IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 30TH OCTOBER 2009 / 8TH KARTHIKA 1931 WP(C).No. 9193 of 2008(T) ------------------------------------ PETITIONER(S): ---------------------- THRESIAMMA GEORGE, HEADMISTRESS, GLP SCHOOL, KANTHAPURAM, KOZHIKODE DISTRICT. BY ADV. MR.R.K.MURALEEDHARAN RESPONDENT(S): ------------------------ 1. STATE OF KERALA REP.BY SECRETARY TO FINANCE DEPARTMENT, TRIVANDRUM. 2. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE. 3. THE ASSISTANT EDUCATIONAL OFFICER, BALUSSERY. R1 TO R3 BY GOVERNMENT PLEADER SMT.M.R. SREELATHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 9193/2008-T APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE FORM OF OPTION DATED 20/01/1999. EXT.P2: COPY OF THE COMMUNICATION DATED 15/01/2008 OF THE 3RD RESPONDENT. EXT.P3: COPY OF THE AUDIT REPORT OF THE 2ND RESPONDENT ATTACHED ALONG WITH EXT.P2. EXT.P4: COPY OF THE GO(P)NO.365/05/(150) FIN DATED 06/8/2005. EXT.P5: COPY OF THE JUDGMENT IN WP(C) NO. 27860/2007. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.9193/2008-T ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 30th day of October, 2009 J U D G M E N T The petitioner herein is working as a Headmistress in the G.L.P. School, Kanthapuram in Kozhikode District. She entered service on 11/07/1980 in an aided school. She joined the Government service as P.D Teacher with effect from 16/02/1983. She was promoted as Headmistress with effect from 01/06/2007. 2. Ext.P1 is the form of option submitted by the petitioner dated 20/01/1999, in respect of the pay revision order, G.O.(P).No.3000/98/Fin., dated 25/11/1998. The petitioner opted the date 01/03/1997, as the date of effect of 1997 pay revision. The same was accepted and the pay was refixed and she was granted all the benefits attached to the revised scale of pay. By Ext.P2, an audit objection relating to the pay fixation was communicated to the petitioner by the third respondent in the year 2008. Ext.P3 is the copy of the audit report. The petitioner submitted a detailed objection to the same. 3. Petitioner submits that there is a long delay of more than eight years for raising objection. The petitioner is also relying upon Ext.P4 G.O. (P).No.365/05/(150) Fin, dated 06/08/2005 to contend for the position that W.P.(C). No.9193/2008 -:2:- the teachers who were covered by the said order were permitted to file fresh option also. Reliance is placed further on Ext.P5 Judgment in W.P.(C). No.27860/2007 dated 27/09/2007. 4. The respondents have filed a counter affidavit justifying the objections now raised. In paragraph (7) it is stated that the chance of re- option submitted by the Government in Ext.P4 G.O.(P).No.365/05/(150) Fin, dated 06/08/2005 was not utilised by the petitioner. 5. In similar circumstances, in Ext.P5, this Court considered the question whether once options are accepted and audit objections are raised after a long lapse of time, the teachers are entitled to make fresh option. The petitioners therein were allowed to submit fresh options and the Educational Officer was directed to refix the pay in the revised scale of pay in accordance with the options submitted. It was held thus in paragraph (3) of Ext.P5 Judgment. “3. The learned Government Pleader would submit that such an option would amount to re-option which is not permissible under law. I am of the opinion that this cannot be regarded as a re-option at all since the petitioners' options have already been accepted which W.P.(C). No.9193/2008 -:3:- was sought to be annulled now on the basis of an audit objection. When an option accepted is sought to be cancelled, certainly the petitioners are entitled to be given a chance to make the correct options, which cannot be termed as re-option at all. Therefore, I direct that the petitioners shall be given a chance to make the correct options without taking into account their aided school service. Accordingly, this writ petition is disposed of with the following directions: The petitioners shall forward their correct options without taking into account the aided school service, to the 2nd respondent. On receipt of the above, the AEO shall refix the pay in the revised scale of pay in accordance with their options and pass appropriate orders thereon with consequential benefits. The petitioners shall forward options within two weeks from today and the AEO shall pass orders on the same within a period of one month thereafter. The other question as to whether the petitioners are entitled to tag on their W.P.(C). No.9193/2008 -:4:- aided school service for the purpose of service benefits is left open to be agitated appropriately. However, I note the contention of the learned Government Pleader that that question is covered by the Division Bench decision in W.A.No.288/2005 which contention would be available to the respondents, if and when the petitioners raise that issues.” Therefore, when an option accepted is sought to be cancelled, certainly, the person is entitled to be given a chance to make a correct option, which cannot be termed as re-option at all. 6. I respectfully agree to the above view and therefore, the petitioner is also entitled for a similar direction. Petitioner could not avail of the benefit of Ext.P4 as at that point of time there was no objection against fixation of pay. 7. Therefore, the writ petition is disposed of with the following directions. The petitioner will file a correct option within a period of two weeks from the date of receipt of a copy of the Judgment before the third respondent and on receipt of the same, the third respondent shall refix the pay in the revised scale of pay in accordance with the option thus submitted. W.P.(C). No.9193/2008 -:5:- Depending upon the acceptance of the same appropriate orders shall be passed with regard to the consequential benefits also. 8. The interim order passed by this Court on 18/03/2008 will continue to be in force till appropriate orders are passed. The orders as above will be passed within a period of two months from the date of receipt of the copy of the option. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms