Jini V.N vs State Of Kerala
2021 Latest Caselaw 1742 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

     MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942

                      WP(C).No.17831 OF 2020(D)


PETITIONERS:

      1        JINI V.N.
               AGED 45 YEARS
               W/O. SUNIL KUMAR,
               WORKING AT PRINCIPAL IN CHARGE,
               BUDS SCHOOL, MAZHUVANNOOR,
               RESIDING AT VALLADUMARAIYIL HOUSE,
               MAZHUVANNOOR P.O., VALAMBOOR,
               KUNNATHUNADU THALUK, PERUMBAVOOR,
               ERNAKULAM, PIN-686 669

      2        OMANA GEORGE,
               AGED 55 YEARS
               W/O. P.GEORGE,
               WORKING AS HELPER BUDS SCHOOL,
               MAZHUVANNOOR, RESIDING AT PARAKKUDY (H),
               IRAPURAM P.O., KUNNATHUNADU THALUK,
               PERUMBAVOOR, ERNAKULAM,PIN-683 541

      3        MANJUSHA.K.,
               AGED 32 YEARS
               W/O PRASANTH, WORKING AT HELPER,
               BUDS SCHOOL MAZHUVANNOOR,
               RESIDING AT KARUMATTATHIL (H),
               VALAYANCHIRANGARA P.O.,
               KUNNATHUNADU THALUK, PERUMBAVOOR,
               ERNAKULAM,PIN-683 556

      4        SHIJI VARGHESE,
               AGED 41 YEARS
               W/O. BIJU PAUL,
               WORKING AS ASSISTANT TEACHER,
               BUDS SCHOOL, MAZHUVANNOOR,
               RESIDING AT THOZHUTHUNGAL PARAMBIL(H),
               IRAPURAM P.O., KUNNATHUNADU THALUK,
               PERUMBAVOOR, ERNAKULAM,PIN-683 541

               BY ADVS.
               SRI.N.ANILKUMAR
               SRI.K.R.RAJAGOPALAN NAIR (PERUMBAVOOR)
               SRI.SINU.G.NATH
               SMT.T.P.SINDHUMOL
 WP(C).No.17831 OF 2020           2


RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY ITS SECRETARY,
               DEPARTMENT OF LOCAL SELF GOVERNMENT,
               GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM, PIN-695 001

      2        STATE OF KERALA,
               REPRESENTED BY SECRETARY,
               DEPARTMENT OF FINANCE,
               GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM,PIN-695 001

      3        THE SECRETARY,
               MAZHUVANOOR GRAMA PANCYATH,
               MAZHUVANNOOR P.O.,VALAMBOOR,
               KUNNATHUNADU THALUK, PERUMBAVOOR,
               ERNAKULAM PIN-686 669,
               REPRESENTED BY ITS SECRETARY

               R3 BY ADV. SRI.G.G.MANOJ
               R3 BY ADV. SRI.S.SARATH PRASAD

OTHER PRESENT:

               SRI. SUNIL KUMAR KURIAKOSE -GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
18.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.17831 OF 2020                3

                               JUDGMENT

The petitioners are stated to be working

as Principal-in-Charge, Helpers and Teachers

in the BUDS School, Mazhuvannoor and they have

approached this Court seeking a direction to

the 3rd respondent to pay them the salary as

fixed by the Government through Exts.P1, P2

and P3 and at the enhanced rate fixed through

Ext.P4 from the respective dates as are

mentioned therein.

2. The petitioners, however, say that in

Ext.P1, clause (iv) has been added, whereby

with respect to the Schools like the BUDS

School, the Local Self Government Institutions

have been given the liberty of granting the

enhancement only subject to the availability

of their Own Funds. The petitioners say that

this restriction in Ext.P1 is illegal and

unlawful and that the 3rd respondent be

directed to pay them their eligible

enhancement as per the afore mentioned

Government orders.

3. Sri.G.G.Manoj, the learned Standing

Counsel appearing on behalf of the 3rd

respondent Grama Panchayat, submitted that a

decision has already been taken by his client

to pay salary at the rate of Rs.20,625/- to

the 1st petitioner; at the rate of Rs.10,312/-

as far as respondents 2 and 3 is concerned

and Rs.12,890/- to the 4th respondent on

23/06/2020 and that they are being paid on

such scale. He submitted that the Panchayat

has not been able to pay them the escalation

as ordered through Exts.P1, P2, P3 and P4

Government Orders since the Panchayat does

not have enough Own Funds. He, therefore,

prayed that this writ petition be dismissed.

4. In reply, the learned counsel for

the petitioner, Sri.N.Anil Kumar, submitted

that the afore submissions of Sri.G.G.Manoj

are not accurate, since the Panchayat has

adequate Own Funds and, in any event,

sufficient enough to pay the enhanced salary

to his clients and further asserted that even

if clause (iv) of Ext.P1 is put into

operation, it only means that the employees in

the BUDS schools are entitled to the increase

in salary provided the Local Self Government

Institutions have sufficient Own Funds. He

explained that his clients have challenged

this clause only by way of abundant caution,

since the 3rd respondent now takes a stand

incorrectly that they have no sufficient Own

Funds. He, therefore, prayed that this writ

petition be ordered. He also adds that Exts.P5

and P8 would also show that the Director of

Panchayats had, in fact, agreed that the

salary and enhancement as per the afore

mentioned Government Orders must be paid to

the petitioners. He, therefore, prays that

they be directed to comply with Exts.P5 and P8

within a time frame.

5. I have considered the afore submissions

and also gone through the materials available

on record.

6. I am of the firm view, at least at this

stage, that challenge to clause (iv) of Ext.P1

is unnecessary for my consideration because

there is nothing on record to show that the

3rd respondent does not have enough Own Funds

to even honour the enhanced salaries, as are

sanctioned through Exts.P1 to P4 orders. I am,

therefore, of the opinion that even without

considering this plea of the petitioners, the

3rd respondent must be directed to consider

their claim for escalations of salary in terms

of the afore mentioned Government Orders,

after recording whether they have enough funds

to honour such commitments.

7. I am persuaded to this opinion

because, even going by the impugned clause of

Ext.P1, it only means that the Panchayat can

refuse enhancement of the salary to the

petitioners if they do not have "sufficient

Own Funds to honour the same". Obviously,

therefore, if they have Own Funds, which are

sufficient enough to cover the salary and

enhancement of salary to the petitioners,

same cannot be declined.

8. That said, I am also aware of the

submissions of Shri.Anilkumar that his

clients have not been paid salary from

October, 2020 even at the rates afore

mentioned by Sri.G.G.Manoj. If this is true,

then it is doubtless that this is

inappropriate and that the petitioners should

be paid their present salary; and in the

meanwhile, the 3rd respondent must also

consider enhancing their salary, if they have

access to sufficient funds to honour such

enhancement.

In the afore circumstances, without

entering into the merits of the contentions of

the petitioners against clause (iv) of Ext.P1

at this stage and leaving it open to be

perused in future, I order this writ petition

and direct the 3rd respondent to hear the

petitioners and issue an appropriate order as

to their claim for enhancement of salary

based on Exts.P1 to P4 Orders, after assessing

whether they have access to sufficient 'Own

Funds', which are enough to honour the payment

of such salary to the petitioners.

Needless to say, if, after the afore

exercise, the Panchayat concludes that they do

not have sufficient own funds to honour the

salary and enhancement of salary to the

petitioners, then they will be at liberty to

challenge clause (iv) of Ext.P1 through fresh

proceedings, for which purpose, all

contentions are left open.

It is needless to say that the 3rd

respondent will pay salary to the petitioners

at the rates afore mentioned by Sri.G.G.Manoj

without break until the afore exercise is

completed and that arrears of the same, for

whatever be the period as of today, will also

be paid within a period of one month from the

date of receipt of a copy of the judgment.

I further deem it necessary to fix a time

frame for the afore exercise; and consequently

direct the 3rd respondent to do so and issue

orders in terms of the directions above within

a period of two months from the date of

receipt of a copy of this judgment.

Sd/-

DEVAN RAMACHANDRAN

JUDGE

MC/21.1.2021

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF GO (PRINTING ) NO.56/17/FINANCE DATED 28.04.2017

EXHIBIT P2 TRUE COPY OF GO (ORDINARY) NO 1602/2018/LSGD DATED 12.06.2018

EXHIBIT P3 TRUE COPY OF THE GO (MS) NO.20/18/LSGD DATED 07.02.2018

EXHIBIT P4 TRUE COPY OF THE GO (PP) NO.81/2019 /FINANCE DATED 09.07.2019

EXHIBIT P5 TRUE COPY OF THE LETTER NO.PAN/7304/2020-

J3(DP) DATED 06/08/2020 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P6 TRUE COPY OF APPLICATION DATED 07/09/2020 FILED BY THE PETITIONER TO 3RD RESPONDENT

EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 04/11/2020 FILED BY THE PETITIONER TO 3RD RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE LETTER NO.108/D3/2020/SJD DATED 01/12/2020 ISSUED BY THE 1ST RESPONDENT.

MC

                     (TRUE COPY)               PA TO JUDGE