IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932 WP(C).No. 32122 of 2003(Y) -------------------------------------- PETITIONER: ------------------- K.T. JOSE, AGED 55 YEARS, KANNAMPUZHA HOUSE, P.O. ENGINEERING COLLEGE, METRO STREET – 680 009, THRISSUR, (HEADMASTER (RETD.), ST. FRANCIS L.P. SCHOOL, ATTATHARA). BY ADVS. SRI.V.A.MUHAMMED, SRI. K.E. HAMSA, SRI. E.S. ASHRAF, SRI. T.V. VIJAYARAJAN. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE ACCOUNTANT GENERAL (A & E) KERALA, TRIVANDRUM. 3. THE ASSISTANT EDUCATIONAL OFFICER, THRISSUR EAST. 4. THE ASSISTANT EDUCATIONAL OFFICER, WADAKKANCHERRY. 5. THE HEADMISTRESS, ST. FRANCIS L.P. SCHOOL, ATTATHARA, THRISSUR DISTRICT. R1 TO R4 BY GOVERNMENT PLEADER SMT. M.R. SREELATHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.32122/2003-Y: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE G.O.(P).NO.615/97/(138)/FIN. OF THE GOVERNMENT DTD. 28/06/1997. EXT.P.2: COPY OF THE G.O.(P).NO.38/98/(152)/FIN. OF -DO- DTD. 05/01/1998. EXT.P.3: COPY OF THE G.O.(P).NO.399/(178)/99/FIN. DTD. 05/02/1999. EXT.P.4: COPY OF THE G.O.(P).NO.1503/(180/99/FIN. OF THE GOVERNMENT DTD. 22/06/1999. EXT.P.5: COPY OF THE FORM OF OPTION DTD. 27/04/1999. EXT.P.6: COPY OF THE STATEMENT OF FIXATION OF PAY DTD. NIL. EXT.P.7: COPY OF THE ORDER NO. B-1149/2000 OF THE R.4 DTD. 27/08/2000. EXT.P.8: COPY OF THE JUDGMENT IN O.P. NO. 6873/2003 DTD. 27/02/2003. EXT.P.9: COPY OF THE ORDER NO. C-4928/2003 OF THE R.4. DTD. 30/08/2003. EXT.P.10: COPY OF THE G.O.(P).NO.206/2003/FIN. OF THE GOVERNMENT DTD. 05/04/2003. EXT.P.11: COPY OF THE CIRCULAR NO. CO-ORD.II/10-91/VOL. IV/140-141 OF THE R.2. DTD. 12/09/1994. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 32122 of 2003-Y - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of February, 2011. JUDGMENT The petitioner retired from service as Headmaster of St. Francis L.P. School, Attathara. Pursuant to the Govt. Order No.399/(178)/99/Fin. dated 5.2.1999 the petitioner had exercised reoption for time bound higher grade . It is submitted that the said exercise was upheld by this Court in various judgments. 2. Presently, the objection raised is that the benefit of reoption is allowable only from the date of acceptance of option. The petitioner is challenging Ext.P9 audit objection. 3. In the light of the judgment of a Division Bench of this Court in State of Kerala v. Lissy Joseph (2005 (4) KLT SN page 70 - case No.97 = 2006 (1) KLJ 566), the matter is covered in favour of the petitioner. The Division Bench held that the benefit of reoption is allowable from the date opted by the officer concerned and not from the date of acceptance of the option. The legal position is laid down thus: “The only dispute to be resolved in these appeals is whether arrears consequent on reoption of higher grades are admissible from the wpc 32122/2003 2 date of effect of re-option or from the date of filing of re-option. It is now clear that what is intended is the date of effect of re-option and not the date of actual exercise of re-option. Excess of amount due after calculating the same from the date of effect of re-option can be entitled to set off against the refunds due from the employee and the amount due, if any, arising after the date of re-option alone need be refunded to the Government.” 4. In the light of the above, the audit objection raised against the petitioner cannot be sustained. The petitioner is also entitled for the benefit of reoption from the date of option and not on the date of acceptance of option. Therefore, the writ petition is allowed. The impugned order Ext.P9 is quashed. No costs. (T.R. Ramachandran Nair, Judge.) kav/