State of Kerala represented by its Secretary, General Education Department, Secretariat, Thiruvananthapuram; Director, Higher Secondary Education, Thiruvananthapuram; Accountant General (A&E), Kerala v Alphonsa Engratida P.J., Jose P.P., Annamma K.M., Isham.R., Martha Thariath, Umayam­ma T.V., Ramakrishnan K.P., Addl. R8 to R11

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 9TH DAY OF JUNE 2014/19TH JYAISHTA, 1936** **WA.No. 950 of 2010 ( ) IN RP.437/2010** **---------------------------------------** ## **AGAINST THE ORDER/JUDGMENT IN WPC NO.6530/2007 AND RP 437/2010 of HIGH COURT OF KERALA** ## **APPELLANT(S)/RESPONDENTS IN WPC:** **--------------------------------------------------------------** **1. STATE OF KERALA REP. BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM.** ## **2. THE DIRECTOR,** ## **HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM.** ## **3. ACCOUNTANT GENERAL (A & E), KERALA, THIRUVANANTHAPURAM.** **BY ADV. SR.GOVT.PLEADER SRI.T.T.MOHAMMED SRI.K.A.JALEEL, ADDL. ADVOCATE GENERAL** ## **RESPONDENT(S)/PETITIONERS IN WPC:** **-----------------------------------------------------------** ## **1. ALPHONSA ENGRATIDA.P.J.,** - **RETIRED PRINCIPAL, GOVERNMENT HIGHER SECONDARY, SCHOOL MOOKKANNOOR PRESENTLY RESIDING AT, PANANTHANAM 34/2509(A), MANGATT ROAD, EDAPPALLY P.O. ERNAKULAM.** **2. JOSE.P.P., RETIRED PRINCIPAL, GOVERNMENT HIGHER SECONDARY SCHOOL MOOKKANNOOR PRESENTLY RESIDING AT, PUTHUSSERY HOUSE MANJIKADU JUNCTION, MOOKKANNOOR P.O., ERNAKULAM.** **3. ANNAMMA.K.M, RETIRED PRINCIPAL, GOVERNMENT HIGHER SECONDARY SCHOOL (BOYS) PERUMBAVOOR PRESENTLY RESIDING AT MOOLEKUDY, HOUSE MALAMURI, PERUMBAVOOR P.O., ERNAKULAM.** **4. ISHA.M.R, RETIRED PRINCIPAL, GOVERNMENT HIGHER SECONDARY SCHOOL (BOYS) ALUVA PRESENTLY RESIDING AT MALIYAM VEETTIL HOUSE MADAPLATHURUTH, MOOTHAKUNNAM P.O., ERNAKULAM.** **WA NO.950/10** **-2-** **5. MARTHA THARIATH, RETIRED PRINCIPAL GOVERNMENT HIGHER SECONDARY SCHOOL, KODUNGALLUR THRISSUR DISTRICT PRESENTLY RESIDING AT PUNNAKAYIL HOUSE, CHERAI, ERNAKULAM-683 514.** **6. UMAYAMMA.T.V, RETIRED PRINCIPAL, GOVERNMENT HIGHER SECONDARY SCHOOL NORTH PARAVUR PRESENTLY RESIDING AT KOOTTUNKAL HOUSE, CHERAI, ERNAKULAM-683 514.** ## **7. RAMAKRISHNAN.K.P., RETIRED PRINCIPAL,** - **GOVERNMENT HIGHER SECONDARY SCHOOL, KODUNGALLUR THRISSUR DISTRICT PRESENTLY RESIDING AT KATTOKARAN HOUSE, POYYA P.O. THRISSUR-680 733.** ## **ADDL.R8 TO 11.** - **R8. MOHANAN O., THIRUVONAM, KAITHERIPOYIL, P.O.PATHIRIYAD (VIA) PINARAYI, KANNUR DT PIN 670741.** - **R9. RAJAN K.V. MEETHAL HOUSE, KUTHUPARABA PO, KANNUR DT. PIN 670643.** - **R10. RAGHAVAN KARIYADAN, ABHILASHM, THOLAMBRA PO, PERAVOOR (VIA), KANNUR DT PIN 670643.** - **R11. DASAN KANNOTHUMKANDIYIL, AISWARYA, MALUR P.O, MATTANNUR (VIA), KANNUR DISTRICT, PIN 670642.** **(ADDL.R8 TO 11 ARE IMPLEADED AS PER ORDER DATED 15/3/12 IN IA NO.243/12)** **R1 TO R3 BY SRI.S.RAMESH BABU ADDL.R8-R11 BY ADV. SRI.V.C.JAMES ADDL.R8-R11 BY ADV. SRI.SEBASTIAN JOSEPH (KURISUMMOOTTIL)** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09-06-2014, ALONG WITH WPC. 21592/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WA NO.950/10** ## **APPENDIX** ## **APPELLANT'S EXHIBITS NIL** ## **EXHIBITS OF R8** **ANNEXURE R8(a): TRUE COPY OF ORDER NO.AD.B1/218/03/HSE/PT.III DATED 11.1.2005 OF THE 2ND APPELLANT. ANNEXURE R8(b): TRUE COPY OF JUDGMENT DT 31.3.2008 IN WPC NO.10849/09 OF THIS HON'BLE COURT. ANNEXURE R8(c): TRUE COPY OF COMMON JUDGMENT DT 26.3.2010 IN WPC NO.22092/2009 AND CONNECTED CASES. ANNEXURE R8(d): TRUE COPY OF COMMON JUDGMENT DT 12.1.2007 IN WA NO.66,76 AND 92/07.** ## **//True Copy//** ## **PA to Judge** **Rp** ## **ANTONY DOMINIC & ALEXANDER THOMAS, JJ. =============================== Writ Appeal No.950 of 2010 & W.P.(C) No.21592 of 2010 ====================** ## **Dated this the 9[th] day of June, 2014** ## **J U D G M E N T** ## Antony Dominic, J. The issues being similar, these cases were heard together and are disposed of by this common judgment. 2. W.A.No.950/2010 is filed by the respondents in W.P.(C) No.6530/2007, who are aggrieved by the judgment dated 6.7.2009 and the order in R.P.No.437/2010 dated 27.5.2010. The claim raised by the party respondents herein was for the benefit of the 2005 Pay Revision. Facts of the case are that the respondents, who were HSAs in Government schools, were appointed as Higher Secondary School Teachers. The 5[th] respondent was appointed in 1997 and others were appointed in 1990. Thereafter the 2[nd] respondent was appointed as Principal on 17.7.2003 and the others were also appointed on 21.7.2003. 3. They continued as Principal and respondents 1, 2, 3 and 6 retired from service on 31.3.2006. Respondents 4, 5 and 7 retired from service on 30.4.2006, 30.6.2006 and 30.4.2005 Writ Appeal No.950 of 2010 & W.P.(C) No.21592 of 2010 **: 2 :** respectively. According to them, the 2005 Pay Revision was implemented directing notional fixation of pay in the revised scale with effect from 1.7.2004 and with monetary benefits with effect from 1.4.2005. They contended for the position that since they were in service on those dates, they were entitled to the revised pay and other benefits in the scale of pay as applicable to Principals. This was accepted by the learned Single Judge and hence the Writ Appeal. 4. In so far as W.P.(C) No.21592/2010 is concerned, the petitioner therein was a Headmaster in the Government school. As provided in the Special Rules which were framed by G.O.(P) No.144/2001 dated 16.4.2001, she was appointed by transfer to the post of Principal in the Higher Secondary School as per Ext.P5 order dated 16.12.2005. She continued in that post and retired from service with effect from 31.3.2008. She also contends that she was in service in the category of Principal on the date when 2005 Pay Revision was implemented, and therefore she is also entitled to the benefits thereof. 5. However, it is seen that Special Rules governing the Writ Appeal No.950 of 2010 & W.P.(C) No.21592 of 2010 **: 3 :** appointment of HSST and Principal were framed by the Government only by G.O.(P) No.144/2001 issued on 16.4.2001. Subsequently, in pursuance of the directions of the Full Bench of this Court reported in **A.H.S.S.T.Assn. v. State of Kerala** [2005 (1) KLT 94], Government issued G.O.(MS) No.11/2006/G.Edn. dated 6.1.2006 where, scale of pay for the post of Principal was prescribed for the first time at `7,200-11,400/-. 6. On this basis, the appellants and respondents in the writ petition contend that scale of pay for the post of Principal was introduced only with effect from 6.1.2006. According to them, going by the recommendations of the 5[th] Pay Commission Report, which was accepted by the Government as per Ext.P5 in the writ appeal, the existing scales of pay were to be revised with effect from 1.7.2004 as shown in Annexure-1 and going by the Rules for fixation of pay in the revised scale prescribed in Annexure-II to the report, the existing scale, for the purpose of the Rules is the scale of pay immediately prior to 1.7.2004. 7. On this basis, it is contended before us, that the scale of pay for the post of Principal having been brought into force Writ Appeal No.950 of 2010 & W.P.(C) No.21592 of 2010 **: 4 :** only with effect from 6.1.2006, the said scale was not an existing scale of pay as provided in the pay revision order and therefore, the Principals cannot claim revision of the scale of pay of Principal for any time prior to 6.1.2006. Learned Government Pleader further contended that the claim that the petitioners were promoted to the post of Principal in 2003 and in 2005 is also incorrect and according to him, the Departmental Promotion Committee was held only on 1.6.2009, by which time all the Principals involved in these cases had already retired. The learned Government Pleader therefore contends that the respondents in the writ appeal and the petitioner in the writ petition are not entitled to claim the scale of pay of Principals. 8. We have considered the submissions made. 9. It is a fact that the respondents in W.A.No.950/2010 and the petitioner in W.P.(C) No.21592/2010 were occupying the post of Principals from 2003 and 2005 respectively. They continued in that post till their retirement from service on attaining the age of superannuation also. It may be a fact that Departmental Promotion Committee was held only on 1.6.2009 as Writ Appeal No.950 of 2010 & W.P.(C) No.21592 of 2010 **: 5 :** contended by the learned Government Pleader. The fact that the Departmental Promotion Committee was held belatedly does not persuade us to hold that the parties involved in these cases were never promoted as Principals and on the other hand, according to us, the promotions granted to the respondents in W.A.No.950/2010 should be treated as temporary promotions under Rule 31 of the KS & SSR and the by-transfer appointment of the petitioner in W.P.(C) No.21592/2010 should be treated under Rule 9(a)(i) of KS & SSR. We take this view for the reason that after the Special Rules were introduced by G.O.(P) No.2144/2001, promotions or appointments to the post of Principal if made otherwise than by Departmental Promotion Committee, could have been only under the aforesaid provisions of the KS & SSR. 10. Now we shall proceed to examine whether the Principals herein are entitled to claim the benefit of 2005 Pay Revision in the scale of Principal. As we have already mentioned, the scale of pay for the post of Principals were introduced only by Government Order dated 6.1.2006 mentioned above. Writ Appeal No.950 of 2010 & W.P.(C) No.21592 of 2010 **: 6 :** 11. Until the said Government Order was issued, the only order that was in force was GO(MS) No.138/90 dated 27/6/90 which provided for payment of additional allowance of `250/each. As we have already indicated, as per the pay revision order of 2005, it was ordered that the existing scales of pay will be revised w.e.f. 1/7/2004 and the monetary benefits were to be paid only w.e.f. 01/4/2005. Clause 2 of Annexure 2 of the Rules for fixation of pay in the revised scale specifically provided that existing scale for the purpose of the rules is the scale of pay immediately prior to 1/7/2004. This therefore means that when pay was to be revised w.e.f. 1/7/2004 and the monetary benefits are ordered to be paid w.e.f. 01/4/2005, the existing scale which is to be revised is scale of pay, which was payable immediately prior to 1/7/2004. 12. In so far as these cases are concerned, as we have already stated, it was by Government Order dated 6/1/2006, scale of pay for the post of Principals in the Higher Secondary Schools were prescribed. This therefore means that the scale of pay immediately prior to 1/7/2004 as provided in Clause 2 of Writ Appeal No.950 of 2010 & W.P.(C) No.21592 of 2010 **: 7 :** Annexure 2 of the pay revision order was scale of pay prescribed in the post of HSST/HM, as the case may be. This position continued until 6/1/2006, when the pay in the scale of Principal was prescribed. Consequently, parties to these writ appeals and the writ petition will get the pay as revised by 2005 pay revision order in the scale of pay applicable to HSST/HM till 6/1/2006 and for the period thereafter, their entitlement will be in the post of Principal. 13. For the aforesaid reasons, we are unable to accept the conclusion of the learned single Judge that the respondents in WA No.950/2010 are entitled to the benefit of 2005 pay revision as prayed for by them in the category of Principals. Therefore, the judgment of the learned single Judge will stand set aside and the writ appeal and the writ petition will stand disposed of directing that the respondents in the writ appeal and the petitioner in the writ petition will be entitled to revision as provided in terms of the 2005 pay revision order applying the scale of pay as applicable to HSST/HM for the period till 5/1/2006 and for the period thereafter only, they will be entitled to the revised scale as Writ Appeal No.950 of 2010 & W.P.(C) No.21592 of 2010 **: 8 :** applicable to the post of Principal. The appellants in the writ appeal and the respondents in the writ petition shall revise the monetary benefits including the terminal benefits that are due to the respondents in the writ appeal and the petitioner in the writ petition. This shall be done, as expeditiously as possible and at any rate within three months of receipt of a copy of this judgment. Writ appeal and the writ petition are disposed of accordingly. Sd/- **ANTONY DOMINIC JUDGE** Sd/- **ALEXANDER THOMAS JUDGE** Rp //True Copy// PA to Judge