IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 WP(C).No. 7404 of 2007(F) ------------------------------ PETITIONER: -------------- A.IBRAHIM KUTTY, S/O.ABDULLAH MOULAVI, AGED 56 YEARS, RESIDING AT VELIKKAKATH, KALIYAR, THODUPUZHA, IDUKKI DISTRICT (JUNION ARABIC TEACHER (RETD.), DIET, IDUKKI). BY ADVs. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENTS: ------------------ 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DEPUTY DIRECTOR OF EDUCATION, IDUKKI AT THODUPUZHA. 3. THE ACCOUNTANT GENERAL (A&E) KERALA, TRIVANDRUM. 4. THE TREASURY OFFICER, THODUPUZHA, IDUKKI DISTRICT. BY SMT. M.T. SHEEBA, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.7404/2007 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF G.O.(P) 380/94/(13)/FIN. OF GOVT. DTD. 9.6.94. EXT. P2 : COPY OF ORDER B4/17961/05 OF DY. DIRECTOR OF EDUCATION, IDUKKI DTD. 26.12.05. EXT. P2(a) : COPY OF STATEMENT OF FIXATION DTD. NIL. EXT. P3 : COPY OF ORDER No.B2/7385/06/K.DIS OF DY. DIRECTOR OF EDUCATION DTD. 20.7.06. EXT. P4 : COPY OF REPLY OF PETITIONER DTD. 15.1.06. EXT. P5 : COPY OF LETTER No.C4/12409/06 OF DY. DIRECTOR OF EDN. DTD. 16.10.06. EXT. P6 : COPY OF LETTER No.60758/S1/06/G.EDN OF GOVT. DTD. 1.12.06. EXT. P7 : COPY OF PENSION PAYMENT ORDER DTD. 23.3.06. EXT. P7(a) : COPY OF COMMUNICATION PAYMENT ORDER DTD. 10.4.06. EXT. P8 : COPY OF JUDGMENT OF THIS COURT IN O.P.11570/95-B DTD. 24.7.96. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. -------------------------------------- WP(C).No.7404 OF 2007 -------------------------------------- Dated this the 10th day of November 2011. J U D G M E N T The petitioner is a retired teacher who was working in the category of Junior Arabic Teacher in the DIET, Idukki. He retired from service on 31.03.2006. What is under challenge in the writ petition is the re-fixation of pay based on the alleged audit objection. The same is evident from Ext.P2. 2. Heard the learned counsel for the petitioner and the learned Government Pleader. 3. A reading of Ext.P2 shows that the reason stated therein is that re-fixation of pay after accepting the re-option in terms of G.O.(P)No.380/94/(13)/Fin. dated 09.06.1994 was not proper as the said Government Order grants only three months time for submission of re-option. The petitioner should have submitted the re-option on 09.09.1994. Based on the objection of pay, a re-fixation has been made in Ext.P2. 4. Learned counsel for the petitioner submitted that no time limit has been specified for exercising re-option in Ext.P1. It W.P.(C) No.7404/2007 2 is also pointed out that in a similar case, the Deputy Director of Education himself has sanctioned the benefit after finding that there is no time limit specified for submitting re-option as per Ext.P1 order. Evidently, a time limit of three months has been fixed in Ext.P1 under paragraph 2(ii)(f) which states as follows: “Teachers desirous of exercising re-option to derive the benefits under clause (c), (d) and (e) of para 2(ii) above will be permitted to do so within three months from the date of this Order. This will apply also to those who retired from service before this Order”. 5. It is clear from the said clause that a time limit of three months is prescribed therein in respect of re-option to get the benefit under clause (c), (d) and (e) of paragraph 2(ii). Apart from the said clause, there are no other clauses in Ext.P1 fixing a time limit in respect of submission of re-option for teachers. 6. The petitioner had submitted the re-option as per paragraph 2(ii)(a) of Ext.P1 on 22.12.1994. The stand taken in the counter affidavit filed by the 1st respondent is that the the option submitted by the petitioner, being a teacher, will come within the purview of paragraph 2(i). Paragraph 2(ii)(a) to (e) relates to teachers. There is no whisper about the assertion W.P.(C) No.7404/2007 3 made by the petitioner that as far as the re-option under clause 2(ii)(a) is concerned, no time limit has been fixed. 7. As rightly pointed out by the learned counsel for the petitioner, in Ext.P3 the Deputy Director of Education has clearly stated in the second paragraph that there is no time limit specified for exercising the re-option to derive the benefits ordered under clause (a) of paragraph 2(ii) of the Government Order dated 09.06.1994. One thing that is discernible from Ext.P1 is that the same is dated 09.06.1994 and the order has to take effect from 01.03.1992. Therefore, unless a time limit is specified with respect to different clauses, the respondents cannot insist that the matter is governed by sub clause (f), which relates to clauses (c), (d) and (e) alone of paragraph 2(ii). Clause 2(i) applies to other employees. Apart from that, one thing to be noticed is that prior to the issuance of Ext.P1, no notice was issued to the petitioner. At any rate, the option submitted by the petitioner was within a reasonable time from the date of issuance of Ext.P1. The lacuna if any in Ext.P1 will go to the benefit of the petitioner. Ext.P6 cannot be termed as a modification of Ext.P1. W.P.(C) No.7404/2007 4 Ext.P2 is hence quashed. It is submitted that the petitioner has not been sanctioned the pensionary benefits so far. There will be a direction to the competent authority to sanction and disburse the pensionary benefits of the petitioner within a period of two months from the date of receipt of a copy of this judgment. This writ petition is allowed. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp