IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 WP(C).No. 18560 of 2005(H) -------------------------- PETITIONER(S): --------------- P.I.VARGHESE, PHYSICAL EDUCATION TEACHER (RETIRED), PEREPPADAM HOUSE, K KUTTIKKAD P.O., PIN-680 721. BY ADV. SRI.P.K.ABOOBACKER(EDAPPALLY) RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESETNED BY SECRETARY TO THE EDUCATION DEPARTMENT, SECRETRIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, TRIVANDRUM. 3. THE DEPUTY DIRECTOR (EDUCATION), THRISSUR. 4. THE DISTRICT EDUCATIONAL OFFICER, IRINJALAKKUDA. 5. THE PRINCIPAL, ST.SEBASTIAN HIGHER SECONDARY SCHOOL, KUTTIKKAD, IRINJALAKUDA, THIRSSUR. GOVERNMENT PLEADER SMT.M.R.SREELATHA FOR R1TOR4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/07/2010 , THE COURT ON 09/07/2010 DELIVERED THE FOLLOWING: WPC.18560/2005 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE GO DT 9-6-94. P2 COPY OF THE GO DT 5-12-95. P3 COPY OF THE GO DT 28-6-97. P4 COPY OF THE GO DT 21-11-95. P5 COPY OF THE ORDER DT 17-3-2001. P6 COPY OF THE LETTER DT 30-12-95. P7 COPY OF THE JUDGMENT DT 16-10-03. // True Copy // P.A. To Judge C.T.RAVIKUMAR, J. ``````````````````````````````````````````````````````` W.P.(C) No. 18560 of 2005 H ``````````````````````````````````````````````````````` Dated this the 9th day of July, 2010 J U D G M E N T The petitioner was a Physical Education teacher in the fifth respondent's school. He retired from service on 31-03-2001. This writ petition has been filed mainly with the following prayers:- “ (i) To call for the records relating to Exts.P1 to P7 and to issue a writ of certiorari or any appropriate writ, direction or order quashing Ext.P5 order issued by the third respondent rejecting re-option exercised by the petitioner for selection grade on the basis of Ext.P2, since it is illegal, improper and against the Government Orders and Rules; (ii) To issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents to declare that the fixation of pay of the petitioner done by the Department vide Exts.P1 to P3 are valid; and (iii) To issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents to refund the amount of Rs.25,591/- recovered from petitioner's pensionary benefits being the excess salary drawn from 12-07-1993 to 31-03-2001.” WPC.18560/2005 : 2 : 2. According to the petitioner, as per Exts.P1 and P2, Government permitted government employees to file re-option for time bound higher grade fell due/granted on or after 01-03-1992 after cancelling the option already exercised within six months from the date of the said order and as such, he is also entitled to submit re-option based on the said order. The further contention of the petitioner is that Ext.P3 Government Order dated 28-06- 1997 virtually permitted State Government Employees and Teachers who got time bound higher grade on or after 01-03-1992 to re-opt time bound higher grade on the date of their choice. It is his case that he had exercised re-option for pay revision ordered with effect from 01-03-1992 and his application for that purpose submitted on 23-02-1996 was accepted. In short, according to him, the option exercised by him was approved by the fourth respondent and subsequently, he was being paid as per the revised scale of pay based on the sanction accorded as per order No.B3-3406/96/K.Dis. dated 14-10-1996. The further contention of the petitioner is that prior to the issuance of Ext.P2 Government Order, Government have issued Ext.P4 Government Order dated 21-11-1995, extending time limit for exercise of option/re-option for WPC.18560/2005 : 3 : pay revision ordered with effect from 01-03-1992. Based on the same, it is contended that the re-option exercised by the petitioner on 23-02-1996 was within the time limit prescribed as per Ext.P4 Government Order. Later, as per Ext.P5 order dated 17-03-2001, the third respondent raised objections with regard to the aforesaid pay fixation. The same was objected citing the reason that Ext.P2 Government Order dated 05-12-1995 is not at all applicable to teachers. On receipt of Ext.P5 order, the petitioner has submitted a representation against the proposal on 20-03-2001. Essentially, the contention raised thereunder by the petitioner is that the pay revision orders issued from time to time by the Government are applicable to State Government employees including teachers. Based on the aforesaid contention, it is submitted that Ext.P2 order dated 05-12-1995 is also applicable to teachers and, therefore, Ext.P5 order is unsustainable. Obviously, the case of the petitioner is founded on the contention that Ext.P2 order dated 05-12-1995 is applicable to Government employees including teachers. Relief No.(i) sought for in this writ petition itself would reveal that the petitioner is assailing Ext.P5 order as illegal based on Ext.P2 Government Order dated 05-12-1995. I cannot WPC.18560/2005 : 4 : countenance with the said contention in the light of a Division Bench decision of this Court in W.A.No.1428/2007 dated 23-07- 2009. The question raised for consideration in the said Writ Appeal was whether G.O.(P) No.952/95/(63)/Fin. dated 05-12- 1995, i.e, Ext.P2 herein, is applicable to teachers. The contention raised in the Writ Appeal filed by the State was that it applies to Government employees and not to teachers. The contention to the contra by the respondents therein was repelled by this Court and ultimately, it was held that the said Government Order dated 05-12-1995 is applicable only to Government employees and it is not applicable to teachers. The said decision in so far as it is relevant for the purpose of this case reads thus:- “ 4. The learned counsel for the respondent-writ petitioner pointed out that the teachers under the Government are also covered by the expression 'Government employees' and, therefore, the benefit under the G.O. dated 05- 12-1995 is applicable to them also. Learned counsel appearing in the connected Writ Appeals pointed out that the teachers in the Government schools and aided schools are treated alike for the purpose of pay revision, grade promotion and WPC.18560/2005 : 5 : exercise of option and, therefore, they are also benefited by G.O.(P) 952/95/(63)/Fin dated 05- 12-1995. In answer, the learned Government Pleader would submit that in all the pay revision Government orders, the Government employees and teachers (including teachers in the aided schools) are treated separately for the purpose of grant of grade promotion and, therefore, the same applies in the matter of exercise of option also. 5. On going through the pay revision orders, we notice that Government employees and teachers are treated as separate groups in them. When the expression 'Government employees' is used in such orders, that does not include teachers working in Government schools. Therefore, we agree with the content of the appellants that G.O.(P) 380/94/(13)/Fin dated 09-06-1994 was meant for teachers in Government and aided schools and G.O.(P) 952/95/(63)/Fin dated 05-12-1995 was applicable only to Government employees other than teachers. Going by the relevant orders, that is the only possible interpretation that can be attributed to them. 6. Therefore, the judgment of the WPC.18560/2005 : 6 : learned Single Judge permitting the respondent- writ petitioner to re-opt as per G.O.(P) 952/95/ (63)/Fin dated 05-12-1995 is unsustainable. Accordingly, the judgment under appeal is reversed and the writ petition is dismissed. The writ appeal is allowed as above.” In the light of the judgment dated 23-07-2009 in W.A.No.1428/2007, the contention of the petitioner that Ext.P2 Government Order dated 05-12-1995 is applicable to teachers as well cannot be sustained. As already noticed, as per Ext.P5 the third respondent raised objection against the pay fixation effected in favour of the petitioner on the ground that Ext.P2 order dated 05-12-1995 is not applicable to teachers. Once, the said contention is repelled, the inevitable consequence is that the challenge against Ext.P5 has to fall on ground. In the light of the aforesaid position, Ext.P5 order calls for no interference. There is no merit in the contentions raised in the writ petition and accordingly, it is dismissed. Sd/- (C.T.RAVIKUMAR, JUDGE) aks // True Copy // P.A. To Judge