IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 13TH JANUARY 2011 / 23RD POUSHA 1932 WP(C).No. 18046 of 2005(W) ------------------------ PETITIONER : -------------------- G.SOMARAJAN, RETIRED FIRST GRADE OVERSEER, `MASS', T.C.28/876, PUNNAPPURAM ROAD, KAITHAMUKKU, THIRUVANANTHAPURAM-24 BY ADVS. SRI.N.SUGATHAN SRI.A.V.RAMAKRISHNA PANICKER SMT.R.SEEMA RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF MUNICIPAL ADMINISTRATION, THIRUVANANTHAPURAM. R1 & R2 BY GOVT. PLEADER SMT. N. SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 18046 of 2005(W) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF JUDGMENT DATED 5-7-2000 IN O.P.NO. 20037/98. EXT.P2 : COPY OF ORDER NO. B3-1201/98 DATED 2-11-2000 OF THE 2ND RESPONDENT. EXT.P3 : COPY OF ORDER NO. B3-1201/98 DATED 5-12-2000 OF THE 2ND RESPONDENT. EXT.P4 : COPY OF ANNEXURE III OF G.O.(P) NO. 3000/98/FIN DATED 25-11-1998. EXT.P5 : COPY OF REPRESENTATION DATED 12-12-01 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT. EXT.P6 : COPY OF JUDGMENT DATED 16-12-2003 IN WP(C) NO. 39481/2003. EXT.P7 : COPY OF G.O. (RT) NO. 4441/03/LAD DATED 14-12-2004. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.S. TO JUDGE Mn T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.18046 Of 2005 ----------------------------------------------------- DATED THIS THE 13th DAY OF JANUARY, 2011 J U D G M E N T The non-acceptance of the option submitted by the petitioner with regard to the Higher Grade granted on a retrospective basis is the dispute raised herein. 2. The petitioner entered service on 30.7.1970 and was promoted as Overseer Grade II and later as Overseer Grade I on 31.3.1980. But he was wrongly reverted on 18.12.1981 and was again promoted as Overseer Grade I on 13.5.1983. Thereafter he was granted notional promotion with effect from 18.12.1981; i.e., the date of reversion as Overseer Grade I. The petitioner, therefore, had continuous service from 31.3.1980 as Overseer Grade I and on completion of 10 years, he was entitled for a higher grade. Initially, the claim was rejected for the reason that the period of notional promotion cannot be reckoned for the purpose of higher grade. The matter reached upto this Court in O.P.No.20037/98 wherein a direction was issued by Exhibit P1 judgment to consider his claim and finally by Exhibit P2 order, the benefit of Higher Grade was granted to him reckoning the W.P.(C)No.18046/2005 -2- period of notional promotion. The petitioner was granted higher grade with effect from 5.4.1990 on completion of 10 years of service. 3. In terms of the Government Orders allowing re-option, the petitioner filed Exhibit P5 representation before the Government to permit him to submit revised option for getting higher grade as well as the pay revision of the year 1992. Even though, this Court directed consideration of the same by Exhibit P6 judgment, by Exhibit P7, it was rejected, taking the view that even though the higher grade was granted, there is no provision for submitting re-option. Reliance is placed on Clause 15(3) of the pay revision order of the year 1998 namely G.O.(P) No.3000/98/Fin. dated 25.11.1998. 4. The petitioner mainly contends that even going by Exhibit P4, namely Annexure to the general pay revision order issued on 25.11.1998, since it is a retrospective grant of higher grade, the same will come within the permissible clause therein. In Exhibit P4, it is mentioned in clause 15 that once re-option is granted that re-option will not be allowed for past pay revisions except in cases involving Court Orders and retrospective promotion. W.P.(C)No.18046/2005 -3- 5. Shri N.Sugathan, the learned counsel appearing for the petitioner contended that in the light of the definition of promotion in the KS & SSR, the grant of higher grade will also be treated as promotion. It is further pointed out that the general scheme with regard to the grant of higher grade issued as per Circular No.54/92/138/Fin. dated 6.11.1992 especially paragraph No.8 shows that those who are eligible for the higher grade on completion of the specified qualifying service shall be given right of option to elect any date for that higher grade. Three months' period has been fixed to submit the re-option from the date on which the higher grade fell due and therefore, evidently, if the higher grade was granted in the year 1990, he could have submitted the re-option within three months. 6. The petitioner was evidently granted the benefit of higher grade which was due from 1.4.1990 only by Exhibit P2 order of the year 2000. Notional period of promotion was not found reckonable earlier and finally the Government allowed such period also to be reckoned by Exhibit P2 order. Therefore, so far as the petitioner is concerned, the benefit which was denied in 1990 could be opted by him only in the year 2000. Obviously, the petitioner could not submit the re-option with W.P.(C)No.18046/2005 -4- respect to the 10 year higher grade based on the 1992 pay revision order within the due period, for no fault of his. In that view of the matter, the benefit which is granted on a retrospective basis could have been considered by the Government to accept the re-option submitted by him. The difficulty pointed out in Exhibit P7 is that there is no specific provision for the same. The learned counsel for the petitioner submitted that even in the 1998 pay revision order, it is mentioned that the re-option can be allowed in cases involving Court Orders and retrospective promotion. Herein, higher grade was granted after this Court issued direction in Exhibit P1 judgment. Apart from that the definition of 'promotion' in Rule 2 (11) of KS & SSR reads as follows: “11.'Promotion” means the appointment of a member of any category or grade of a service or a class of service to a higher grade category or grade of such service or class.” Therefore, evidently, the grant of higher grade can also be treated as promotion, for the purpose of the definition. If that be so, it is a retrospective promotion which enables the petitioner to submit the revised option. W.P.(C)No.18046/2005 -5- 7. Apart from all these aspects, evidently, this is a case where only in the year 2000, the higher grade with effect from 1.4.1990 was granted. Therefore this is an exceptional case where the petitioner could submit the revised option only after Exhibit P2 order was passed. In that view of the matter also, the objection with regard to the acceptance of the revised option cannot be justified. 8. In that view of the matter, Exhibit P7 is quashed. There will be a direction to the 1st respondent to accept the revised option submitted by the petitioner as detailed in Exhibit P5 and re-fix the pay and pension of the petitioner within a period of three months from the date of receipt of a copy of this judgment and disburse the consequential monetary benefits accordingly. The Writ Petition is allowed as above. No costs. Sd/-( T.R.RAMACHANDRAN NAIR, JUDGE) dsn True copy P.A.to Judge