Kerala High Court
Brajesh Kakkat vs The 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.9942 OF 2017(P)
PETITIONER:
BRAJESH KAKKAT
HIGH SCHOOL ASSISTANT (ENGLISH),MMM HIGHER SECONDARY SCHOOL,
KUTTAYI,MALAPPURAM DISTRICT.
BY ADVS.
SRI.V.A.MUHAMMED
SRI.M.SAJJAD
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,GENERAL EDUCATION
DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM.695 001.
2 THE DIRECTOR OF PUBLIC INSTRUCTION
JAGATHY, THIRUVANANTHAPURAM.695 014.
3 THE DEPUTY DIRECTOR OF EDUCATION
DOWN HILL-676 519, MALAPPURAM DISTRICT.
4 THE DISTRICT EDUCATIONAL OFFICER
TIRUR-676 101, MALAPPURAM DISTRICT.
5 THE HEADMASTER
MOULANA MOHAMED KUTTY MEMORIAL HIGHER SECONDARYSCHOOL,
P.O.KUTTAYI-676 562, MALAPPURAM DISTRICT.
OTHER PRESENT:
SRI. P.M. MANOJ (SR.G.P.)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.9942 OF 2017(P)
2
JUDGMENT
The petitioner, who is working as a High School Teacher in
MMM Higher Secondary School, Kuttayi, Malappuram, has
approached this Court impugning Ext.P6, whereby, Government
has rejected the request to accept his date of option as being
01.07.2012, as noted in the Pay Fixation Statement.
2. According to the petitioner, the Option Form
contained the date 26.12.2011, which was the date on which he
completed seven years of qualifying service excluding the period
when he was on Leave Without Allowances, but that his actual
intention was to get the benefit of the Time Bound Higher Grade
with effect from 01.07.2012, which is the date of his next
increment. He says that, accordingly, Pay Fixation Statement
was prepared and submitted, wherein, the date of option was
shown as 01.07.2012.
3. The petitioner, therefore, asserts that the actual
fixation of pay on account of the Time Bound Higher Grade took
effect only from 01.07.2012 and not from 26.12.2011; and that
audit objections were raised without taking into account the fact
that in the Statement of Fixation, the date of option was
WP(C).No.9942 OF 2017(P)
correctly shown as 01.07.2012 and the fixation was made
accordingly. He points out that in Column No.9 of the Ext.P2
Fixation Statement, the date of option is marked as 01.07.2012
and not 26.12.2011 and that the option from 26.12.2011 was
incorrectly made, while fixing his pay in the Time Bound Higher
Grade, which is only an error due to an oversight.
4. The petitioner further alleges that even though he
was heard by the Deputy Secretary on 19.07.2016, Ext.P6 has
been issued by the Special Secretary to Government and
therefore, that the said order is vitiated for this reason also. The
petitioner, therefore, prays that Ext.P6 be set aside and the
Government be directed to accept his date of option as being
01.07.2012, in modification of the date 26.12.2011.
5. In response, the learned Senior Government Pleader,
Sri. P.M.Manoj, submitted that the petitioner cannot take
advantage of an error that he himself had committed and that
the relevant Government Orders make it clear that an option
once exercised is final and cannot be changed. He submitted
that in the Option Form and Statement of Fixation of pay, the
petitioner elected the Higher Grade Scale Pay with effect from
WP(C).No.9942 OF 2017(P)
26.12.2011, which was the date on which he completed seven
years of service; but that in the Statement he has opted for the
date 01.07.2012, on which date, his pay has been fixed at
Rs.18,740/-. The learned Senior Government Pleader submitted
that this is obviously an error committed by the petitioner
himself and therefore, that as per the provisions of the
Government Order G.O.(P)No.46/2008/Fin. Dated 08.08.2008,
the option once exercised for Time Bound Higher Grade
promotion is final and no re-option can be granted. He says that
it is in such circumstances that Ext.P6 had been issued and he
asserted that even though it was issued by the Special Secretary,
as per the principles of institutional hearing, it cannot be found
vitiated merely because the petitioner had been heard by a
Deputy Secretary. The learned Senior Government Pleader,
therefore, prayed that this writ petition be dismissed.
6. I have considered the afore submissions and have also
closely examined Ext.P6 order.
7. It is no doubt true that in the impugned order,
Government has taken the view that the Option Form and the
Statement of Fixation of Pay carry the date 26.12.2011, on which
WP(C).No.9942 OF 2017(P)
day, the petitioner completed seven years of service and when
his higher grade scale pay was Rs.16,980 - 31,360/-; while, in
the Statement of Fixation of Pay, the date of option has been
shown as 01.07.2012, on which day, his pay had been fixed at
Rs.18,750/-. The Government, therefore, maintain that this is an
error committed by the petitioner himself and therefore, that
going by the afore mentioned Government Order, he cannot be
allowed to rectify it.
8. That said, however, the petitioner's specific case is
that the Option Form certainly carried the date 26.12.2011, but
the Pay Fixation Statement prepared and submitted showed the
option date as being 01.07.2012. He, therefore, asserts that the
actual Pay Fixation, on account of the Time Bound Higher Grade
took effect from 01.07.2012 and not from 26.12.2011 and that
audit objection was made without taking into account these
facts.
9. Further, as is evident from Ext.P2 Pay Fixation
Statement, the date of option in column No.9 is marked as
01.07.2012 and not 26.12.2011; and I am, therefore, of the view
that this matter requires a reconsideration at the hands of the
WP(C).No.9942 OF 2017(P)
competent Authority, particularly because the petitioner says
that he was heard by one officer, while Ext.P6 has been issued
by another.
In the afore circumstances, I order this writ petition and
set aside Ext.P6, so as to pave way for a fresh consideration of
the petitioner's claim by the competent Authority; with a
resultant direction to the competent Secretary of the
Government to rehear the petitioner - either physically or
through video conferencing - thus culminating in an appropriate
order on his claims recorded afore, as expeditiously as is
possible but not later than four months from the date of receipt
of a copy of this judgment.
I make it clear that even though the afore rival contentions
of the parties are recorded, I have not concluded upon them on
its merits and that it will be up to the competent Secretary of the
Government to take a final decision thereon, as per law.
Sd/-
DEVAN RAMACHANDRAN
rp JUDGE
WP(C).No.9942 OF 2017(P)
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE OPTION FOR HIGHER GRADE DATED
21.02.2012 OF THE PETITIONER.
EXHIBIT P2 TRUE COPY OF THE STATEMENT OF FIXATION OF SELECTION
GRADE.
EXHIBIT P3 TRUE COPY OF THE ORDER NO.F4/21951/14 DATED
23.07.2015 OF THE DEPUTY DIRECTOR.
EXHIBIT P4 TRUE COPY OF THE APPEAL FILED BEFORE THE GOVERNMENT
DATED 05.03.2016.
EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN W.P[C]NO.13116/2016-L
DATED 4.4.2016.
EXHIBIT P6 TRUE COPY OF THE G.O.(RT.)NO.441/2017/G.EDN. DATED
18.02.2017 OF THE GOVERNMENT.
EXHIBIT P7 TRUE COPY OF THE NOTICE NO.E2/48/2016/G.EDN. DATED
17.06.2016 OF THE GOVERNMENT.
