Kerala High Court

T.V.Emily vs The State Of Kerala on 10 October, 2024

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W.P.(C) No.14627 of 2019
                                                          2024:KER:75492

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

          THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON

 THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946

                           WP(C) NO. 14627 OF 2019

PETITIONER:

               T.V.EMILY
               AGED 60 YEARS, WIFE OF K.V.JOSE,
               SANSKRIT TEACHER(RETIRED), SREE NARAYANA
               UPPER PRIMARY SCHOOL, POTHINKANDAM P.O.,
               KUZHITHOLU, IDUKKI DISTRICT (RESIDING AT
               KANJIRATHINKAL, P.O. THURUTHIKKARA,
               PANGARAPPALLY, MULANTHURUTHY (VIA),
               ERNAKULAM DISTRICT-682 314.

               BY ADVS.
               V.A.MUHAMMED
               SRI.M.SAJJAD

RESPONDENTS:

1              THE STATE OF KERALA
               REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
               GENERAL EDUCATION DEPARTMENT, SECRETARIAT
               ANNEXE-11, THIRUVANANTHAPURAM-695 001.
2              THE DIRECTOR OF PUBLIC INSTRUCTION,
               JAGATHY, THIRUVANANTHAPURAM-695 014.
3              THE DEPUTY DIRECTOR OF EDUCATION,
               IDUKKI AT THODUPUZHA-685 584.
4              THE ASSISTANT EDUCATIONAL OFFICER,
               NEDUMKANDAM, IDUKKI DISTRICT-685 553.
5              THE ACCOUNTANT GENRERAL (A AND E) KERALA,
               THIRUVANANTHAPURAM, M.G.ROA, P.B.NO.5607,
               THIRUVANANTHAPURAM-695 039.
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W.P.(C) No.14627 of 2019
                                                               2024:KER:75492

               BY ADV.
               SRI.JUSTIN JACOB, SR.GP

       THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
10.10.2024,         THE    COURT   ON   THE   SAME   DAY   DELIVERED    THE
FOLLOWING:
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W.P.(C) No.14627 of 2019
                                                          2024:KER:75492

                   HARISANKAR V. MENON, J.
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                    W.P.(C) No.14627 of 2019
            ------------------------------
             Dated this the 10th day of October, 2024

                                  JUDGMENT

The petitioner was appointed as an L G (Sanskrit) teacher

from 03.06.1985 in an aided school. However, on account of

the post in which she was working, getting abolished pursuant

to reduction in students' strength, petitioner was deployed with

effect from 20.03.2003 and given the benefits of protection.

She was re-deployed in another school with effect from

16.11.2005, and later, she took leave without allowance against

a medical certificate for the period from 08.06.2006 to

14.06.2006 and again from 15.06.2006 to 28.07.2006. During

the currency of the said leave without allowance availed by the

petitioner, the 3rd respondent issued proceedings by which the

petitioner was re-deployed again to another school on

05.06.2006. However, since such re-deployment was during the

currency of the leave availed as above, the petitioner could not

join the service pursuant to the re-deployment as above.

2. In such circumstances, the protection extended to

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the petitioner stood cancelled. Such cancellation was challenged

by the petitioner before the 1st respondent and Ext.P1 order

dated 22.10.2011 was issued, wherein it was found as under;

"(6) In the above circumstances, Government are pleased to order as follows:

1. The cancellation of protection to Smt. Emily T.V as per order B5/9433/04 dated 29/12/06 of the Deputy Director of Education, Idukki is revoked.

2. She will be granted leave Without Allowance on Medical Certificate from 15/06/06 to 15/06/07. For this leave application in original with Medical Certificate and Fitness Certificate shall be obtained and furnished.

3. The period from 16/06/07 to 29/03/09 is regularized as non duty so as to avoid break in service.

4. Her pay is protected as per Rule 52 (1) Chapter XIV A KER, If otherwise eligible."

Thus, by Ext.P1 order, it was found by the Government that the

petitioner's application for leave without allowance against a

medical certificate was a genuine claim, which ought to have

been extended. The proceedings at Ext.P1 also find that the

period from 16.06.2007 to 29.03.2009 ought to be regularised

as non-duty so as to avoid break in service. Later, by Ext.P2,

the benefits for the period from 16.06.2007 to 29.03.2009 were

extended to the petitioner. The petitioner points out that, in the

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meantime, during 2004 and in 2009, there were certain pay

revisions, which were to be extended to the petitioner also. The

said benefits were also extended to the petitioner, and salary

was also paid to her on that basis subsequent to the orders at

Ext.P1. However, the 3rd respondent referred to certain audit

objections in the matter, which pointed out that, insofar as the

petitioner had not opted for the pay revisions pursuant to 2004

and 2009, there were certain excess salaries received by the

petitioner. Steps were initiated for recouping the said excess

salary from the petitioner. In such circumstances, the petitioner

approached the Government by filing a revision petition against

the steps taken by the 3rd respondent herein. Ext.P4 is the

proceedings issued by the Government in the matter. The

operative portion of the said order reads as under;

"Government have examined the matter in detail and found that Smt.T.V.Emily was in service at the time of issuance of 2004 and 2009 Pay Revision orders. G.O(P) 145/2006/Fin dated 25.03.2006 has been issued before she entered on LWA i.e., on 15.06.2006. GO(P) 85/2009/Fin, dated, 26.02.2011 has been issued after she re-joined service (ie on 30.03.2009). Hence she was liable to file option for 2004 and 2009 Pay Revisions, but it seems

2024:KER:75492

that she did not opt the revision in time. As per Rule 17 Annexure II to the above Pay revision Orders, "if no option is exercised within the period of six months from the date of the GO, the date of effect of pay revision order (ie 01.07.2004 and 01.07.2009 respectively) shall be treated as the date of option for coming into the revised scale and the officer competent to fix the employee's pay is to proceed accordingly. No subsequent option shall be entertained". Moreover time limit for exercising option to the Pay Revision 2009 was extended till 25.02.2012 vide GO(P) No.354/11/Fin dated 18.08.2011. Therefore the audit objection raised for PR 2004 and 2009 by the DDE is in order. However the incumbent can opt 18.03.2010 (excluding the non duty period) as option date for selection grade (23 years) since the sanction order has been issued as per order No.C/1440/2012 dated 24.08.2012. (As per para 11 of the circular No.46/2008/Fin dated 08.08.2008. Government also agrees to grant LWA on medical certificate to Smt.Emily from 15.06.2006 to 15.06.2007 under Rule 88 Part 1, KSRs on condition that leave period will not count for accumulation of earned leave, and on condition that leave application should be furnished by the incumbent.

The Revision Petition read as 2 paper above is disposed of as above and the judgment of the Hon'ble High Court read as 3rd paper above is thus complied with."

3. It is in the above circumstances that the captioned

writ petition is filed by the petitioner, also pointing out that the

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attempt to get review of Ext.P4 stood rejected by Ext.P5 order.

4. A counter affidavit dated 16.03.2021 is filed on

behalf of the 2nd respondent in the matter, essentially justifying

the proceedings culminating in the issuance of Ext.P4.

5. I have heard Smt.P.A.Jenzia, the learned counsel for

the petitioner as well as Sri.Justin Jacob, the learned Senior

Government Pleader.

6. The dispute in this writ petition is only as regards the

refusal to extend the benefits of pay revision during 2004 and

2009 to the petitioner. It is the admitted case of the petitioner

that, she could not make any option pursuant to the pay

revisions of 2004 and 2009. However, the petitioner had a valid

reason for not doing so. The petitioner points out that, during

the said periods, the petitioner was out of service. During the

period of 2004 pay revision, she was out of service as a

protected teacher. With respect to the revision in the year 2009,

the petitioner was out of service on account of the cancellation

of the protection granted to her, pursuant to the rejection of the

leave without allowance applied for by her. The said cancellation

of protection was challenged by the petitioner before the

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Government. Ext.P1 is the proceedings of the Government,

wherein, as noticed earlier, cancellation of protection is

revoked. It is only subsequently that, pursuant to Ext.P1, the

period from 16.06.2007 to 29.03.2009 was regularised. In such

circumstances, the failure to opt for the benefits pursuant to

pay revision 2009 cannot be attributed to any deliberate failure

on the part of the petitioner.

7. In such circumstances, I am of the opinion that the

petitioner is entitled to succeed.

Resultantly, this writ petition would stand allowed,

quashing Ext.P4. The respondents are directed to grant all

consequential benefits to the petitioner on account of the above.

Sd/-

HARISANKAR V. MENON JUDGE anm

2024:KER:75492

APPENDIX OF WP(C) 14627/2019

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE GO(RT)NO.4463/2011/ G.END. DATED 22.10.2011 OF THE GOVERNMENT.

EXHIBIT P2 TRUE COPY OF THE ORDER NO.C/1440/2012 DATED 24.08.2012 OF THE ASSISTANT EDUCATIONAL OFFICER, NEDUMKANDAM.

EXHIBIT P4                    TRUE COPY OF THE G.O.(RT)NO.3706/2016/
                              G.EDN.    DATED 04.11.2016   OF    THE
                              GOVERNMENT.
EXHIBIT P5                    TRUE COPY OF THE G.O.(RT)NO.1579/2019/
                              G.EDN.    DATED 04.05.2019   OF    THE
                              GOVERNMENT.