IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 22ND DECEMBER 2011 / 1ST POUSHA 1933 WP(C).No. 9826 of 2006(T) ----------------------------------- PETITIONER(S): ----------------------- DR. K. RAJEEVAN, SELECTION GRADE LECTURER, DEPARTMENT OF PHYSICAL EDUCATION, N.S.S. COLLEGE, CHERTHALA, K.R. PURAM P.O., ALAPPUZHA DISTRICT. BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM. 4. PRINCIPAL, N.S.S. COLLEGE, CHERTHALA, K.R. PURAM P.O., ALAPPUZHA DISTRICT. R1 TO R3 BY GOVERNMENT PLEADER SRI. NOBLE MATHEW R4 BY ADVS. SRI.P.G. PARAMESWARA PANICKER, SENIOR SRI.P.GOPAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VPV WPCNO.9826/2006 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE G.O.(P) NO.171/99/H.EDN. DATED 21.12.1999. EXT.P2 : COPY OF THE G.O.(P) NO.44/2001/H.EDN. DATED 29.3.2001. EXT.P3 : COPY OF THE ORDER NO.A3-4522/04 DATED 20.7.2004 OF THE 2ND RESPONDENT. EXT.P3(A): COPY OF THE ORDER NO.A3-4522/2004 DATED 18.1.2005 OF THE 3RD RESPONDENT. EXT.P4 : COPY OF THE REPRESENTATION DATED 19.8.2004 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT EXT.P5 : COPY OF THE LETTER NO.203/P4/04 M(EDN.) DATED 18.11.2004 OF THE PRIVATE SECRETARY TO THE HON'BLE MINISTER FOR EDUCATION. EXT.P6 : COPY OF THE LETTER NO.A3-4522/04 DATED 19.1.2005 OF THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM ADDRESSED TO THE PRINCIPAL N.S.S. COLLEGE, CHERTHALA. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE VPV S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.9826 of 2006 ---------------------------------------------- Dated this the 22nd day of December, 2011 JUDGMENT The petitioner entered service of an aided College of which the 4th respondent is the Principal on 2.2.1994. He was inducted into the UGC Scheme and was given senior scale on 27.7.1998. Subsequently, the petitioner was further placed in Lecturer (Selection Grade) on 2.2.2003. The petitioner submits that by virtue of the petitioner having acquired Ph.D degree in June 1998, the petitioner is entitled to benefit of paragraphs 6.18 and 6.19, of Ext.P1 Government Order adopting UGC Scheme for Colleges in the Kerala State. The petitioner would contend that in accordance with the paragraph 6.19, the petitioner ought to have been given two advance increments, when the petitioner was inducted into UGC Scheme in the Lecturer (Senior scale) on 27.7.1998. But, the petitioner was not given the same. But, the petitioner was given the benefit of two advance increments when the petitioner was placed in Lecturer (Selection Grade) scale. W.P.(C)No.9826/06 2 But, that was granted in the scale of pay applicable to Lecturer (senior scale) and then the petitioner's pay was fixed in the minimum in the scale of pay applicable to Lecturer (Selection Grade). As a result, the petitioner received advantage of only Rs.50/- instead of two increments. The petitioner took up the matter with the 2nd respondent, in which Ext.P6 order has been passed rejecting the petitioner's claim. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i. issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Exts.P2 and P6 and quash Ext.P6 and paragraph 2(8) of Ext.P2. ii. issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to give the petitioner the benefit of Clause 6.19 of Ext.P1 by sanctioning the petitioner two advance increments with effect from 27.7.1998 and disburse to him the monetary benefits including arrears consequent on it or by giving him the benefit of Clause 6.18 of Ext.P1 by sanctioning him two advance increments in the scale of pay of Selection Grade Lecturer with effect from 2.2.2003 i.e. the date on which he was promoted as Selection Grade Lecturer and disburse to him the monetary benefits consequent on it including arrears within a time limit to be fixed by this Hon'ble Court.” According to the petitioner, the petitioner should have been given two advance increments on 27.7.1998, when the W.P.(C)No.9826/06 3 petitioner was placed in the Lecturer (Senior Scale). Even if that cannot be granted, the petitioner should have been given the two advance increments in the scale of pay applicable to Lecturer (Selection Grade) when the petitioner was inducted into that scale on 2.2.2003 is his contention. By Ext.P3, the petitioner was given the benefit at the time of induction into the scale of pay applicable to Lecturer (Selection Grade). But, the respondents added the increments to the petitioner's pay in the scale of pay applicable to Lecturer (Senior Grade), which is against paragraph 6.18 of Ext.P1, is the contention raised. The petitioner has got another contention that Ext.P2 order, whereby it is held that teachers, who get advance increments, will not be eligible for fixation as per Rule 28A of Part I of KSR is unsustainable, since the benefits sanctioned by a statutory rule cannot be taken away by an executive order. 2. A counter affidavit has been filed by the 3rd respondent supporting the stand of the respondents and it is contended that the petitioner is entitled to only what has been given to him as per Ext.P3. 3. I have considered the rival contentions in detail. W.P.(C)No.9826/06 4 Paragraphs 6.18 and 6.19 of Ext.P1 read thus: “6.18 A Lecturer with Ph.D will be eligible for two advance increments when she/he moves into Selection Grade/Reader. 6.19 A teacher will be eligible for two advance increments as and when she/he acquires a Ph.D. degree in her/his service career.” As far as the claim of the petitioner for benefit under Section 6.19 is concerned, I do not think that the petitioner is entitled to the same. 6.19 is applicable to a person already in the UGC scale of pay when he acquires Ph.D degree. The petitioner acquired Ph.D degree even before the petitioner was inducted into the UGC scheme. As such, the petitioner is not eligible for benefit of paragraph 6.19. 4. The respondents also do not dispute the eligibility of the petitioner for the benefit under paragraph 6.18. Therefore, the dispute is as to how that benefit has to be granted. According to the respondents, the two advance increments have to be added to the pay in the scale of pay applicable to Lecturer (Senior Scale) of the petitioner and then his pay is to be fixed in the scale of pay applicable to Lecturer (Selection Grade) on induction into Lecturer (Selection Grade) on 2.2.2003. The petitioner’s contention is that the petitioner W.P.(C)No.9826/06 5 should be given two advance increments as per paragraph 6.18 in the scale of pay applicable to Lecturer (Selection Grade). Going by paragraph 6.18, I am inclined to agree with the petitioner. Paragraph 6.18 says that a Lecturer with Ph.D degree will be eligible for two advance increments when he moves into Selection Grade. That means, the advance increments has to be added to the pay of the petitioner in the scale of pay applicable to the Lecturer (Selection Grade). But, in Ext.P3 the respondents have added the two advance increments to the petitioner’s pay in the scale of pay applicable to Lecturer (Senior Scale), which is not in tune with paragraph 6.18. I am of opinion that the petitioner is entitled to succeed to that extent. 5. But I do not find any merit in the contention of the petitioner that paragraph 2(8) of Ext.P2 is unsustainable. Paragraph 2(8) of Ext.P2 reads thus: “(8) Teachers who get advance increments will not be eligible for fixation as per Rule 28-A Part I K.S.Rs.” In the UGC Scheme certain benefits are extended to teachers of Colleges in Kerala State subject to certain conditions. One W.P.(C)No.9826/06 6 of the conditions is that the teachers who get advance increments will not be eligible for fixation as per Rule 28A of Part I of KSR. By that the respondents are not taking away any benefit of the petitioner under Rule 28A of Part I of KSR. The petitioner is given a chance of either fixation as per Rule 28A or two advance increments. The petitioner is absolutely free to choose either one of the two. In respect of the same, the principle that an executive order cannot amend a statutory rule, does not have any application at all. The petitioner is either free to accept the benefits granted by Exts.P1 and P2 with the conditions applicable for availing of that benefit or decide not to take it at all. If the petitioner decides to accept the benefits under Exts.P1 and P2, the petitioner is not entitled to the benefit of fixation under Rule 28A of Part I of KSR. Therefore, I do not find any merit in the challenge against clause 2(8) of Ext.P2. 6. In view of the above findings, this writ petition is disposed of with the following directions: Ext.P3 fixation of pay of the petitioner is quashed. It is declared that the petitioner is entitled to two advance W.P.(C)No.9826/06 7 increments in the scale of pay applicable to Lecturer (Selection Grade) and therefore, the two advance increments have to be added to the minimum in the scale of pay of Lecturer (Selection Grade) for fixation of pay of the petitioner in the scale of pay applicable to Lecturer (selection Grade). Fresh computation shall be made, orders passed and arrears of salary paid to the petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. S. SIRI JAGAN, JUDGE acd W.P.(C)No.9826/06 8 W.P.(C)No.9826/06 9