Jyothi Mathew v State of Kerala and others

WP(C) NO. 29773 OF 2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 2[ND] DAY OF MARCH 2023 / 11TH PHALGUNA, 1944** ## **WP(C) NO. 29773 OF 2021** ## **PETITIONER/S:** JYOTHI MATHEW, AGED 43 YEARS HIGHER SECONDARY SCHOOL TEACHER (JR) (ENGLISH) JERUSALEM MOUNT HIGHER SECONDARY SCHOOL VAKATHANAM, KOTTAYAM, PIN 686 538. BY ADVS. M.A.FAYAZ M.VISHNUPRIYA C.B.ABHINAVA ## **RESPONDENT/S:** 1 STATE OF KERALA, REP.BY SECRETARY TO THE GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 011. 2 THE DIRECTOR OF GENERAL OF EDUCATION, OFFICE OF THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM - 695 011. 3 REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION KOTTAYAM, O/O THE DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION KOTTAYAM, PIN - 686 001. 4 REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION EDAPPALLY, OFFICE OF THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION EDAPPALLY, ERNAKULLAM - 682 026. 5 CORPORATE MANAGER, CATHOLICATE & MD SCHOOL, DEVALOKAM P.O. MUTTAMBALAM VIA, KOTTAYAM - 686 004. WP(C) NO. 29773 OF 2021 2 ## **OTHER PRESENT:** SMT.NISHA BOSE, SR.GP, SRI.ROSHEN.D.ALEXANDER FOR R5 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 29773 OF 2021 3 ## **P.V.KUNHIKRISHNAN, J** **---------------------------------------** **W.P.(C) No. 29773 of 2021** **-------------------------------------Dated this the 2[nd] day of March, 2023** ## **JUDGMENT** ## The above writ petition is filed with following prayers : i. “To call for the records leading to the issuance of Exts.P9 order dated 12.10.2021 and Ext.P8 dated 08.12.2021 issued by the 3[rd] respondent and to set aside the same by issuing a Writ of certiorari. ii. To issue a Writ of Mandamus directing the respondents to grant the benefits flowing out of Ext.P6 order of the 1 respondent and to grant the monetary benefits, arrears consequent to Pay Revision orders pursuant to the grant of First Time Bound Higher Grade vide Ext.P5. iii. To Issue a Writ of Mandamus directing the 3[rd] respondent to grant selection grade to the petitioner w.e.f. 18.08.2021 on completion of 15 years of service, on submitting proposal for the same after the 3[rd] respondent noting the arrears of Pay revision benefits. iv. To declare that in view of Ext.P6 order of the 1st respondent, the 3[rd] respondent is not empowered to issue Ext.P8 order dated 08.12.2021 refusing to allow the benefits flowing out of Ext.P6. v. To restrain the respondents 1 to 4 from initiating steps to WP(C) NO. 29773 OF 2021 4 re-fix the existing salary of the petitioner and to recover the alleged excess receipt of salary and increments on the basis of Ext.P8 and P9 orders. vi. To grant such other reliefs or orders as this Hon'ble Court may deem fit and proper in the above case, and to award costs.” [SIC] 2. The petitioner is working as HSST (Jr.) at JM HSS Vakathanam managed by the 5[th] respondent Corporate Manager. Petitioner was initially appointed in a leave vacancy w.e.f. 14.08.2006 to 01.08.2008 and the appointment was extended w.e.f. 02.08.2008 to 05.06.2010. Thereafter, the petitioner was appointed in a regular vacancy. The above appointments were granted approval as evident by Exts.P1 to P3 orders of the 4[th] respondent. Subsequently, the petitioner was shifted to the regular vacancy of HSST (Jr.) w.e.f. 01.06.2013 which was approved by Ext.P4 order. On completion of 8 years of service, the petitioner was granted First Time Bound Higher Grade w.e.f. 14.08.2014 vide Ext.P5. But the 4[th] respondent cancelled the grant of First Time Bound Higher Grade without hearing the petitioner, is the submission. The petitioner challenged the action of the 4[th] respondent by WP(C) NO. 29773 OF 2021 5 filing revision petition before the 1[st] respondent. The 1[st] respondent after getting report from respondent Nos. 2 and 4 allowed the revision petition by Ext.P6 order. On the basis of Ext.P6 order issued by the Government, the benefit granted vide Ext.P5 was restored to the petitioner as evident from Ext.P7. It is submitted that pursuant to Ext.P7, the petitioner’s salary was refixed in new scale, but the consequential benefits were not granted. So the Principal of JM HSS, Vakathanam forwarded proposal before the 4[th] respondent for arrear noting and the 4[th] respondent upon finalising the same, submitted the proposal before the 3[rd] respondent for taking consequential action. But, the 3[rd] respondent issued Ext.P8 order stating that the grant of First Time Bound Higher Grade by reckoning continuous service rendered by the petitioner before being given regular appointment was irregular and therefore directed the Principal to refix the salary of the petitioner after reducing the benefits of pay revision, increments etc. vide Ext.P8 order which was issued by following Ext.P6 general order issued by the 3[rd] respondent wherein it was directed to take steps to recover the alleged excess receipt of salary and WP(C) NO. 29773 OF 2021 6 allowances from those teachers whose service in leave vacancies were reckoned for grant of grades. Aggrieved by the same, this writ petition is filed. 3. Heard the learned counsel for the petitioner, the learned Government Pleader and the learned counsel appearing for the 5[th] respondent. 4. When this writ petition came up for consideration on 21.12.2016, this Court stayed Ext.P8 order and that order is in force. Today, when the matter came up for consideration, both sides submitted that as per GO(P) No.16/2022/G.Edn dated 23.12.2022, the Government already passed the general order allowing to reckon the broken service in the Higher Secondary section also. Moreover, in this case there is already a Government order as evident by Ext.P6. In such circumstances, I failed to understand why Ext.P8 order is passed by the 3[rd] respondent who is a subordinate authority of the Government. Anyway in the light of the subsequent general order in GO (P) No. 16/2022/G.Edn. Dated 23.12.2022, the impugned order in this case is to be set aside and there can be a direction to take consequential steps. WP(C) NO. 29773 OF 2021 7 Therefore, this writ petition is allowed in the following manner : - 1) Exts. P8 and P9 are set aside. The respondents 1 to 4 are directed to grant the benefit based on Exts.P5 & P6 including monetary benefit as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. - 2) The respondent Nos. 1 to 4 are directed to take necessary steps to grant Selection Grade to the petitioner w.e.f. 18.08.2021 on completion of 15 years of service and all consequential monetary benefits as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. **SD/P.V.KUNHIKRISHNAN JUDGE** SKS WP(C) NO. 29773 OF 2021 8 ## **APPENDIX OF WP(C) 29773/2021** |PETITIONER EXHIBITS|| |---|---| |Exhibit P6|PHOTOCOPY OF ORDER NO.86/T1/2019/G.EDN| ||DATED 14.06.2019 ISSUED BY THE 1ST| ||RESPONDENT| |Exhibit P8|PHOTOCOPY OF ORDER| ||NO.A4/5214/2021/RDD/HSE/KTM DATED| ||08.12.2021 ISSUED BY THE 3RD RESPONDENT.| |Exhibit P9|PHOTOCOPY OF ORDER| ||NO.B5.2279/2021/RDD/HSE/KOTTAYAM DATED| ||12.10.2021 ISSUED BY THE 3RD RESPONDENT.| |Exhibit P1|PHOTO COPY OF ORDER NO. A5/4976/07 DATED| ||14-05-2008 ISSUED BY THE 4TH RESPONDENT| |Exhibit P2|PHOTOCOPY OF ORDER NO. A5/7824/RDDE/08| ||DATED 21-07-2010 ISSUED BY THE 4TH| ||RESPONDENT.| |Exhibit P3|PHOTO COPY OF ORDER NO. B1/8999/11/HSE| ||DATED 03-10-2011 ISSUED BY THE 4TH| ||RESPONDENT| |Exhibit P4|PHOTO COPY OF ORDER NO. B2/11567/RDD| ||/HSE/16 DATED 01-02-2017 ISSUED BY THE 4TH| ||RESPONDENT| |Exhibit P5|PHOTOCOPY OF THE STATEMENT OF FIXATION OF| ||PAY EVIDENCING THE GRANT OF FIRST TIME| ||BOUND HIGHER GRADE DATED 02-07-2016| |Exhibit P6|PHOTOCOPY OF ORDER NO. 86/T1/2019/G.EDN| ||DATED 14-06-2019 ISSUED BY THE 1ST| ||RESPONDENT.| |Exhibit P7|PHOTOCOPY OF THE RELEVANT EXTRACT OF| ||PETITIONER'S SERVICE BOOK EVIDENCING THE| ||RESTORATION OF FIRST TIME BOUND HIGHER| ||GRADE ON THE BASIS OF EXT.P6 ORDER DATED| WP(C) NO. 29773 OF 2021 9 NIL. |Exhibit P8|PHOTOCOPY OF ORDER NO.| |---|---| ||A4/5214/2021/RDD/HSE/KTM DATED 08-12-2021| ||ISSUED BY THE 3RD RESPONDENT| |Exhibit P9|PHOTOCOPY OF ORDER NO.| ||B5/2279/2021/RDD/HSE/KOTTAYAM DATED 12-10-| ||2021 ISSUED BY THE 3RD RESPONDENT| |Exhibit P10|PHOTOCOPY OF CIRCULAR NO. J2/95/G.EDN| ||DATED 05-10-1995 ISSUED BY THE 1ST| ||RESPONDENT| |Exhibit P11|PHOTOCOPY OF LETTER NO.| ||ACD.B4/83120/17/T.DHSE DATED DATED 05-10-| ||1995 ISSUED BY THE 2ND RESPONDENT| |Exhibit P12|PHOTOCOPY OF LETTER NO. ACD| ||B1/84088/2017/HSE DATED 22-08-2017 ISSUED| ||BY THE 2ND RESPONDENT| |Exhibit P13|PHOTOCOPY OF G.O(MS) NO 62/73/5 EDN DATED| ||02-5-1973| |Exhibit P14|PHOTOCOPY OF G.O(RT) NO 2615/2020/G.EDN| ||DATED 17-09-2020| |Exhibit P15|PHOTOCOPY OF THE JUDGMENT IN W.P(C) NO| ||892/2017 DATED 18-09-2018|