IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 25TH FEBRUARY 2009 / 6TH PHALGUNA 1930 OP.No. 3402 of 2001(E) ---------------------------- PETITIONER(S): ------------------- T.P. DAMODARAN HEADMASTER (RETD.), NEAR SIVA TEMPLE, KANKOLE POST, KANNUR DISTRICT. BY ADV. MR.M.SASINDRAN MR.K.P.HARISH RESPONDENT(S): --------------------- 1. STATE OF KERALA REPRSENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SENIOR ACCOUNTS OFFICER, OFFICE OF THE ACCOUNTANT GENERAL (A&E) KERALA, THIRUVANANTHAPURAM. 3. THE ASSISTANT EDUCAITONAL OFFICER, CHERUVATHUR, KASARAGOD DISTRICT. 4. THE DEPUTY DIRECTOR OF EDUCATION KASARAGOD. GOVERNMENT PLEADER MS. SMITHA SUKUMAR FOR R1TO4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 3402 of 2001 ORDER ON C.M.P.NO.5502 OF 2001 IN I.P.NO.3403/2001 CLOSED. 25.2.2009. SD/- S. SIRI JAGAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF INTIMATION SLIP ISSUED FROM OFFICE OF THE ACCOUNTANT GENERAL SANCTIONING DCRG, COMMUTTED VALUE OF PENSION AND PENSION, DATED 7.7.2000. EXT.P2: COPY OF ORDER OF R3 DTD 3.8.2000. EXT.P3: COPY OF GOVERNMENT ORDER DTD 2.2.1994. EXT.P4: COPY OF G.O. DATED 9.6.1994. EXT.P5: COPY OF G.O.(P) NO.481/94 DTD 23.8.1994. EXT.P6: COPY OF THE G.O. DTD 28.6.1997. EXT.P7: COPY OF REVISED PENSIONARY BENEFITS OF THE PETITIONER DTD 2.1.2001. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No. 3402 OF 2001 ---------------------------------------- Dated this the 25th day of February, 2009 JUDGMENT The petitioner was a Headmaster of a Lower Primary School who retired from service on 31.3.2000. He was promoted as Headmaster in 1986. He became entitled to be promoted as Selection Grade P.D. Teacher with effect from 1.8.1992. The Government implemented 1992 pay revision with effect from 1.3.1992. The petitioner submitted option to come over to the revised scale of pay with effect from 1.8.1992. His salary was first fixed in the scale of applicable to Selection Grade P.D. Teacher and then in the scale of pay applicable to Headmaster under Rule 28A of Part I of the Kerala Service Rules. The audit party of the Accountant General objected to fixation of the pay of the petitioner and by Ext.P2 the same was communicated to the petitioner thus: “As per the above audit report the Accountant General, Kerala has objected the fixation of pay in the pre-revised scale of selection grade 1250-2230 and then to the pre-revision scale of Headmaster and afterwards O.P.No.3402/2001 2 to the revised scale of H.M. From 1.8.92 onwards (1640-2900). The Accountant General has clarified that according to para 9 of G.O.(P)81/94(5)Fin. dtd. 2.2.94, only the next promotion post on or after 1.3.92 can be opted in respect of 1992 pay revision. Hence the undersigned is hereby revise the fixation of pay of Sri. T.P. Damodaran, Headmaster, GLPS, Puliyannur by effecting the revised scale of 92 pay revision first in senior/selection grade and further fixations as detailed in the fixation statements appended. Sri. T.P. Damodaran, Headmaster (Retired on 31.3.2000) G.L.P.S. Puliyannur should remit excess drawn amount from 1.8.92 to 31.3.2000, and the chalan receipt with excess drawn statement (two copies) should be furnished immediately”. The petitioner is challenging Ext.P2. According to the petitioner, the Government Order dated 2.2.1994 referred to in Ext.P2 is Ext.P3, which has been subsequently modified by Ext.P4 and it is without reference to that modification, Ext.P2 has been passed. He therefore, submits that Ext.P2 is liable to be quashed and his original fixation restored. 2. This is opposed by the learned Government Pleader, who submits that the fixation of pay of the petitioner was not in accordance with Ext.P4 also. She points out that as is clear from Ext.P2, the petitioner's pay was originally fixed in the pre-revised scale of pay of Selection Grade Teacher and then to the pre-revised scale of pay of Headmaster and afterwards O.P.No.3402/2001 3 to the revised scale of Headmaster from 1.8.1992 onwards which is not permissible even under Ext.P4. 3. The relevant portions of Ext.P4 is Clause 2(ii)(a) and (c), which read thus: “(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 3 rd paper above, teachers-both P.D. and Graduate teachers (HSA) will be permitted to opt the time bound grade fell due/granted first on or after 1-3-1992 cancelling the option already exercised in respect of the post held immediately prior to 1-3-1992. 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 re funded in lump before accepting such re-options. In all these cases of re- options the guidelines issued in Circular No.F46/90/Fin. Dated 22-6-1990 should be followed. xxxxx xxxxx xxxxxx xxxxxx (c) Teachers (P.D.) who were promoted as Headmasters prior to 1-3-1992 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- 3-1992 or on the date on which they become 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, 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.R. O.P.No.3402/2001 4 It is clear that as per the said Clauses, the petitioner's pay has to be re-fixed first in the revised pay scale applicable to Selection Grade P.D. Teacher with effect from 1.8.1992 notionally and then the pay has to be re-fixed in the scale of pay applicable to Headmaster in the revised scale under Rule 28A of Part I of the Kerala Service Rules. Going by Ext.P2, the same had not been done in so far as the fixation done was in the pre-revised scales of pay and not in the revised scales of pay. Even then, the petitioner is entitled to fixation of pay as per Clauses 2(ii) (a) and (c) of Ext.P4. Accordingly, while quashing Ext.P2, I direct the competent as between respondent 3 and 4 to re-fix the pay of the petitioner with effect from 1.8.1992 as provided in Ext.P4. Orders in this regard shall be passed and arrears, if any, due to the petitioner shall be disbursed as expeditiously as possible, at any rate, within a period of three months form the date of receipt of a copy of this judgment. Consequent on such re- fixation, any amounts become due to be recovered from the petitioner the same shall be recovered. The original petition is disposed of as above. S. SIRI JAGAN, JUDGE Acd O.P.No.3402/2001 5