IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 WP(C).No. 22340 of 2007(H) --------------------------------- PETITIONER(S): ----------------------- SOMASUNDARAN T.V., S/O.RAMAN UNNI NAIR, PULLAYIL KALATHIL, VALLUVANGADU SOUTH P.O. PANDIKKAD (VIA), MALAPPURAM 676 521. BY ADVS.MR.M.SASINDRAN MR.T.R.JAGADEESH RESPONDENT(S): ------------------------ 1. STATE OF KERALA - REPRESENTED BY SECRETARY, DEPARTMENT OF GENERAL EDUCATION, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. R1 TO R3 BY GOVT. PLEADER SMT.T.B.RAMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.22340/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE STATEMENT OF FIXATION OF PAY IN TERMS OF G.O.(P) NO.3000/98 DULY APPROVED BY THE DDE. MALAPPURAM. P2:- COPY OF THE REPRESENTATION DTD. 25.7.05 FILED BY THE PETITIONER. P3:- COPY OF THE REPRESENTATION DTD. 18.10.05 BEFORE THE 2ND RESPONDENT. P4:- COPY OF THE REPRESENTATION DTD. 20.2.06. P5:- COPY OF THE LETTER NO.33155/E2/06/GED DTD. 18.4.07. TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.22340/2007-H ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 9th day of October, 2009 J U D G M E N T The petitioner who is working as H.S.A (Malayalam) in G.V.H.S.S., Nellikkuthu, Manjeri has filed this writ petition aggrieved by the anomaly i.e Junior-Senior pay fixation. The main relief sought in the writ petition is to fix the pay of the petitioner as per Ext.P1 pay fixation statement and to declare that he is entitled to get pay at par with his juniors. 2. The petitioner joined service as L.P.S.A on 01/08/1983 and commenced his regular service as P.D Teacher with effect from 09/07/1987. He was promoted as H.S.A (Malayalam) with effect from 10/06/1996. His pay was fixed by the Pay Revision Order issued vide G.O.(P).No.3000/98, dated 25/11/1998 in the scale of pay of Rs.4,600-100-5000-125-7125/-. He was granted increment of Rs.100/- and pay was fixed as Rs.4,700/- on 01/09/1997. 3. One Smt.N.I.Mary is junior to the petitioner and her pay has been fixed as Rs.4,900/- on 19/12/1998 while the petitioner was drawing a pay of Rs.4,800/-. Ext.P1 is the pay fixation statement in favour of the petitioner. This fixation was objected by the Deputy Director of Education, W.P.(C). No.22340/2007 -:2:- Malappuram. Thereafter, he filed Ext.P2 representation and failing to get any reply, he filed Ext.P3 also. Ext.P4 is the copy of the representation submitted to the first respondent through proper channel. 4. The petitioner submits that he joined service on 01/08/1983 whereas his junior joined service on 16/09/1983. The petitioner commenced his regular service on 09/07/1987 whereas his junior commenced her regular service on 14/07/1987. The date of promotion of the petitioner to the post of H.S.A (Malayalam) is 10/06/1996 and that of his junior to the post of H.S.A (Social Science) is 19/12/1998. Both of them opted the scale with effect from 01/03/1997. The pre-revised scale of pay of the petitioner was Rs.1,440/- and of his junior was Rs.1,410/-. The revised pay scale of the petitioner was Rs.4600-100-5000-125-7125/- and of his junior was Rs.4500-100-5000-125-7000/-. The pay fixed on the revised scale of the petitioner was Rs.4,600/- and of his junior was Rs.4,500/- on the date of option. On the next date of increment on 01/09/1997, the petitioner's pay was increased to Rs.4,700/- and of his junior was increased to Rs.4,600/-. But with effect from 19/12/1998, the petitioner's junior's pay was fixed at Rs.4,900/- which is higher than the petitioner's pay. By Ext.P5, the petitioner was given a reply to Ext.P4 representation. This is under challenge in this writ petition. W.P.(C). No.22340/2007 -:3:- 5. The view taken is that going by Circular No. 59151/J2/2000/Gl.Edn.D, dated 17/05/2002, H.S.A (Language) and H.S.A (Core Subjects) are different categories. Therefore, the higher scale of pay of a junior working in a different category cannot be claimed by the senior. This issue was considered by this Court in W.P.(C).No.20914/2003, wherein after considering various aspects including relevant provisions of Rule 37 of Chapter XIV A K.E.R, it was held thus in paragraph (3):- “The seniority is not determined categorywise in the light of Rule 37 of Chapter XIV A K.E.R and in the light of the Division Bench decision of this Court as cited supra it has to be held that Ext.P3 circular purported to refix the criteria for determining the seniority is contrary to Rule 37 and has no legal force. Further in so far as the Government order (pay revision order) does not contain any clause in the matter of stepping up of the pay and to restrict the benefit only if both senior and junior belong to the same category. The circular cannot have the effect of amending a notification that too with retrospective effect. This has been considered in the decision in O.P.No.23261/98. Para 3 reads as follows:- W.P.(C). No.22340/2007 -:4:- “Counsel for the petitioner submits that Ext.P1 cannot override the pay revision order and cannot take away the benefits granted by the pay revision order G.O. (P).No.930/93(2)/Fin dated 08/12/1993 is a Government Order issued by the order of Governor whereas Ext.P1 is only a Government Circular. Though Ext.P1 is stated to be a clarification of the pay revision order it cannot run counter to what has been clearly stated in the pay revision order. I am therefore of the view that the clarification issued in paragraph 2 of Ext.P1 cannot stand the test of law. That part of Ext.P1 is liable to be quashed and I do so. There will be a direction to the respondents to fix the pay of the petitioner giving effect to paragraph 9 of G.O.(P).No.930/93(2)/Fin dated 08/12/1993. In the light of the above direction, the relief sought for by the petitioner as per prayer (b) does not arise for consideration. Original petition is allowed to the above extent. No costs.” It was accordingly held that the audit objection cannot be sustained. W.P.(C). No.22340/2007 -:5:- 6. I respectfully agree with the same. Herein, in Ext.P5 the very same Circular mentioned in the above judgment is relied on to reject the claim raised by the petitioner. Therefore, Ext.P5 is quashed. In the light of the findings rendered above, there will be a direction to the third respondent to take appropriate action regarding the fixation of pay as per Ext.P1 and grant benefits to the petitioner within a period of two months from the date of receipt of a copy of this judgment. Based on the same, the subsequent pay revisions will also be implemented in favour of the petitioner. The writ petition is allowed. No costs. (T.R. Ramachandran Nair, Judge.) ms