Kerala High Court
Binsu Jacob vs State Of Kerala on 20 February, 2025
Author: N.Nagaresh
Bench: N.Nagaresh
2025:KER:15294
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 20TH DAY OF FEBRUARY 2025 / 1ST PHALGUNA, 1946
WP(C) NO. 31505 OF 2023
PETITIONER:
BINSU JACOB
AGED 47 YEARS, S/O K. JACOB,
HIGHER SECONDARY SCHOOL TEACHER
(COMPUTER SCIENCE) ST. GEORGE HIGHER SECONDARY
SCHOOL, MUTTAR MUTTAR P.O, ALAPPUZHA DISTRICT -
PIN 689574 (RESIDING AT ALUMMOOTTIL,
KAKKAMTHODE HOUSE, CHANGANMACHERRY.P.O.
KOTTAYAM DISTRICT) PIN - 686101.
BY ADVS.
V.A.MUHAMMED
V.RAJASEKHARAN NAIR
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT
GENERAL EDUCATION DEPARTMENT, SECRETARIAT
THIRUVANANTHAPURAM, PIN - 695001.
2 THE DIRECTOR OF GENERAL EDUCATION
JAGATHY, THIRUVANANTHAPURAM,
PIN - 695014.
W.P.(C)Nos.31505 of 2023 &
1406 of 2024
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3 THE REGIONAL DEPUTY DIRECTOR OF
HIGHER SECONDARY EDUCATION
CHENGANNUR.P.O, ALAPPUZHA DISTRICT,
PIN - 689121.
4 THE PRINCIPAL
ST. GEORGE HIGHER SECONDARY SCHOOL,
MUTTAR, MUTTAR.P.O, ALAPPUAZHA DISTRICT,
PIN - 689574.
BY ADV.SRI.PREMCHAND R NAIR,
SR.GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 20.02.2025, ALONG WITH WP(C).1406/2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)Nos.31505 of 2023 &
1406 of 2024
:3:
2025:KER:15294
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 20TH DAY OF FEBRUARY 2025 / 1ST PHALGUNA, 1946
WP(C) NO. 1406 OF 2024
PETITIONER:
UNNIKRISHNAN NAIR A.R
AGED 54 YEARS, S/O.LATE RAMAN NAIR,
HSST (JUNIOR) PHYSICS, IU HIGHER SECONDARY
SCHOOL, PARAPPUR, MALAPPURAM, PIN - 676503.
BY ADVS.
AUGUSTINE JOSEPH
TONY AUGUSTINE
GEORGE RENOY
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001.
2 REGIONAL DEPUTY DIRECTOR
HIGHER SECONDARY EDUCATION, CIVIL STATION,
MALAPPURAM, PIN - 676505.
3 PRINCIPAL
IU HIGHER SECONDARY SCHOOL, PARAPPUR,
MALAPPURAM, PIN - 676503.
W.P.(C)Nos.31505 of 2023 &
1406 of 2024
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BY ADV.SRI. PREMCHAND R. NAIR,
SR.GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 20.02.2025, ALONG WITH WP(C).31505/2023, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)Nos.31505 of 2023 &
1406 of 2024
:5:
2025:KER:15294
COMMON JUDGMENT
Dated this the 20th day of February, 2025
[WP(C) Nos.31505 of 2023 and 1406 of 2024]
Both the cases raise the same question of law and
hence they are heard together and are disposed of by a
common judgment.
2. In W.P.(C) No.31505 of 2023, the petitioner
has approved service as HSST (Junior) Computer Science from
26.08.2002 against a regular vacancy in SBHSS,
Changanacherry. On completion of 15 years of service as
HSST (Junior) Computer Science, the petitioner was granted
Selection Grade. While working as HSST (Junior) Computer
Science, the petitioner was appointed as HSST (Computer
Science) from 11.12.2017 onwards against a regular vacancy in
St.George HSS, Muttar, another School under the same
W.P.(C)Nos.31505 of 2023 &
1406 of 2024
2025:KER:15294
Corporate Management. The appointment as HSST was also
approved by the Regional Deputy Director of Higher Education.
3. The petitioner states that his pay in the post of
HSST (Computer Science) was fixed at ₹52,800/- with effect
from 11.12.2017 by protecting his pay on promotion against
post carrying lower scale, as per special rules. The petitioner
was also granted annual increments during subsequent years.
However, in Ext.P5, it was stated that next increment is due on
01.12.2018. The Regional Deputy Director of Higher Education
informed the Principal that since appointment as HSST
Computer Science from 11.12.2017 is against a post carrying
lower scale, the petitioner is entitled only the fixation and hence
pay alone will be protected and increment date will not be
protected.
4. The petitioner approached the authorities for
opting a date of next increment pursuant to the pay fixation. The
petitioner had approached this Court earlier filing W.P.(C)
W.P.(C)Nos.31505 of 2023 &
1406 of 2024
2025:KER:15294
No.33313 of 2022. This Court, as per Ext.P14 judgment, found
that the legal issue raised by the petitioner is covered by the
judgment of this Court in W.A. No.1556 of 2021. This Court,
therefore, directed to reconsider the matter in the light of
judgment dated 13.12.2021 in W.A. No.1556 of 2021.
5. The petitioner contends that in spite of the
directions given by this Court to consider the issue in the light of
the judgment in W.A.No.1556 of 2021, the 1 st respondent
rejected the request of the petitioner stating the same reason.
Ext.P15 is unsustainable. In the facts of the case the
respondents are compellable to permit the petitioner to opt for
appropriate date of next increment / re-fixation benefit.
6. W.P.(C) No.1406 of 2024 has been filed by the
petitioner, who was working as HST. The petitioner was
promoted and appointed by transfer as HSST on 31.08.2015.
The petitioner has not been given the refixation benefits. The
2nd respondent has issued a letter stating that pay protection
W.P.(C)Nos.31505 of 2023 &
1406 of 2024
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and consequential increments granted to the petitioner were
wrong and the petitioner has to refund the amount. The
petitioner, therefore, seeks to set aside Ext.P3 and to declare
that the petitioner is entitled to protection of salary,
consequential increments and grades based on Rule 37(b) of
Part I of the Kerala Service Rules.
7. I have heard the learned Counsels for the
petitioners and the learned Senior Government Pleader
representing the respondents.
8. The question of grant of protection benefits
after refixation of pay when a person is appointed to a post
having lower scale, has been considered by this Court in
W.P.(C) No.14753 of 2020. A learned Single Judge of this
Court, considered the impact of Rule 37 of Part-I, Kerala
Service Rules and held as follows:-
However, the Government decision No.4 under
Rule 37 (b) specifically provides that an officer officiating in a
post, when appointed to a higher post on the advice of the
W.P.(C)Nos.31505 of 2023 &
1406 of 2024
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Public Service Commission or otherwise, is eligible for his
initial pay being fixed under this Rule and is also entitled to
the benefit of re-fixation contemplated in the last sentence of
sub-rule (a). It is therefore evident that in every case where
there is an appointment to a higher post by direct recruitment
or otherwise, the benefit of re-fixation of pay by granting a
notional increment as provided in Rule 28A is contemplated.
It is clear that Government decision No.4 which did not give
this benefit even for appointments through Public Service
Commission had been substituted by the present provision
on 21.10.1988 to have effect from 31.10.1986. It is clear that
the Government decision was inserted to give the benefit of
re-fixation even to officers who are appointed in terms of the
special Rules or through Public Service Commission to posts
carrying a lower time scale of pay than the posts they were
holding. It is therefore to rectify the widespread anomalies in
senior officers being granted lower scales of pay, if the
benefit of re-fixation is denied to them that the Government
decision No.4 under Rule 37 (b) and Government decision
No.1(2) under Rule 28 A were amended by the Government.
There is nothing in the Government decision No.4 under
Rule 37 (b) to suggest that the benefit would be available
only where a person is being appointed by transfer from a
lower time scale of pay to a higher time scale of pay. As a
matter of fact, the Government decisions specifically applies
in a case like the petitioner's, since otherwise the re-fixation
would be available under Rule 28A itself.
9. The State took up the matter in appeal and a
Division Bench of this Court in Ext.P13 judgment in W.A
No.1556 of 2021, upheld the decision of the learned Single
Judge. SLP filed against Ext.P13 judgment was rejected by the
W.P.(C)Nos.31505 of 2023 &
1406 of 2024
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Hon'ble Apex Court.
10. It is in the light of these judgments that the
Single Judge of this Court disposed of W.P.(C) No.33313 of
2022 filed by the petitioner as per Ext.P14 judgment, directing
to consider the issue in the light of W.A.No.1556 of 2021.
However, the 1st respondent has rejected that request of the
petitioner holding that such benefits were given to others only
due to court orders.
11. When this Court has considered a legal issue
and has declared the law as has been done in Ext.P13
judgment, the 1st respondent is bound to follow the law laid
down by this Court in all cases irrespective of whether they are
supported by a judgment of this Court.
In the circumstances, these writ petitions are allowed.
Exts.P6 and P15 orders in W.P.(C) No.31505 of 2023 and
Ext.P3 order in W.P.(C) No.1406 of 2024 are quashed. It is
declared that the petitioners shall be governed by the judgment
W.P.(C)Nos.31505 of 2023 &
1406 of 2024
2025:KER:15294
of this Court in W.P.(C) No.14753 of 2020 and W.A. No.1556 of
2021 in the matter of physical benefits on their promotion. The
1st respondent is directed to reconsider the matter in the light of
the afore judgments and pass orders afresh within a period of
three months.
Sd/-
N. NAGARESH
JUDGE
ams
W.P.(C)Nos.31505 of 2023 &
1406 of 2024
2025:KER:15294
APPENDIX OF WP(C) 31505/2023
PETITIONER EXHIBITS
Exhibit P-1 TRUE COPY OF THE PROCEEDINGS OF THE
DIRECTOR OF HIGHER SECONDARY EDUCATION,
VIDE ORDER NO.ACD.B4-20104HSE/01(2)
DATED 17.03.2006
Exhibit P-2 TRUE COPY OF THE STATEMENT OF FIXATION
OF PAY FOR FIXING HER HIGHER GRADE PAY
VIDE NO.A5/838/RDD EKM DATED 31.05.2012
Exhibit P-3 TRUE COPY OF THE ORDER OF THE STATMENT
OF FIXATION OF PAY FOR FIXING HER
SELECTION GRADE PAY VIDE
NO.B4/7586/RDD/17 DATED 28/12/2017
Exhibit P-4 TRUE COPY OF THE PROCEEDINGS OF THE RDD
HSE, CHENGANNUR VIDE ORDER NO.
NO.2961/C6/2018/RDD/CNGR DATED
16.10.2018
Exhibit P-5 TRUE COPY OF THE ORDER OF THE STATEMENT
OF FIXATION OF PAY VIDE
NO.4784/C8/2021/RDD/CNGR
Exhibit P-6 TRUE COPY OF THE LETTER OF THE RDD
ADDRESSING THE PRINCIPAL VIDE
NO.4784/C8/2021/RDD/CNGR DATED
10.09.2021
Exhibit P-7 TRUE COPY OF THE LETTER OF THE DIRECTOR
OF GENERAL EDUCATION, HSE ADDRESSING
THE RDD, HSE, VIDE
NO.ACDA3/200604/2021/HSE DATED
12.07.2021
W.P.(C)Nos.31505 of 2023 &
1406 of 2024
2025:KER:15294
Exhibit P-8 TRUE COPY OF THE REVISION PETITION
SUBMITTED BY THE PETITIONER BEFORE THE
GOVERNMENT DATED 15.10.2021
Exhibit P-9 TRUE COPY OF THE JUDGMENT IN
WP(C)NO.23111/2021 DATED 26.10.2021
Exhibit P-10 TRUE COPY OF THE G.O.
(RT).1145/2022/G.EDN DATED 26.02.2022
Exhibit P-11 TRUE COPY OF THE LETTER OF THE RDD
ADDRESSING THE PRINCIPAL VIDE
NO.4784/C8/2021/RDD/CNGR DATED
11.03.2022
Exhibit P-12 TRUE COPY OF JUDGMENT IN
WP(C)NO.14753/2020 DATED 11.11.2020
Exhibit P-13 TRUE COPY OF JUDGMENT IN WA
NO.1556/2021 DATED 13.12.2021
Exhibit P-14 TRUE COPY OF JUDGMENT IN
WP(C)NO.33313/2022 DATED 13.04.2023
Exhibit P-15 TRUE COPY OF THE G.O.
(RT).5069/2023/G.EDN DATED 13.09.2023
Exhibit P-16 TRUE COPY OF THE JUDGMENT IN SLA
NO.4420/2023 DATED 28.02.2023
RESPONDENT EXHIBITS
EXHIBIT R1(a) A TRUE COPY OF JUDGMENT DATED
05/01/2015 OF THE HONOURABLE HIGH COURT
OF KERALA IN WP(C) NO.27485/2008
EXHIBIT R1(b) A TRUE COPY OF JUDGMENT DATED
18/02/2020 OF THE HONOURABLE HIGH COURT
OF KERALA IN WP(C) NO.37379/2016
W.P.(C)Nos.31505 of 2023 &
1406 of 2024
2025:KER:15294
APPENDIX OF WP(C) 1406/2024
PETITIONER EXHIBITS
Exhibit-P1 TRUE COPY OF THE PROCEEDINGS NO.F/
8237/2015/RDD/HSE/MLPM DATED 24.6.2016
OF THE 2ND RESPONDENT.
Exhibit-P2 TRUE COPY OF THE DETAILS OF PAY
REVISION FIXATION PROPOSAL DATED
22.4.2021 OF THE PETITIONER WITH THE
ENDORSEMENT OF APPROVAL OF THE 2ND
RESPONDENT.
Exhibit-P3 TRUE COPY OF THE LETTER FROM THE 2ND
RESPONDENT ADDRESSING THE PRINCIPAL
VIDE NO.F/2773/23 DATED 28.10.2023.
Exhibit-P4 TRUE COPY OF THE JUDGMENT IN W.P.
(C).NO.14753/2020 DATED 11.11.2020.
Exhibit-P5 TRUE COPY OF THE JUDGMENT IN
W.A.NO.1556/2021 DATED 13.12.2021.
Exhibit-P6 TRUE COPY OF THE JUDGMENT IN SLA
NO.4420/2023 DATED 28.2.2023.
Exhibit-P7 TRUE COPY OF THE ORDER DATED 26.9.2023
