Kerala High Court
Simmy Mariam Jose vs State Of Kerala on 29 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942
WP(C).No.20138 OF 2019(N)
PETITIONER:
SIMMY MARIAM JOSE
AGED 37 YEARS
PHYSICAL EDUCATION TEACHER, ST.MARY'S M.M.GIRLS
HIGHER SECONDARY SCHOOL, ADOOR, PATHANAMTHITTA
DISTRICT. (VALIYAPARAMBIL HOUSE, MYLAPRA P.O.,
PATHANAMTHITTA DISTRICT)
BY ADVS.
SRI.K.SASIKUMAR
SRI.P.S.RAGHUKUMAR
SRI.S.ARAVIND
SHRI.REJU PRASAD
SMT.PRIYA CAROL
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL
EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 DIRECTOR OF PUBLIC INSTRUCTIONS,
THIRUVANANTHAPURAM-695014.
3 DEPUTY DIRECTOR OF EDUCATION,
PATHANAMTHITTA-689101.
4 DISTRICT EDUCATIONAL OFFICER,
PATHANAMTHITTA-689101.
5 HEADMISTRESS,
ST.MARY'S M.M.GIRLS HIGHER SECONDARY SCHOOL, ADOOR,
PATHANAMTHITTA DISTRICT-691523.
6 ADDL. R6. PRINCIPAL SECRETARY,
FINANCE DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695001.
(ADDITIONAL R6 IS IMPLEADED AS PER ORDER DATED
26/08/2019 IN IA NO.01/2019 IN WPC NO.20138/2019)
WP(C).No.20138 OF 2019 2
R1-4 BY GOVERNMENT PLEADER
SRI. SURESH BABU (SPL. GOVERNMENT PLEADER)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
29.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.20138 OF 2019 3
JUDGMENT
The petitioner says that she is working as
a Physical Education Teacher in "St.Mary's M.M.
Girls Higher Secondary School", Pathanamthitta
and that she has approached this Court
impugning Exts.P9, P10 & P13 orders, as per
which, the benefits claimed by her, based on
Ext.P6 Government Order, have been rejected
saying that she could not have exercised a
re-option, since she had not done so within the
time-frame prescribed earlier.
2. The learned counsel for the
petitioner, Sri.K.Sasikumar, submits that the
reason stated by the Authorities in the
impugned orders are untenable, because even if
the petitioner is not entitled to make a
re-option, as has been stated in Ext.P13, she
should have been given the benefit of Ext.P6
Government Order based on the dates recorded
therein. The learned counsel submitted that
even without giving her the benefit of Ext.P6,
the impugned orders have been issued holding
that she could not have exercised a re-option
beyond the time granted earlier.
3. In response, the learned Special
Government Pleader - Shri.C.M.Suresh Babu,
submitted that a counter affidavit has been
filed on record, wherein, it has been explained
that the Government implemented the 9th Pay
Revision and modified the pay and allowances as
per Ext.P3 Order; and that accordingly, the pay
of Upper Primary School Assistants were
included in a higher scale of pay. He submitted
that the petitioner consequently exercised
option on 01.06.2010 and that this Option Form
was accepted by the Headmaster on 15.07.2011,
leading to her pay being revised.
4. The learned Special Government Pleader
added that, in the meanwhile, the Government
modified the scales of pay of teachers in
General Education/Higher Secondary Education/
Vocational Higher Secondary Education as per
the 9th Pay Revision, vide Ext.P6 Government
Order and that the scale of pay of Upper
Primary School Assistants, including Physical
Education Teachers, were resultantly revised.
5. The learned Special Government Pleader
further submitted that as per the Pay Revision
order, the re-option allowed in the case of
change of pay scale was granted with
retrospective effect and that the petitioner
ought to have exercised the same within three
months from the date of issue of the said
order, but that she did not do so; asserting
that Ext.P8, which is dated 05.07.2013, can
only be seen to be a fabricated one.
6. The learned Special Government Pleader
continued to submit that the 4th respondent -
District Educational Officer(DEO),
Pathanamthitta, verified her service book and
has affirmed that she has not submitted the
option within the time limit prescribed and
that the said Officer has not returned the
re-option statement of the School regarding
the 2009 Pay Revision, but only the option
regarding the petitioner's Higher Grade
proposal, which is Ext.P9. He concluded by
saying that the petitioner submitted a proposal
to the office of the 3rd respondent, but that as
per Ext.P10 order issued by the Director of
General Education, she was directed to approach
the Government and that she did so through
Exts.P11 and P12 representations, which were
turned down by Ext.P13, making it clear that
since she had not made her re-option within the
stipulated time, her request could not be
entertained. He, therefore, prayed that this
writ petition be dismissed.
7. Even though there is some force in the
submissions of the learned Special Government
Pleader with respect to the opportunity of a
teacher, including the petitioner, to exercise
re-option, if she had not exercised the same
within the time frame, the question is not
merely whether her re-option should be
accepted, but whether her benefits as recorded
in Ext.P6 - reckoning the dates recorded
therein - should be granted to her.
8. The petitioner's specific case is that,
in spite of the Government Order modifying the
revised scale of pay in the cadre of Physical
Education Teachers to Rs.13210-22360 from
Rs.11620-20240, with effect from 01.07.2009,
same has not been extended to her until now.
These aspects, however, have not been adverted
to by any of the Authorities in the impugned
orders and I am, therefore, of the view that
Government must reconsider the petitioner's
claim, taking note of the afore submissions.
In the afore circumstances, I order this
writ petition and set aside Ext.P13; with a
consequential direction to the competent
Secretary of the Government to rehear the
petitioner based on the contentions as afore -
either physically or through video conferencing
- leading to 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.
While completing the afore exercise,
Government will keep in mind that the
contention of the petitioner is not based on
her re-option alone, but also that the benefits
under Ext.P6, on the basis of the dates
recorded therein, have not been made available
to her and this will also be addressed in the
resultant order.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
MC/1.2.2021
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE APPOINTMENT ORDER
DATED 05.06.06.
EXHIBIT P2 A RELEVANT EXTRACT OF THE SERVICE BOOK
OF THE PEITIONER SHOWING THE ORDER OF
DEPARTMENTAL APPROVAL.
EXHIBIT P3 A TRUE RELEVANT EXTRACT OF GO(P)
NO.85/2011/FIN. DATED 26.02.2011.
EXHIBIT P4 A TRUE COPY OF THE FORM OF OPTION DATED
15.07.2011.
EXHIBIT P5 A TRUE COPY OF THE STATEMENT OF
FIXATION OF PAY IN THE REVISED SCALE.
EXHIBIT P6 A TRUE COPY OF THE GO(P)NO.168/2013/
(147)/FIN., DATED 11.04.2013.
EXHIBIT P7 A TRUE COPY OF THE LETTER DATED
06.07.13 FORWARDED BY THE PRINCIPAL
SECRETARY (FINANCE) GOVERNMENT OF
KERALA TO THE ACCOUNTANT GENERAL,
KERALA.
EXHIBIT P8 A TRUE COPY OF THE REVISED OPTION DATED
5.7.2013.
EXHIBIT P9 A TRUE COPY OF THE LETTER DATED
25.02.15 ISSUED BY THE 4TH RESPONDENT
RETURNING THE RE-OPTION APPLICATION AND
OTHER RECORDS.
EXHIBIT P10 A TRUE COPY OF THE LETTER DATED 6.03.18
FORWARDED BY THE 2ND RESPONDENT TO THE
3RD RESPONDENT THE COPY TO THE
PETITIONER.
EXHIBIT P11 A TRUE COPY OF THE REPRESENTATION DATED
23.04.2018 SUBMITTED BY THE PETITIONER
BEFORE THE 1ST RESPONDENT.
EXHIBIT P12 A TRUE COPY OF THE REPRESENTATION DATED
25.02.2019 FORWARDED BY THE PETITIONER
TO THE 1ST RESPONDENT.
EXHIBIT P13 A TRUE COPY OF THE ORDER DATED
23.5.2019 ISSUED BY THE 1ST RESPONDENT.
