IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 WP(C).No. 36952 of 2003(Y) -------------------------- PETITIONER: --------------- BRIGEETHA.C.V, W/O K.J. URUVATH, AGED 54 YEARS, DRAWING TEACHER, P.V.S HIGH SCHOOL, PARAPPUKKARA, THRISSUR. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENTS: --------------- 1. THE STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR. 3. THE DISTRICT EDUCATIONAL OFFICER, IRINJALAKUDA, THRISSUR DISTRICT. 4. THE HEADMASTER, P.V.S. HIGH SCHOOL, PARAPPUKKARA, THRISSUR. GOVERNMENT PLEADER, SMT.R.BINDU FOR R1 - R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.36952/2003 APPENDIX PETITONER'S EXTS: EXT.P1: COPY OF THE G.O.(P) NO.380/94(13)/FIN. DT.09.6.1994 OF THE GOVERNMENT EXT.P2: COPY OF THE G.O.(P) NO.952/95/(63)/FIN. DT.05.12.1995 OF THE GOVT. EXT.P3: COPY OF THE AUDIT ENQUIRY NO.1 OF ACCOUNTS OFFICER OF THE 2ND RESPONDENT. EXT.P3(a): COPY OF THE LETTER NO.E3-25164/2003/L.DIS. DT.04.09.2003 OF THE 2ND RESPONDENT. EXT.P4: COPY OF THE G.O.(P) NO.615/97/(138)/FIN DT.28.6.1997 OF THE GOVERNMENT. EXT.P5: COPY OF THE G.O.(P) NO.399/(178)/99/FIN. DT.05.02.1999 OF THE GOVERNMENT. EXT.P6: COPY OF THE CIRCULAR NO.30188/PRU-1/95/FIN. DT.30.12.1995 OF THE GOVERNMENT. //TRUE COPY// PA TO JUDGE K. BALAKRISHNAN NAIR J. ---------------------------------------- W.P.(C) No. 36952 OF 2003 ---------------------------------------- Dated this the 30th day of January, 2009 J U D G M E N T ~~~~~~~~~~~ The petitioner was a drawing teacher working in the 4th respondent's school. She, recently, retired from service. When the pay revision was introduced with effect from 1.3.1992, she got a chance to opt the date on which she wish to come over to the new scale of pay. The said right was conferred by Ext.P1 Government Order dated 9.6.1994 to all teachers. The petitioner did not exercise her option in the light of Ext.P1 Government Order. But, later the Government issued Ext.P2 Government Order dated 5.12.1995 giving a chance to government servants to exercise option between the 5.12.1995 and 4.5.1996. She exercised her option in the light of Ext.P2. The same was accepted and salary was refixed. While so, as per Ext.P3, objection was raised against the acceptance of her option. It was followed by Ext.P3(a) dated 4.9.2003 issued by Deputy Director or Education, Thrissur, directing to rectify the irregularity in the fixation of pay in the light of Ext.P3 audit objection. The petitioner submits, teachers like her got chances W.P.(C) No.36952/2003 2 to opt under Ext.P4 Government Order Dated 28.6.1997 and Ext.P5 Government Order dated 5.2.1999. Since her option under Ext.P2 was accepted, she could not avail the chance to opt either under Ext.P4 or Ext.P5. Therefore, the present objection taken against the option is unsustainable. The pleadings of the petitioner on this point is contained in para 8 of the writ petition. Though the 1st respondent has filed a counter affidavit dealing with the averments in the writ petition, the above averment has not been specifically denied. The relevant portion of the counter affidavit is contained in para 7. But the claim of the writ petitioner made relying on Exts.P4 and P5 is not dealt with in paragraph 7. 2. Since the teachers like the petitioner were not eligible to opt under Ext.P2, the audit objection, Ext.P3, and consequential action contemplated under Ext.P3(a) may be correct. But, the petitioner has a genuine grievance that if her option under Ext.P2 was not accepted, she could have opted either under Ext. P4 or under Ext.P5. This grievance of the petitioner has to be examined by the 1st respondent. W.P.(C) No.36952/2003 3 Accordingly, the 1st respondent is directed to consider the claim of the petitioner to treat the option exercised by her under Ext.P2 as regular, for the reason that if she got a chance under Ext.P4 or Ext.P5, she would have opted what she has done under Ext.P2. The petitioner is directed to produce a copy of this judgment before the 1st respondent, within one months from today. In that event, the said respondent shall take a decision on the above claim of the petitioner, after affording an opportunity of being heard, within three months from the date of receipt of a copy of this judgment. There was already a stay against the proposed recovery pursuant to the impugned orders. The same will remain in force until the government takes a decision as directed above, provided the petitioner produced a copy of this judgment before the 1st respondent within one month from today. The writ petition is disposed of as above. (K.BALAKRISHNAN NAIR, JUDGE) ps