Kerala High Court
Steephan A.T vs State Of Kerala on 26 February, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
MONDAY, THE 24TH DAY OF OCTOBER 2016/2ND KARTHIKA, 1938
WP(C).No. 17296 of 2015 (J)
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PETITIONER(S):
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STEEPHAN A.T.,
ANTHIKKAT HOUSE, THAIKKAD P.O.,
GURUVAYUR, THRISSUR.
BY ADVS.SRI.K.B.GANGESH
SMT.ATHIRA A.MENON
RESPONDENT(S):
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1. STATE OF KERALA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2. DISTRICT EDUCATIONAL OFFICER,
CHAVAKKAD - 680 506.
3. THE DEPUTY DIRECTOR OF EDUCATION,
THRISSUR, PIN - 680 003.
R1-R3 BY ADV. GOVERNMENT PLEADER, SMT. MARY BEENA JOSEPH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 24-10-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No. 17296 of 2015 (J)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT P1 : TRUE COPY OF THE RELEVANT PORTION OF THE SERVICE BOOK OF
THE PETITIONER EVIDENCING SANCTION OF HEADMASTERS SCALE OF
PAY UNDER OPTION B OF RULE 28A OF PART I KSR.
EXT P2 : TRUE COPY OF THE RELEVANT PORTION OF THE SERVICE BOOK OF
THE PETITIONER EVIDENCING SANCTION OF REVISED PAY SCALE UNDER
GO (P)NO.85/2011 DATED 26-2-2011.
EXT P3 : TRUE COPY OF THE STATEMENT OF FIXATION OF PAY UNDER GO(P)
85/2011/FIN DATED 26-2-2011 ALONG WITH OPTION FOR
FIXATION OF PAY UNDER RULE 28A PART I KSR.
EXT P4 : TRUE COPY OF ORDER NO.8029/2012/LDIS DATED 4-10-2012.
EXT P5 : TRUE COPY OF LETTER DATED 28-11-2012 ISSUED BY THE 3RD
RESPONDENT.
EXT P6 : TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT ON
12-3-2015.
RESPONDENT(S)' EXHIBITS
----------------------- NIL
//True copy //
PA to Judge
mns
A.K.JAYASANKARAN NAMBIAR, J.
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W.P.(C).No.17296 of 2015
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Dated this the 24th day of October, 2016
J U D G M E N T
The petitioner retired as Headmaster of an aided Higher Secondary School with effect from 31.03.2011. The facts in the writ petition would indicate that, he was promoted as Headmaster with effect from 01.04.2010 and the approval to the said promotion was granted in November 2010. His scale of pay in the Headmaster scale was fixed by Ext.P1 order, and he had exercised his option for fixation of pay with effect from 01.07.2010 as evident from the endorsement in Ext.P1 dated November 2010. Thereafter, when the 2009 pay revision benefits were implemented, the petitioner applied for the fixation of the revised scale on 01.03.2011. By Ext.P2, the revised scale was also sanctioned to the petitioner. In the writ petition, it is the case of the petitioner that by Ext.P5 objection, it was pointed out by the 3rd respondent that the option exercised by him was belated for the purposes of Rule 28A Part I Kerala Service Rules (KSR). Ext.P5 objection proceeds on the assumption that the petitioner had exercised his option for fixation -2- W.P.(C).No.17296 of 2015 of pay under Rule 28A of Part I KSR only on 07.09.2012, which is the date on which he had preferred the application for fixation of his pay in the revised scale pursuant to the 2009 pay revision. Ext.P5 order was confirmed by the 1st respondent in Ext.P6 order, and the stand taken by the respondents is that the petitioners pay should be fixed as per option (a) under Rule 28 A Part I KSR and excess amounts paid to the petitioner on the basis of fixation of pay as per option (b) should be recovered from him. In the writ petition, the petitioner impugns Exts.P5 and P6, inter alia, on the ground that, the petitioner had in fact exercised his option by opting for option (b) under Rule 28 A of Part I KSR well before the date of approval of his promotion as Headmaster. The petitioner places reliance on the Government order GOP.No.246/2012 General Education dated 28.07.2012 as also the judgment dated 22.06.2016 of this court in W.P.(C).No.11968 of 2016.
2. A counter affidavit has been filed on behalf of the 3rd respondent, wherein Exts.P5 and P6 orders are sought to be justified on the reasons stated therein. It is stated that the -3- W.P.(C).No.17296 of 2015 petitioner had submitted his option belatedly, and hence, he was to be deemed as having opted for option (a) under Rule 28 A of Part I KSR, and therefore, he was liable to refund the excess amounts paid to him consequent to a fixation of his pay and allowances based on option (b) that was indicated by him in his application for fixation of pay.
3. I have heard the learned counsel appearing for the petitioner as also the learned Government Pleader appearing for the respondents.
4. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that, it is evident from Ext.P1 service book, and through the endorsement dated November 2010 made therein, that the petitioner had opted for the revised scale of pay with effect from 01.07.2010. The endorsement is dated November, 2010 and is seen signed by the District Educational Officer on 17.01.2011. It is relevant to note in this context that, the petitioner was promoted as Headmaster with effect from 01.04.2010 and the approval of the said appointment is -4- W.P.(C).No.17296 of 2015 only in November, 2010. Even as on the date of approval, it was noticed that the petitioner had already exercised his option for fixing his pay in the scale of Headmaster, based on option (b) under Rule 28 A Part I KSR. In that view of the matter, and considering that by Government order GO (P).No.246/2012 Gen.Edn dated 28.07.2012, it is made clear that, the option contemplated under Rule 28 A Part I KSR need be exercised only within one month from the date of approval of the appointment in question, I am of the view that, the objections noted in Exts.P5 and P6 orders cannot be legally sustained as against the petitioner.
In the result, I quash Exts.P5 and P6 orders and allow this writ petition by declaring that the petitioner's exercise of option as per Rule 28A Part I KSR is in order, and no re-fixation of his pay in the Headmasters scale is warranted.
The writ petition is allowed as above.
A.K.JAYASANKARAN NAMBIAR JUDGE mns/24.10.16 -5- W.P.(C).No.17296 of 2015