IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 WP(C).No. 19794 of 2010(Y) -------------------------- PETITIONER: --------------- SANTAMMA.S., HSST (ENGLISH), M.V.H.S.S. ARIYALLUR, ARIYALLUR P.O., MALAPPURAM - 676 312. BY ADV. SRI.N.JAMES KOSHY RESPONDENT(S): --------------- 1. THE DIRECTOR, HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, SANTHINAGAR, THIRUVANANTHAPURAM 2. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION (T) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 3. THE REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, KOZHIKODE. 4. THE MANAGER, M.V.H.S.S. ARIYALLUR, ARIYALLUR P.O., MALAPPURAM - 676 312. BY GOVERNMENT PLEADER SMT.M.T.SHEEBA FOR R1-R3 ADV. SMT.S.KARTHIKA FOR R4 SRI.M.S.UNNIKRISHNAN FOR R4 SRI.M.R.ANISON FOR R4 SMT.K.P.GEETHA MANI FOR R4 SRI.P.N.APPUKUTTAN FOR R4 SMT.P.A.RINUSA FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC.19794/10 PETITIONER'S EXTS: EXT.P1: COPY OF ORDER DT.4.8.2000 EXT.P2: COPY OF COMMON JUDGMENT DT.13.3.2002 IN OP.26178/2000. EXT.P3: COPY OF COMMON JUDGMENT DT.1.7.05 IN W.A.NO.1057/02. EXT.P4: COPY OF APPROVAL ORDER DT.3.12.02. EXT.P5: COPY OF ORDER DT.19.12.05. EXT.P6: COPY OF APPROVAL ORDER DT.8.1.07. EXT.P7: COPY OF REPRESENTATION DT.23.1.06. EXT.P8: COPY OF COMMUNICATION DT.14.3.07. EXT.P9: COPY OF COMMUNICATION DT..21.11.07. EXT.P10: COPY OF APPEAL DT,28.3.07 SUBMITTED BEFORE THE 1ST RESPONDENT. EXT.P11: COPY OF PETITION DT.19.12.07. EXT.P12: COPY OF COMMUNICATION DT.25.7.08 EXT.P13: COPY OF ORDER NO.48499/T2/2008/G.EDN. DT.11.2.10 EXT.P14: COPY OF PROPOSAL AND OPTION SUBMITTED BY THE PETITIONER ON 11.1.06 FOR FIXING HSST PAY WITH EFFECT FROM 27.9.99. EXT.P15: COPY OF STATEMENT OF FIXATION OF PAY IN THE REVISED PAY SCALE SUBMITTED ON 22.3.08 BY THE PETITIONER. RESPONDENTS' EXTS: NIL TRUE COPY P.A.TO JUDGE dsn T.R.RAMACHANDRAN NAIR, J. -------------------------------------------------- W.P.(C)No.19794 of 2010 -------------------------------------------------- DATED THIS THE 11th DAY OF NOVEMBER, 2011 JUDGMENT The petitioner is complaining about the denial of payment of service benefits based on the directions issued in Exhibit P3 judgment by way of seniority and other benefits. It is pointed out that the said judgment had to be implemented in tune with the said declaration and in its letter and spirit. 2. The circumstances leading to the dispute are the following: The petitioner was working as High School Assistant in the school managed by the 4th respondent. When a vacancy arose in the Higher Secondary School, the petitioner was aspiring for appointment under the 25% category. But another person was given the said appointment. This led to a dispute before the Director of Higher Secondary Education which ultimately reached this Court in various Writ Petitions and finally Exhibit P3 judgment was passed by the Division Bench. It appears that in implementation of the judgment of the learned Single Judge and W.P.(C)No.19794/10 -2- during the pendency of the Writ Appeal, the petitioner was appointed as Higher Secondary School Teacher with effect from 5.8.2002 and the said appointment was approved by Exhibit P4. After the judgment was rendered, the petitioner was promoted by Exhibit P5 order with effect from 27.9.1999. The approval of the same was also granted as per Exhibit P6. 3. The present dispute arose when the petitioner was denied fixation of pay and other benefits based on the declaration made by this Court. Various related proceedings have been produced by the petitioner in the Writ Petition. The final order passed by the Government is evident from Exhibit P13. 4. The view taken in Exhibit P13 is that the petitioner is not eligible for getting notional scale for the period from 27.9.1999 to 11.7.2002 as the petitioner has taken the charge of Higher Secondary School only on 5.8.2002. The legality of the same is the subject matter for consideration herein. 5. Heard the learned counsel for the petitioner and the learned Government Pleader. 6. A counter affidavit has been filed by the 3rd respondent in support of the orders passed. W.P.(C)No.19794/10 -3- 7. The justification pointed out in paragraph No.6 of the counter affidavit is that the petitioner is entitled for fixation only from 5.8.2002, the date she assumed duty of the post. 8. The factual details as evident from Exhibit P3 judgment will show that the eligibility of the petitioner over the remaining claimants has been recognised by this Court for appointment as Higher Secondary School Teacher. The operative portion of the judgment in paragraph No.9 reads as follows: “9. Necessarily, when this declaration is there, O.P.No.7823/2003 filed by the second respondent in the Writ Appeal stands allowed to the limited extent that she shall be recorded as senior to the petitioner in O.P.No.12706 of 2003 for the purpose of seniority and other benefits except arrears of salary. In the light of the aforesaid finding, it is only appropriate that the Government shall consider payment of salary to the second appellant, but with no attendant benefits, if no other incumbent had been paid against the sanctioned post of English Teacher during the relevant period he had actually worked.” The 2nd respondent mentioned in paragraph No.9 is the W.P.(C)No.19794/10 -4- petitioner herein. Evidently, therefore, the petitioner will get seniority and other benefits except arrears of salary. Therefore the directions as above will entitle the petitioner for proper fixation of salary and other consequential benefits and there cannot be any doubt about that in the light of the declaration made in the judgment, Exhibit P3. 9. The petitioner has pointed out that the petitioner's pay will have to be re-fixed in terms of the directions issued by this Court in the judgment from 27.9.1999. A reading of Exhibit P11 representation shows that all the details regarding fixation sanctioned as far as the petitioner is concerned and the fixation that was granted to her juniors have been mentioned therein. As rightly pointed out by the learned counsel for the petitioner, if the petitioner is not granted a proper fixation, then the petitioner will receive only a lesser amount of pay and allowances than the junior who was a party to the judgment. The said contingency cannot be conceived at all. In that view of the matter, the Writ Petition is allowed. The impugned orders, Exhibits P9 and P13, are quashed. It is declared that the petitioner is entitled for proper fixation of salary W.P.(C)No.19794/10 -5- and benefits based on the declaration made by this Court in Exhibit P3 judgment. There will be a direction to the 3rd respondent to pass appropriate orders refixing the salary and other benefits to the petitioner as Higher Secondary School Teacher with effect from 27.9.1999. In the light of the fact that the Division Bench in Exhibit P3 judgment has not allowed the arrears of salary for the period from 27.9.1999 to 5.8.2002, the petitioner will not be entitled for the same. But notional increments will have to be sanctioned. Appropriate orders will be passed within a period of two months from the date of receipt of a copy of this judgment and the consequential monetary benefits also will be disbursed, based on the refixation made. The petitioner will also be permitted to submit the options in respect of the pay revisions which have been effected in the meanwhile. No costs. SD/-(T.R.RAMACHANDRAN NAIR, JUDGE) dsn