IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 WP(C).No. 40424 of 2003(K) -------------------------- PETITIONER(S): --------------- PADMAJA KAROLIL, HSA (MALAYALAM) K.K.V. MEMORIAL, PANOOR, HIGHER SECONDARY SCHOOL, PANOOR, KANNUR DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE SRI.V.A.MUHAMMED RESPONDENT(S): --------------- 1. THE DEPUTY DIRECTOR OF EDUCATION, KANNUR. * [ 2. THE DISTRICT EDUCATIONAL OFFICER, KANNUR. ] 3. THE HEADMISTRESS, K.K.V. MEMORIAL PANOOR HIGHER SECONDARY SHCOOL, PANOOR, KANNUR DISTRICT. * (THE DESCRIPTION OF THE SECOND RESPONDENT IS CORRECTED AS THE DISTRICT EDUCATIONAL OFFICER, THALASSERY VIDE ORDER DT.26-03-2004 IN IA.NO.4141/2004) GOVERNMENT PLEADER SMT.M.R.SREELATHA FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/07/2010 , THE COURT ON 09/07/2010 DELIVERED THE FOLLOWING: WPC.40424/2003 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE JUDGMENT DT 20-12-2002. P2 COPY OF THE LETTER DT 26-5-03. P3 COPY OF THE LETTER DT 23-7-03. P4 COPY OF THE LETTER DT 26-7-03. P5 COPY OF THE MEMO DT 11-12-03. P6 COPY OF THE STATEMENT OF FIXATION. P6(A) COPY OF THE - DO - P6(B) COPY OF THE FORM OF EXERCISING OPTION. P7 COPY OF THE CHALAN RECEIPT. P8 COPY OF THE REPORT ON THE CHECKING OF FIXATION OF PAY OF EMPLOYEES. P9 COPY OF THE LETTER OF THE DIRECTOR. P10 COPY OF THE ORDER OF R2. P11 COPY OF THE LETTER OF THE GOVERNMENT. P12 COPY OF THE JUDGMENT IN WPC.20848/03. P13 COPY OF THE JUDGMENT IN WPC.30935/06. // True Copy // P.A. To Judge C.T.RAVIKUMAR, J. ``````````````````````````````````````````````````````` W.P.(C) No. 40424 of 2003 K ``````````````````````````````````````````````````````` Dated this the 9th day of July, 2010 J U D G M E N T The petitioner commenced her service as High School Assistant(Malayalam) in K.K.V. Memorial Panoor High School, Panoor, which is an aided school, on 25-10-1977. While continuing so, Government have issued G.O.(P) No.615/97 (138)/Fin. dated 28-06-1997, permitting the State Government employees and teachers to opt time bound higher grade fell due/granted, firstly on or after 01-03-1992, cancelling the option already exercised. According to the petitioner, the said Government Order also permitted the concerned employees to continue in the pre-revised scale till their date of option. However, there was a restriction to exercise the said option in the light of G.O.(P) No.352/96/(86)/ Fin. dated 11-04-1996. Later, the restriction imposed as per the said Government Order dated 11-04-1996 was lifted and Government granted permission to exercise option/re-option to those employees, who could not exercise option/re-option WPC.40424/2003 : 2 : on account of the aforesaid restriction imposed as per G.O. dated 11-04-1996. Consequently, the petitioner had re-opted Senior Grade from 30-12-1997 and came over to the revised scale from that date after cancelling the earlier option exercised by her to come over to the said scale with effect from 01-03-1992. Though the said second respondent had initially objected to the said re-option, it was ultimately accepted and based on such re-option, pay of the petitioner was re-fixed. Pursuant to such re-fixation, she had to refund an amount of Rs.21,478/- in lump being the excess salary drawn by her as is obvious from Ext.P7. Subsequently, an objection was raised against the said re-option exercised by the petitioner. Though the grievance with respect to the same was taken up before the appropriate authorities, the contentions raised by the petitioner were repelled and, ultimately, the matter was taken up before this Court in O.P.No.37416/2002. The said original petition was disposed of as per Ext.P1. According to the petitioner, she was WPC.40424/2003 : 3 : awaiting implementation of the directions in Ext.P1 and then, to her dejection, she has received Exts.P2, P4 and P5, whereby she was informed that her earlier option was unacceptable and consequently, recovery would be effected from her salary. The tenor of Ext.P2 is to the effect that the petitioner is not entitled to the benefits under Ext.P1 judgment. As per Ext.P4, the third respondent was directed to recover the excess salary drawn by the petitioner. As per Ext.P5 memo, the petitioner was directed to refund Rs.12,718/- towards the excess salary drawn by her from 30- 12-1997 to 31-08-2002. It is challenging Exts.P2, P4 and P5 that this writ petition has been filed with the above averments. 2. The petitioner assails Exts.P2, P4 and P5 mainly relying on Ext.P1 judgment. According to the petitioner, the objection with respect to the re-option exercised by the petitioner to come over to the said scale with effect from 30- 12-1997 was once considered by this Court, as is obvious from Ext.P1. The objections then raised by the respondents WPC.40424/2003 : 4 : were held as unsustainable and accordingly, a direction was issued by this Court in Ext.P1 as hereunder:- “ A combined reading of the orders thus issued by the Government goes to show that though the employees have got the right to opt the time bound higher grade from the date chosen by them, if arrears of pay and allowances become payable to the employees on account of such re-option, the said arrears will be paid in cash only from the date of exercise of option. However, the amount which they are entitled to get by way of higher emoluments in between the date of option and the date of exercise of option will not be paid in cash as arrears. But the same can be utilised to set off excess amount which the employee has to refund on account of such re-option and the balance alone need be refunded to the Government. In this view of the matter, I direct the respondents to consider the entitlement of liability of the petitioners as the case may be, for arrears of emoluments as also refund of any excess due WPC.40424/2003 : 5 : from them. Petitioners concerned shall be afforded an opportunity of being heard before any decision is taken to order refund of the excess amount or recovery of any amount from them. Subject to the above, the impugned orders are quashed.” 3. Obviously, the contention of the petitioner is that by virtue of Ext.P1, the respondents could not have raised any further objection in the matter. In fact, according to the petitioner, by virtue of Ext.P1, the respondents could have and should have considered only the entitlement of the petitioner for arrears of emoluments and liability for refund of any amount drawn in excess. According to the petitioner, she is entitled to get the benefits flowing from Ext.P1 judgment and that the said right flowing from Ext.P1 judgment cannot be restricted or denied by raising a subsequent objection. 4. A counter affidavit has been filed by the first respondent in this writ petition. Essentially, the contention raised thereunder is that the petitioner cannot seek for WPC.40424/2003 : 6 : postponement of the option for Senior Grade beyond the due date. In this case, according to the respondents, the due date for promotion was 29-12-1997 and the petitioner opted the date as 30-12-1997. The date of filing of the said option was 22-09-1997. According to the learned Government Pleader, Exts.P2, P4 and P5 are sustainable in the light of G.O.(P) No.81/94/(5)/Fin. dated 02-02-1994. The learned Government Pleader brought to my attention the relevant portion in the said Government Order which reads thus:- “ Employees who were promoted on or after 01-03-1992 cannot be allowed to exercise option of the feeder post beyond the date of such promotion - vide Rule 4(a) of the Rules for Fixation issued in Government Order dated 25-09-1993.” 5. According to me, this Court need not look into the sustainability of the objection raised in this writ petition for the simple reason that in this case there is already an inter-party judgment, viz., Ext.P1 and that the same has become final. WPC.40424/2003 : 7 : Admittedly, the present objections were not raised at the earlier point of time and those objections, which were raised with respect to the re-option exercised by the petitioner to come over to the Senior Grade with effect from 30-12-1997, were all challenged by her in O.P. No.37416/2002. After considering those objections raised in the matter, the said objections were found unsustainable. The learned counsel appearing for the petitioner submits that the respondents, after suffering Ext.P1 judgment and allowed it to attain finality, cannot be permitted to raise any further objection at this belated stage, to her detriment. According to the learned counsel, in case present objection is upheld, it would not only deprive the petitioner from enjoying the benefits flowing from Ext.P1 judgment, but, at the same time, deprive her an opportunity to re-opt. If such an objection was raised at the relevant point of time, the petitioner could have exercised option/re-option taking into account the objection. In short, in the light of Ext.P1, the legality or otherwise of the present WPC.40424/2003 : 8 : objection raised by the respondents shall not be permitted to stand in the way of the petitioner enjoying the benefits of Ext.P1 judgment. Evidently, the option exercised by the petitioner on 22-09-1997 was accepted and her pay was fixed accordingly. At that point of time, the petitioner had refunded a sum of Rs.21,478/-. Subsequent objections and steps to effect recovery were interfered with by this Court as per Ext.P1. Ext.P1 judgment was not taken in appeal and the respondents have allowed it to become final. Admittedly, the present objections are not founded on any statutory provision. The respondents cannot contend that they are immune from the application of the principle of constructive resjudicata, in the said circumstances. Allowing the respondents to raise objection in piecemeal would definitely result in miscarriage of justice in the light of Ext.P1 judgment. For all these reasons, I am of the view that this Court need not decide upon the legality or otherwise of the present objections raised by the respondents. I am constrained to take such a view taking into WPC.40424/2003 : 9 : account the situation that sustenance of such contentions, if found sustainable, would not only deprive the petitioner from the benefits of Ext.P1 judgment but also an opportunity to make a further re-option. In the light of Ext.P1 judgment and the conclusions arrived at above, I am of the opinion that Exts.P2, P4 and P5 cannot be sustained and accordingly they are set aside. Accordingly, this writ petition is disposed of, in the light of Ext.P1 judgment, holding that the petitioner is entitled to get all the benefits flowing from Ext.P1 judgment and accordingly the respondents are directed to work out the benefits due to the petitioner in the light of Ext.P1 and the same shall be granted to the petitioner, expeditiously, at any rate, within a period of two months from the date of receipt of a copy of this judgment. Sd/- (C.T.RAVIKUMAR, JUDGE) aks