first higher grade was pre-poned from 01.07.1992 to 04.09.1991 and the date to come over to the new scale of pay, pursuant to the pay revision in 1993 was postponed from 01.03.1992 to 01.09.1993. No option form was found as part of the service records of the respondent. Therefore, the 3rd objection raised by the competent authority is sustainable, it was submitted. The learned Single Judge took the view that subsequently, the Government issued orders, enabling to opt all those who wanted to opt/re-opt. So, if there was anything irregular about her first option or the re-option, the respondent should have been alerted her in time so that she could have opted, based on the subsequent Government orders issued, enabling option and re- option. Therefore, the learned Single Judge held that the said objection is not sustainable. We find no reason to take a different view. Normally, in the absence of an option submitted in accordance with a relevant GO, no fixation will be allowed. Even assuming the same was done without a valid option, if the irregularity in the fixation of her pay was brought to her notice in time, she could have opted in the light of the subsequent Government Orders, enabling her to do WA NO.709/09 4 that. So, the said ground taken by the learned Special Government Pleader, does not impress us. 6. The next point canvassed before us is based on paragraph 4 of Annexure-III of the Pay Revision GO dated 25.11.1998. The said paragraph reads as follows : “To the existing emoluments computed above, shall be added an amount equal to 10%(Ten Percent) of basic pay towards fitment benefit and another amount equivalent to 1% of basic pay for each completed year of service subject to a maximum of 20 completed years, towards weightage. If the amount computed as above falls short of Rs.250/-, the fixation should be so made as to ensure that the employee gets a minimum benefit of Rs.250/- in basic pay. Note - (i) Service for the purpose of this rule means service including broken periods of service qualifying for normal increments in the scales of pay. Time spent on leave not counting for normal increment will not be reckoned.” The learned Special Government Pleader submitted that in the case of the respondent, weightage @ 1% of the basic pay per year of service was granted to her, reckoning her service in the cadre of PD Teacher also. The same could have been done, only taking into account, her service in the cadre of HSA alone. The reason given for the same is that the appointment of a PD Teacher as HSA cannot be treated as a promotion. The learned counsel for the respondent WA NO.709/09 5 brought to our notice that the above objection, now taken by the learned Special Government Pleader, was nowhere taken earlier. But, whatever that be, we think it is only appropriate to deal with the contention of the appellants on merits. 7. The learned Special Government Pleader admitted before us that in all other services, the entire service starting from LD Clerk etc., is counted for grant of weightage. For example, a Tahsildar can get weightage, counting his service as LDC, UDC, Village Officer/Revenue Inspector and Deputy Tahsildar. We notice that the appointment from Revenue Ministerial Subordinate Service to Revenue Subordinate Service is an appointment by transfer and further, the appointment of a Deputy Tahsildar as Tahsildar is also an appointment by transfer. In all other services, the transfer appointees could reckon their past service. We find no reason, why the same could not be reckoned in the case of teaching staff in the Education Department. Though, technically, the appointment of a PD Teacher as HSA is appointment by transfer, in fact, it is a promotion in the direct line. If transfer appointees in other Departments could get the benefit of their past service in the lower post, we find no reason, why an HSA could not count her service as PD Teacher also. WA NO.709/09 6 Therefore, the said objection is also not sustainable. 8. Both sides brought to our notice that an objection not taken in Ext.P1, has found a place in Ext.P2 re-fixation order. Junior-senior fixation was granted to the respondent. According to the appellants, if only there is a junior, working in the cadre of HSA (Malayalam), the respondent could claim that benefit. In fact, the junior, who was drawing higher pay, was teaching a different subject and therefore, she should not have been granted the said benefit, it is submitted. The respondent seriously disputed the said contention. According to her, there was a junior HSA (Malayalam), drawing higher pay. The same is evident from Exts.P12 and P13. In view of the above position, we think that the re-fixation made as per Ext.P2, ignoring the junior-senior fixation, is also unsustainable. In the result, the Writ Appeal fails and it is accordingly dismissed. K.BALAKRISHNAN NAIR, JUDGE P.BHAVADASAN, JUDGE sta WA NO.709/09 7 WA NO.709/09 8