IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 6TH JULY 2010 / 15TH ASHADHA 1932 WP(C).No. 6280 of 2006(V) ------------------------- PETITIONER(S): --------------- ALIAMMA JOHN, CHERUVATHUR HOUSE, KANIPAYYUR P.O. KUNNAMKULAM, THRISSUR DISTRICT. BY ADV. SRI.ELVIN PETER P.J. SRI.T.G.SUNIL (PRANAVAM) RESPONDENT(S): --------------- 1. THE ASSISTANT EDUCATIONAL OFFICER, WADAKKANCHERRY. 2. THE HEADMISTRESS, C.M.S.L.P.SCHOOL, AKAMPADAM, WADAKKANCHERRY. GOVERNMENT PLEADER SMT.M.R.SREELATHA FOR R1, 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/07/2010, THE COURT ON 06/07/2010 DELIVERED THE FOLLOWING: WPC.6280/06 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE ORDER OF THE GOVERNMENT. P2 COPY OF THE OPTION statement DT 1.4.99. P2(A) COPY OF THE OPTION STATEMENT DT 1.4.99. P3 COPY OF THE STATEMENT OF EXCESS SALARY DRAWN BY THE PETITIONER. P4 COPY OF THE STATEMENT OF ARREARS OF SALARY WHICH THE PETITIONER WAS ENTITLED TO RECEIVE. P5 COPY OF THE ORDER DT 26.3.04. // True Copy // P.A. To Judge C.T.RAVIKUMAR, J. ``````````````````````````````````````````````````````` W.P.(C) No. 6280 of 2006 V ``````````````````````````````````````````````````````` Dated this the 6th day of July, 2010 J U D G M E N T The petitioner retired from service on 30-04-2005 while working as Headmistress in C.M.S.L.P. School, Akampadam. This writ petition has been filed mainly challenging Ext.P5 and also for a declaration that she is entitled to get arrears of salary based on her re-option, exercised as per Ext.P2 with effect from 07-09- 1995 and not with effect from 01-04-1999. 2. The petitioner commenced her service as L.P.S.A. on 21-07-1969. Her appointment from 21-07-1969 up to 02-09-1969 was approved. Subsequently, she had put in approved service with broken spells as hereunder:- “ (i) From 09-09-1969 to 06-11-1969 (2) From 07-01-1970 to 28-02-1970 (3) From 11-05-1970 to 13-06-1970 (4) From 10-08-1970 to 10-09-1970 and (5) From 23-09-1970 to 18-12-1970. ” 3. The petitioner's continuous service commenced only WPC.6280/2006 : 2 : with effect from 08-06-1971. On 01-06-2001, the petitioner was promoted as Headmistress. While the petitioner was continuing as L.P.S.A., Government have issued G.O.(P) No.600/93 dated 25-09-1993, whereby the scale of pay of government employees and the aided school teachers were revised with effect from 01-03- 1992. Thereupon, the petitioner had exercised her option to come to the Selection Grade in accordance with the said 1992 pay revision. The contention of the petitioner is that subsequently Government have issued Ext.P1 Government Order dated 22-06- 1999. Prior to the introduction of the said Government Order, the petitioner had submitted Ext.P2 re-option for 1992 pay revision. Ext.P2 is dated 01-04-1999. As per Ext.P1 Government Order, an option/re-option submitted by employees between 05-02-1999 and 04-05-1999 was maintainable. Accordingly, Government entertained the re-option submitted by the petitioner as per Ext.P2. However, the said re-option submitted by the petitioner as per Ext.P2 ultimately resulted in Ext.P5, whereby the first respondent found that the petitioner was entitled to arrears of salary only with effect from 01-04-1999. Further, it was ordered as hereunder:- WPC.6280/2006 : 3 : “ The excess pay to be refunded for the period from 3/92 to 8/95 worked out to Rs.11,304/- and the arrears due to her with effect from 01-04-1999 to 3/2000 is Rs.12,241/- which is adjusted to under the excess amount.” 4. The petitioner is aggrieved by Ext.P5. The further claim of the petitioner is that she is entitled to arrears of salary based on Ext.P2 re-option with effect from 07-09-1995. 5. Reference of certain Government Orders is required for the purpose of deciding the entitlement of the petitioner to the arrears of salary and her liability to refund, etc. As per G.O.(P) 399/99/(178)/Fin. dated 05-02-1999, Government have accorded permission to exercise option/re-option to those employees, who could not exercise option/re-option for time bound Higher Grade sanctioned on or after 01-03-1992, due to the prevalence of cut of date. As per the said Government Order, option/re-option was to be exercised within a period of three months from the date of order. Subsequently, Government have issued G.O.(P) No.1503/99/(180)/Fin. dated 22-02-1999. The said Government Order is produced in this writ petition as Ext.P1. As per the said WPC.6280/2006 : 4 : Government Order, Government have clarified that all the applications for option/re-option submitted by the employees between 05-02-1999 and 04-05-1999 could be entertained. Thus, going by the aforesaid Government Orders, the re-option submitted by the petitioner as per Ext.P2 was liable to be entertained. In fact, it was entertained. But, according to the petitioner, benefits were wrongly worked out. In that context, two other Government Orders also assume relevance. G.O.(P) 615/97/(138)/Fin. dated 28-06-1997 is one such Government Order. The relevant portion of the said Government Order reads thus:- “3. The excess salary drawn consequent on fixation of pay in the revised scale of the lower post or time bound higher grade on the basis of option already exercised will be adjusted against the arrears due to revised option and the balance, if any, will be refunded in lump. The State Government employees and teachers desirous of exercising option/re-option based on this order will be permitted to do so within a period of three months from the date of order.” WPC.6280/2006 : 5 : 6. G.O.(P) 615/96/(110)/Fin. dated 03-10-1996 is the other relevant Government Order. The said Government Order in so far as it is relevant reads thus:- “ Government after considering the matter in detail are pleased to accord sanction to all employees for exercising re-option in respect of 1988 and 1992 Pay Revisions and related service based grade/non-cadre promotions subject to the following conditions:- 1. Arrears on account of such re- option will be payable only from the date of exercise of re-option. 2. Excess amount should be adjusted in the arrear due and balance, if any, will be refunded in lump. 3. Only serving employees will be permitted to exercise re-option as per this order. Re-option should be exercised within three months from the date of this order.” 7. The first condition under G.O. dated 03-10-1996 would reveal that arrears on account of re-option submitted by the employees would be payable from the date of exercise of re- option. It appears from Ext.P5 that while considering the WPC.6280/2006 : 6 : entitlement of the petitioner for arrears on account of the re-option submitted as per Ext.P2, instead of the date of exercise of re- option, the date of filing of re-option was taken into account. According to the petitioner, it should have been the date of exercise of re-option i.e., 07-09-1995. In support of the contention of the petitioner with respect to her entitlement of arrears of salary with effect from 07-09-1995 and also to show that the date of 01- 04-1999 was wrongly reckoned as the crucial date, the petitioner relied on a decision of this Court reported in State of Kerala & Others Vs. Lissy Joseph M [2006 (1) KLJ 566]. Going by the aforesaid judgment, the date of effect of re-option is the relevant date for granting benefit with respect to the arrears of salary. As per the said judgment, the said entitlement is subject to the restriction that if there is excess amount after adjustment, the same would be refunded only with effect from the date of filing of the re-option. The relevant portion of the said judgment reads thus:- “ The impugned judgment was passed on 20-12-2002 following the judgment in O.P.No.20280 of 2001 which was implemented by WPC.6280/2006 : 7 : G.O. dated 05-04-2003 clearly stating that the date of effect of re-option is the relevant date for granting benefit subject to the restriction that if there is excess amount after adjustment will be refunded only with effect from the date of filing re-option. The amount due prior to the date of exercise of re-option will only be adjusted against the excess drawn by the employee. Therefore, excess of amount due after calculating the same from the date of effect of re-option can be entitled to set off against the refunds due from the employee and the amount due, if any, arising after the date of re-option alone need be refunded to the Government. Annexure-III Circular in so far as it overrules the judgment of the learned single Judge impugned in these appeals are nonest and illegal. In fact, appeals are not filed against all cases covered by the common impugned judgment. We fully agree with the view of the learned single Judge.” 8. A scanning of the impugned order hereunder( Ext.P5) would reveal that the amount of arrears of salary due to the petitioner, the amount to be refunded and the amount to be set off were wrongly reckoned. Instead of arriving at the figures under WPC.6280/2006 : 8 : the aforesaid counts, based on the relevant Government Orders dated 28-06-1997 and 03-10-1996 respectively, taking into consideration the decision of this Court reported in State of Kerala & Others Vs. Lissy Joseph M(Supra), the aforesaid amounts were wrongly quantified as per Ext.P5. Therefore, I am of the view that the petitioner is justified in contending that Ext.P5 requires reconsideration in the light of the aforesaid Government Orders and the decision of this Court reported in State of Kerala & Others Vs. Lissy Joseph M(Supra). In short, I am of the view that this matter requires a fresh consideration by the Government. To enable the Government to consider the same, Ext.P5 is set aside. Accordingly, there will be a direction to the Government to reconsider the benefits due and also the amount to be refunded, if any, and the amount to be set off, if any, based on Ext.P2 re- option, in the light of the relevant Government Orders and also the decision reported in State of Kerala & Others Vs. Lissy Joseph M(Supra). To enable the first respondent to comply with the directions in this judgment, the petitioner shall produce copies of Ext.P2 produced in this writ petition along with copy of this WPC.6280/2006 : 9 : judgment. This shall be done by the petitioner within three weeks from the date of receipt of a copy of this judgment. On receipt of the copy of this judgment along with copies of relevant documents referred to earlier, the Government shall decide the entitlement of the petitioner to the arrears of salary based on her re-option and such other matters mentioned earlier, within a period of three months thereafter. This writ petition is disposed of as above. Sd/- (C.T.RAVIKUMAR, JUDGE) aks // True Copy // P.A. To Judge