Allowed

Sunu George v. Director of Higher Secondary Education.

Kerala HC8 Dec 2017WP(C)/25996/2016

Case brief

AI extract

What is this about?

The High Court held that benefits granted for re-option in 2004 and 2009 Pay Revisions should be extended to the time-bound higher grade promotion. It directed the Government to consider granting an opportunity for re-option.

What did the court decide?

Direction to the Government to consider granting the petitioner an opportunity to submit a re-option for time bound higher grade within two months.

Sunu George Vs Director of Higher Secondary… — Pension and Retirement Benefits | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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FRIDAY, THE 8TH DAY OF DECEMBER 2017/17TH AGRAHAYANA, 1939

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WP(C).No. 25996 of 2016 (Y)

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PETITIONER(S) :

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MRS.SUNU GEORGE, AGED 39 YEARS, W/O. PERAL K.DAVIS, HIGHER SECONDARY SCHOOL TEACHER COMPUTER SCIENCE, ST. JOSEPH'S HSS AVINISSERY, THRISSUR - 680 306.

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BY ADVS. SRI.P.SREEKUMAR

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SRI.PAUL JACOB SRI.PEARL K.DAVIS SRI.S.GANESH SRI.P.S.SIDHAN SRI.M.A.ANZAR

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RESPONDENT(S) :

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1. DIRECTOR OF HIGHER SECONDARY EDUCATION, HIGHER SECONDARY DIRECTORATE, HOUSING BOARD BUILDING, THIRUVANANTHAPURAM-695 001.

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2. REGIONAL DEPUTY DIRECTOR, RDD OFFICE, EDAPPALLY - 682 021.

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3. CORPORATE MANAGER, CORPORATE EDUCATIONAL AGENCY, ARCH DIOCESE, THRISSUR-680 005.

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4. THE PRINCIPAL, ST. JOSEPH'S HSS AVINISSERY, THRISSUR - 680 306.

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R1 & R2 BY SR.GOVERNMENT PLEADER SRI.E.S.ASHRAF R3 BY ADV. SRI.TONY GEORGE KANNANTHANAM

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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WP(C).No. 25996 of 2016 (Y)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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P1 TRUE COPY OF THE APPLICATION FOR LEAVE AND MEDICAL CERTIFICATE (16 DAYS).

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P2 TRUE COPY OF THE APPLICATION FOR LEAVE AND MEDICAL CERTIFICATE (14 DAYS).

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P3 TRUE COPY OF THE PROBATION DECLARATION BY THE CORPORATE MANAGER.

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P4 TRUE COPY OF THE GOVT. G.O TO EXERCISE RE-OPTION

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P5 TRUE COPY OF THE PROCEEDINGS OF THE PRINCIPAL.

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P6 TRUE COPY OF THE APPLICATION FOR REVISING PAY REVISION 2004 AND 2009.

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P7 TRUE COPY OF THE REJECTION LETTER FROM REGIONAL DEPUTY DIRECTOR.

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P8 TRUE COPY OF THE APPLICATION TO THE DIRECTOR

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P9 TRUE COPY OF THE JUDGMENT IN W.P(C).NO. 30687/2012(I).

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P10 TRUE COPY OF THE COMMUNICATION LETTER FROM DIRECTOR.

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RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.S.TO JUDGE.

Msd.

ANU SIVARAMAN, J.

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W.P.(C) No.25996 of 2016

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Dated this the 8^th day of December, 2017

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J U D G M E N T

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The prayers in this writ petition are as follows:

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“i. Issue a writ of certiorari or any other writ or order calling for the records relating to Exhibit P10 and to the extend it declines the request for re-option in the matter of time bound higher grade promotion and to quash the same.

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ii. Issue a writ of mandamus or any other writ or order directing the respondents to disburse the benefits due to her on the basis of Exhibit P10 within a time limit to be fixed by this Hon'ble Court.

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iii. Declare that the petitioner is entitled to exercise re-option in the matter of time bound higher grade promotion by her in the light of Exhibit P4 and P5 government orders.

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iv. Issue a writ of mandamus or any other writ or order directing the 2^nd respondent to issue necessary orders granting the petitioner the benefit of re-option, re fixation of pay and to grant her the all monetary benefits due on the said count, within a time limit to be fixed by this Hon'ble court.”

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Heard the learned counsel for the petitioner and

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the learned Government Pleader as well as the learned counsel appearing for the 3^rd respondent Manager.

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It is submitted that the petitioner had been appointed as HSST (Junior) in the 3^rd respondents' school on 3.10.2002. She was eligible for grant of increment

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W.P.(C) No.25996 of 2016 2

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taking note of the leave without allowance availed by her on medical grounds. However, it is submitted that orders correcting the date of increment and reckoning the period of leave without allowance for the purpose of grant of increment were issued only on 29.4.2012. It is stated that the petitioner was permitted to exercise a re-option in respect of 2004 Pay Revision as well as 2009 Pay Revision taking note of the order dated 29.4.2012, reckoning the period of leave without allowances. The surviving grievance of the petitioner is with regard to re-option for time bound higher grade as well.

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The petitioner contends that by Ext.P10 order, the Regional Deputy Director of Higher Secondary Education has rejected the petitioner's claim for being permitted to re-opt the date in respect of time bound higher grade. It is stated that the rejection is based on a circular No.46/08/Fin dated 8.8.2008. The learned counsel for the petitioner contends that the circular is one issued with respect to permissibility of re-option in the normal course. It is submitted that the petitioner's case being one with regard to a leave without allowance availed by her during the year 2003 being regularized and counted for Pay

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W.P.(C) No.25996 of 2016 3

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Revision benefits only by order dated 29.4.2012. The principles contained in the circular dated 8.8.2008 will have no application. It is therefore contended that the petitioner is entitled for grant of an opportunity to submit a re-option in respect of time bound higher grade as well, as had been granted to her in 2004 and 2009 Pay Revision.

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A counter affidavit has been filed on behalf of the 2^nd respondent. It is submitted that the mistake in sanctioning of increments to the petitioner had been rectified and the petitioner was held eligible for first increment with effect from 3.10.2003 and subsequent increments on the first day of October every year. The orders correcting the dates of increments, reckoning the leave without allowance were rendered only on 29.4.2012. It is also admitted that the petitioner had been permitted to exercise re-option in respect of 2004 and 2009 Pay Revision. However, in respect of the re-option for the time bound higher grade, it is submitted that the said request for re-option was rejected in view of circular No.46/08/Fin dated 8.8.2008. Para ii of the said circular is as follows:

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ii. Those who are eligible for the time bound higher grade on completion of the specified qualifying service shall be given right of option to elect any date subsequent to the date on which they complete the qualifying service fixed for that higher grade vide G.O(P)

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W.P.(C) No.25996 of 2016

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No.81/80/(159)/Fin dated 22.1.1980. The option shall be exercised within three months from the date of issue of order granting grade promotions (G.P(P)367/96/(87)/Fin dated 19.04.1996. The option for time bound higher grade promotion shall not be allowed beyond the date of next increment in the lower scale with effect from 01.03.2006 (para 47 of GO(P) 145/2006/Fin dated 25.03.2006). Options once exercised for time bound higher grade promotion shall be final. No re-option will be granted for grade promotions. If no option is exercised by the incumbent with in the period prescribed for exercising option it will be presumed that such person have opted the time bound higher grade promotions from the due date of time bound higher grade itself and Appointing Authorities/Heads of Departments shall issue orders accordingly (GO(MS)608/83/(530)/Fin dated 27.09.1983 and Circular No.55/90/(47)/Fin dated 20.07.1990. Option and declaration to be submitted by the employees concerned duly signed by him/her will be in the format prescribed below:

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It is stated that the petitioner had exercised her option for time bound higher grade promotion and her pay was fixed accordingly. She cannot exercise re-option to come over to the higher grade on any other date the date already opted by her in view of the above guidelines.

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It is clear from a reading of the extracted portion of the circular dated 8.8.2008 that the provisions contained in the said circular, with regard to submission of re-option governs normal cases and a situation like the one available in the instant case where orders rectifying the date of increments have been passed much later than the dates of eligibility of the petitioner have not been considered in such circular.

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W.P.(C) No.25996 of 2016 5

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In the said circumstances, I am of the opinion that the benefit granted to the petitioner for re-option in respect of 2004 and 2009 Pay Revision have to be extended in respect of re-option for time bound higher grade as well. In the above view of the matter, there will be a direction to the Government to consider the grant of an opportunity for submission of re-option in respect of the time bound higher grade as well to the petitioner in the light of what is stated above. Orders in this regard shall be passed, within two months from the date of receipt of a copy of this judgment.

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The writ petition is disposed of accordingly.

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Sd/-

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ANU SIVARAMAN JUDGE

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sab

Sunu George v. Director of Higher Secondary Education.

Case brief

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Sunu George v. Director of Higher Secondary Education.

Case brief

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