Kerala High Court
Sabi Augustine vs State Of Kerala on 2 March, 2020
Bench: A.M.Shaffique, V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA, 1941
WA.No.29 OF 2020
AGAINST THE JUDGMENT DATED 3.12.2019 IN WP(C) 32039/2016(D) OF
HIGH COURT OF KERALA
APPELLANT/PETITIONER:
SABI AUGUSTINE
AGED 43 YEARS
W/O. JOHNSON P JOSEPH, HIGHER SECONDARY SHOOL TEACHER
(POLITICAL SCIENCE), JAYASREE HIGHER SECONDARY
SCHOOL, KALANADIKOLLY, KALANADIKOLLY P.O., PULPALLY,
WAYANAD DIST., PIN - 673 579 RESIDING AT
PADINJAREDATH HOUSE, MULLANKOLLY POST, PULPALLY VIA,
WAYANAD DIST., PIN - 673 579
BY ADV. SRI.MURALI PALLATH
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVT., GENERAL
EDUCATION DEPARTMENT, GOVT. SECRETARIAT, TRIVANDRUM,
PIN - 695 001
2 THE DIRECTOR,
HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. PIN -
695 001
3 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY
EDUCATION,OFFICE OF THE REGIONAL DEPUTY DIRECTOR OF
HIGHER SECONDARY EDUCATION, KOZHIKODE, PIN - 673 001
4 THE MANAGER,
JAYASREE HIGHER SECONDARY SCHOOL, KALANDIKOLLY POST,
PULPALLY, WAYANAD - 673 579
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W.A.No.29/2020
5 THE DISTRICT EDUCATIONAL OFFICER,
OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, WAYANAD
PIN - 673 121 (ADDL. R5 WAS IMPLEADED AS PER ORDER
DATED 19.06.2019 IN IA 1/2019)
SRI. B. VINOD-SR.G.P.R1 TO R3 & R5
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02.03.2020,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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W.A.No.29/2020
JUDGMENT
Dated this the 2nd day of March 2020 Shaffique, J This appeal is filed by the petitioner in W.P.(C).No.32039/2016.
2. The writ petition has been filed challenging Ext.P7 order and for a declaration that fixation of pay in Ext.P6 is in order and does not warrant any revision. The petitioner was appointed as HSST (Junior) in Political Science by way of direct recruitment on 1.09.2000 and she was upgraded as HSST (Political Science) on 17.7.2001 and worked in the said position upto 11.3.2008. Thereafter, on account of the orders passed by this Court it was found that her appointment was illegal. However, direction was issued to accommodate her as HSA. Accordingly, the petitioner worked as HSA from 12.3.2008 and is continuing in service. By Ext.P6 order issued by the District Educational Officer, the pay of the petitioner was fixed at Rs.24,225/- and the next stage was shown as Rs.24,660/-. Subsequently, the matter was considered by the Government and the Director of Higher Secondary Education by Ext.P7 order dated 11.08.2016, revised the pay scale of the petitioner inter alia observing that from 12.3.2008 she is entitled for the pay scale as HSA and she is entitled for being appointed as HSST effective from 1.6.2011, in so far as her appointment as HSST by way of direct recruitment was not regular and in accordance with the procedure prescribed. However she was given 4 W.A.No.29/2020 higher grade as per directions issued by the Apex Court, taking into consideration her service as HSST from 17.7.2001 to 11.3.2008.
3. The contention urged urged by the petitioner was that since she was appointed as HSST(Junior) and later promoted as HSST (Senior) and continued in service for considerably long time and drawing higher scale of pay, while being promoted in the post of HSST, she is entitled to have the higher scale of pay. In fact, in the counter affidavit filed by the 3rd respondent it was specifically stated that the appointment of the petitioner as HSST (Political Science) from 1.6.2011 was approved as per order dated 23.11.2011. The Joint Director of Higher Secondary Education as per letter dated 28.6.2013 fixed the salary of the petitioner as per 2004 pay revision in HSST scale. As per the said direction, petitioner's scale of pay was fixed as 11070-18450. The Principal of the school as per letter dated 1.6.2013 has requested for fixation of the petitioner's pay on re-option and for the higher grade fixation with effect from 1.7.2013 on completion of 8 years HSST service including the previous approval period from 17.7.2001 to 11.03.2008. Clarification has been sought for by the 3 rd respondent from the Director of Higher Secondary Education as per letter dated 23.09.2014. Consequently, Government had issued clarification to the Director of Higher Secondary Education as per letter dated 11.08.2016 (Ext.P7) and the said clarification was forwarded to the 3rd respondent by the Director as per letter dated 30.09.2016 5 W.A.No.29/2020 which is produced as Ext.R3(c). It is therefore submitted that in the light of Ext.P7 the Director of Higher Secondary Education has instructed the 3rd respondent to regularize the pay of the petitioner.
4. Before the learned Single Judge, the question that had arisen for consideration was that whether the petitioner was entitled to re-fixation of salary in terms of Rule 37(b) of Part-I KSR. The learned Single Judge had found that the petitioner is not entitled for any re- fixation. Placing reliance on the judgment of the Apex Court in State of Punjab v. Rafiq Masih (White Washer) [(2015) 4 SCC 334], the learned Single Judge observed that there is no reason to interfere with the fixation of scale of pay and further directed that no recovery shall be made from the salary of the petitioner.
5. The learned counsel for the appellant would argue that the provision that applies to the facts of the case would be the 2 nd proviso to Rule 28A of the Part I KSR. 2nd proviso to Rule 28A reads as under:
"Provided also that where a Government servant is immediately before his promotion or appointment to a higher post, drawing pay at the maximum of the time-scale of the lower post, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post by an amount equal to the last increment in the time-scale of the lower post."
6. We don't think that the aforesaid provision has any 6 W.A.No.29/2020 application to the factual aspects involved in the matter. According to the petitioner, though she was appointed as HSST Junior, it was later found that the appointment was not approved and found to be illegal. Accordingly, she was accommodated in the post of HSA as a concession. When the matter reached the Supreme Court, the Apex Court specifically observed that she should be given continuity in service. Therefore 1st appointment can only be taken as HSA and cannot be given any other benefit as demanded by the petitioner.
In the light of the aforesaid facts, we are of the view that Rule 28A 2nd proviso has no application in the case on hand. We don't find any error in the finding of the learned Single Judge warranting interference. The writ appeal is hence dismissed.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
V.G.ARUN
kp True copy JUDGE
P.A. To Judge