Kerala High Court
C.H.Viswanathan vs State Of Kerala on 27 January, 2021
WP(C).No.38504 OF 2015(K)
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942
WP(C).No.38504 OF 2015(K)
PETITIONER:
C.H.VISWANATHAN,S/O.K.NARAYANA KURUP,
HIGH SCHOOL ASSISTANT (MALAYALAM),
VELOM HIGH SCHOOL, P.O.CHERAPURM, \KOZHIKODE
DISTRICT.
BY ADVS.
SRI.K.V.SOHAN
SRI.BIJO MATHEW JOY
SRI.ROVIN RODRIGUES
SMT.SREEJA SOHAN K.
RESPONDENTS:
1 STATE OF KERALA
REP. BY SECRETARY TO GOVERNMENT,
GENEAL EDUCATION DEPARTMENT,
THIRUVANANTHAPURAM - 695 001.
2 THE DEPUTY DIRECTOR OF EDUCATION
KOZHIKODE DISTRICT - 673 001.
3 THE DISTRICT EDUCATIONAL OFFICER
VADAKARA, KOZHIKODE DISTIRCT - 673 101.
4 THE HEADMASTER
VELOM HIGH SCHOOL, CHERUPURAM P.O.,
KOZHIKODE DISTRICT - 673 512.
5 S.V.JYOTHI, HIGH SCHOOL ASSISTANT (MATHS),
VELOM HIGH SCHOOL, P.O.CHERAPURAM,
KOZHIKODE DISTRICT - 6573 512.
SRI P M MANOJ SR GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
27.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.38504 OF 2015(K)
2
JUDGMENT
Dated this the 27th day of January, 2021
The petitioner, who is stated to be a High School Assistant
in the Velome High School, Kozhikode, has approached this
Court with a singular grievance that the pay has been fixed on a
lower scale than of his junior, Smt.Jyothi.S.V., and that this
anomaly has not been rectified, though he had made several
representations for such authorities.
2. The petitioner says that he has now been constrained
to approach this Court impugning Ext.P7 order, which has
rejected his request solely for the reason that he had not
approached the competent authorities for rectification of the
anomaly within a period of five years, as has been mandated by
the Government in its Circular No.46/2008/Fin. Dated
08.08.2008; and asserts that these reasons are incompetent,
particularly on the touch stone of Ext.P4 Government Order
dated 23.06.2009.
3. The petitioner, therefore, prays that Ext.P7 be set
WP(C).No.38504 OF 2015(K)
aside and the 3rd respondent-District Educational Officer (DEO)
be directed to reconsider his claim, dehors the circular dated
08.08.2008, especially since same came into effect only in the
year 2009, and he had made his request for rectification within a
period of five years therefrom.
4. In response, the learned Senior Government Pleader
Sri.P.M.Manoj, submitted that the petitioner's claims on its
merits have not been yet considered by the DEO, but it has
rejected the same on the ground that it is belated. The learned
Government Pleader submitted that he has no instructions as to
whether the petitioner is entitled to any such rectification of the
anomaly; but asserted that he is not eligible to even such a
consideration at this time, because of the reason stated in
Ext.P7. He, therefore, prayed that this writ petition be
dismissed.
5. I have considered the afore submissions and have also
gone through all the relevant materials, including the applicable
circulars and orders of the Government.
6. It is the specific case of the petitioner that he and
WP(C).No.38504 OF 2015(K)
Smt.Jyothi.S.V. had joined in the school on 05.06.1995 and that
the latter has been placed below him in the seniority list. He
says that, however, after the 1997 Pay Revision Order,
Smt.Jyothi.S.V. was placed in a higher scale of pay, possibly
because she was granted an increment on 01.11.1997, while his
increment was sanctioned only with effect from 01.07.1997. He
says that he, therefore, preferred a request for rectification of
this anomaly through Ext.P2, but that it was rejected through
Ext.P3 saying that he and Smt.Jyothi.S.V. "belong to different
categories and hence, that a junior-senior pay fixation cannot
be sanctioned' (sic).
7. The petitioner then says that he was granted a higher
grade scale with effect from 09.11.2004 and senior grade scale
with effect from 09.11.2010, but that the afore mentioned senior-
junior anomaly had not been rectified, with Smt.Jyothi.S.V
drawing a higher salary than him even now. He says that he
consequently approached the DEO with a request for
rectification of the anomaly on the strength of Ext.P4
Government Order, which clearly stipulates that seniority list of
WP(C).No.38504 OF 2015(K)
the teachers- maintained for promotion by the
Headmaster/Headmistress of the school under the provisions of
Rule 34 of Chapter XIVA of the Kerala Education Rules will be
the sole criteria for rectifying any anomaly among juniors and
seniors as regards their pay fixation, with effect from the Pay
Revision Order, 1998.
8. The petitioner says that it is based on Ext.P4 that he
approached the DEO again, but that it has been rejected through
Ext.P7, merely saying that, on account of circular dated
08.08.2008, his application is belated.
9. The real issue in this case, as of now, is not whether
the petitioner is entitled to the benefit of rectification as prayed
for by him, since this has not been yet considered by any of the
authorities, but whether his application for the same is belated.
This is because, the sole reason why Ext.P7 has been issued is
that the petitioner had not approached the authorities within a
period of five years, as is required in the Government Circular
dated 08.08.2008. However, what is pertinent in this case is
that said circular came into force only in the year 2009 and the
WP(C).No.38504 OF 2015(K)
petitioner had made his request for rectification within five years
therefrom.
10. In any event, the petitioner had been consistently
approaching the competent authority for rectification of the
anomaly, which is evident from Ext.P5 order; and therefore, his
application could not have been rejected saying that he had not
applied within five years as mandated by the afore circular
11. I am, therefore, of the firm view that the petitioner is
entitled to have his request considered by the DEO on its merits
in terms of law, rather than being rejected solely on the ground
of delay.
Resultanly, I order this writ petition and set aside Ext.P7;
with a consequential direction to the 3rd respondent-DEO to
reconsider the claim of the petitioner, after affording him, as
well as the Manager of school and Smt.Jyothi.S.V., an
opportunity of being heard-either physically or through video
conferencing-thus culminating in an appropriate order thereon,
as expeditiously as is possible, but not later than three months
from the date of receipt of a copy of this judgment.
WP(C).No.38504 OF 2015(K)
I make it clear that the directions in the judgment have
been issued taking into account the singular fact involved and
that they are, therefore, not intended to operate as precedent in
any other case.
I further clarify that in the event the petitioner is found
entitled to any benefit through the afore exercise, same shall be
disbursed to him without any delay, but not later than three
months from the date on which the orders in terms of the afore
directions are issued.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
dlk/28.01.2021
WP(C).No.38504 OF 2015(K)
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE SENIORITY LIST OF
TEACHERS IN VELOM HIGHER SECONDARY
SCHOOL IN FORM NO.II AS ON 01.01.2015.
EXHIBIT P2 TRUE COPY OF THE STATEMENT OF FIXATION
OF PAY SUBMITTED BY THE PETITIONER
DATED NIL.
EXHIBIT P3 TRUE COPY OF THE ORDER
NO.N.DIS/B5/2145/99 DT. APRIL 19990
ISSUED BY RESPONDENT NO.3.
EXHIBIT P4 TRUE COPY OF THE CIRCULAR
NO.26790/J2/07/GEN.EDN DT. 23.6.2009
ISSUED BY THE GOVERNMENT OF KERALA.
EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DT.
17.9.2012 SUBMITTED BY THE PETITIONER
THROUGH PROPER CHANNEL TO RESPONDENT
NO.1.
EXHIBIT P6 TRUE COPY OF THE LETER
NO.22377/E3/13/GEN.EDN. DATED
29.01.2014 ISSUED BY RESPONDENT NO.1 TO
RESPODENT NO.3.
EXHIBIT P7 TRUE COPY OF THE LETTER NO.B3-
6401/12/TEMPORARY DECISION DT.
21.7.2014 ISSUED BY RESPONDENT NO.3 O
RESPODNENT NO.4.
EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DT.
22.8.2014 SUBMITTED BY THE PETITIONER
THROUGH PROPER CHANNEL TO RESPONDENT
NO.1.
EXHIBIT P9 P9 - TRUE COPY OF THE LETTER
NO.72321/E3/14/GEN.EDN DT. 29.07.2015.
