Sunesh K.P vs State Of Kerala
2021 Latest Caselaw 4044 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

    THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

                       WP(C).No.33095 OF 2019(J)


PETITIONER:

               SUNESH K.P.,
               AGED 45 YEARS
               UPSA, RAMAVILASAM HIGHER SECONDARY SCHOOL,
               CHOKLI P.O., KANNUR DISTRICT - 670 672.

               BY ADV. SRI.POOVAMULLE PARAMBIL ABDULKAREEM

RESPONDENTS:

      1        STATE OF KERALA,
               REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL
               EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM - 695 001.

      2        THE DIRECTOR OF GENERAL EDUCATION,
               JAGATHY, THIRUVANANTHAPURAM - 695 014.

      3        THE DEPUTY DIRECTOR OF EDUCATION,
               KANNUR - 670 001.

      4        DISTRICT EDUCATIONAL OFFICER,
               THALASSERY - 670 101.

      5        THE MANAGER,
               RAMAVILASAM HIGHER SECONDARY SCHOOL, CHOKLI P.O.,
               KANNUR DISTRICT - 670 672.

      6        THE HEAD MASTER,
               RAMAVILASAM HIGHER SECONDARY SCHOOL, CHOKLI P.O.,
               KANNUR DISTRICT - 670 672.

               R1-4 BY GOVERNMENT PLEADER

OTHER PRESENT:

               BIJOY CHANDRAN SR GP

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.33095 OF 2019(J)

                                      2

                               JUDGMENT

Dated this the 4th day of February 2021

This writ petition is filed seeking the following reliefs:-

"i. To issue a writ of mandamus or any other appropriate writ or order or direction directing the 4 th respondent to accept Ext.P9 re-option submitted by the petitioner and to re-fix the revise the pay of the petitioner accordingly forthwith.

ii. To issue a writ of certiorari or other appropriate writ to quash Ext.P11 and to the extend denial of Ext.P9 re-option in Ext.P10 proceedings dated 29.04.2019 issued by the 4th respondent as it is illegal and unjustifiable.

iii. To declare that the petitioner is entitled to get benefits following from Ext.P7 government order as he eligible for the same and comes under the purview of 2009 pay revision and Ext.P4 judgment.

iv. To declare that Ext.P9 re-option exercised by the petitioner is legally valid and reasonable and the same can be accepted."

2. Heard the learned counsel for the petitioner and

the learned Government Pleader.

WP(C).No.33095 OF 2019(J)

3. It is submitted by the learned counsel for the

petitioner that the petitioner had been appointed as UPSA in

the 5th respondent's school on 05.01.2009. The appointment

was approved only w.e.f 01.06.2011. The petitioner had

taken up the matter in appeal, revision and ultimately before

this Court. By Ext.P4 judgment, this Court had directed the

approval of the petitioner's appointment w.e.f 05.01.2009.

The appointment was, therefore, approved with effect from

the initial date of appointment. Thereafter, the petitioner

had submitted Ext.P6 option with regard to the 2009 pay

revision benefits. It is stated that without reference to Ext.P7

order by which the scale of pay of UPSA had been revised as

Rs.13210-22360 from the existing scale of Rs.11620-20240.

The petitioner submitted an option for fixing of pay at

Rs.12550 in the scale of pay Rs.11620-24040. It is submitted

by the learned counsel for the petitioner that the said option

was a complete mistake and was made without noticing the

fact that the scale of pay stood revised by Ext.P7 order

dated 11.04.2013 w.e.f 01.07.2009. The petitioner, WP(C).No.33095 OF 2019(J)

thereafter, submitted a revised option as well. However, the

request made by the petitioner for acceptance of this re-

option was turned down by the 4 th respondent by Ext.P11. It

is submitted by the learned counsel for the petitioner that

the 5th respondent had addressed the Educational

authorities pointing out that Ext.P6 option was obviously

submitted by the petitioner by mistake and that the

petitioner was entitled to submit the re-option in the

absence of which he would suffer huge financial loss through

out his career. It is further submitted that even Ext.P10

proceedings issued by the DEO has not been taken note of

while issuing the rejection by Ext.P11. The learned counsel

for the petitioner, therefore, submits that since evidently

Ext.P6 option was submitted on a mistaken assumption of

facts, a chance for a re-option is liable to be granted to the

petitioner.

4. The 3rd respondent has placed a counter affidavit

on record. It is stated that the petitioner was granted

approval for his appointment w.e.f 05.01.2009 pursuant to WP(C).No.33095 OF 2019(J)

the directions issued by this Court. It is stated that

thereafter, the petitioner submitted Ext.P6 option, which was

accepted and the pay was fixed accordingly. It is stated that

the petitioner thereafter submitted a re-option statement for

the pay revision 2009, but the said re-option was rejected

since there was no provision for permitting a re-option

unless there is a retrospective revision or change in the

scale of pay from a date prior to the date of option exercised

by the employee. It is stated that in the instant case, Ext.P6

option was exercised on 19.09.2018 and that the existence

of Ext.P7 Government Order dated 11.04.2013 cannot be a

reason for any revision in the option already submitted.

5. I have considered the contentions advanced on

either side. Ext.P6 option has been submitted by the

petitioner on 19.09.2018. Ext.P6 would show that the

revised scale of pay as shown therein is Rs.11620-24040. It

is in the said pay scale that the petitioner had opted for

fixing of his pay at Rs.12550/- w.e.f 05.01.2010. However, it

is clear from Ext.P7 that the scale of pay of UPSA stood WP(C).No.33095 OF 2019(J)

further revised as Rs.13210-22360. The option exercised by

the petitioner in Ext.P6 was, therefore, apparently by a

mistake and without noticing Ext.P7 further revision. The

reason stated by the petitioner is that the petitioner's

appointment was approved only by Ext.P5 proceedings

dated 13.08.2018.

6. In the above factual situation and in view of Ext.P9

request forwarded by the principal, I am of the opinion that

the issue requires a reconsideration, taking note of the fact

that the petitioner would suffer huge financial loss in case

the re-option sought for by him is not permitted to be

exercised.

7. In the above view of the matter, there will be a

direction to the 2nd respondent to take up the request of the

petitioner for permitting a re-option as stated in Ext.P9 and

to take an appropriate decision thereon, taking note of the

recommendation forwarded by the 5 th respondent as well.

The petitioner shall submit a detailed representation before WP(C).No.33095 OF 2019(J)

the 2nd respondent, who shall consider the issue with notice

to the petitioner as well as respondents 4, 5 & 6. Orders

shall be passed after hearing all concerned within a period of

two months from the date of receipt of a copy of the request

and the further representation as directed above. The

petitioner shall produce a copy of the this judgment along

with a copy of the further representation and a copy of the

writ petition before the 2nd respondent for compliance.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN

JUDGE Bng/05.02.2021 WP(C).No.33095 OF 2019(J)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 05-01-2009 ISSUED BY THE 5TH RESPONDENT AND APPROVAL GRANTED BY 4TH RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 01-09-2016 IN WP(C) NO.29145 /2016.

EXHIBIT P3 TRUE COPY OF THE GO(RT) NO.

1034/2017/DATED 07-04-2017 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 12-01-2018 IN WP(C) NO.30275 /2017.

EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS DATED 13-08-

2018 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE OPTION DATED 19-09-2018 ALONG WITH STATEMENT OF FIXATION SUBMITTED BY THE PETITIONER.

EXHIBIT P7 TRUE COPY OF THE GO(P) NO.

168/2013/FIN.DATED 11-04-2013 INTRODUCED BY THE 1ST RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE GO(RT) NO. 547/2019/DATED 12-02-2019 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P9 TRUE COPY OF THE RE-OPTION DATED 15-03-

2019 EXERCISED BY THE PETITIONER.

EXHIBIT P10 TRUE COPY OF THE PROCEEDING NO.B3/2008/19 K.DIS DATED 29-04-2019 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P11 TRUE COPY OF THE ORDER NO. B3/1697/19 DATED 19-08-2019 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 12-11-2019 IN COC 49/2019 PASSED BY THIS HON'BLE COURT.