This judgment addressed whether teachers were eligible for a government order allowing a one-time option for a higher pay scale applicable only to non-teaching government employees. The High Court held that teachers were excluded, dismissing the petition.
Writ Petition dismissed; Writ Appeals allowed; Judgment of W.P. under 1023/2007 governs connected cases.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR
THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931
WA.No. 1023 of 2007()
AGAINST THE JUDGMENT IN WPC.19420/2003 Dated 28/02/2007
APPELLANT: PETITIONER
BY SPECIAL GOVERNMENT PLEADER SRI. N.MANOJ KUMAR
RESPONDENT: PETITIONER
M.O MARY, PHYSICAL EDUCATION TEACHER, S.K.H.S. MATTATHUR.
BY ADV. SRI.M.V.S.NAMPOOTHIRY
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23/07/2009 ALONG WITH W.A NO.592 OF 2007, W.A.NO.1070 OF 2009, W.A.NO.1023 OF 2007, W.A.NO.1428 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
C.R.
K. BALAKRISHNAN NAIR
& C.T. RAVIKUMAR, JJ.
W.A. NOS. 592, 1023 & 1428 OF 2007 & 1070 OF 2009
Dated this the 23rd day of July, 2009
JUDGMENT
Balakrishnan Nair, J.
W.A. No. 1023 of 2007.
The respondents in the Writ Petition are the appellants. The writ petitioner was a Physical Education Teacher. The point that arose for decision in the Writ Petition was whether the respondent-writ petitioner is entitled to opt in terms of G.O.(P) 952/95/(63)/Fin dated 5.12.1995. The learned Single Judge held that the petitioner was entitled to opt in terms of the said Government Order. Feeling aggrieved by the decision of the learned Single Judge, this Writ Appeal is filed.
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employees, other than teachers, wanted a chance for option for coming over to the higher scale of pay on grade promotion, which fell due on or after 1.3.1992. Considering the representations of the Government Employees' Organisations, the Government issued G.O.(P) 952/95/(63)/ Fin dated 5.12.1995, as per which the benefit of the Government Order dated 9.6.1994 was extended to the Government employees, other than teachers. The writ petitioner did not exercise the option as provided under the G.O. dated 9.6.1994. So, when the G.O. dated 9.12.1995 was issued, she moved for option and the same was accepted as per Ext.P9. Later, as per Ext.P10, audit objection was raised against Ext.P9. Based on the said objection, by Ext.P11 the acceptance of re-option as per Ext.P9 was cancelled. Challenging Exts.P10 and P11, the Writ Petition was filed. Though the appellants resisted the prayers by filing a counter affidavit, the learned Single Judge allowed the Writ Petition.
(ii) Teachers:
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( a)The higher grades of teachers are time bound and they are more or less regular promotion posts as no other promotion posts other than Headmaster post exist in their case. Considering this, Government Order that, in modification of the provisions in para 9 of the G.O. read as 3rd paper above, teachers- both P.D and Graduate Teachers (HSA) will be permitted to opt the time bound grade fell due/granted first on or after 1-3-1992 cancelling the option already exercised in respect of the post held immediately prior to 1-3-1992. Excess salary drawn consequent on fixation of pay in the revised scale of the lower time bound grade post, on the basis of the option already exercised, should be refunded in lump before accepting such re-options. In all these cases of re-options the guidelines issued in Circular No.46/90/Fin. dated 22.6.1990 should be followed.
(b) Teachers both primary and secondary, are entitled to time bound higher grades for 10, 20 and 25 years of qualifying service. There are teachers who got promotion as Headmasters prior to 1-3-1992 without enjoying Selection Grade and, as a result, they may draw less pay than their juniors. Based on the decision taken on earlier Pay Revision-Vide G.O.(P)180/91/(100)/Fin. dated 7-3-1991 Government Order as follows:-
(c) Teachers (P.D) who were promoted as Headmasters prior to 1-3-1992 and who have been eligible for the Selection Grade of P.D. Teacher but for their promotion as Headmasters will be permitted to have their pay fixed notionally in the Selection Grade first on 1-31992 or on the date on which they become eligible for the Selection Grade after 1-3-1992 on the basis of the pay in the revised scale which
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they would have drawn had they continued as Senior Grade Primary Teachers and, then, based on the pay so fixed in the Selection Grade, their pay in the revised scale of pay of Headmaster will be fixed under Rule 28A, Part I, K.S.Rs).
(d) Graduate Teachers who, got promotion as Headmasters before 1-3-1992 and who would have been eligible for the Selection Grade but for their promotion as Headmasters will also be permitted to have their pay notionally fixed in the selection grade first on 1-3-1992 or on the date on which they become eligible for the selection grade after 1.3.1992 on the basis of the pay in the revised scale which they would have drawn had they continued as Senior Grade High School Assistants and then based on the pay so fixed in the Selection Grade, their pay in the revised scale of Headmaster will be fixed under Rule 28A, Part I, K.S.Rs.)
(e) In the case of Headmasters both Primary and High Schools who do not qualify themselves for the selection grade on 1-3-1992, fixation of pay as above will be admissible only on the date on which they become eligible for the Selection Grade or on the date of option for the Selection Grade.
(f) Teachers desirous of exercising re- option to derive the benefits under clause(c), (d) and (e) of para 2 (ii) above will be permitted to do so within three months from the date of this Order. This will apply also to those who retired from service before this Order.
(emphasis supplied)
The relevant portion of G.O.(P) 952/95/(63)/Fin dated 5.12.1995 reads
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thus:
As per orders read as 1st and 2nd paper above, the scales of pay of State Government employees and teachers have been revised with effect from 1-3-1992. In para 9 of Government Order read as third paper above it was clarified that since time bound higher grade granted/fell due on or after 1-3-1992 have to be reviewed on the basis of orders in para 4(xi) of Government Order read as second paper above, no option for time bound grade granted or due on or after 1-31992 is admissible. In the G.O read as 4th paper above, P.D Teachers and Graduate Teachers have been permitted to opt the time bound grade fell due/granted on or after 1-3-1992 after cancelling the option already exercised. A number of State Government Employees and Service Organisations have requested to extend the above benefit to other categories also.
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(emphasis supplied)
out that the teachers under the Government are also covered by the expression 'Government employees' and, therefore, the benefit under the G.O. dated 5.12.1995 is applicable to them also. Learned counsel appearing in the connected Writ Appeals pointed out that the teachers in the Government schools and aided schools are treated alike for the purpose of pay revision, grade promotion and exercise of option and, therefore, they are also benefitted by G.O.(P) 952/95/(63)/Fin dated 5.12.1995. In answer, the learned Government Pleader would submit that in all the pay revision Government orders, the Government employees and teachers (including teachers in the aided schools) are treated separately for the purpose of grant of grade promotion and, therefore, the same applies in the matter of exercise of option also.
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W.A. Nos.592 & 1428 of 2007 & 1070 of 2009:
It is ordered that the judgment in W.A. No.1023 of 2007 will
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govern W.A. Nos.1428 of 2007 and 1070 of 2009. These appeals are also allowed. In view of the judgment in W.A. No. 1023 of 2007, W.A. No.592 of 2007 is dismissed. It is clarified that this judgment will not stand in the way of the right of the incumbents, if any, to opt in terms of
any subsequent Government Order.
(C.T. RAVIKUMAR) JUDGE
sp/
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C.R.
K.BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ.
W.A. NOS.592, 1023 & 1428/2007 & 1070/2009
JUDGMENT
23rd July, 2009
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3 issues framed by the court
Whether teachers are included in the expression 'Government employees' under G.O.(P) 952/95/(63)/Fin dated 5.12.1995 for the purpose of exercising the option for time bound higher grade.
Whether the benefit of re-option under G.O.(P) 952/95/(63)/Fin dated 5.12.1995 was applicable to a teacher who failed to opt under the earlier G.O.(P) 380/94/(13)/Fin dated 9.6.1994.
Whether the judgment of the learned Single Judge permitting re-option under G.O.(P) 952/95/(63)/Fin dated 5.12.1995 was sustainable.
2 provisions across 1 enactments
State of Kerala
M.O Mary
K. Balakrishnan Nair
C.T. Ravikumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
