STATE OF KERALA Vs. P K MAHADEVAN NAIR

JUDGEMENT

(1.) These appeals arise from a common judgment dated 10.7.2009 in W.P.(C).Nos. 34361/2007 and 8144/2008. The appellants in W.A. No. 439/10 are the respondents in W.P.(C) No. 34361/07. The appellants in W.A. No. 455/10 are the respondents 1 to 3 in W.P.(C)No. 8144/08. The appellant in W.A. 1205/2010 is the petitioner in W.P.(C)No. 34361/07. The appellant in W.A. No. 1061/10 is the petitioner in the other writ petition. Hereinafter, unless otherwise required, the parties are referred to as the petitioners and the respondents as in the writ petition. The petitioner in W.P.(C)No. 34361/07 entered the State service as High School Assistant in Government Higher Secondary School, Thodupuzha on 12.1.1983. The other petitioner entered the service as Assistant in St. Mary's Higher Secondary School, Kaliyar, Thodupupzha. While in service, the Government issued 1992 pay revision order which came into force with effect from 1.3.1992. As per the pay revision order, a Government servant who completes 10 years of service in the entry cadre is entitled to a higher scale of pay in the next higher grade. All employees are given option for choosing a date for opting the revised pay scale. Rule 8 of the, pay revision order deals with exercise of option. Rule 8 reads as follows:

(2.) In the light of Rule 8 which we quoted above, we find that all those, who are appointed to a post on or after 1.3.1992, whether for the first time in Government service, or by transfer or by promotion from another post, shall be allowed pay in the new post, only in the revised scale. It would stipulate that all employees in service on the date of the commencement of the 1992 pay revision are not entitled to opt for switching over to the revised pay scale in the event they are promoted after 1.3.1992. Their right to opt is limited to the existing scale of pay on the date of the commencement of the pay revision. Once they opt for the revised scale of pay in the existing scale, those who are entitled to 10 years time bound higher grade promotion would automatically come over to the promoted grade in the revised scale of pay because, their promotion can be only after the commencement of pay revision. Their pay in the promoted post shall necessarily be as per the revised scale. There would not be any question of opting for any other date for the commencement pay in the promoted post. Here, in this case, admittedly the petitioners had opted a day for switching over to the revised scale and another date for their time bound promotion. Once they opt for switching over to the revised pay scale, automatically they would be in the revised pay scale and they cannot further opt another date for the commencement of revised pay following the time bound higher grade promotion because time bound grade promotion is a benefit consequent to the implementation of the pay revision order. Such promotion shall be to a post with revised pay as stipulated in the last para of Rule 8 quoted above. Therefore we find that the learned Single Judge was correct in finding that the petitioners are not entitled to opt for different dates for pay revision and time bound grade promotion and that the action of the respondents reversing the refixation is correct and requires no interference.

(3.) Going by Aleyamma's case and Narayanan's case, we find that it is a precedent on peculiar facts and circumstances of the case and no law was laid down by the above rulings. In Aleyamm's case, she was appointed on temporary basis for certain spells from 20.1.1980 to 19.8.1983. Later she was given permanent appointment with effect from 4.6.1984. While working on temporary basis, she had availed 10 days leave without allowance. Later, while counting the period of probation, leave availed for 10 days without allowance was also counted for fixing of her pay. So, the issue was in respect of the period of 10 days while Aleyamma was on temporary leave for the purpose of declaration of probation and for giving consequent increment. The monetary loss to the State and the benefit given to the employee was very negligent. Taking into account of that aspect and the delay of 17 years for initiating action for recovery, with a view to do complete justice to the parties, Apex Court ordered not to recover after such a long time. It laid no law or precedent to be followed in all cases, but a magnanimity. In Narayanan's case, the petitioner retired from service as Headmaster. Before entering the State service, he was working in an aided school. For counting the service, the period of 6 months and 15 days he had worked in the aided school was also counted. That was the issue involved in that case. The pecuniary benefit that the petitioners therein had got was not much. This Court while ordering not to recover, following Aleyamma's case and another case, also observed that the appellant had not committed any fraud or misrepresentation but on a misconception of law. Here, the cases on hand are entirely different. The Headmasters concerned acted on the representations of the petitioners for re option. Petitioners might have either misinterpreted the provision for option or represented as experimental case. Of course, the Headmasters should have read the provision correctly and declined the relief. However, the petitioners cannot wash their hands as they had the leading role by representing for re option which was accepted by the authorities concerned. The cases on hand have no similarity with the facts in Aleyamma's case and in Narayanan's case.