The petitioner was appointed as Upper Primary School Assistant (Arabic) (UPSA) in a Government School with effect from 30/7/1977. He was promoted as a 'High School Assistant' (H.S.A-Arabic) with effect from 15/06/1984. The 2nd respondent is a Governmental Agency which is constituted based on Ext.P2 Memorandum of Association and registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, as per Ext.P1. While the petitioner was working as H.S.A. the 2nd respondent had issued notification inviting application from qualified candidates in the General Education Department as well as from the open market for appointment as Research Officer (Arabic) in the scale of pay of Rs.2200-4000. Based on application submitted by petitioner, he was selected for appointment. Ext.P6 is the order of appointment issued by the 2nd respondent appointing the petitioner as Research Officer (Arabic) under the 2nd respondent. The appointment was made based on the Regulations formulated by the 2nd respondent, governing the service conditions and prescribing the scale of pay, as evidenced from Exts.P3 and P4. As evidenced from Ext.P8 'Admission Memo' the petitioner joined service of the 2nd respondent with effect from 18/8/2000. Even though petitioner continued under the service of the 2nd respondent, in the scale of pay of Rs.2200-4000, his pension contribution as well as contributions to the General Provident Fund Account etc. were not received for the reason that the Rules and Regulations framed by the 2nd respondent was not approved by the Government. Therefore the 2nd respondent requested the Government to cancel the direct recruitment and to treat the posting of the petitioner on deputation basis. It was also requested in Ext.P9 that, since the petitioner possess the requisite qualification for appointment as Assistant Professor he may be considered for appointment as Assistant Professor. The proposal submitted under Ext.P9 was approved by the Government through Ext.P10. The appointment of the petitioner as Research Officer (Arabic) in the 2nd respondent Council from the date of his appointment till finalisation of the Special Rules or for 5 years, whichever is earlier, was approved as on deputation. By virtue of Ext.P12, the 2nd respondent had thereafter promoted the petitioner to the post of 'Assistant Professor'. In the meanwhile the 4th respondent had issued Ext.P11 proceedings through which the petitioner was appointed as Higher Secondary School Teacher (Junior) (H.S.S.T Jr.) in Arabic. It is evident from Ext.P11 that, the appointment by transfer was made considering his seniority among qualified departmental teachers. Further it is noticed in Ext.P11 that, the petitioner was continuing as 'Research Officer' in the 2nd respondent Council, even though his posting in the parent department is as H.S.A GHS, Manathala, Thrissur. As per Ext.P11 the petitioner on appointment as 'H.S.S.T(Junior)' was posted at GHSS, Varavoor, Thrissur. Admittedly, despite Ext.P11 order of promotion the petitioner continued on deputation under the 2nd respondent.
2. In the meanwhile, the 2nd respondent introduced special package prescribing pay structure and service conditions for the Academic Staff working on deputation basis. By virtue of the said package, the petitioner was included in the scale of pay of Rs.10,000-15,200 with effect from his date of entry in the 2nd respondent Council, based on the fact that he was continuing in the post of Assistant Professor. However, the proposal for treating the petitioner under the revised scale of pay of 'Assistant Professor' was objected by the Finance Department of the State Government in Ext.P15, noticing that the deputation was approved by the Government only till finalisation of the Special Rules or till the date of retirement of the Academic Staff, whichever comes earlier. Therefore it is observed that granting of special package to the Academic Staff appointed from the General Education Department cannot be agreed. But it is specifically observed that all those who came from General Education Department to the 2nd respondent Council should be treated as on deputation and they can avail all benefits of their parent department.
3. In the meanwhile, the petitioner retired on attaining superannuation with effect from 31/10/2008. When his terminal benefits were settled, the Accountant General had issued Ext.P16, treating him only as retired from the cadre of H.S.A.(Arabic). Aggrieved by the said decision the petitioner had preferred Ext.P17 representation before the Government, through the Hon'ble Minister for Education. Since the same was not considered, this writ petition is filed seeking the following reliefs:
i. a writ of mandamus to the 1st respondent to reconsider Ext.P-14 to issue orders in the matter of scale of pay.
ii. a writ of mandamus to respondents 1 and 2 to grant pay in the post of Research Officer till 25-5-2004 in the scale of Rs.2200-4000 and pay in the scale of Rs.3000-5000 from 25-5-2004 to 31-10-2008 and to disburse arrears of salary due to the petitioner.
iii. a writ of mandamus to the 4th respondent to fix the pay of the petitioner in the scale of pay of H.S.S.T (Junior) on 1-8-2003 and in the scale of pay of H.S.S.T with effect from the eligible date of promotion and to forward the pay fixation statement for the period till 31-10-2008 to the 2nd respondent.
iv. a writ of mandamus to the 2nd respondent to disburse arrears of salary due to the petitioner for the period from 1-8-2003 to 31-10-2008 on the basis of pay fixation statement to be forwarded by the 4th respondent.
v. a writ of mandamus to the 5th respondent to refix the pensionary benefits due to the petitioner and to issue necessary authorization/orders for disbursement of the amounts less the amounts already paid.
vi. a writ of mandamus to the 1st respondent to consider and pass orders on Ext.P-17 representation.
and
vii. Such other writ order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
4. While considering the grievance voiced, this court takes note of the fact that the petitioner had not continued in the service of the 2nd respondent based on Ext.P6 appointment. On the other hand, he was continuing in the post of Research Officer (Arabic) based on deputation, as approved by the Government in Ext.P10. Even though the 2nd respondent had recommended for approval of the revision of his pay scale in the post of 'Assistant Professor', in accordance with the special package introduced, there is no evidence to the effect that the same was approved by the Government. By virtue of Ext.P15 it is evident that the Government have only approved continuance of service of the petitioner in the 2nd respondent Council on deputation. Hence the benefits available can only be the benefits for which he was entitled to get in the service in the parent department. Therefore, the reliefs sought for to the extent of seeking pay scale as 'Assistant Professor' cannot be accepted. But it is evident that the petitioner was given promotion by transfer appointment as 'H.S.S.T (Junior)' by virtue of Ext.P11 with effect from 01/08/2003. He claims that he was also entitled to be promoted as H.S.S.T with effect from the due date of promotion. Hence the claim raised by the petitioner that he is entitled to get the terminal benefits including monthly pension calculated based on the scale of pay applicable to the posts of 'H.S.S.T (Junior)' and H.S.S.T from the respective due dates of promotion, requires consideration.
5. In the counter affidavit filed by the 3rd respondent it is contended that the petitioner has not joined duty as H.S.S.T (Junior) on the basis of Ext.P11 order of promotion and hence the said posting was not effected at any point of time. It is further mentioned that the petitioner has never applied for relieving from the service of the 2nd respondent for joining duty as 'H.S.S.T (Junior)'. However it is to be considered that an employee on deputation in the Government service is entitled to the same salary as in the parent department. It is to be noticed that Government have approved deputation service of the petitioner in the 2nd respondent Council, by virtue of Ext.P10. Evidently, the petitioner was allowed to continue on deputation till his retirement. Even while issuing Ext.P11 the 4th respondent had noticed that the petitioner is continuing as 'Research Officer' in the 2nd respondent Council on deputation. Therefore, the view taken by the respondents that his salary and other benefits cannot be sanctioned in the post of 'H.S.S.T (Junior)' or in the post of H.S.S.T, cannot be accepted. The respondents have no case that the petitioner had requisite seniority or eligibility in the parent department for being promoted as H.S.S.T (Junior). Therefore it is to be held that the petitioner is entitled for all service benefits considering him as continuing on deputation in the service of the 2nd respondent. Whenever the petitioner became eligible for promotion in the parent department in accordance with his due seniority, such promotion has to be notionally accepted for the purpose of fixation of pay and other benefits.
6. Under the above mentioned circumstances, this court is of the opinion that the decision taken by the 5th respondent to permit the terminal benefits due to the petitioner reckoning his scale of pay only in the cadre of H.S.A, cannot be accepted. It is declared that the petitioner is entitled to be given revision of pay and other benefits based on his promotion as 'H.S.S.T (Junior)' with effect from 01/08/2003. It shall also be considered whether he was eligible for further promotion as H.S.S.T on the basis of seniority and if so revision shall be effected from the due date onwards in the cadre of H.S.S.T.
Therefore, this writ petition is disposed of by quashing Ext.P16 and directing respondents 4 and 5 to take appropriate steps to effect re-fixation of salary and re-computation of monthly pension and all other terminal benefits in view of the observations contained herein above. Such re-fixation shall be ordered and the consequential benefits due to the petitioner including arrears of salary and other benefits shall be paid at the earliest possible, at any rate within a period of three months from the date of receipt of copy of this judgment.
Sd/-C.K. ABDUL REHIM JUDGE MJL