IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 WP(C).No. 29010 of 2004(C) -------------------------- PETITIONER(S): --------------- S. SATHIDEVI, ASST. TEACHER, AIDED U.P. SCHOOL, POST CHITTILANCHERRY, PALAKKAD DISTRICT. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REP. BY THE SECRETARY TO GOVT.GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVT., FINANCE DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. 4. THE ASST. EDUCATIONAL OFFICER, ALATHUR, PALAKKAD DISTRICT. 5. THE HEADMASTER, AUP SCHOOL, CHITTILANCHERRY, PALAKKAD DISTRICT. GOVERNMENT PLEADER SRI. N.MANOJ KUMAR FOR R2 TO R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.NO.29010 OF 2004 APPENDIX PETITIONER'S EXHIBITS: Ext.P1: True copy of GO(P) 81/94/(5)/Fin dt. 2.2.94. Ext.P2: True copy of GO(P) 380/94/(13)/Fin dated 9.6.94. Ext.P3: True copy of GO(P) 855/95/(60)/Fin dated 21.11.95. Ext.P4: True copy of GO(P) 952/95/(63)/Fin dated 5.12.1995. Ext.P5: True copy of GO(P) 615/97/(138)/Fin dated 28.6.97. Ext P6: True copy of the GO(P) 399/99/(178)/Fin dated 5.2.99. Ext.P7: True copy of the judgment passed in OP 20280/2001 on the file of this hon'ble court. Ext.P8: True copy of the judgment dt.25.9.02 passed in WA 2293/02 on the file of this hon'ble court. Ext.P9: True copy of the proceedings of the DEO, Palakkad. Ext.P10: True copy of the reply to the audit objection dt 1.10.01. Ext.P11: True copy of the communication dated 14.12.01 sent by the respondent number 3 to the respondent No.2. Ext.P12: True copy of the letter dated 3.2.2002 sent by the respondent No.2. Ext.P13: True copy of the representation dated 12.8.02 sent to the respondent No.2 by the petitioner. Ext.P14: True copy of the letter dated 1.9.03 sent by the petitioner. Ext.P15: True copy of the letter dated 26.7.04 issued by the respondent No.1. RESPONDENTS' EXHIBITS: Ext.R4(a): True copy of G.O(P) No.206/2003/Fin dated 05.04.2003. C.T. RAVIKUMAR, J. --------------------------------------------- W.P.(C) NO. 29010 of 2004 --------------------------------------------- Dated this the 7th day of October, 2009 JUDGMENT The petitioner was a teacher in AUPS, Chittilancherry. She has approached this Court challenging Ext.P15, whereby her re- option based on GO(P) NO.952/95/(63)/Fin dt.5.12.95 was rejected by the Government. It was rejected on the ground that the order in G.O (P) 855/95(60)/Fin dated 21.11.95 did not permit re-option for grade whilst permits only option for 1992 pay revision and that further, that G.O. dated 5.12.95 permits option for grade only to Government employees and not to teachers. Petitioner challenged Ext.P15 to the extent it rejected her re-option on the ground that Government Order dated 5.12.95 applies only to Government employees and not to teachers. I am afraid that this contention is no more available to the petitioner in view of a Division Bench decision of this Court in W.A.No.1428/07. As per the said decision, this court held that the Government Order dated 5.2.95 was applicable only to Government employees other than teachers. W.P.(C) NO.29010 of 2004 2 2. Confronted with such a situation, counsel for the petitioner submits that the petitioner has another contention. According to the learned counsel, the petitioner is entitled to exercise re-option for time bound higher grade based on Ext.P5 and to substantiate the same paragraph 2 thereof, was relied on. Paragraph 2 of Ext.P5 G.O. permits the State Government employees and teachers who got time bound grade on or after 1.3.1992 to opt time bound higher grade on the date of their choice and to continue in the pre-revised scale till the date of option. It was contended that since he has already exercised his option based on G.O. dated 5.12.95, that option should be considered as one exercised under Ext.P5. On the other hand, the learned Government Pleader contends that paragraph 3 of Ext.P5 prescribes a time limit for exercising option/re-option based on the said order and therefore, if at all the petitioner has any right to opt or re-opt the question of its admissibility can be considered only by the Government. 3. As noticed hereinbefore, the petitioner now confines her claim based only on Ext.P5 and the contention is that the option/re-option which she had exercised and was rejected as W.P.(C) NO.29010 of 2004 3 per Ext.P15 has to be considered as one exercised in terms of Ext.P5. In this context, it is to be noted that in the decision in W.A.No.1428/07, this court clarified that the judgment thereunder would not stand in the way of the right of the incumbents, if any, to opt in terms of any subsequent Government Orders. At the same, there can be no doubt that the right to opt/re-opt depends upon the terms and conditions of relevant Government Orders relating the subject. Therefore, the right of the petitioner to opt/re-opt in terms of Ext.P5 and whether the option already exercised in terms of G.O dated 5.2.95 can be considered as option/re-option given under Ext.P5 are matters to be considered by the Government. Therefore, this writ petition is disposed of on the following lines:- There will be a direction to the first respondent to consider the the eligibility and entitlement of the petitioner to opt/re-opt in terms of Ext.P5- G.O (P) 615/97/(138)/Fin dated 28th June 1997. There shall be a further direction to consider whether the option already exercised by the petitioner and rejected as per Ext.P15 can be considered as one exercised in terms of Ext.P5. These shall be done within a period of three months from the date of receipt of a copy of this judgment. If the claim of the W.P.(C) NO.29010 of 2004 4 petitioner is accepted, consequential benefits shall be disbursed to the petitioner as expeditiously possible, at any rate, within a period of three months thereafter. It is desirable that an opportunity of being heard is afforded to the petitioner in this matter. (C.T. RAVIKUMAR) JUDGE spc