IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 OP.No. 15557 of 2001(B) ---------------------------------- PETITIONER: ------------------- P.S. RADHA, HEADMISTRESS, A.L.P. SCHOOL, THOYAKAVU WEST, THOYAKAVU.P.O., THRISSUR DISTRICT. BY ADVS. MR.S.P.ARAVINDAKSHAN PILLAY, MR.V.VARGHESE. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR (EDUCATION), THRISSUR. 4. ASSISTANT EDUCATIONAL OFFICER, MULLASSERY, PAVARATTY .P.O., THRISSUR DISTRICT. R1 TO R4 BY GOVERNMENT PLEADER SMT. SMITHA SUKUMAR. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 15557/2001-B: APPENDIX PETITIONERS' EXHIBITS: P1: COPY OF THE AUDIT ENQUIRY NO.2 FORWARDED BY THE ASSISTANT EDUCATIONAL OFFICER, MULLASSERY TO THE PETITIONER. P2: COPY OF THE REPRESENTATION DTD. 20/07/2000 SUBMITTED BY THE PETITIONER BEFORE GOVERNMENT. P2.A: COPY OF THE STATEMENT SHOWING THE PAY ACTUALLY DRAWN. P2.B: COPY OF THE STATEMENT SHOWING THE EXCESS AMOUNT TO BE REFUNDED BY THE PETITIONER. P3: COPY OF THE G.O.(P).NO.101/80/(167)/FIN. DTD. 30/01/80. P4: COPY OF THE LETTER NO. R2.74307/2000/DPI/L.DIS. DTD. 08/11/2000 OF THE DIRECTOR OF PUBLIC INSTRUCTION. P5: COPY OF THE REPRESENTATION DTD. 08/01/2001 SUBMITTED BY THE PETITIONER TO THE R.2. P5.A: COPY OF THE G.O.(RT).NO.5720/99/FIN. DTD. 24/09/99. P6: COPY OF THE REPRESENTATION DTD. 08/01/2001 SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE MINISTER FOR FINANCE AND EXCISE. P7: COPY OF THE GOVERNMENT LETTER NO. 8456/PRU.1/2001/FIN. DTD. 17/02/2001. P8: COPY OF THE LETTER NO. R2/26365/2001/DPI/L.DIS. DTD. 23/04/2001 OF THE R.2. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.SIRI JAGAN, J. ================== O.P.No.15557 of 2001 ================== Dated this the 25th day of March, 2009 J U D G M E N T The petitioner entered continuous service as an LPSA in Government aided school service with effect from 1.6.1972. She had provisional Government school service for the period from 11.2.1970 to 31.3.1970. The petitioner was given 13 years' higher grade with effect from 1.7.1984 taking into account that provisional service also. Based on that, the petitioner exercised option for subsequent pay revisions. She retired from service on 31.3.2005. In the meanwhile, as per the communication dated 23.9.1999 referred to in Ext.P1, audit objections were raised regarding the legality of the grant of higher grade taking into account the provisional service also. Against the same, the petitioner made representations. Ultimately, by Ext.P7 order, the petitioner's claim in this regard was rejected. The consequence would be that the petitioner would be liable to refund considerable sum of money. She would also lose pensionary benefits as a result of the same. The petitioner is, therefore, challenging Exts.P1, P4, P7 and P8, and seeking the following reliefs: “i) issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Exts.P1, P4, P7 and P8 and quash them. ii) declare that no amounts are liable to be refunded by the petitioner and that she is entitled to exercise re-option. o.p.15557/01 2 iii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to permit the petitioner to exercise re-option consequent on Ext.P1 with monetary benefits from the dates opted so as to avoid refund of any amount and minimise the loss consequent on Ext.P1 within a time limit to be fixed by this Hon'ble Court.” 2. The petitioner seeks three alternate prayers. First is that since her 13 year higher grade granted with effect from 1.7.1984 is sought to be cancelled in 1999, the same should be quashed on account of delay. Secondly, she would contend that even if audit objection is upheld, since, because of delay, the petitioner had already made her options in the subsequent pay revisions, she should be given another opportunity to submit options for coming over to the revised scale of pay in all pay revisions once again. Thirdly, she would contend that as is clear from Ext.P7 order itself, as in the case of a similarly situated teacher, viz., Smt.M.Retnavally, relief can be granted to the petitioner also in the form of permission to submit revised option. 3. The learned Government Pleader would object to all the prayers. According to the learned Government Pleader, the petitioner is not entitled to any of the reliefs prayed for. 4. After hearing both sides, I am of opinion that in so far as the Government themselves had given chance of re-option to a similarly situated teacher, viz., Smt.M.Retnavally, the petitioner should o.p.15557/01 3 also be given the very same benefit given to Smt.M.Retnavally, as per Ext.P5(a). Accordingly, I dispose of this original petition with the following directions: The impugned orders are quashed. The petitioner shall be given a chance to exercise re-option as given to Smt.M.Retnavally in Ext.P5 (a). Re-option will be exercised within two months from today. Conditions laid down in circular No.13/96/Fin dated 18.3.1996 would be adhered to for the same. On exercise of option, the petitioner' pay should be re-fixed within another period of two months. If any excess amount is found to be refunded by the petitioner, that shall not be recovered in view of the decision of the Supreme Court in State of Bihar & others v. Pandey Jagadishwar Prasad [2009 (1) KHC 512 (SC) (SN)]. Arrears of pensionary benefits, if any, shall be paid within the said period of two months. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 15557 of 2001-B ================== 25th March, 2009 J U D G M E N T