C.H. Viswanathan vs State Of Kerala And Ors

The petitioner, who is stated to be a High School Assistant in the Velome High School, Kozhikode, has approached this Court with a singular

grievance that the pay has been fixed on a lower scale than of his junior, Smt.Jyothi.S.V., and that this anomaly has not been rectified, though he had

made several representations for such authorities.

The petitioner says that he has now been constrained to approach this Court impugning Ext.P7 order, which has rejected his request solely for the

reason that he had not approached the competent authorities for rectification of the anomaly within a period of five years, as has been mandated by

the Government in its Circular No.46/2008/Fin. Dated 08.08.2008; and asserts that these reasons are incompetent, particularly on the touch stone of

Ext.P4 Government Order dated 23.06.2009.

The petitioner, therefore, prays that Ext.P7 be set aside and the 3rd respondent-District Educational Officer (DEO) be directed to reconsider his

claim, dehors the circular dated 08.08.2008, especially since same came into effect only in the year 2009, and he had made his request for rectification

within a period of five years therefrom.

In response, the learned Senior Government Pleader Sri.P.M.Manoj, submitted that the petitioner's claims on its merits have not been yet

considered by the DEO, but it has rejected the same on the ground that it is belated. The learned Government Pleader submitted that he has no

instructions as to whether the petitioner is entitled to any such rectification of the anomaly; but asserted that he is not eligible to even such a

consideration at this time, because of the reason stated in Ext.P7. He, therefore, prayed that this writ petition be dismissed.

I have considered the afore submissions and have also gone through all the relevant materials, including the applicable circulars and orders of the

Government.

It is the specific case of the petitioner that he and Smt.Jyothi.S.V. had joined in the school on 05.06.1995 and that the latter has been placed below

him in the seniority list. He says that, however, after the 1997 Pay Revision Order, Smt.Jyothi.S.V. was placed in a higher scale of pay, possibly

because she was granted an increment on 01.11.1997, while his increment was sanctioned only with effect from 01.07.1997. He says that he,

therefore, preferred a request for rectification of this anomaly through Ext.P2, but that it was rejected through Ext.P3 saying that he and

Smt.Jyothi.S.V. “belong to different categories and hence, that a junior-senior pay fixation cannot be sanctioned' (sic).

The petitioner then says that he was granted a higher grade scale with effect from 09.11.2004 and senior grade scale with effect from 09.11.2010,

but that the afore mentioned senior-junior anomaly had not been rectified, with Smt.Jyothi.S.V drawing a higher salary than him even now. He says

that he consequently approached the DEO with a request for rectification of the anomaly on the strength of Ext.P4 Government Order, which clearly

stipulates that seniority list of the teachers- maintained for promotion by the Headmaster/Headmistress of the school under the provisions of Rule 34

of Chapter XIVA of the Kerala Education Rules will be the sole criteria for rectifying any anomaly among juniors and seniors as regards their pay

fixation, with effect from the Pay Revision Order, 1998.

The petitioner says that it is based on Ext.P4 that he approached the DEO again, but that it has been rejected through Ext.P7, merely saying that, on

account of circular dated 08.08.2008, his application is belated.

The real issue in this case, as of now, is not whether the petitioner is entitled to the benefit of rectification as prayed for by him, since this has not

been yet considered by any of the authorities, but whether his application for the same is belated. This is because, the sole reason why Ext.P7 has

been issued is that the petitioner had not approached the authorities within a period of five years, as is required in the Government Circular dated

08.08.2008. However, what is pertinent in this case is that said circular came into force only in the year 2009 and the petitioner had made his request

for rectification within five years therefrom.

In any event, the petitioner had been consistently approaching the competent authority for rectification of the anomaly, which is evident from

Ext.P5 order; and therefore, his application could not have been rejected saying that he had not applied within five years as mandated by the afore

circular

I am, therefore, of the firm view that the petitioner is entitled to have his request considered by the DEO on its merits in terms of law, rather than

being rejected solely on the ground of delay. Resultanly, I order this writ petition and set aside Ext.P7; with a consequential direction to the 3rd

respondent-DEO to reconsider the claim of the petitioner, after affording him, as well as the Manager of school and Smt.Jyothi.S.V., an opportunity of

being heard-either physically or through video conferencing-thus culminating in an appropriate order thereon, as expeditiously as is possible, but not

later than three months from the date of receipt of a copy of this judgment.

I make it clear that the directions in the judgment have been issued taking into account the singular fact involved and that they are, therefore, not

intended to operate as precedent in any other case.

I further clarify that in the event the petitioner is found entitled to any benefit through the afore exercise, same shall be disbursed to him without any

delay, but not later than three months from the date on which the orders in terms of the afore directions are issued.