IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 WA.No. 1023 of 2007() AGAINST THE JUDGMENT IN WPC.19420/2003 Dated 28/02/2007 APPELLANT: PETITIONER ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ACCOUNTANT GENERAL (A & E), KERALA & LAKSHADWEEP, ACCOUNTANT GENERAL'S OFFICE, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR. 4. THE DISTRICT EDUCATIONAL OFFICER, IRINJALAKKUDA. BY SPECIAL GOVERNMENT PLEADER SRI. N.MANOJ KUMAR RESPONDENT: PETITIONER M.O MARY, PHYSICAL EDUCATION TEACHER, S.K.H.S. MATTATHUR. BY ADV. SRI.M.V.S.NAMPOOTHIRY THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23/07/2009 ALONG WITH W.A NO.592 OF 2007, W.A.NO.1070 OF 2009, W.A.NO.1023 OF 2007, W.A.NO.1428 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R. K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NOS. 592, 1023 & 1428 OF 2007 & 1070 OF 2009 --------------------------------------------- Dated this the 23rd day of July, 2009 JUDGMENT Balakrishnan Nair, J. W.A. No. 1023 of 2007. The respondents in the Writ Petition are the appellants. The writ petitioner was a Physical Education Teacher. The point that arose for decision in the Writ Petition was whether the respondent-writ petitioner is entitled to opt in terms of G.O.(P) 952/95/(63)/Fin dated 5.12.1995. The learned Single Judge held that the petitioner was entitled to opt in terms of the said Government Order. Feeling aggrieved by the decision of the learned Single Judge, this Writ Appeal is filed. 2. According to the appellants, teachers were given a chance to opt, as per G.O.(P) 380/94/(13)/Fin dated 9.6.1994. The Government W.A. No.592/2007 & Connected Cases 2 employees, other than teachers, wanted a chance for option for coming over to the higher scale of pay on grade promotion, which fell due on or after 1.3.1992. Considering the representations of the Government Employees' Organisations, the Government issued G.O.(P) 952/95/(63)/ Fin dated 5.12.1995, as per which the benefit of the Government Order dated 9.6.1994 was extended to the Government employees, other than teachers. The writ petitioner did not exercise the option as provided under the G.O. dated 9.6.1994. So, when the G.O. dated 9.12.1995 was issued, she moved for option and the same was accepted as per Ext.P9. Later, as per Ext.P10, audit objection was raised against Ext.P9. Based on the said objection, by Ext.P11 the acceptance of re-option as per Ext.P9 was cancelled. Challenging Exts.P10 and P11, the Writ Petition was filed. Though the appellants resisted the prayers by filing a counter affidavit, the learned Single Judge allowed the Writ Petition. 3. We heard the contentions raised by both sides and also went through the pleadings and materials on record. The relevant portion of G.O.(P)380/94/(13)/Fin dated 9.6.1994 reads thus: (ii) Teachers: W.A. No.592/2007 & Connected Cases 3 (a)The higher grades of teachers are time bound and they are more or less regular promotion posts as no other promotion posts other than Headmaster post exist in their case. Considering this, Government Order that, in modification of the provisions in para 9 of the G.O. read as 3rd paper above, teachers- both P.D and Graduate Teachers (HSA) will be permitted to opt the time bound grade fell due/granted first on or after 1-3-1992 cancelling the option already exercised in respect of the post held immediately prior to 1-3-1992. Excess salary drawn consequent on fixation of pay in the revised scale of the lower time bound grade post, on the basis of the option already exercised, should be re- funded in lump before accepting such re-options. In all these cases of re-options the guidelines issued in Circular No.46/90/Fin. dated 22.6.1990 should be followed. (b) Teachers both primary and secondary, are entitled to time bound higher grades for 10, 20 and 25 years of qualifying service. There are teachers who got promotion as Headmasters prior to 1-3-1992 without enjoying Selection Grade and, as a result, they may draw less pay than their juniors. Based on the decision taken on earlier Pay Revision-Vide G.O.(P)180/91/(100)/Fin. dated 7-3-1991 Government Order as follows:- (c) Teachers (P.D) who were promoted as Headmasters prior to 1-3-1992 and who have been eligible for the Selection Grade of P.D. Teacher but for their promotion as Headmasters will be permitted to have their pay fixed notionally in the Selection Grade first on 1-3- 1992 or on the date on which they become eligible for the Selection Grade after 1-3-1992 on the basis of the pay in the revised scale which W.A. No.592/2007 & Connected Cases 4 they would have drawn had they continued as Senior Grade Primary Teachers and, then, based on the pay so fixed in the Selection Grade, their pay in the revised scale of pay of Headmaster will be fixed under Rule 28A, Part I, K.S.Rs). (d) Graduate Teachers who, got promotion as Headmasters before 1-3-1992 and who would have been eligible for the Selection Grade but for their promotion as Headmasters will also be permitted to have their pay notionally fixed in the selection grade first on 1-3-1992 or on the date on which they become eligible for the selection grade after 1.3.1992 on the basis of the pay in the revised scale which they would have drawn had they continued as Senior Grade High School Assistants and then based on the pay so fixed in the Selection Grade, their pay in the revised scale of Headmaster will be fixed under Rule 28A, Part I, K.S.Rs.) (e) In the case of Headmasters both Primary and High Schools who do not qualify themselves for the selection grade on 1-3-1992, fixation of pay as above will be admissible only on the date on which they become eligible for the Selection Grade or on the date of option for the Selection Grade. (f) Teachers desirous of exercising re- option to derive the benefits under clause(c), (d) and (e) of para 2 (ii) above will be permitted to do so within three months from the date of this Order. This will apply also to those who retired from service before this Order. (emphasis supplied) The relevant portion of G.O.(P) 952/95/(63)/Fin dated 5.12.1995 reads W.A. No.592/2007 & Connected Cases 5 thus: As per orders read as 1st and 2nd paper above, the scales of pay of State Government employees and teachers have been revised with effect from 1-3-1992. In para 9 of Government Order read as third paper above it was clarified that since time bound higher grade granted/fell due on or after 1-3-1992 have to be reviewed on the basis of orders in para 4(xi) of Government Order read as second paper above, no option for time bound grade granted or due on or after 1-3- 1992 is admissible. In the G.O read as 4th paper above, P.D Teachers and Graduate Teachers have been permitted to opt the time bound grade fell due/granted on or after 1-3-1992 after cancelling the option already exercised. A number of State Government Employees and Service Organisations have requested to extend the above benefit to other categories also. 2. After having examined the matter in detail Government are pleased to issue the following in partial modification of the orders issued in para 9 of the Government Order read as third paper above and in para 2(i) of Government Order read as 4th paper above, that all State Government employees will be permitted to opt the time bound higher grade fell due/granted first on or after 1-3-1992, cancelling the option already exercised in respect of the post held by them prior to 1-3-1992. The option in such cases should be exercised on the date of the time bound higher grade itself. Excess salary drawn consequent on fixation of pay in the revised scale of the lower post on the basis of the option already exercised should be refunded in lump before accepting such re-option. Arrears, consequent on such option will be allowed from the date of effect of such option. W.A. No.592/2007 & Connected Cases 6 3. The employees desirous of exercising re- option, based on this order will be permitted to do so within six months from the date of this order. These orders will also apply to those who retired from service between 1-3-1992 and the date of this order. 4. These orders will have effect from 1-3- 1992.” (emphasis supplied) 4. The learned counsel for the respondent-writ petitioner pointed out that the teachers under the Government are also covered by the expression 'Government employees' and, therefore, the benefit under the G.O. dated 5.12.1995 is applicable to them also. Learned counsel appearing in the connected Writ Appeals pointed out that the teachers in the Government schools and aided schools are treated alike for the purpose of pay revision, grade promotion and exercise of option and, therefore, they are also benefitted by G.O.(P) 952/95/(63)/Fin dated 5.12.1995. In answer, the learned Government Pleader would submit that in all the pay revision Government orders, the Government employees and teachers (including teachers in the aided schools) are treated separately for the purpose of grant of grade promotion and, therefore, the same applies in the matter of exercise of option also. W.A. No.592/2007 & Connected Cases 7 5. On going through the pay revision orders, we notice that Government employees and teachers are treated as separate groups in them. When the expression 'Government employees' is used in such orders, that does not include teachers working in Government schools. Therefore, we agree with the contention of the appellants that G.O.(P) 380/94/(13)/Fin dated 9.6.1994 was meant for teachers in Government and aided schools and G.O.(P) 952/95/(63)/Fin dated 5.12.1995 was applicable only to Government employees other than teachers. Going by the relevant orders, that is the only possible interpretation that can be attributed to them. 6. Therefore, the judgment of the learned Single Judge permitting the respondent-writ petitioner to re-opt as per G.O.(P) 952/95/(63)/Fin dated 5.12.1995 is unsustainable. Accordingly, the judgment under appeal is reversed and the Writ Petition is dismissed. The Writ Appeal is allowed as above. W.A. Nos.592 & 1428 of 2007 & 1070 of 2009: It is ordered that the judgment in W.A. No.1023 of 2007 will W.A. No.592/2007 & Connected Cases 8 govern W.A. Nos.1428 of 2007 and 1070 of 2009. These appeals are also allowed. In view of the judgment in W.A. No. 1023 of 2007, W.A. No.592 of 2007 is dismissed. It is clarified that this judgment will not stand in the way of the right of the incumbents, if any, to opt in terms of any subsequent Government Order. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. No.592/2007 & Connected Cases 9 C.R. K.BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.A. NOS.592, 1023 & 1428/2007 & 1070/2009 JUDGMENT 23rd July, 2009 W.A. No.592/2007 & Connected Cases 10