IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 6TH SEPTEMBER 2010 / 15TH BHADRA 1932 WP(C).No. 24689 of 2010(I) -------------------------- PETITIONER(S): --------------- C.MOOSAKUTTY, S/O.ABDULLAH, TRAINING SCHOOL ASSISTANT, S.S.M.O.TEACHERS TRAINING INSTITUTE, THIRURANGADI, MALAPPURAM DISTRICT. BY ADV. DR.GEORGE ABRAHAM RESPONDENT(S): --------------- 1. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. 2. SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.24689 of 2010 --------------------------------------------- Dated this the 6th day of September, 2010 JUDGMENT The petitioner is working as Training School Assistant in S.S.M.O. Teachers Training Institute, Thirurangadi. It is stated that the petitioner was working as U.P.S.A. in Oriental High School, Thirurangadi from 20.6.1992 to 27.8.1992. Later, he was appointed as L.P.S.A. in the same school from 16.11.1992 to 29.4.1993. The petitioner was reappointed as L.P.S.A. in the same school from 7.6.1993 to 20.7.1993 and the petitioner was promoted as U.P.S.A. Later, he was promoted as H.S.A. on a temporary vacancy for the period from 1.9.1998 to 17.12.1998. After the expiry of the temporary vacancy, the petitioner was reverted as U.P.S.A. The petitioner was promoted as Training School Assistant on 8.10.2001 in S.S.M.O. Teachers Training Institute, under the same educational agency, and he is at present working there. According to the petitioner, his continuous service commenced from 7.6.1993 as L.P.S.A. WPC No.24689/2010 2 2. Exhibit P1 revised option was submitted by the petitioner in which he stated that he was entitled to the revised scale with effect from 1.10.2004. It is stated that the petitioner completed 12 years of service on 14.10.2004 and therefore, the date of re-option mentioned in Exhibit P1 is a mistake and that it is liable to be corrected as 15.10.2004. 3. Exhibit P2 communication dated 1.4.2009 was issued by the Deputy Director of Education to the Headmaster of the school stating that the petitioner would complete 12 years of service on 14.10.2004 and that he would be entitled to weightage only from 15.10.2004. The service book was returned to the Headmaster. The petitioner submitted Exhibit P3 representation to the Deputy Director of Education stating that the date was mistakenly entered in Exhibit P1 and that it is liable to be corrected. The Deputy Director of Education, as per Exhibit P4 communication dated 29.6.2009, stated that there is no provision for changing the date of option. Thereafter, the petitioner submitted a detailed representation dated 20.10.2009 (Exhibit P5) to the Government. The Government disposed of WPC No.24689/2010 3 the same as per Exhibit P6 dated 29.10.2009 stating that there is no provision for re-option. The petitioner submitted Exhibit P7 representation dated 10.11.2009 to the Hon'ble Minister for Finance which was forwarded to the Secretary to the Government, Finance Department. Exhibit P7 was disposed of as per Exhibit P9 holding that there is no provision to consider the representation submitted by the petitioner. Exhibit P10 communication dated 28.6.2010 was issued by the Deputy Director of Education to the Headmaster stating that service book of the petitioner should be submitted after curing the defects or else his salary would be withheld. The petitioner submitted Exhibit P11 representation to the Secretary to the Government, Finance Department stating all the relevant details and pointing out that it was not a question of changing the option or submitting another option, but only correction of the date mistakenly entered in the option. By doing so, there would be no financial commitment to the Government and the petitioner would not be getting any undue advantage. 4. In the Writ Petition, the contention taken by the WPC No.24689/2010 4 petitioner is summarised in paragraphs 7 and 9 as follows : “7. In fact the petitioner has completed 12 years total service as on 14.10.2004. Hence, the petitioner is entitled to submit re-option with effect from 15.10.2004. In fact notional fixation was done for the period 1.7.2004 to 31.5.2005 and no excess pay was drawn by the petitioner. Petitioner also respectfully submitted that taking into consideration that 1.10.2004 as pay fixation, the petitioner is entitled for a total emoluments of Rs.8,990/- (notional). At the same time considering 15.10.2004 as date of option, the total scale will be Rs.8,990/-. Therefore, as on 1.10.2009, the pay will be fixed as Rs.10,070/-. At the same time if 15.10.2009 is taken into consideration as date of re-option the same pay fall due to the petitioner. Hence, there cannot be any excess payment drawn by the petitioner. This aspect was not at all considered by the second respondent as evident from Exts.P6 and P9. In Exts. P6 and P9 it was stated that there cannot be any provision for accepting a fresh option. The petitioner never sought for such request. WPC No.24689/2010 5 9. Moreover, as per the pay revision order of 2006 viz. G.O.(P) 145/2006 dated 25.3.2006, the broken period of service which is qualifying for formal increment can also be reckoned for weightage. Hence, there is no merit in the order passed by the Government as evidenced by Exts. P6 and P9. Both the orders were issued on the presumption that petitioner is seeking a fresh date in the re-option for fixing the scale of pay.” 5. The reliefs prayed for in the Writ Petition are the following : “i) To issue a writ of certiorari to quash Exhibit P6, Exhibit P9 and Exhibit P10 orders issued by the respondents 1 and 2. ii) To issue a writ of mandamus or any other appropriate writ, order or direction directing the second respondent to consider Exhibit P11 representation submitted by the petitioner. iii) To issue a writ of mandamus or any other appropriate writ, order or direction WPC No.24689/2010 6 permitting the petitioner to change the date of option from 1.10.2004 to 15.10.2004. iv) To issue such other orders as this Hon'ble Court may deem fit according to the facts and circumstances of the case.” 6. It is submitted by the counsel for the petitioner that for the time being, the petitioner would be satisfied if Exhibit P11 representation is directed to be considered by the second respondent notwithstanding Exhibits P6 and P9 and a decision is rendered after affording an opportunity of being heard to the petitioner. In other words, it is submitted that if the matter is reconsidered, and if it is found that correction is required, Exhibits P6 and P9 should not stand in the way of the Government in doing so. He submitted that if such a course is adopted, even without quashing Exhibits P6 and P9, the petitioner would be entitled to the reliefs, if he is really entitled to get the same. The request of the petitioner is just and reasonable. WPC No.24689/2010 7 7. Accordingly, there will be a direction to the second respondent to consider Exhibit P11 representation dated 31.7.2010 submitted by the petitioner, as expeditiously as possible and at any rate, within a period of three months from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioner. It is made clear that if the second respondent finds on the merits that the petitioner is entitled to have the correction of the date in Exhibit P1 as he states, nothing in Exhibits P6 and P9 would stand in the way of permitting him to do so. Till a decision is taken in the matter, the salary of the petitioner shall not be withheld as mentioned in Exhibit P10. The petitioner shall produce a copy of the Writ Petition and the certified copy of the judgment before the second respondent. The Writ Petition is disposed of as above. K.T.SANKARAN, JUDGE csl