IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 20TH JULY 2011 / 29TH ASHADHA 1933 WP(C).No. 3868 of 2011(G) ------------------------- PETITIONER: --------------- P.SUNANDAKUMARI, LPSA, ST.VINCENT'S COLONY, TTI MODEL LPS, CALICUT. BY ADV. SRI.R.K.MURALEEDHARAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GENERAL EDUCATIONAL DEPARTMENT, THIRUVANANTHAPURAM-1. 2. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE-12. 3. THE DISTRICT EDUCATIONAL OFFICER, KOZHIKODE-12. BY GOVERNMENT PLEADER SMT.RANI DIOTHIMA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No.3868/11 PETITIONER'S EXHIBITS: EXT.P1 : COPY OF GO(RT)NO.641/05.G.EDN. DT.14.2.05. EXT.P2 : COPY OF THE RELEVANT PAGES OF THE JUDGMENT IN W.P.(C) NO.30196/07 DT.7.7.08. EXT.P3 : COPY OF THE ORDER GO(RT)NO.4123/08/G.EDN. DT.16.9.08. EXT.P4 : COPY OF THE FORM OF OPTION DT.12.7.06 SUBMITTED BY THE PETITIONER. EXT.P5 (A) : COPY OF THE STATEMENT OF FIXATION DT.14.10.08. EXT.P5 (B) : COPY OF THE FORM OF OPTION DT.14.10.08. EXT.P6 : COPY OF THE COMMUNICATION OF THE 2ND RESPONDENT TO THE 3RD RESPONDENT DT.20.11.10. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE dsn T.R.RAMACHANDRAN NAIR, J. ------------------------------------- W.P.(C)No.3868 Of 2011 -------------------------------------------------- DATED THIS THE 20TH DAY OF JULY, 2011 J U D G M E N T The challenge raised by the petitioner is against Exhibit P6 order passed by the Deputy Director of Education whereby the request of the petitioner to change the re-option date has been rejected. 2. The circumstances leading to the filing of the Writ Petition are the following: The petitioner was appointed as an Assistant Teacher in the St.Vincent Colony TTI Model LP School from 1.6.1992. She was selected for undergoing B.Ed.Course during 2003-04 under departmental quota and leave was sought from 5.6.2003 to 31.3.2004 which was sanctioned as per Exhibit P1. One of the conditions under which the leave was granted was that the period of leave will not count for any service benefits including pension and the fact will be recorded in the service book of the incumbent. This was challenged by the petitioner in W.P.(C)No. 30196/2007, wherein this Court by Exhibit P2 judgment held that W.P.(C)No.3868/11 -2- the condition imposed in Exhibit P1 is illegal and fresh orders was directed to be passed by the Government. Finally, the Government by Exhibit P3 released the petitioner from the rigour of the said condition and it was ordered that leave without allowance availed by the petitioner will count for all service benefits including pension. 3. Exhibit P4 shows that the option submitted earlier to come over to the revised scale is 28.3.2005. After Exhibit P3 order was received, the petitioner submitted Exhibits P5(a) and P5(b) showing the option date as 1.7.2004. 4. Respondents have filed a counter affidavit. It is pointed out that even though Exhibit P3 order allows the period of leave without allowance to be counted for all service benefits, the option submitted once cannot be changed in the light of the provisions under G.O.(P)No.145/2006/Fin. dated 25.3.2006. Paragraph No.4 of the counter affidavit shows that the completion of 12 years of continuous service was reckoned excluding the period of leave without allowance from 5.6.2003 to 31.3.2004. W.P.(C)No.3868/11 -3- 5. The only objection now raised with regard to the rejection of the re-option submitted is that G.O.(P) No.145/06/Fin. Dated 25.3.2006 does not allow change of date of the option. 6. As rightly pointed out by the learned counsel for the petitioner, once the Government has passed the order Exhibit P3 by which the petitioner is relieved from the various conditions in Exhibit P1, the period during which she was attending the B.Ed.Course, i.e., from 5.6.2003 to 31.3.2004, has to be counted for all service benefits including pension. Therefore, the petitioner is entitled to reckon the said period for the purpose of benefit of pay revision also since the service benefits includes pay fixation. If that be so, the said period will enure to the benefits of the petitioner, which fact cannot be disputed. 7. May be that in G.O.(P)No.145/06/Fin. dated there is no separate provision to cover a situation like this. But absence of the same in G.O.(P)No.145/2006 need not prevent the authorities from implementing the benefits granted to the petitioner as per Exhibit P3. Once it is held that the petitioner is entitled for all the service benefits which includes pay fixation, it W.P.(C)No.3868/11 -4- cannot be denied by relying upon G.O.(P)No.145/06/Fin. dated 25.3.2006. The learned Government Pleader also submitted that before submitting the re-option, prior permission of the Government was not obtained. Evidently, this is a case where the petitioner only seeks for implementation of Exhibit P3. For all these reasons the Writ Petition is allowed. Exhibit P6 is quashed. The re-option submitted by the petitioner as per Exhibit P5(a) and P5(b) will be accepted and pay fixation will be revised accordingly. Appropriate orders will be passed within two months from the date of receipt of a copy of this judgment. No costs. Sd/-(T.R.RAMACHANDRAN NAIR, JUDGE) dsn