IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 13TH MARCH 2009 / 22ND PHALGUNA 1930 WP(C).No. 8191 of 2008(A) --------------------------------------- PETITIONER(S): ------------------------- K.SADANANDAN,RETD 1ST GRADE SURVEYOR, KIRAN NIVAS, ELAMANNUR P.O, ADOOR, PATHANAMTHITTA DISTRICT. BY ADV. SMT.P.V.ASHA RESPONDENT(S): ------------------------ 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF SURVEY, DIRECTORATE OF SURVEY AND LAND RECORDS, THIRUVANANTHAPURAM. GOVERNMENT PLEADER MR.ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.8191/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE G.O.(MS) 439/79/GAD DT. 1.8.79. P2:- COPY OF THE G.O.(P) NO.162/86/(27) FIND DT. 15.2.86. P3:- COPY OF THE LETTER NO.SURVEY AD-4394/2001/K.DIS DT. 8.10.01. P4:- COPY OF THE REPRESENTATION DT. 23.10.01 SUBMITTED BY THE PETITIONER TO 2ND RESPONDENT. P5:- COPY OF THE REPRESENTATION DT. 18.2.02 SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT. P6:- COPY OF THE LETTER NO.836/PRC.A3/02/FIN DT. 3.2.03 OF THE IST RESPONDENT. P7:- COPY OF THE JUDGMENT DT. 12./7.06 IN OP. 25621/02. P8:- COPY OF THE REPRESENTATION DT. 10.1.07 OF PETITIONER. P9:- COPY OF THE G.O.(RT) NO.1326/RD DT. 25.10.07. P10:- COPY OF THE G.O.(P) NO.499(98)/95/FIN DT. 19.8.95. TRUE COPY P.A. TO JUDGE TSS T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.8191/2008-A ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 13th day of March, 2009 J U D G M E N T The petitioner retired from service on 30/11/2001 while working as first Grade Surveyor in the office of the Superintendent of Survey, Adoor. The petitioner commenced service on 23/03/1970 in the Forest Department through Employment Exchange. He was appointed in the same post in the Department of Survey and Land Records on 12/09/1972 through the Public Service Commission. Both the appointments were in the same grade in the same scale of pay i.e. Rs.100-210 and his pay was fixed reckoning his service in the Forest Department. The pay scale was revised from time to time. 2. Presently, the petitioner is aggrieved by the order Ext.P9, whereby the re-option submitted by the petitioner was refused and the application for refixation of pay based on the re-option was also refused. 3. The circumstances leading to Ext.P9 are the following:- By Ext.P1 Government Order dated 01/08/1979, the Government granted the benefit of higher grade on completion 13 years of service in the entry grade. This order was effective from 01/07/1979. W.P.(C) No.8191/2008 -:2:- 4. The petitioner completed 13 years of service on 23/03/1983. He suffered a punishment of barring of increment for one year and thus he became eligible for grade promotion only on 23/03/1984. According to the petitioner even though he submitted his option for drawing the 13 years higher grade immediately after 23/03/1984, the Head of office did not take any follow-up action to forward the option and pay fixation statement to the Directorate. Even though the scale of pay of Surveyor was revised with effect from 01/07/1983, the 13 years higher grade was not sanctioned to him. He was getting the benefit of pay revision orders only. According to him, he was entitled to the 13 years higher grade in accordance with Ext.P1 in the pay of scale of Rs.825-1430. He was entitled to the second higher grade on completion of 20 years with effect from 01/07/1991 in the scale of pay of Rs.1100-2070. But he was granted the second higher grade in the scale of Rs.1000-1710 only. Thereafter, he submitted several representations. But those were not answered. The objection that was taken apparently is that he did not submit his option in time. The contention raised by the petitioner is that absence of an option can only result in granting higher grade with effect from the date on which he became eligible. Option becomes necessary only when the employee wants to have W.P.(C) No.8191/2008 -:3:- a change in the normal date of enjoying the higher grade. 5. By Ext.P2, the Government passed orders regarding fixation of pay and payment of arrears while granting the employees grade promotions which arose between the period from 01/07/1983 to 15/09/1985. Even though the petitioner requested for the higher grade on completion of 20 years, he was informed that the same was rejected by the higher office. Subsequently, the central pay parity was introduced in the year 1992 and the petitioners pay was refixed with effect from 01/07/1992 in the scale of Rs.1200-2040. Even though the 20 years higher grade and 25 years higher grade was sanctioned, the higher scale was granted only with effect from 01/07/1997. He had to suffer monetary loss, as he was denied the 13 years higher grade. Ultimately, he retired from service on 30/11/2001. But he had been agitating his grievance by filing representations even earlier. Even though the representation was forwarded by the Superintendent of Survey, Adoor, by Ext.P3 it was informed by the Director that re-option was permissible only in the event of retrospective promotion or on Court orders, as per Rule 15 in Annexure III of G.O.(P).No.3000/98/Fin., dated 25/11/1998. Again he submitted Ext.P4 representation in the matter, seeking permission to re-opt to come under the revised scales and for grant W.P.(C) No.8191/2008 -:4:- of higher grades. That was rejected by letter dated 17/12/2001. He followed that by filing Ext.P5 representation and approached this Court by filing O.P.No.26521/2002. While the said writ petition was pending, the Government passed Ext.P6 order. As per Ext.P6, direction was issued to grant him 13 years higher grade with effect from 23/03/1984 in the scale of pay of Rs.420-720 and his pay be revised in the corresponding revised scales in 1983 and 1988 (pay revisions), with effect from the date of effect of the original option, after cancelling the 10 years higher grade granted to him with effect from 16/09/1985. There was a further direction to grant him 20 years higher grade and also the 25 years higher grade and the respective scales of pay were also mentioned. But ultimately, it was held that the request of the petitioner for granting revised option for grade promotion and pay revisions cannot be considered as per existing rules. This Court disposed of the writ petition O.P.No.26521/2002, by Ext.P7 judgment. The petitioner had relied upon various orders wherein similar benefits were granted to other persons who were similarly situated persons. After considering all those aspects, this Court directed the Government to look into the case of the petitioner in the light of the treatment given to the employees covered by Ext.P11 series therein and grant a similar treatment to W.P.(C) No.8191/2008 -:5:- the petitioner, in case he is also similarly situated. In the operative portion it was finally held thus, “it is also made clear that since the benefits are refixed, the petitioner may also be given a chance of re-option.” 6. Again the petitioner submitted Ext.P8 representation. But ultimately, by Ext.P9, the Government rejected the same. The Government found that erroneous grade scale granted to Sri.Somarajan Achari as per Ext.P11 series in O.P.No.26521/2002, cannot be taken into account for considering the request of the petitioner. Reliance was placed on G.O.(P). No.499(48)/95/Fin dated 19/08/1995 also. 7. The petitioner contends that going by Ext.P7 judgment, the petitioner should have been given an opportunity to submit a re-option but that was not given. Apparently, because of that fact, the petitioner could not obtain any benefit inspite of the order Ext.P6. 8. In the counter affidavit, the stand taken is that the erroneous grade granted to Sri.Somarajan Achari cannot be taken into account for considering the request of the petitioner. It is further contended that going by the Government Order dated 19/08/1995, it requires no revision. The pay revision order, namely, G.O.(P) No.3000/98/Fin dated 25/11/998 is W.P.(C) No.8191/2008 -:6:- relied upon to contend that the request of the petitioner for revised option for grade promotion and pay revision cannot be considered. 9. The effect of the judgment in O.P.No.26521/2002 namely, Ext.P7 has not been considered while taking the stand that the re-option can be allowed only in accordance with the Rule 15 of Annexure III G.O.(P) No.3000/98/Fin., dated 25/11/1998. Apparently, the said stand cannot be accepted in the light of the operative portion of the judgment in Ext.P7. It is the admitted position that if there is a court order they can accept the re- option. The direction in Ext.P7 will therefore allow the petitioner to submit the re-option. In that view of the matter, the stand taken in Ext.P9 cannot be appreciated. True that the petitioner was relying upon orders Ext.P11 series in O.P.No.26521/2002, in respect of Sri.Somarajan Achari and the said claim happens to be rejected stating that there was an erroneous fixation in respect of the said person. But still as far as the direction in Ext.P7 judgment is concerned, the matter has become final. In that view of the matter, the petitioner should have been given a chance of re-option. 10. Therefore, Ext.P9 is quashed. The petitioner is accordingly allowed to submit the re-option, which will be done within three weeks from today, before the second respondent. On getting the said re-option W.P.(C) No.8191/2008 -:7:- statement from the petitioner, fresh orders will be passed on the basis of Ext.P6 refixing the pay during different periods. The pension and other retirement benefits sanctioned to the petitioner will also be revised and the benefits due thus will be disbursed within a period of four months from the date of receipt of the copy of this judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms