Jyothilekshmi V vs State Of Kerala

Mohammed Nias C.P., J

The petitioner is working as a Headmistress in an aided Upper Primary school. She had commenced regular service as UPSA and was promoted to the cadre of Headmistress with effect from 1.6.2018. As per Ext.P1, which are the relevant pages of the pay revision Order dated 20.1.2016, the LP/UP school Headmasters were allowed Time Bound Higher Grade on completion of 8 years as Headmaster or 28 years of service as Headmaster and LPSA/UPSA service taken together. The petitioner submits that the option facility for the time-bound higher grade was withdrawn with effect from 1.2.2016. The pay in the higher time scale was to be fixed in terms of Rule 28A of Part I KSR, i.e., one notional increment will be given, and thereafter, the pay in the higher grade scale will be fixed at the next stage above the pay in the lower time scale arrived after adding notional increment as on the date of the higher grade promotion. Accordingly, the petitioner’s pay was fixed first in the scale of pay Headmaster and further fixed in the Higher grade scale of Headmaster and the statement of fixation of pay dated 4.12.2018 is produced as Ext.P3.

The fourth respondent raised an audit objection against granting the next increment after the fixation of pay in the Headmaster's higher grade scale on the date of increment in the lower post of UPSA, stating that the next increment date is only on completion of one year after promotion. The petitioner states that Ext.P4 happened to be passed based on Ext.P5, a Government letter dated 28.11.2018, which is a clarification to the query raised by the sixth respondent. The petitioner submits that Ext.P5 is erroneous and liable to be set aside. The petitioner submits that he is entitled to a re-fixation of pay in the Headmaster’s scale on the date of increment in the lower post. Accordingly, he is entitled to the fixation of pay on the date of promotion along with entitlement for the re-fixation of pay on the date of increment in the lower post. The learned counsel for the petitioner argues that once re-fixation is allowed on the date of increment in the lower post, the date of increment in the post of Headmaster also becomes the date of increment in the higher grade post.

Both the petitioner and the learned Government Pleader rely on the Government Order dated 20.1.2016, Ext.P1 as well as Ext.P2, which is the scheme for time-bound higher grade promotion.

The Government has filed two counter affidavits, the relevant portion of which is extracted hereunder:

“8. As per Exhibit P1, where an Officer holding a post in substantive temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity to another post carrying a higher time scale of pay, his initial pay in the higher time scale of pay shall be fixed at the stage next above the pay notionally arrived at in the lower time scale of pay by increasing the actual pay drawn by him in the lower time scale by one increment. A re-fixation of pay will be allowed whenever there is a change of pay in the lower time scale. Re-fixation of pay is thus allowed in the date of increment in the lower post. The date of increment in the lower post becomes the date of increment in the post of headmaster, which becomes the date of increment in the post of Headmaster, which becomes the date of increment in the HM higher grade also. In case when two promotions are granted on the same date, re-fixation is allowed with reference to the date of change of pay in the immediate lower post. On grant of promotion to Headmaster higher grade from the post of Headmaster, the immediate lower post of headmaster higher grade is Headmaster and not Assistant teacher. Hence re-fixation in the scale of pay attached to the post of Headmaster (Higher Grade) is not admissible on the date of increment in the post of Assistant teacher. This is explicitly clear in Exhibit P5.

9.Further if one qualifies for Headmaster (Higher Grade) after two months of promotion, as headmaster her next increment date becomes, the Headmaster promotion date that is the immediate lower post. In cases of anomaly, application can be made seeking junior senior fixation if the petitioner is convinced that her pay is fixed on the lower scale than her junior. In this case, the petitioner did not make any such request. So it is reasonable to assume that the petitioner has not been paid less than any of her juniors.”

The learned counsel for the petitioner also relies on the scheme for time-bound higher grade promotion issued by the Government on 10.2.2021, particularly para 29, which reads as follows:

“29. LP/UP school Headmasters will be allowed TBHG on completion of 8 years as Headmaster or 28 years of total service as Headmaster and LPSA/UPSA taken together and another grade promotion on completion of 20 years as Headmaster. An LPSA/UPSA who had already completed 28 years of service will become eligible for HM higher grade only on the next day of taking charges as HM of LP/UP School. But on becoming eligible for Higher Grade Promotion in the post of Headmaster, the notional Senior Grade/Selection Grade enjoyed by them based on the length of service as teacher had they continued as teacher need not be reviewed.”

Learned counsel also relies on the Government Order dated 31.12.2002, which dealt with a pay fixation of the year 1997 reads as follows:

“2.Now it has come to the notice of the Government that employees in such cases have to wait for more than one year to enjoy the next increment which they could have drawn in the time bound higher grade post earlier, had they continued in that post without regular cadre promotion.”

The petitioner’s further contention is that he is entitled to re-fixation of pay in the Headmaster scale on the date of increment in the lower post, and accordingly, the date of increment in the lower post is the date of increment in the post of Headmaster post and on that basis he submits that Exts.P4 and P5 are illegal.

The petitioner points out that she was promoted on 1.6.2018 and was given the grade of Headmaster considering the length of 28 years of service as LPSA/UPSA; hence, she challenges the contention of the Government that the immediate lower post of the Headmaster's higher grade is Headmaster and not the Assistant teacher.

Learned Government Pleader also pointed out that the petitioner’s salary was increased through four increments on account of the fixation of pay on sanction of a higher grade. She will draw the next increment on completion of one year of service in the grade scale, and this was not considered by the Assistant Educational Officer who erroneously sanctioned the payment, and it was against this that the office of the Deputy Director of Education raised an audit objection pointing out that next increment will be due only on completion of one year after the grade fixation and thus directed the AEO to recover the excess amount paid due to the erroneous fixation as per Ext.P4.

After hearing both sides and taking note of the contentions raised, I hold that this is a matter where respondents 1 and 2 or the competent among them, are to take a fresh decision, untrammelled by the impugned orders, after affording an opportunity of hearing to the petitioner. While deciding so, the government should also advert to the contents of G.O.(Rt)No.4014/2021/GEDN dated 12.09.2021 and G.O. (P)No.20/2022/Fin dated 17.2.2022. A decision as directed above shall be taken within a period of four months from today.

Learned counsel for the petitioner submits that the petitioner is about to retire. It is also directed that the pension papers of the petitioner be forwarded based on fixation already done consequent to the audit objection. This shall be done within one month from today. If the petitioner ultimately succeeds, a fresh re-fixation order will be passed, and consequential benefits to which the petitioner is entitled shall be given within two months from the date of decision as aforesaid. The Interim order passed by this Court on 13.2.2020 staying the recovery pursuant to the impugned orders shall be in force till a decision is taken as directed above.

The writ petition is disposed of as above.