IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 WP(C).No. 36475 of 2003(P) --------------------------------------- PETITIONER: ------------------- SIMON THOMAS, AGED 51 YEARS, S/O. THOMAS, HIGH SCHOOL ASSISTANT, M.T.M.H.S. PAMPAKUDA, RESIDING AT EDAPPALAKATTU VEEDU, PIRAMADOM P.O., ERNAKULAM DISTRICT. BY ADVS. MR.T.C.GOVINDA SWAMY, MR.K.M.ANTHRU. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT, STATE SECRETARIAT, TRIVANDRUM. 2. THE SECRETARY TO THE GOVERNMENT, ADMINISTRATIVE DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 3. THE DIRECTOR OF PUBLIC INSTRUCTION EDUCATION DEPARTMENT, GOVT.OF KERALA, TRIVANDRUM. 4. THE DISTRICT EDUCATIONAL OFFICER, MUVATTUPUZHA. 5. THE HEAD MISTRESS, M.T.M.HIGH SCHOOL PAMPAKUDA, ERNAKULAM. 6. THE ACCOUNTANT GENERAL, KERALA, TRIVANDRUM. R1 TO R4 & R6 BY GOVERNMENT PLEADER SMT. M.R. SREELATHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.36475/2003-P: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO. B4-301/2003/K. DIS. DTD. 22/03/2003 ISSUED BY THE R.4. EXT.P.2: COPY OF THE ORDER BEARING NO. B4-301/2003 DTD. 27/03/2003 ISSUED FROM THE OFFICE OF THE R.4. EXT.P.4: COPY OF THE REPRESENTATION DTD. 18/07/2003 ADDRESSED TO THE R.2. EXT.P.4: COPY OF THE LETTER NO. B4-6772/2002 DTD. 05/08/2003 COMMUNICATED BY THE R.4. EXT.P.5: COPY OF THE LETTER NO. B2-65366/03/DPI/L.DIS. DTD. 19/09/2003, COMMUNICATED BY THE R.4. EXT.P.6: COPY OF THE CIRCULAR DTD. 06/10/1969 PUBLISHED IN PARA 4.2 OF (A BROCHURE ON THE LOCAL AUDIT OF THE AIDED SCHOOLS) PUBLISHED WITH THE APPROVAL OF THE ACCOUNTANT GENERAL (AUDIT). EXT.P.7: COPY OF THE ORDER DTD. 16/12/2003 IN W.P.(C).NO.36475/2003 OF THIS HONOURABLE COURT. EXT.P.8: COPY OF THE INTIMATION SLIP OF PENSIONARY BENEFITS BEARING NO.P- 13/2100824550/1/P/08/10/70037204 DTD. 22/09/2008, ISSUED BY THE ASSISTANT ACCOUNTS OFFICER IN THE OFFICE OF THE ACCOUNTANT GENERAL (A&E), KERALA, TRIVANDRUM, WITH ITS ENCLOSURES. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S. SIRI JAGAN, J. ~~~~~~~~~~~~~~~~~~~ W.P.(C). No.36475 OF 2003 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 25th day of February 2010 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ J U D G M E N T After putting in certain periods of temporary service, the petitioner was regularly appointed as HSA on 6.6.1979 in an aided school. He continued to work as such till 14.7.1981. From 15.7.1981 onwards, he had to be retrenched from the school because of a fall in divisions. But he was entitled to deployment as a protected teacher. But he was actually deployed as a protected teacher only on 22.10.1981. The period between 15.7.1981 and 21.10.1981 was directed to be regularised as eligible leave. But the petitioner had leave to his credit only to cover the period from 15.7.1981 to 18.8.1981 only. The period from 19.8.1981 to 21.10.1981 was regularised as extraordinary leave. Subsequently, the petitioner was granted first higher grade on 22.9.1988. The petitioner was also granted higher grade in 1998. But by Ext.P1 order dated 22.3.1998, his W.P.(C). No.36475 OF 2003 -2- higher grade was revised with effect from 25.11.1988, on the ground that the period from 19.8.1981 to 21.10.1981 which was computed as extraordinary leave could not have been counted for the purpose of granting higher grade. Pursuant thereto, the pay of the petitioner was reduced from Rs.6,975/- as on 25.11.2001 to Rs.6,800/-. The petitioner has approached this Court challenging Exts.P1 and P2. 2. The contention of the petitioner is that, the period from 19.8.1981 to 21.10.1981 is also liable to be counted for the purpose of granting higher grade. I am not going into that question now since the counsel for the petitioner submits that, if the petitioner is given a chance for reoption on various dates on which the petitioner’s pay has to be revised, the petitioner would be satisfied with the same. 3. The learned Government Pleader opposes the same. According to him, the petitioner himself had refunded an amount Rs.5,000/- as excess pay drawn and therefore, at W.P.(C). No.36475 OF 2003 -3- the time of submitting option itself, the petitioner was aware of the mistake. But the Government Pleader admits that no formal order, refixing the petitioner’s pay was passed until Ext.P1 which was issued only on 22.3.2003. 4. Having heard both sides, I am of the opinion that since the petitioner’s pay is required to be refixed retrospectively, the petitioner should be given a chance for reoption on various dates on which the petitioner’s pay has to be refixed as shown in Ext.P1 and P2. Accordingly this writ petition is disposed of with the following directions: The petitioner shall submit his reoption with a certified copy of this Judgment within one month from the date of receipt of a copy of this Judgment. On receipt of the same, the 4th respondent shall refix the petitioner’s pay on various stages in accordance with the reoption if that reoption is allowable otherwise meaning thereby that, that reoption shall not be refused to be accepted on the ground that the time for reoption is already over. The refixation shall be W.P.(C). No.36475 OF 2003 -4- done as expeditiously as possible, at any rate within two months from the date of receipt of the reoption. If consequent to such refixation, any amount becomes refundable to the petitioner, the same shall be refunded to the petitioner within a period of one month thereafter. Since the petitioner has already retired from service on 31.3.2008, the retirement benefits shall be recomputed based on the refixation, which shall also be done along with the refixation itself. The arrears of retirement benefits if any, due shall also be disbursed within the period mentioned above. The writ petition is disposed of as above. S. SIRI JAGAN JUDGE nl.