Lathika E @ Usha Alfred vs The Principal Secretary To ...
2021 Latest Caselaw 145 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

          THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

 TUESDAY, THE 05TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942

                   WP(C).No.12810 OF 2018(A)

PETITIONER:
              LATHIKA E @ USHA ALFRED
              AGED 67 YEARS
              HEADMISTRESS (RETIRED),ST.MARY'S HIGH SCHOOL,
              VATTAL,W/O.ALFRED CLEETUS, PAREKKATTIL HOUSE,
              KALAVOOR P.O, ALAPPUZHA -688 522.

              BY ADVS.
              SRI.A.K.ALEX
              SRI.K.P.SURESH KUMAR
              SRI.P.R.VIJAYAKUMAR

RESPONDENTS:
      1     THE PRINCIPAL SECRETARY TO FINANCE
            FINANCE (EDUCATION-A) DEPARTMENT,GOVERNMENT
            SECRETARIAT,THIRUVANANTHAPURAM -695 001.

      2       THE SECRETARY TO GOVERNMENT
              GENERAL EDUCATION DEPARTMENT,GOVERNMENT
              SECRETARIAT,THIRUVANANTHAPURAM -695 001.

      3       THE ADDITIONAL CHIEF SECRETARY (FINANCE)
              FINANCE (P.W.C.-A) DEPARTMENT,GOVERNMENT
              SECRETARIAT,THIRUVANANTHAPURAM -695 001.

      4       THE DIRECTOR OF PUBLIC INSTRUCTIONS
              GENERAL EDUCATION DEPARTMENT, JAGATHY,THYCAUD,
              THIRUVANANTHAPURAM -695014.

      5       DEPUTY DIRECTOR OF EDUCATION
              GENERAL EDUCATION DEPARTMENT,ALAPPUZHA -688001.

      6       DISTRICT EDUCATIONAL OFFICER
              GENERAL EDUCATION DEPARTMENT,
              ALAPPUZHA -688 001.
      7       THE ACCOUNTANT GENERAL AE KERALA
              THIRUVANANTHAPURAM -695 001.
              R1, R3 BY GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 19-11-2020, THE COURT ON 05-01-2021 DELIVERED THE
FOLLOWING:
 WP(C).No. 12810 OF 2018

                                             2

                     ANU SIVARAMAN, J.
                ---------------------
                   W.P.(C) No.12810 of 2018
            ---------------------------
              Dated this the 5th day of January, 2021

                                   JUDGMENT

This writ petition is filed seeking the following

prayers:-

(i) To issue a writ of certiorari, call for the records relating to Exhibits P7, P8 and P11 and quash it;

(ii)To declare that petitioner is entitled to exercise the option stated in Exhibit P2 for notional grade fixation and pay fixation for the subsequent pay revisions;

(iii) To issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents 1 to 3 to permit petitioners to submit options stated in Exhibit P2 extending the time limit of 3 months specified there;

(iv)To issue a writ of mandamus or any other appropriate writ, order or direction, directing respondents 1 to 3 to grant selection grade and pay fixation for the subsequent pay revisions.

2. Heard the learned counsel for the petitioner and the

learned Government Pleader.

WP(C).No. 12810 OF 2018

3. It is submitted that the petitioner had retired from

service as Headmistress of an aided school on 31.03.2005.

By Ext.P2 Government Order dated 16.07.2014, an

opportunity for submitting an option for fixation of pay with

regard to the 1997, 2004 and 2009 pay revisions had been

granted. It is submitted that the petitioner was under

treatment from May 2014 to December, 2014 and was not

aware of the issuance of Ext.P2 order. It is stated that on

getting information of Ext.P2, she had submitted Ext.P3

representation dated 10.03.2016 seeking permission to

submit a re-option for notional selection grade by

extending the benefit of Ext.P2. It is stated by the learned

counsel for the petitioner that the service book of the

petitioner was with the 6th respondent and the 6th

respondent did not inform the petitioner about Ext.P2.

Though repeated representations were filed and the matter

was also taken up before the Kerala State Human Rights

Commission, the benefits of Ext.P2 were not granted to the WP(C).No. 12810 OF 2018

petitioner. The petitioner has, therefore, approached this

Court seeking an opportunity to submit a re-option in terms

of Ext.P2. It is submitted that if the chance for submitting a

re-option is denied to the petitioner, she will be put to

prejudice and the benefits, which are legally due to her, will

be denied to her. The learned counsel for the petitioner

submits that the petitioner is 67 years old and that the

Human Rights Commission had directed the consideration

of her re-option. It is further contended that the refusal to

grant the benefits is illegal and unsustainable.

4. A counter affidavit has been placed on record by

respondents 1 & 3. It is submitted that the petitioner had

retired from service on 31.05.2005 and the permission for

option for notional selection grade by extending the benefit

of Ext.P2 Government Order had been considered by the

respondents and had been rejected. It is submitted that the

petitioner had not submitted any option in terms of Ext.P2

Government Order within the time specified in Ext.P2 and WP(C).No. 12810 OF 2018

that the further request to extend time is, therefore,

completely unsustainable. It is stated that the request of

the petitioner was reconsidered on the basis of the

direction of the Kerala State Human Rights Commission and

a speaking order was passed by the Government. It is

further submitted by the learned Government Pleader that

since Ext.P2 is a Government Order, which applies to all the

head teachers who were entitled to senior grade or

selection grade, there can be no grant of extension of time

for submitting the option to the petitioner alone. It is

further submitted that such an action, if directed by this

Court, would lead to anomalous situation where the

petitioner alone is granted a benefit of extension of time to

submit an option, which is denied to all identically situated

teachers.

5. The learned counsel for the petitioner relies on

decisions of the Apex Court reported in Basanti Prasad

vs. Chairman, Bihar School Examination Board and WP(C).No. 12810 OF 2018

others (2009 (6) SCC 791) and G.M. Tank vs. State of

Gujarat and another (2006 (5) SCC 446). It is submitted

by the learned counsel for the petitioner that the

Government Order was not properly published and that the

petitioner was unaware of the same.

6. The learned Government Pleader refers to

paragraph 6 of the Counter affidavit wherein it is

specifically stated that the Government Order was widely

circulated in the General Education Department and it had

been officially published in the official website of Finance

Department. It is stated that the contention that the

petitioner was unaware of Ext.P2 is, therefore, completely

untenable.

7. I have considered the contentions advanced. It is

evident from a reading of Ext.P2 that only three months

time had been granted for submitting a fresh option. It was

specifically provided therein that no extension would be

granted under any circumstances. The petitioner WP(C).No. 12810 OF 2018

admittedly did not submit any such option within the time

prescribed. Ext.P2 is in the nature of a general order

granting an option facility. The petitioner, who did not

submit an option in terms of the same cannot be heard to

contend that she should be given a further opportunity de

hors the time limit provided in Ext.P2. Ext.P2 is the only

enabling order that permits such a fresh option to be filed

by teachers like the petitioner. If that be so, the option

ought to have been exercised specifically within the time

provided. The petitioner, who did not submit any such

option cannot plead ill-health or lack of knowledge as an

excuse for the same.

8. In the above factual situation and in view of the

fact that Ext.P2 Government Order is a general order,

which applies to all similarly situated teachers, I am of the

opinion that the petitioner cannot be given a chance to re-

opt, which is not available to identically situated teachers.

In the above view of the matter, the prayers sought for WP(C).No. 12810 OF 2018

in the writ petition are not liable to be allowed. The writ

petition fails and the same is accordingly dismissed.

Sd/-

ANU SIVARAMAN JUDGE Bng/26.11.2020 WP(C).No. 12810 OF 2018

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF INTIMATION DATED 18.12.2013 SENT BY 6TH RESPONDENT TO THE HEADMISTRESS (PETITIONER HEREIN), ST.MARYS H.S. VATTAL

EXHIBIT P2 TRUE COPY OF G.O(P)NO.290/2014/(197)/FIN.

DATED 16.7.2014 ISSUED BY 3RD RESPONDENT

EXHIBIT P3 TRUE COPY OF REPRESENTATION DATED 10.3.2016 SENT BY PETITIONER TO THE SECRETARY TO THE GOVERNMENT OF KERALA, FINANCE DEPARTMENT SECRETARIAT BUILDING, THIRUVANANTHAPURAM.

EXHIBIT P4 TRUE COPY OF REMINDER DATED 29.6.2016 SENT BY PETITIONER TO ADDITIONAL SECRETARY, FINANCE.

EXHIBIT P5 TRUE COPY OF LETTER DATED 7.7.2016 SENT BY PETITIONER TO THE HON'BLE MINISTER OF FINANCE, GOVERNMENT OF KERALA, SECRETARIAT BUILDING, THIRUVANANTHAPURAM.

EXHIBIT P6 TRUE COPY OF LETTER DATED 1.12.2016 SENT BY PETITIONER TO THE HON'BLE MINISTER OF FINANCE, GOVERNMENT OF KERALA, SECRETARIAT BUILDING, THIRUVANANTHAPURAM.

EXHIBIT P7 TRUE COPY OF LETTER DATED 12.1.2017 SENT BY ADDITIONAL CHIEF SECRETARY, FINANCE TO PETITIONER.

EXHIBIT P8 TRUE COPY OF LETTER DATED 27.7.2017 SENT BY JOINT SECRETARY (FOR SPECIAL SECRETARY TO GOVERNMENT) TO PETITIONER.

EXHIBIT P9 TRUE COPY OF APPLICATION DATED 16.2.2017 SENT BY PETITIONER TO THE HON'BLE CHAIRMAN, KERALA STATE HUMAN RIGHTS COMMISSION, VAZHUTHACAUD, THIRUVANANTHAPURAM.

EXHIBIT P10 TRUE COPY OF ORDER DATED 18.9.2017 ISSUED BY THE HON'BLE ACTING CHAIRPERSON, KERALA WP(C).No. 12810 OF 2018

STATE HUMAN RIGHTS COMMISSION

EXHIBIT P11 TRUE COPY OF LETTER DATED 3.3.2018 SENT BY THE 1ST RESPONDENT TO PETITIONER.

EXHIBIT P12 TRUE COPY OF LETTER DATED 24.5.2017 SENT BY THE 4TH RESPONDENT TO THE REGISTRAR, KERALA STATE HUMAN RIGHTS COMMISSION.

EXHIBIT P13 TRUE COPY OF MEDICAL CERTIFICATE ISSUED BY THE DOCTOR DATED 10.9.2017 FOR GIVING TREATMENT TO THE PETITIONER

EXHIBIT P14 TRUE COPY OF LETTER NO.

P9/3/PENA/788/TT/04-05/903 DATED 9.11.2017 ISSUED BY THE ACCOUNTS OFFICER, OFFICE OF THE ACCOUNTANT GENERAL (A&E) KERALA, THIRVUANANTHAPURAM TO THE TREASURY OFFICER PENSION PAYMENT, TREASURY, ALAPPUZHA.