IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 1ST JANUARY 2008 / 11TH POUSHA 1929 WP(C).No. 19206 of 2007(J) -------------------------- PETITIONER: ------------ 1. P.MOHANAN, SUPERINTENDENT OF SURVEY AND LAND RECORDS(RTD.), "LINI NIVAS", CHAVASSERI P.O., KANNUR-670 702. 2. C.MOHANAN, ASSISTANT DIRECTOR OF SURVEY, (RTD.), VIGI NIVAS, MUTTANNUR, EDAYANNUR P.O., KANNUR-670 595. 3. A.SIVAKRISHNAN, DEPUTY DIRECTOR (RETD.), COLLECTORATE, KASARAGOD, RUDRAKSHAM, THALIYIL, KALLIASSERI. 4. A.V.BALAKRISHNAN NAMBIAR, ASSISTANT DIRECTOR (RETD.), OFFICE OF RE-SURVEY, KASARAGOD, SREYAS, NETTAMALOOR, PUZHALI. 5. M.BALAKRISHNAN, HEAD SURVEYOR (RTD.), COLLECTORATE, KANNUR, DILSHA, NIYARKUNNAV L.P.SCHOOL, ALVAIL. BY ADV. SMT.I.SHEELA DEVI RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF FINANCE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. ACCOUNTANT GENERAL (A & E), ACCOUNTANT GENERAL'S OFFICE, THIRUVANANTHAPURAM. 3. DIRECTOR OF SURVEY & LAND RECORDS, DIRECTORATE OF SURVEY, THIRUVANANTHAPURAM. BY SPECIAL GOVERNMENT PLEADER SHRI MANOJ KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/01/2008, ALONG WITH WPC NO. 18401 OF 2007, WPC NO. 31781 OF 2007, WPC NO. 26324 OF 2007, WPC NO. 35685 OF 2007, WPC NO. 31391 OF 2007, WPC NO. 28203 OF 2007, WPC NO.20196 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No. 19206/07 PETITIONERS' EXHIBITS: EXT.P1: TRUE COPY OF THE JUDGMENT DT.1.12.98 IN O..1458/90 OF THIS COURT. EXT.P2: TRUE COPY OF THE JUDGMENT DT.9.7.99 IN O.P.10447/94 OF THIS COURT. EXT.P3: TRUE COPY OF THE GO.(MS)NO.21/2000/RD DT.13.1.2000 ISSUED BY THE GOVERNMENT. EXT.P4: TRUE COPY OF THE GO(P)NO.545/01(98) fIN.DT.19.3.2001 ISSUED BY THE GOVERNMENT. EXT.P5: TRUE COPY OF THE REPRESENTATION DT.24.7.02 SUBMITTED BY THE 1ST PETITIONER TO THE DEPUTY DIRECTOR OF SURVEY. EXT.P6: TRUE COPY OF THE REPRESENTATION DATED 27.4.2003 SUBMITTED BY THE 1ST PETITIONER TO THE SUPERINTENDENT OF SURVEY, SREEKANDAPURAM. EXT.P7: TRUE COPY OF THE ORDER NO.47786/PRU-2/00/FIN.DT.16.3.2001 ISSUED BY THE GOVERNMENT. EXT.P8: TRUE COPY OF THE JUDGMENT IN WA.105/05 AND CONNECTED WRIT APPEALS DATED 26.5.2005. EXT.P9: TRUE COPY OF THE JUDGMENT IN SLP.DT.3.10.2005. EXT.P10: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE 3RD RESPONDENT ON 03.08.06. EXT.P10(a): TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND PETITIONER BEFORE THE 3RD RESPONDENT ON 3.8.06. EXT.P10(b): TRUE COPY OF THE REPRESENTATION DT.8.2.2006. EXT.P11: TRUE COPY OF THE JUDGMENT IN WPC.24501/06 DT.18.9.06. EXT.P11(a): TRUE COPY OF THE JUDGMENT IN W.P.(C)No.10903/06 DT.17.8.06. EXT.P12: TRUE COPY OF THE PROCEEDINGS NO.SY.A2-9235/91 DT.25.10.1991. EXT.P13: TRUE COPY OF THE ORDER NO.86056/PRU-2/05/FIN. DT.23.11.2005 ISSUED BY THE 1ST RESPONDENT. EXT.P14: TRUE COPY OF THE ORDER NO.74795/E1/06/RD. DT.25.10L.06. EXT.P15: TRUE COPY OF THE ORDER NO.63299/E1/06/REVENUE DT.16.12.2006. EXT.P16: TRUE COPY OF THE ORDER NO.SURVEY A7-17828/06 DT.27.1.2007. EXT.P16(a): TRUE COPY OF THE ORDER NO.A7.10821/06 DT.15.2.07. APPENDIX IN W.P.(C)No. 19206/07 EXT.P17: TRUE COPY OF THE ORDER NO.A7.10821/06 DT.13.3.07 ISSUED BY THE 3RD RESPONDENT. EXT.P18: TRUE COPY OF THE ORDER NO.A.697/06 DT.31.5.07.' EXT.P19: TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONERS BEFORE THE SUPERINTENDENT OF SURVEY, SREEKANDAPURAM. EXT.P19(a): TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONERS BEFORE THE SUPERINTENDENT OF SURVEY, SREEKANDAPURAM DT.23.5.07. TRUE COPY V.GIRI, J ------------------- W.P.(C)s. 19206/2007, 31781/2007, 26324/2007, 35685/2007, 31391/2007, 28203/2007 & 20196/2007 -------------------- Dated this the 1st day of January, 2008 JUDGMENT Common issues arise for consideration in all these cases. Therefore, they have been considered together and are disposed of by a common judgment. 2. Petitioners in all these cases were appointed as 2nd Grade Surveyor during the period 1972-73. They were then fitted in the scale of 90-190. Apparently at that point of time, certain other 2nd Grade Surveyors in the same department, who had passed the higher Survey test, were appointed in the scale of pay of Rs.100-210/-. Since the nature of the duties being discharged by the petitioners and similarly situated persons who do not pass higher Survey test were the same of those who passed the same, several writ petitions were filed before this Court claiming the same scale of pay. By several judgments, including Exts.P1 and P2, this Court found that the petitioners and similarly situated persons were W.P.(C).19206/2007 and Connected Cases 2 entitled to the pay scale of Rs. 100-210/- 3. Ext.P2 judgment was accepted and Ext.P3 Government Order was issued on 13.1.2000 declaring that the scale of pay of 2nd Grade Surveyors will be revised to 100-210 from 19-190 with retrospective effect. Consequently directions were also issued. Since by the time Ext.P3 was issued several pay revisions had taken place, the Accountant General requested the Government for a general Government Order in the matter of accepting re-options from the petitioners and similarly situated persons, relatable to the pay revisions which had been effected subsequent to 1973. Notwithstanding Ext.P3, by Ext.P7 communication dated 16.3.2001, Government intimated the Director of Survey that no re-option may be permitted by those 2nd Grade Surveyors whose scale of pay was revised from 19-190 to 100-210 on the basis of Ext.P3 Government Order dated 13.1.2000. 4. Ext.P7 was challenged in a batch of writ petitions W.P.(C).19206/2007 and Connected Cases 3 before this Court and the same was quashed. Appeal by the State was also dismissed by Ext.P8 judgment and affirmed by the Supreme Court as evidenced by Ext.P9. The result of the same was that the petitioners and similarly situated persons were given the facility of re- option in relation to the pay revisions which took place subsequent to 1973. Consequent upon the revision of pay from 90-190, applications were submitted for such re-options also. The said options were directed to be accepted under Ext.P11 series judgments. But by Ext.P13 order, Government issued a communication to the Director stating that the benefit of re-option consequent on the directions of this Court, shall be granted only subject to the following conditions. (i). The benefit of re-option will be limited to the pensionary benefits only. (ii). Neither excess amount drawn consequent on re- option will be refunded nor arrears will be paid. W.P.(C).19206/2007 and Connected Cases 4 (iii). Re-option will be exercised within two months from the date of order permitting the exercise of re-option. 5. In the case of some of the 2nd Grade Surveyors who were already beneficiaries of the directions for acceptance of the re-option, proceedings under the Contempt of Courts Act was moved and thereupon the Government issued a direction to the Director to disburse the arrears of pay to the said petitioners but subject to the outcome of SLP No.2662/2006 and connected cases pending before the Supreme Court relating to the payment of arrears consequent upon re- option. By Ext.P15 communication dated 16.12.2006, it was intimated that the date of re-option to be permitted to the petitioners and similarly situated persons pursuant to the directions of this Court with regard to the time bound higher Grade, shall not be extended beyond the date of effect of the subsequent pay revision order. Apparently the petitioners' re-options were not accepted by the Director as evidenced by Ext.P16 series essentially on the basis of Exts.P13 and P15 orders. It is W.P.(C).19206/2007 and Connected Cases 5 in these circumstances that the petitioners have approached this Court. 6. Counter affidavit has been filed on behalf of the first respondent in Writ Petition No.19206/2007 and adopted in other cases also. They have justified Exts.P13, P15, P17 and P18. 7. I heard learned counsel for the petitioners, Smt. I Sheela Devi and the learned Special Government Pleader, Sri. Manoj Kumar. 8. In my view, the short issue that arises for consideration is whether the conditions contained in Ext.P13 as regards the manner in which the re-option exercised by the petitioners and similarly situated persons, and the conditions contained in Ext.P15 as regards time bound Higher Grade promotion are sustainable or not. In so far as Ext.P13 is concerned, I am of the view that the conditions imposed cannot be enforced against the petitioners for the simple reason W.P.(C).19206/2007 and Connected Cases 6 that this Court in Ext.P2(and reportedly in other similar judgments) specifically held that the scale of pay applicable to 2nd Grade Surveyors appointed in 1973 shall be revised to 100-210. In Ext.P2 judgment, there is a specific direction to pay the arrears of wages also. Consequently, there cannot be an interdiction against the benefit of the re-option being reflected in the actual wages due to the petitioners nor is there any justification confining the benefit of the re-option. After all it is found that the scale of pay made available to some of the 2nd Grade Surveyors was illegal. There is no justification for denying the petitioners and similarly situated persons, the actual benefit of the scale of pay by way of arrears of wages also. Condition No.1 in Ext.P3 is therefore bad in law. In so far as condition No.2 is concerned, it is difficult to postulate drawal of excess amounts in the context of exercise of re-option by anyone of the petitioners and therefore, it would actually operate only against the petitioners who would be entitled to arrears, in certain cases, on re-option being exercised and accepted. For the same reason as has been mentioned W.P.(C).19206/2007 and Connected Cases 7 above, and taking note of the directions contained in Ext.P2 judgment, I am of the view that arrears are to be paid consequent upon the acceptance of re-option. In so far as condition No.3 is concerned, it is to be verified whether it will have a real impact in as much as in almost all the cases this Court had permitted the persons who had approached this Court to exercise re-option. In the light of the fact that this Court had interfered with Ext.P7 and the judgment of the learned Single Judge was upheld by the Division Bench, there seems to be no justification for excluding a category of 2nd Grade Surveyors from the benefit of the re-option, by referring to the time limit for exercising re-option as such. In my view, condition No.3 in Ext.P13 also need not be enforced. 9. I should hasten to make it clear that the communication contained in Ext.P14 does not seem to, in any manner, warrant any interference. Learned Special Government Pleader submits that the special Leave Petition referred in Ext.P14 is one involving an W.P.(C).19206/2007 and Connected Cases 8 issue as to whether the benefit of re-option will have to be granted with reference to the date of re-option or the submission of the application for re-option as such. In my view, if the judgment of the Supreme Court in the Special Petition referred to in Ext.P14 is of general application that is intended to apply to all cases where re-option is exercised consequent upon the revision of the scale of pay, it may not be possible for the petitioners to say that they shall be left unaffected by this. Question as to whether the judgment of the Supreme Court will have any impact on the petitioners need not be considered at this stage. Suffice it to say that if the final decision of the Supreme Court in the aforementioned Special Leave Petition referred to in Ext.P14 affects the petitioners also, then obviously it is open to the Government to take action after issuing notice. 10. Petitioners also challenged Exts.P15, P17 and P18. In so far as the conditions in Ext.P15 are concerned, I am of the view that no interference is warranted. In so far W.P.(C).19206/2007 and Connected Cases 9 as time bound higher grades are concerned, I do not think there is anything illegal in the stipulation that the date of re-option should not extend beyond the date of the specific pay revision. As a matter of fact, I do not think that the petitioners will be aggrieved by Ext.P15. I do not therefore find any grounds to interfere with Ext.P15. In so far as Exts.P17 and P18 are concerned, suffice it to say, that enforcement of the same shall be subject to the findings which are already made as regards the conditions in Ext.P13 and the enforceability of the same as such. 11. In the result writ petitions are disposed of in the following terms. (i). Petitioners shall be entitled to the actual benefit of the revision of scale of pay from 90-190 to 100-210 in the light of the directions given in Ext.P2 and similar judgments. (ii). Conditions contained in Ext.P13 shall not be enforced against the petitioners in the matter of W.P.(C).19206/2007 and Connected Cases 10 considering their re-options which they would have submitted consequent upon Ext.P3. (iii). Re-option submitted by the petitioners pursuant to Ext.P3 shall be re-considered in the light of the findings herein issued and consequential benefit shall be granted within a period of three months from the date of receipt of a copy of this judgment. (iv). The declaration as regards Exts.P14 and P15 shall govern the petitioners. (v). Exts.P17 and P18 circulars shall be enforced only subject to the directions issued above as regards Ext.P13. There will be no orders as to costs. V.GIRI, Judge mrcs W.P.(C).19206/2007 and Connected Cases 11