IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 10TH AUGUST 2011 / 19TH SRAVANA 1933 WP(C).No. 26800 of 2006(M) ------------------------------------ PETITIONER(S): --------------- K. SAVITHRY, RETIRED HIGH SCHOOL ASSISTANT, CHEMBAKASSERY HIGH SCHOOL, POOTHAKULAM, KOLLAM DIST., RESIDING AT SIVABHAVAN, KAYILA, MYLODE P.O.,KOLLAM-691 537. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.SYAMJI RAM SMT.DHANYA CHANDRAN SRI.K.A.SUJAN RESPONDENT(S): ------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT,GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT EDUCATIONAL OFFICER, KOLLAM. SRI. ANTONY MUKKATH - GOVERNMENT PLEADER FOR R1,2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26800 of 2006(M) APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF G.O.(RT)NO.1040/97/FIN. DATED 22.2.1997 ISSUED BY R1. EXT.P2: COPY OF RE-OPTION DTD 17.4.1997 FORWARDED BY THE HEADMASTER, CHEMBAKASSERY H.S. TO R2. EXT.P3: COPY OF PAY FIXATION STATEMENT APPROVED BY R2 DATED 17.4.1997. EXT.P4: COPY OF REPRESENTATION SUBMITTED BY THE HEADMASTER, CHEMPAKASSERY H.S., TO R2 DATED 19.1.1997. EXT.P5: COPY OF ORDER NO.28973/A3/98/G.EDN. DATED 8.12.1999 ISSUED BY R1. EXT.P6: COPY OF REPRESENTATION DATED 13.10.2003 SUBMITTED BY THE PETITIONER BEFORE PETITIONS COMMITTEE OF THE SECRETARIAT OF THE KERALA LEGISLATURE. EXT.P7: COPY OF PROCEEDINGS NO.9290/PTN.A4/2003/LEGISLATURE DATED 11.7.2005 ISSUED BY R1. EXT.P8: COPY OF ORDER DATED 19.4.2006 IN COMPLAINT NO.902/2006 OF THE KERALA LOK AYUKTA. RESPONDENTS' EXHIBITS: NIL TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.26800 OF 2006 ---------------------------------------------- Dated this the 10th day of August, 2011 JUDGMENT This writ petition relates to pay revision benefits for the years 1973, 1978, 1983 and 1988 to the petitioner. According to the petitioner, the petitioner could not give option, since, at that time, the question of regularisation of the service of the petitioner by sanctioning leave till the year 1990 was still pending. The issue was taken up before the different authorities from 1990 and ultimately, the Government passed Ext.P1 order permitting the petitioner to submit re-option. Pursuant to the same, options/re-options were submitted by the Headmaster by Ext.P2 and they were sanctioned as per Ext.P3, limiting arrears from 17.4.1997 on the basis of the proviso in Ext.P1, wherein it is stated that arrears on account of re-option will be paid only from the date of exercise of re-option. Pursuant thereto, the petitioner was given benefits. According to the petitioner, option exercised by the petitioner cannot be regarded as re-option W.P.(C)No.26800/06 2 insofar as the petitioner could not exercise his option because of the pendency of the question of proceedings for regularisation of service by sanctioning leave. The Headmaster submitted Ext.P4 proposal for arrears also with effect from 1.7.1988. That is rejected by Ext.P5 order dated 8.12.1999. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “(i) Declare that the denial of arrears of salary to the petitioner from 1.7.1988 pursuant to Ext.P3 is illegal and unconstitutional; (ii) Issue a writ of certiorari or other appropriate writ, order or direction, calling for the records upto Exts.P1, P5 and P7 and quash the same to the extent they deny arrears of salary to the petitioner as recommended in Ext.P4; (iii) Issue a writ of mandamus or other appropriate writ, order or direction, directing the respondents to sanction and disburse arrears of salary to the petitioner pursuant to Ext.P3 for the period from 1.7.1988 as recommended in Ext.P4 with all consequential benefits and interest, without any delay.” 2. A counter affidavit has been filed by the 2nd respondent disputing the claim of the petitioner. I am of opinion that the petitioner is liable to fail in the writ petition for more than one reason. First of all, Ext.P1 order dated 22.2.1997 was passed permitting the petitioner to re-opt on the specific condition that the arrears on account of the re- option will be paid only from the date of exercise of re-option. W.P.(C)No.26800/06 3 The petitioner has not chosen to challenge that order within any reasonable time. This writ petition itself was filed only on 11.10.2006. Again, the petitioner's claim in this regard was rejected by Ext.P5 order dated 8.12.1999 by the Government. That also was not challenged within any reasonable time. Apart from that, every employee is deemed to have filed an option immediately on issue of re-option order. Therefore, every further option would be a re-option and therefore, when re-option is permitted that has to be based on the order permitting re-option which is Ext.P1 in this case. Lastly Ext.P1 itself was a concession given to the petitioner with a condition. The petitioner cannot challenge the condition alone after availing of the concession. In the above circumstances, the petitioner is not entitled to any reliefs in this writ petition and accordingly the same is dismissed. S. SIRI JAGAN, JUDGE acd W.P.(C)No.26800/06 4 W.P.(C)No.26800/06 5