Lathika E. @ Usha Alfred v. The Principal Secretary to Finance (Education-A) Department, Government of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 05TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942** ## **WP(C).No.12810 OF 2018(A)** ## **PETITIONER:** **LATHIKA E @ USHA ALFRED AGED 67 YEARS** **HEADMISTRESS (RETIRED),ST.MARY'S HIGH SCHOOL, VATTAL,W/O.ALFRED CLEETUS, PAREKKATTIL HOUSE, KALAVOOR P.O, ALAPPUZHA -688 522.** **BY ADVS. SRI.A.K.ALEX SRI.K.P.SURESH KUMAR SRI.P.R.VIJAYAKUMAR** ## **RESPONDENTS:** **1 THE PRINCIPAL SECRETARY TO FINANCE FINANCE (EDUCATION-A) DEPARTMENT,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM -695 001.** - **2 THE SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM -695 001.** - **3 THE ADDITIONAL CHIEF SECRETARY (FINANCE) FINANCE (P.W.C.-A) DEPARTMENT,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM -695 001.** - **4 THE DIRECTOR OF PUBLIC INSTRUCTIONS GENERAL EDUCATION DEPARTMENT, JAGATHY,THYCAUD, THIRUVANANTHAPURAM -695014.** - **5 DEPUTY DIRECTOR OF EDUCATION GENERAL EDUCATION DEPARTMENT,ALAPPUZHA -688001.** - **6 DISTRICT EDUCATIONAL OFFICER GENERAL EDUCATION DEPARTMENT, ALAPPUZHA -688 001.** - **7 THE ACCOUNTANT GENERAL AE KERALA THIRUVANANTHAPURAM -695 001. R1, R3 BY GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-11-2020, THE COURT ON 05-01-2021 DELIVERED THE FOLLOWING:** WP(C).No. 12810 OF 2018 2 ## **ANU SIVARAMAN, J.** **- - - - - - - - - - - - - - - - - - - - -** W.P.(C) No.12810 of 2018 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 5[th] day of January, 2021 ## JUDGMENT This writ petition is filed seeking the following ## prayers:- (i) To issue a writ of certiorari, call for the records relating to Exhibits P7, P8 and P11 and quash it; (ii)To declare that petitioner is entitled to exercise the option stated in Exhibit P2 for notional grade fixation and pay fixation for the subsequent pay revisions; (iii) To issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents 1 to 3 to permit petitioners to submit options stated in Exhibit P2 extending the time limit of 3 months specified there; (iv)To issue a writ of mandamus or any other appropriate writ, order or direction, directing respondents 1 to 3 to grant selection grade and pay fixation for the subsequent pay revisions. ## 2. Heard the learned counsel for the petitioner and the learned Government Pleader. WP(C).No. 12810 OF 2018 **==> picture [8 x 9] intentionally omitted <==** 3. It is submitted that the petitioner had retired from service as Headmistress of an aided school on 31.03.2005. By Ext.P2 Government Order dated 16.07.2014, an opportunity for submitting an option for fixation of pay with regard to the 1997, 2004 and 2009 pay revisions had been granted. It is submitted that the petitioner was under treatment from May 2014 to December, 2014 and was not aware of the issuance of Ext.P2 order. It is stated that on getting information of Ext.P2, she had submitted Ext.P3 representation dated 10.03.2016 seeking permission to submit a re-option for notional selection grade by extending the benefit of Ext.P2. It is stated by the learned counsel for the petitioner that the service book of the petitioner was with the 6[th] respondent and the 6[th] respondent did not inform the petitioner about Ext.P2. Though repeated representations were filed and the matter was also taken up before the Kerala State Human Rights Commission, the benefits of Ext.P2 were not granted to the WP(C).No. 12810 OF 2018 4 petitioner. The petitioner has, therefore, approached this Court seeking an opportunity to submit a re-option in terms of Ext.P2. It is submitted that if the chance for submitting a re-option is denied to the petitioner, she will be put to prejudice and the benefits, which are legally due to her, will be denied to her. The learned counsel for the petitioner submits that the petitioner is 67 years old and that the Human Rights Commission had directed the consideration of her re-option. It is further contended that the refusal to grant the benefits is illegal and unsustainable. 4. A counter affidavit has been placed on record by respondents 1 & 3. It is submitted that the petitioner had retired from service on 31.05.2005 and the permission for option for notional selection grade by extending the benefit of Ext.P2 Government Order had been considered by the respondents and had been rejected. It is submitted that the petitioner had not submitted any option in terms of Ext.P2 Government Order within the time specified in Ext.P2 and WP(C).No. 12810 OF 2018 5 that the further request to extend time is, therefore, completely unsustainable. It is stated that the request of the petitioner was reconsidered on the basis of the direction of the Kerala State Human Rights Commission and a speaking order was passed by the Government. It is further submitted by the learned Government Pleader that since Ext.P2 is a Government Order, which applies to all the head teachers who were entitled to senior grade or selection grade, there can be no grant of extension of time for submitting the option to the petitioner alone. It is further submitted that such an action, if directed by this Court, would lead to anomalous situation where the petitioner alone is granted a benefit of extension of time to submit an option, which is denied to all identically situated teachers. 5. The learned counsel for the petitioner relies on decisions of the Apex Court reported in Basanti Prasad vs. Chairman, Bihar School Examination Board and WP(C).No. 12810 OF 2018 6 others (2009 (6) SCC 791) and G.M. Tank vs. State of Gujarat and another (2006 (5) SCC 446). It is submitted by the learned counsel for the petitioner that the Government Order was not properly published and that the petitioner was unaware of the same. 6. The learned Government Pleader refers to paragraph 6 of the Counter affidavit wherein it is specifically stated that the Government Order was widely circulated in the General Education Department and it had been officially published in the official website of Finance Department. It is stated that the contention that the petitioner was unaware of Ext.P2 is, therefore, completely untenable. 7. I have considered the contentions advanced. It is evident from a reading of Ext.P2 that only three months time had been granted for submitting a fresh option. It was specifically provided therein that no extension would be granted under any circumstances. The petitioner WP(C).No. 12810 OF 2018 7 admittedly did not submit any such option within the time prescribed. Ext.P2 is in the nature of a general order granting an option facility. The petitioner, who did not submit an option in terms of the same cannot be heard to contend that she should be given a further opportunity de hors the time limit provided in Ext.P2. Ext.P2 is the only enabling order that permits such a fresh option to be filed by teachers like the petitioner. If that be so, the option ought to have been exercised specifically within the time provided. The petitioner, who did not submit any such option cannot plead ill-health or lack of knowledge as an excuse for the same. 8. In the above factual situation and in view of the fact that Ext.P2 Government Order is a general order, which applies to all similarly situated teachers, I am of the opinion that the petitioner cannot be given a chance to reopt, which is not available to identically situated teachers. In the above view of the matter, the prayers sought for WP(C).No. 12810 OF 2018 8 in the writ petition are not liable to be allowed. The writ petition fails and the same is accordingly dismissed. Sd/- ANU SIVARAMAN JUDGE Bng/26.11.2020 WP(C).No. 12810 OF 2018 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF INTIMATION DATED 18.12.2013 SENT BY 6TH RESPONDENT TO THE HEADMISTRESS (PETITIONER HEREIN), ST.MARYS H.S. VATTAL** **EXHIBIT P2 TRUE COPY OF G.O(P)NO.290/2014/(197)/FIN. DATED 16.7.2014 ISSUED BY 3RD RESPONDENT** - **EXHIBIT P3 TRUE COPY OF REPRESENTATION DATED 10.3.2016 SENT BY PETITIONER TO THE SECRETARY TO THE GOVERNMENT OF KERALA, FINANCE DEPARTMENT SECRETARIAT BUILDING, THIRUVANANTHAPURAM.** - **EXHIBIT P4 TRUE COPY OF REMINDER DATED 29.6.2016 SENT BY PETITIONER TO ADDITIONAL SECRETARY, FINANCE.** - **EXHIBIT P5 TRUE COPY OF LETTER DATED 7.7.2016 SENT BY PETITIONER TO THE HON'BLE MINISTER OF FINANCE, GOVERNMENT OF KERALA, SECRETARIAT BUILDING, THIRUVANANTHAPURAM.** - **EXHIBIT P6 TRUE COPY OF LETTER DATED 1.12.2016 SENT BY PETITIONER TO THE HON'BLE MINISTER OF FINANCE, GOVERNMENT OF KERALA, SECRETARIAT BUILDING, THIRUVANANTHAPURAM.** - **EXHIBIT P7 TRUE COPY OF LETTER DATED 12.1.2017 SENT BY ADDITIONAL CHIEF SECRETARY, FINANCE TO PETITIONER.** - **EXHIBIT P8 TRUE COPY OF LETTER DATED 27.7.2017 SENT BY JOINT SECRETARY (FOR SPECIAL SECRETARY TO GOVERNMENT) TO PETITIONER.** - **EXHIBIT P9 TRUE COPY OF APPLICATION DATED 16.2.2017 SENT BY PETITIONER TO THE HON'BLE CHAIRMAN, KERALA STATE HUMAN RIGHTS COMMISSION, VAZHUTHACAUD, THIRUVANANTHAPURAM.** **EXHIBIT P10 TRUE COPY OF ORDER DATED 18.9.2017 ISSUED BY THE HON'BLE ACTING CHAIRPERSON, KERALA** WP(C).No. 12810 OF 2018 10 ## **STATE HUMAN RIGHTS COMMISSION** **EXHIBIT P11 TRUE COPY OF LETTER DATED 3.3.2018 SENT BY THE 1ST RESPONDENT TO PETITIONER. EXHIBIT P12 TRUE COPY OF LETTER DATED 24.5.2017 SENT BY THE 4TH RESPONDENT TO THE REGISTRAR, KERALA STATE HUMAN RIGHTS COMMISSION.** **EXHIBIT P13 TRUE COPY OF MEDICAL CERTIFICATE ISSUED BY THE DOCTOR DATED 10.9.2017 FOR GIVING TREATMENT TO THE PETITIONER** **EXHIBIT P14 TRUE COPY OF LETTER NO. P9/3/PENA/788/TT/04-05/903 DATED 9.11.2017 ISSUED BY THE ACCOUNTS OFFICER, OFFICE OF THE ACCOUNTANT GENERAL (A&E) KERALA, THIRVUANANTHAPURAM TO THE TREASURY OFFICER PENSION PAYMENT, TREASURY, ALAPPUZHA.**