Vasumathi P vs State Of Kerala
2021 Latest Caselaw 14195 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
            THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
        THURSDAY, THE 8TH DAY OF JULY 2021 / 17TH ASHADHA, 1943
                       WP(C) NO. 22076 OF 2020
PETITIONER:

            VASUMATHI P
            AGED 57 YEARS
            W/O. BHAKTAVALSANAN, RETIRED HEADMISTRESS, KADAMBUR
            NORTH U.P. SCHOOL, RESIDING AT VALSAM, THOTTADA POST,
            KANNUR-670 007.

            BY ADVS.
            P.K.RAVISANKAR
            SRI.C.AJITH KUMAR



RESPONDENTS:

    1       STATE OF KERALA
            REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY,
            DEPARTMENT OF FINANCE, SECRETARIAT,
            THIRUVANANTHAPURAM-695 001.

    2       DEPUTY DIRECTOR OF EDUCATION
            KANNUR-670 001.

    3       ASSISTANT EDUCATIONAL OFFICER
            KANNUR SOUTH, KANNUR-670 001.




OTHER PRESENT:

            SRI. P.M.MANOJ - SR.GP




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 22076 OF 2020
                                   2



                            JUDGMENT

The petitioner says that she was working as the Headmistress of

'Kadambur North U.P.School', when she retired on 30.06.2018,

attaining the age of superannuation. She has approached this Court

through this writ petition, impugning Ext.P7 order, along with

Exts.P8, P9 and P14 orders, as per which, her option made under the

2009 Pay Revision as being 01.09.2009, has been found to be

irregular and she has been directed to refund the amounts obtained

by her.

2. The petitioner says that, as per G.O.(P)No.180/91(100)/Fin

dated 21.02.1991, the Government had acceded to the grievances of

teachers who obtained promotion as Headmasters/Headmistresses

prior to 01.07.1988, without having sufficient period to obtain a

Selection grade; thus ordering that primary school teachers who

were so promoted and who would have been eligible for Selection

Grade; as such but for their promotion as Headmaster/Headmistress,

would be permitted to have their pay fixed notionally in the Selection

Grade and then based on the same, their pay in the revised Scale of

Headmaster could be fixed under the aegis of Rule 28A, Part - I of the

Kerala Service Rules.

WP(C) NO. 22076 OF 2020

3. The petitioner has produced the afore referred

Government Order as Ext.P1 and points out that there is a

clarification therein that as far as those teachers who do not qualify

themselves for Selection Grade on 01.07.1988, fixation of pay would

be admissible to them on the day when they became eligible for the

Selection Grade or on the date of option of the Selection Grade.

4. The petitioner asserts that, as per 2009 pay fixation order,

she offered her option as being 01.09.2009 and that the 3 rd

respondent fixed the pay appropriately, as is evident from Ext.P2.

She says that, however, after substantial efflux of time, an objection

was raised against her saying that she ought to have given the option

date as 01.07.2009 and that she was not eligible to opt 01.09.2009,

thus triggering action has now led to the impugned orders. The

petitioner adds that, aggrieved by these proceedings, she had earlier

approached this Court, by filing W.P.(C)No.11274/2019, which was

allowed by a learned Judge of this Court, directing the respondents to

reconsider her fixation of pay in terms of the various applicable

Government Orders. She alleges that, however, in spite of the

specific directions in Ext.P12 judgment, Ext.P14 order has now been

issued, again finding baselessly that her original option date is

irregular and that she is liable to refund the benefits obtained on WP(C) NO. 22076 OF 2020

account of the same. She, therefore, reiteratingly prays that Ext.P14

be found to be illegal.

5. I have heard Sri.P.K.Ravi Sankar, learned counsel

appearing for the petitioner and Sri.P.M.Manoj, learned Senior

Government Pleader appearing for the official respondents.

6. The learned Senior Government Pleader, Sri.P.M.Manoj,

argued extensively, based on the averments in the counter affidavit

filed on behalf of the 2nd respondent. He submitted that the petitioner

was promoted as Headmistress with effect from 01.04.2009 and that

she had completed 22 years of service on 29.09.2011. He then

showed me that petitioner opted for the notional Selection Grade

with effect from 30.09.2011 and came over to the Pay Scale of

Headmistress with effect from the said date, as is evident from

Ext.P2. He explained that the pay fixation was, therefore, effected by

opting the Pay Revision Order 2009 with effect from 01.09.2009 in

the primary teacher scale of Rs.14,620-25,280 and that this was

wrong because she ought to have come over to the revised Scale of

Pay on the due date itself, namely 01.07.2009. He concluded his

submissions by saying that this has been clarified by the Government

through a subsequent Government Order, bearing G.O.

(P)No.290/14(197)/Fin dated 16.07.2014 and that, therefore, the WP(C) NO. 22076 OF 2020

impugned orders are without fault.

7. Sri.P.K.Ravisankar, learned counsel appearing for the

petitioner, replied to the afore submissions of the learned Senior

Government Pleader, by drawing my attention specifically to Exts.P2

and P3. He showed me that, as is available in Ext.P2, his client's

fixation of pay for the year 2009, as per G.O.(P)No.85/2011/Fin dated

26.02.2011, was fixed at Rs.21,240/- with effect from 01.09.2011,

recording the date of option as being 01.09.2009. He then pointed

out that, as is also manifest from the said order, the consequent

fixation of pay in the "Headmaster scale" was given to her only with

effect from 30.09.2011 at Rs.22,360/-. He then invited me to Ext.P3

order to show that the "Headmaster scale" was granted to his client

only on 30.09.2011; and thus arguing that what is stated in the

counter affidavit of the 2nd respondent and recorded in Ext.P14 order

are factually incorrect and thus untenable. He, therefore,

reiteratingly prayed that this writ petition be allowed.

8. I have examined the afore contentions and have also gone

through the various materials available on record, particularly

Ext.P14.

9. The impugned Ext.P14 order categorically says that when

the notional grade was granted to the petitioner in the post of WP(C) NO. 22076 OF 2020

primary school teacher, she became eligible to the 2009 Pay

Revision with effect from 01.07.2009. It then says that, however,

instead of opting for the Pay Revision on the same day, she waited

until 01.09.2009 to make such option in the scale applicable to a

Headmistress scale. It is on such basis that the order says that the

petitioner was entitled to the option only on 01.07.2009, being the

date on which her notional grade in the post of primary teacher

became eligible to her; and therefore, that her option made on

01.09.2009, in the pay scale of Headmistress, is impermissible, thus

rendering her disentitled to claim any benefits based on the same.

The order concludes by saying that since the petitioner made her

option on 01.09.2009 in the scale of pay of Headmistress, her scale

of pay cannot be revised in the post of Assistant Teacher as per it

and that she ought to have made the option on 01.07.2009 itself.

10. In contrast, when one examines Exts.P2 and P3, as rightly

stated by Sri.P.K.Ravi Sankar, the petitioner's fixation of pay as per

the 2009 Pay Revision in the scale of Assistant Teacher was granted

with effect from 01.09.2011, along with the eligible increment, with

the date of option being recorded as 01.09.2009. The petitioner was

given the fixation of pay in the scale of pay of Headmistress, as per

Rule 28 of Part I of the KSR, only on 30.09.2011 and this is WP(C) NO. 22076 OF 2020

indubitable from Ext.P2. This aspect is further made clear in

Ext.P3, which is a proceeding of the Deputy Director of Education,

that the higher grade fixation notionally in the post of primary

teacher was granted to her with effect from 01.07.2009, in the scale

of pay of Rs.16,180 -29,180; while the scale of pay of Headmistress

was made available to her only on 30.09.2011, in the pay scale of

18,740 - 33,618.

11. It is, therefore, luculent that there are yawing gaps in the

view taken by the Authority in Ext.P14 and what is reflected from

Exts.P2 and P3. Apart from this, in Ext.P12 judgment, a learned

Judge of this Court had directed the Authorities to sequentially fix

the pay scale of the petitioner, as per the Pay Revision orders and

her option; but I cannot see that having been done in Ext.P14,

because the Authority merely says that she could not have opted

01.09.2009 for the benefit of the 2009 Pay Revision, since she was

already in the scale of pay of Headmistress at that time.

12. I am, therefore, of the firm view that Ext.P14 cannot be

approved and that the matter will have to be again reconsidered in

terms of my observations above and the directions in Ext.P12

judgment of this Court.

13. Resultantly, this writ petition is allowed and Ext.P14 is WP(C) NO. 22076 OF 2020

set aside; with a consequential direction to the second respondent to

reconsider the matter, adverting specifically to Exts.P2 and P3 and

after affording a fresh opportunity of being heard to the petitioner -

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.

Needless to say, if, consequent to the afore exercise, any

pecuniary benefit is found due to the petitioner, the same shall be

made available to her without any avoidable delay but not later than

two months thereafter.

Sd/-

DEVAN RAMACHANDRAN JUDGE rp/stu WP(C) NO. 22076 OF 2020

APPENDIX OF WP(C) 22076/2020 PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE G.O.(P) NO.180/91(100)/FIN.

DATED 21.2.1991 ISSUED BY THE IST RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS NO.C.1216/12 K.DIS.

DATED 21.5.2012 OF THE 3RD RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE LETTER NO.OA2(4)/13802/17 DATED 18.8.2017 ALONG WITH THE ATTACHED OBJECTION RAISED TO THE FIXATION OF PAY OF THE PETITIONER ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE REPLY DATED 18.9.2017 ALONG WITH THE DRAFT ANSWER SUBMITTED BY THE PETITIOENR TO THE 3RD RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE LETTER NO.C/4356/2017 DATED 4.11.2017 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.

EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 12.12.2017 SUBMITTED BY THE PETITIONER 2ND RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE ORDER NO.O.A.II(4)/13802/17 DATED 6.3.2018 ISSUED BY 2ND RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE ORDER NO.K.DIS/1431/2018 D DATED 11.4.2018 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P9 TRUE COPY OF THE LETTER NO.D/1431/2018 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER ALONG WITH THE STATEMENT APPENDED TO IT.

EXHIBIT P10 TRUE COPY OF THE CHALLAN DATED 20.4.2018.

EXHIBIT P11 TRUE COPY OF THE G.O.(P) 290/14(197) FIN. DATED 16.7.2014.

EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 19.2.2020 IN WPC NO.11274 OF 2019 ON THE FILES OF THIS HONOURABLE COURT.

WP(C) NO. 22076 OF 2020

EXHIBIT P13 TRUE COPY OF THE REPRESENTATION DATED 16.3.2020 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P14 TRUE COPY OF THE ORDER NO.OA2(4)/8861/2019 DATED 14.9.2020 ISSUED BY THE 2ND RESPONDENT.