Manju John vs The Government Of Kerala
2021 Latest Caselaw 14575 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                        PRESENT

                  THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

         WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943

                             WP(C) NO. 4920 OF 2019

PETITIONER:

               MANJU JOHN
               AGED 40 YEARS
               W/O. SHINE KALAPPURAKKAL, KALAPPURAKKAL HOUSE, MALA P.O,
               THRISSUR DISTRICT, PINCODE-680 730

               UPSA, ST. THOMAS HIGH SCHOOL, AYROOR.

               BY ADVS.
               MATHEW B. KURIAN
               SRI.K.T.THOMAS



RESPONDENTS:

     1         THE GOVERNMENT OF KERALA
               REP. BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT,
               SECRETARIAT ANNEXE, THIRUVANANTHAPURAM-695 001

     2         THE DEPUTY DIRECTOR OF EDUCATION
               CIVIL STATION, COLLECTORATE, KAKKANAD, ERNAKULAM-682 030

     3         THE ASSISTANT EDUCATIONAL OFFICER
               ANGAMALY, ERNAKULAM DISTRICT, PIN-683 572

     4         THE ASSISTANT EDUCATIONAL OFFICER,
               THRIPOONITHURA, ERNAKULAM DISTRICT, PIN-682 301




OTHER PRESENT:

               SRI. P.M.MANOJ - SR.GP




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.07.2021,

THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 4920 OF 2019

                                     2




                              JUDGMENT

The singular issue in this case is whether the petitioner, who

is working as an Upper Primary School Teacher (UPST) in the

services of "St.Mary's U.P.School", Moozhikkulam, is entitled to

make a revised option as per the Pay Revision Order of the year

2009. The petitioner says that she made the revised option on

05.06.2013 and handed it over to the Headmistress of the School,

but that for some reason, same was delayed to be transmitted to

the jurisdictional Assistant Educational Officer (AEO for short).

2. The petitioner alleges that, therefore, for no fault of hers,

she has now been denied the benefit of revised option; and thus

prays that Ext.P8 order of the Government, which declines to grant

her the said relief, be set aside and the competent Authorities be

directed to revise her Scale of Pay, based on the revised option

submitted on 05.06.2013.

3. I have heard Sri.K.T.Thomas, learned counsel for the

petitioner and Sri.P.M.Manoj, learned Senior Government Pleader.

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

submitted that the assertion of the petitioner - that she had

preferred the revised option on 05.06.2013 - cannot be believed for WP(C) NO. 4920 OF 2019

a moment because there is nothing on record or in the files to

establish the same. He submitted that, as is evident from Ext.P8

itself, the petitioner asserts that she had given re-option (she

should be, perhaps, referring to revised option) to the Headmistress

on 05.06.2013, but that the Headmistress did not forward it to the

AEO within time. The learned Senior Government Pleader

submitted that these assertions of the petitioner have been

specifically denied by the 3rd respondent in his counter affidavit and

therefore, prayed that this writ petition be dismissed.

5. I have examined the afore submissions and have also

gone through the materials and pleadings on record very carefully.

6. There is no doubt that, in Ext.P8, the Authorities,

including the Government, have found that, normally, the petitioner

would have been entitled to make a re-option (revised option) with

effect from 05.06.2013, since there was no other opportunity to

make a re-option to any of the teachers, based on the Pay Revision

Order 2009.

7. The only question is, therefore, whether the petitioner

had, in fact, made a re-option/revised option on 05.06.2013, as has

been averred by her.

WP(C) NO. 4920 OF 2019

8. The stand of the 3rd respondent in his counter affidavit is

that the Headmistress has testified to the effect that petitioner is

guilty of fabricating evidence by putting a previous date on her

option form and that she had been reprimanded for such 'illegal

act'. The 3rd respondent thus maintains that, in view of the

'deposition' of the Headmistress, petitioner cannot be given any

benefit, particularly because there is nothing to show that she had

made re-option/revised option with effect from 05.06.2013.

9. Even when I hear the learned Senior Government

Pleader as above, the fact remains that there is nothing on record

to show that whether there was an enquiry conducted into the

allegation of the Headmistress, that the petitioner had committed

an 'illegal act' of fabricating the option form or modifying the date

shown therein. Even without any such enquiry or investigation

being conducted, the Authorities appear to have accepted the

version of the Headmistress, as if it was the proven truth, but

without giving an opportunity to the petitioner to rebut the same

through any legally accepted method.

10. Obviously, therefore, the petitioner was taken completely

by surprise and she had no opportunity to prove that she had WP(C) NO. 4920 OF 2019

actually given the option to the Headmistress on 05.06.2013.

11. Since there are disputes of facts involved in this case, it

is indubitable that this Court cannot resolve it, while acting under

the mandate of Article 226 of the Constitution of India.

12. However, what is to be borne in mind is the fact that the

allegation against the petitioner - that she had manipulated the

option form - has not been proved by any acceptable procedure

known to law. Luculently, therefore, the Government should have

considered whether she was entitled to the benefit of doubt, rather

than have blindly accepted the version of the Headmistress - which

was untested through any process - before concluding that

petitioner was guilty of manipulating the option records and

therefore, not entitled to the benefit of the same.

In the afore circumstances, I cannot find favour with Ext.P8

and am of the firm view that Government must reconsider the

matter, taking note of my observations above and after affording

necessary opportunities to both sides.

Resultantly, this writ petition is ordered and Ext.P8 is set

aside; with a consequential direction to the Government to

reconsider the entire matter, after affording an opportunity of being WP(C) NO. 4920 OF 2019

heard to the petitioner and to the Manager of the School or any

other person who may be vitally interested - either physically or

through video conferencing - thus culminating in an appropriate

order thereon, 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 I have not found affirmatively in favour or

against the petitioner and that all contentions are left open to be

considered by the Government appropriately but that while doing

so, they shall certainly advert to my observations above regarding

the absence of any enquiry to prove the allegation against the

petitioner.

SD/-

DEVAN RAMACHANDRAN JUDGE rp WP(C) NO. 4920 OF 2019

APPENDIX OF WP(C) 4920/2019

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE LETTER NO. 47326/B1/2013/G.EDN.

DATED 01.11.2013 ISSUED BY GOVERNMENT.

EXHIBIT P2 TRUE COPY OF THE LETTER NO. 80350/PRC-D1/2013/FIN DATED 01.04.2013 ISSUED BY GOVERNMENT.

EXHIBIT P3 TRUE COPY OF THE REVISED DATED 05.06.2013 SUBMITTED BY PETITIONER.

EXHIBIT P4 TRUE COPY OF THE APPEAL PETITION DATED 15.05.2014 SUBMITTED BY PETITIONER.

EXHIBIT P5 TRUE COPY OF THE ORDER DATED 04.02.2015 ISSUED BY 2ND RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE REVISION PETITION DATED 05.01.2016 SUBMITTED BY PETITIONER.

EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 23.02.2018 IN WP(C) NO. 5800/2018

EXHIBIT P8 TRUE COPY OF THE ORDER DATED 7.12.2018 PASSED BY THE 1ST RESPONDENT.