IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 WA.No. 245 of 2009() -------------------- AGAINST THE JUDGEMENT IN WPC.31597/2006 Dated 04/07/2008 .................... APPELLANT(S): IST, 3RD & 4TH RESPONDENTS ---------------------------------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY, CO-OPERATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. 3. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, CHERTHALA. BY GOVERNMENT PLEADER SMT.A.G.ANEETHA RESPONDENT(S): PETITIONERS & 2ND RESPONDENTS -------------------------------------------- 1. T. ANNIE, W/O.P.C. FRANCIS, WORKING AS ASSISTANT REGISTRAR OF CO-OPERATIVE SOCITIES (GENERAL), ALAPPUHZA DISTRICT, RESIDING AT PUTHENPARAMBU, PULINKUNNU.P.O, ALAPPUZHA. 2. G. DRONER, S/O. K. GANGADHARAN, WORKING AS ASSISTANT REGISTRATION (VALUATION OFFICER), PRIMARY CO-OPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK, KARUNAGAPPALLY, RESIDING AT VARADHA, PADA NORTH, KARUNAGAPPALLY. 3. ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM. ADV. SRI.G.D.PANICKER FOR R1 SMT.JEENA JOSEPH FOR R1 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 18/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY,Ag.C.J. & V.GIRI, J -------------------------------- W.A.245/2009 -------------------------------- Dated this 18th day of February, 2009 JUDGMENT Giri, J State challenges the judgment of the learned single Judge, by which the Government was directed to permit the petitioners to exercise re-option in relation to the pay revision effected in the year 1997 and prior thereto. The writ petition was filed by respondents 1 and 2 herein, challenging Ext.P6 Government Order, by which the request made by the petitioners was rejected. 2. Petitioners entered regular service in the Department as Junior Inspectors. It is the admitted case that both of them had rendered provisional service in the same post, prior to the commencement of the regular service. The first petitioner commenced regular service as Junior Inspector of Co-operative Societies with effect from 29.3.1984 and the second petitioner commenced regular service with effect from 22.3.1984. As stated above, both of them had rendered provisional service in the same post for different spells. W.A.245/2009 2 3. But when their pay was fixed, the earlier provisional service rendered by them was not taken into account. This was challenged by them before the Department and ultimately, they had approached this Court in Writ Petition No.34907/2004, which was allowed by Ext.P1 judgment. Paragraph 4 and 5 of the same are relevant in this context and are extracted herein. “In the light of the decisions cited supra, the reason stated in Ext.P7 for rejecting the request made by the petitioners cannot be accepted. The category of post against which the petitioners were appointed on provisional basis was Junior Inspector of Co-operative Societies. Regular appointment was also in the same category of post. That means the provisional service was followed by regular appointment in the same category of post. There is no difference in the duties and responsibilities attached to the two posts. Objection regarding difference in the pay scales cannot be sustained in the light of the decisions mentioned above. The period of the provisional service and the date of W.A.245/2009 3 commencement of the regular service are prior to 1.9.1985. Therefore, it is a case where the petitioners are entitled to the benefit of Government Decision No.2 below Rule 33, Part-I, K.S.Rs in respect of the provisional service rendered by them under State Government. Hence the provisional service of the 1st petitioner shall be reckoned for increment from 28.9.1981 to 1.6.1983 and that of the 2nd petitioner from 9.2.1982 to 19.12.1983. Ext.P7 is illegal to the extent the above benefit is denied to the petitioners and Ext.P7 is quashed to that extent. But the provisional service of the 1st petitioner from 2.6.1983 to 28.3.1984 will not count for increment because the 1st petitioner rendered that service in the Khadi and Village Industries Board. State Government has no legal obligation to pay increment for service rendered elsewhere. Ext.P7 is sustained to the above extent. Writ petition is allowed as above, The benefits consequent on the grant of increments, shall be disbursed to the petitioners, as early as possible, in any event, within a period of four months on receipt of a copy of this judgment.” W.A.245/2009 4 4. It seems that the petitioners even had to move this Court under the Contempt of Courts Act for implementation of judgment. Ultimately, the Assistant Registrar, Cherthala, forwarded to the Accountant General, the service books in respect of both the writ petitioners. In the meanwhile, the Department had accepted the re-option exercised by the petitioners consequent upon each pay revision effected in 1988, 1992 and 1997, ie, prior to the period when the petitioners entered the gazetted service. The re-option so exercised by the writ petitioners was objected to by the Accountant General and the matter was therefore, taken up before the Government and vide Ext.P6 order, Government informed the Registrar of Co-operative Societies that as per the existing rules, re-option in relation to past Pay Revision is not permissible except in cases of retrospective promotion. Service books were therefore, returned. Ext.P6 was challenged by the petitioners in the Writ Petition. 5. Learned single Judge upheld the challenge and held that in the instant case, the petitioners’ pay had to W.A.245/2009 5 be re-fixed and they had to be given a chance of exercising re-option consequent upon the re-fixation of the pay by taking into account their earlier provisional service pursuant to Ext.P1 judgment. Ext.P1 judgment recognized the right of the petitioners to be given to the benefit of their earlier provisional service and since the re-option becomes necessary pursuant to Ext.P1 judgment dated 16.6.2005, the Government could not have denied the petitioners the facility to re-opt in respect of past Pay Revision. It is this view taken by the learned single Judge that has been challenged in this appeal. 6. We heard learned counsel for the writ petitioners and learned Government Pleader. 7. It is true that as a general rule, facility cannot be given to Government servants to exercise a re-option, at any point of time, even if a subsequent pay revision has been implemented. Thus, an exercise of re-option by the writ petitioners in 2005, in relation to the pay revision of 1988, 1992 and 1997, cannot normally be W.A.245/2009 6 entertained. But the present case is one where the re- option became necessary, consequent upon Ext.P1 judgment of this Court upholding the right of the petitioners to get their pay fixed or rather re-fixed, by taking into account their earlier provisional service also. In such circumstances, the normal rule of disallowing an exercise of re-option in relation to past pay revision, except when there is retrospective promotion, cannot be applied in the instant case. 8. In the facts and circumstances of the case, we are in agreement with the reasoning adopted by the learned single Judge. We find no merit in this appeal and accordingly, the same is dismissed, though we make it clear that the stand taken in Ext.P6 cannot be faulted with as a general rule. J.B.KOSHY, Acting Chief Justice V.GIRI, Judge mrcs