IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 WP(C).No. 33922 of 2005(L) -------------------------------------- PETITIONER: ------------------- C.A. ROSY, AGED 55 YEARS, W/O. C.L. JACOB, HEADMISTRESS (RETD.,), GOVERNMENT L.P. SCHOOL, KARAYOOR, P.O.KOTTAPPADY, CHAVAKKAD, (RESIDING AT CHUNGATH HOUSE, P.O. KOTTAPPADY, THRISSUR DISTRICT). BY ADVS. SRI.V.A.MUHAMMED, SRI.K.E.HAMZA. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DEPUTY DIRECTOR OF EDUCATION, AYYANTHOLE, THRISSUR DISTRICT. 3. THE ASSISTANT EDUCATIONAL OFFICER, CHAVAKKAD, THRISSUR DISTRICT. R1 TO R3 BY GOVERNMENT PLEADER SMT. RANI DIOTHIMA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.33922/2005-L: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE FIXATION STATEMENT OF PAY OF THE PETITIONER DTD. NIL. EXT.P.2: COPY OF THE REPRESENTATION OF THE PETITIONER DTD. 10/01/2004. EXT.P.3: COPY OF THE ORDER NO.58436/B2/2003/G1. EDN. OF THE GOVERNMENT DTD. 21/02/2004. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.33922/2005-L ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 28th day of July, 2011 J U D G M E N T The petitioner herein is aggrieved by Ext.P3 communication issued by the Deputy Director of Education rejecting the request for re-option for changing the date on which the grade has been granted. 2. The petitioner retired from service on 31/03/2005 as Headmistress from a Government Lower Primary Schoo1. She entered service as P.D Teacher on 01/01/1972 and she was promoted as Headmistress with effect from 05/11/2001. The lower grade scale of pay was Rs.5280-8150 and her pay in Headmaster scale of Rs.5500-9075/- was fixed as Rs.6975/-. According to the petitioner, normal incremental date is 01/02/2002 and, therefore, the petitioner is entitled to get an incremental benefit on 01/02/2002 as per Rule 28 A Part-I of Kerala Service Rules. 3. Ext.P1 is the proceedings fixing the pay of the petitioner which according to the petitioner is not correctly done. Thereafter, the petitioner filed a W.P.(C). No.33922/2005 -:2:- representation and the same was rejected by Ext.P3 which is under challenge herein. 4. It is pointed out that Ext.P3 order was passed without hearing the petitioner. The substantial contention raised is that her pay has to be refixed on 01/02/2002. It is further pointed out that the petitioner has not requested for re-option of time bound higher grade. 5. The third respondent has filed a detailed counter affidavit. Para.3 of the counter affidavit shows that manner in which the pay was fixed. The same is extracted below:- “The petitioner entered service as P.D Teacher on 01/01/1972. She was drawing her pay as P.D. Teacher in the time scale of pay 5250-8150 with next normal date of increment 01/02/2002. She was promoted as Headmistress with effect from 05/11/2001 and her pay was fixed with effect from 05/11/2001 in the Headmaster Scale of pay 5500-9075 with next incremental date as 01/11/2002. Refixation of W.P.(C). No.33922/2005 -:3:- pay as per Rule 28A Part I K.S.R is allowed whenever there is a change of pay in the lower grade time scale. Thus her lower grade pay scale was 5250-8150 and higher grade pay scale was 5500-9075. The petitioner then opted her Headmaster's higher grade promotion (on completion of 30 years of total service) with effect from 01/01/2002 and her pay was fixed with effect from 01/01/2002 in the Headmaster's Higher Grade promotion scale of pay 6500-10550 with next incremental date 01/01/2003. Thus with effect from 01/01/2002 onwards her lower grade time scale of pay became 5500-9075 and Higher Grade time scale of pay became 6500-10550 and after 01/01/2002 her pay in the lower grade time scale (5500- 9075) changes only on 01/11/2002. Thus there was no change of pay of the petitioner in the lower time scale as on 01/02/2002. As there was no change of pay in the lower time scale as on 01/01/2002 refixation of pay as per Rule W.P.(C). No.33922/2005 -:4:- 28A Part I K.S.Rs was not allowed to the petitioner as on 01/02/2002. Evidently, going by the same, it can be seen that the next normal date of increment was 01/02/2002 while working as P.D Teacher. On promotion as Headmistress on 05/11/2001, her pay was fixed in the Headmaster's scale of pay and the next increment date was 01/11/2002. 6. The present situation arose since the Headmasters Higher Grade Promotion with effect from 01/01/2002 was granted and pay was fixed at Rs.6500- 10550. Next increment date is 01/01/2003. Therefore, as on 01/01/2002 the lower grade time scale of pay became 5500-9075. This resulted in a position wherein there was no change of pay in the lower scale of pay as on 01/02/2002. 7. The learned counsel for the petitioner submitted that actually there is a change in the lower scale and the petitioner is entitled for fixation under Rule 28A of Part I K.S.Rs. It is pointed out that the petitioner had not submitted re-option with effect from W.P.(C). No.33922/2005 -:5:- 01/01/2002 and my attention is invited to column 9 of Ext.P1 where the date of eligibility is mentioned as 01/01/2002. 8. But the petitioner has not disputed any averments in the counter affidavit by filing a reply affidavit. Therefore, it can be taken that the petitioner has no legal contentions against the averments in the counter affidavit. Further, in the counter affidavit it is pointed out that the petitioner herself denied to her the benefit of refixation of pay as per Rule 28A of Part I K.S.Rs by not opting Headmasters Higher Grade Promotion with effect from 01/02/2002. Therefore, the respondents are justified in denying the request. No interference is hence called for. The writ petition is dismissed. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms