IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 WP(C).No. 13119 of 2005(J) --------------------------------------- PETITIONERS: ---------------------- 1. P.ABDUL RASHEED, RETIRED DEPUTY CHIEF REGISTRAR OF BIRTHS & DEATHS, DIRECTORATE OF PANCHAYATS, THIRUVANANTHAPURAM. 2. P.VIMALA, DEPUTY DIRECTOR OF PANCHAYATS, THIRUVANANTHAPURAM. 3. A.GOPALAKRISHNA CHETTIYAR, RETIRED SENIOR SUPERINTENDENT, DIRECTORATE OF PANCHAYATS, THIRUVANANTHAPURAM. 4. U.FATHIMA BEEVI, DEPUTY DIRECTOR OF PANCHAYATS, PATHANAMTHITTA. BY ADV. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY (FINANCE), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PANCHAYATS, THIRUVANANTHAPURAM. 3. THE JOINT DIRECTOR OF PANCHAYATS, THIRUVANANTHAPURAM. 4. THE ACCOUNTANT GENERAL (A & E), KERALA, THIRUVANANTHAPURAM. R1 TO R4 BY SPL. GOVERNMENT PLEADER (FINANCE) SRI. MANOJ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.13119/2005 T APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE RELEVANT PAGES OF FINAL SENIORITY LIST DTD. 1/01/1990 OF SPECIAL GRADE EXECUTIVE OFFICERS (PAGES 1, 11 & 13,14,15,16). EXT.P2: COPY OF THE ORDER NO.E 11.19069/2001 DTD. 12/07/2001. EXT.P3: COPY OF THE ORDER NO.GE 25/A/727 DTD.23/08/2001 ISSUED BY THE 4TH RESPONDENT. EXT.P4: COPY OF THE REPRESENTATION DTD. 16/06/2004 BEFORE THE FIRST RESPONDENT. EXT.P5: COPY OF THE JUDGMENT DTD. 2/12/2004 IN WP(C) NO.34479/2004. EXT.P6: COPY OF THE ORDER NO.123805/PRU.3/04/FIN. DTD. 27/12/04 ISSUED BY THE FIRST RESPONDENT. EXT.P7: COPY OF THE JUDGMENT DTD. 6/02/2004 IN O.P.NO.10395/2000. EXT.P8: COPY OF THE JUDGMENT DTD. 20/02/2004 IN O.P.NO.5892/2000. EXT.P9: COPY OF THE JUDGMENT DTD. 1/12/2003 IN W.A.NO.3171/2000. EXT.P10: COPY OF THE GOVERNMENT ORDER G.O.(RT) NO.4645/2004/FIN. DTD. 7/07/2004. EXT.P11: COPY OF THE GOVERNMENT ORDER G.O.(RT) NO.5271/2004/FIN. DTD. 5/08/2001. EXT.P12: COPY OF THE GOVERNMENT ORDER G.O.(RT) NO.5925/2004/FIN. DTD. 3/09/2004. /TRUE COPY/ P.A.TO JUDGE Kss K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No. 13119 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of January, 2008 JUDGMENT Petitioners were appointed in the year 1971 pursuant to the selection by the Public Service Commission as Lower Division Clerk. Subsequently they were promoted and the first petitioner retired as Deputy Chief Registrar of Births and Deaths, and the second and fourth petitioners retired as Deputy Directors of Panchayats. Third petitioner retired as Senior Superintendent of the Panchayat Department. 2. Petitioners have approached this court challenging Ext.P6. They seek a direction to the first respondent to allow them to exercise re- option from 1978 pay revision orders so as to rectify the anomaly of drawing higher pay by the juniors. They seek a further direction to pay all consequential benefits based on the option exercised by the petitioners. 3. Briefly put their case is as follows: Ext.P1 is the final seniority list of Special Grade Executive Officers as on 1.1.1990. Petitioners are at Serial Nos. 561, 587, 645 and 698. One Smt. V.R. Rema was included as Sl. No.732 and Sri. A.Abdul Majeed was included as Sl. No.739, and therefore they are juniors to the petitioners. After 1992 pay revision, petitioners came to know that the WPC. 13119/2005. 2 above juniors were getting higher scale of pay. They came to know this only when the service book of the juniors were examined in the Directorate of Panchayats. On inquiry, it was revealed that during 1988 pay revision Smt. V.R. Rema had exercised re-option for three posts, namely, for 1978 pay revision, 1983 pay revision and 1988 pay revision in the post of Upper Division Clerk, Executive Officer and Panchayat Inspector with effect from 1.7.1988. According to the petitioners, they had also submitted their re- option based on G.O.(P) No.480/89/Fin. Dated 1.11.1979. It is their case that they were under the bona fide impression that the option exercised by them were accepted and the pay fixed accordingly. After 1998 all these petitioners were working as Special Grade Executive Officers and their option form was to be given to the Taluk Panchayat Officers. During 1992 all the petitioners are given their option to the Taluk Panchayat Offices exercising their re-option for three posts. It is their case that they believed that the re-option was accepted in 1992 and their pay was revised and fixed. In 1997they came to know that the re-option was not acted upon. They say that they are unable to produce copies of the re-option forms submitted by the petitioners as the offices are not in existence. By Ext.P2 the third respondent passed an order of stepping up the pay in the non-Gazetted post. In the gazetted post, it was declined by Ext.P3. It is stated in Ext.P3 that the WPC. 13119/2005. 3 stepping up procedure cannot be adopted in the case of the petitioners, because the same is possible only if the anomaly is due to the introduction of the revised scale of pay. Petitioners submitted Ext.P4 representation dated 16.6.2004. Since no action was taken on Ext.P4, petitioners had approached this court and this court by Ext.P5 judgment directed the first respondent to consider Ext.P4 representation. Ext.P6 is the order passed. In Ext.P6 it is stated as follows: “The present rule position does not allow re-option for past Pay Revisions except in cases involving specific court directions and retrospective promotions. Hence, your request in Ext.P4 representation cannot be considered.” 4. I heard learned counsel for the petitioners Sri.K.P.Satheesan and the Special Government Pleader (Finance) Sri. Manoj. 5. Sri. K.P.Satheesan, learned counsel for the petitioners would submit that in similar circumstances, this court granted reliefs. He relied on Exts.P7, P8 and P9 judgments. 6. Learned Government Pleader on the other hand would point out that Exts.P7, P8 and P9 are distinguishable and it would not come to the aid of the petitioners. It is the case of the Government Pleader that in terms of 1992 pay revision order, G.O.(P) No.600/93/Fin dated 25.9.1994, stepping up is permissible only in a case where the anomaly arises on WPC. 13119/2005. 4 account of the implementation of the pay revision. In this case, it is pointed out that the juniors of the petitioners have exercised re-option and it was on the basis of the re-option that they started drawing a higher pay. It is pointed out that as far as petitioners are concerned, they filed the representation Ext.P4 in the year 2004. He also invited my attention to the contents of Ext.P4 to point out that there is no case therein that the petitioners had exercised re-option in the year 1992 as claimed by them. It is pointed out that the re-option is permissible under the Government Order only in two contingencies, namely, a specific court direction and retrospective promotion and none of those contingencies are present in this case. 7. After perusing Exts.P7, P8 and P9 judgments, I find that, on facts, they may not apply to the case at hand. In this case, the actual grievance arises on account of the higher pay drawn by the juniors of the petitioners. When pay revision order is passed, it may give rise to an anomaly, which may result in the Government accepting the request for stepping up of the pay in appropriate cases. There may be changes in the pay which are brought about as a result of the re-option exercised by the employees. The effect of re-option exercised by an employee is the result of the exercise of choice by the employee keeping in view the vicissitude of WPC. 13119/2005. 5 his career, the calculations he makes of the benefits that may accrue to him from the exercise of a particular date from which the option is exercised. This cannot be treated as a case where anomaly in a pay revision resulted in difference in pay scale. It is not the case of the petitioners also. If that is so, the question is whether the petitioners have exercised their re-option. A perusal of Ext.P4 does not take out the case of the petitioners that they had exercised re-option in the year 1992 and they were under the bona fide impression that it was accepted. I feel that it is difficult to accept the case of the petitioners that they had indeed exercised re-option and orders were passed granting them the benefit. If they had exercised their re-option and it was accepted, they would have been aware, going by the fruits of the exercise of re-option by them. Even though it is true that in Ext.P6 the reason given is that the petitioners have not exercised the re-option specifically, I find that no useful purpose will be served particularly having regard to the contents of Ext.P4 representation. In such circumstances, there is no merit in the writ petition and it is dismissed. (K.M. JOSEPH, JUDGE) sb