IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 WA.No. 1274 of 2006(C) ---------------------- AGAINST THE JUDGEMENT IN OP.17137/1997 Dated 05/09/2005 .................... APPELLANT(S): RESPONDENTS IN THE OP. ------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE SOCIAL WELFARE DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. DIRECTOR, SOCIAL WELFARE DEPARTMENT, VIKAS BHAVAN, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SMT. SMITHA SUKUMARAAN RESPONDENT(S): PETITIONER IN THE OP. ------------------------------------ P.K.ALEXANDER, S/O.P.V.KURUVILA, PULICKAPPARAMBIL HOUSE, THIRUVANCHOOR KARA, MANARCADU, KOTTAYAM 37. ADV.SRI.P.R.PADMANABHAN NAIR FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NO. 1274 OF 2006 --------------------------------------------- Dated this the 11th day of June, 2009 JUDGMENT Balakrishnan Nair, J. The respondents in O.P. No.17137 of 1997 are the appellants. The respondent herein was the petitioner. The brief facts of the case are the following: 2. The first respondent/writ petitioner submitted Ext.P1 representation before the Director of Social Welfare seeking permission to exercise reoption and for consequential refixation of his pay. He prayed that his pay may be refixed in the scale of pay of Rs.450-785 on completion of 23 years of service with effect from 1.8.1985. He also prayed for revised fixation in the scale of pay of Rs.1100-2100 with effect from 12.6.1986 and again re fixation under Rule 28 A of Part I of the Kerala Service Rules with effect from 1.8.1986. The petitioner filed Ext.P7 reminder also. The Director of Social Welfare forwarded to the Government the proposal for permitting the petitioner to reopt for the 1983 and 1988 pay revisions by Ext.P10 communication dated 18.10.1993. The Government considered the matter and allowed reoption W.A.NO.1274/2006 2 as per Ext.P11. The said order reads as follows: “The Director of Social Welfare in his letter read as fifth paper above has requested Government for permission to accept the re- option in respect of 1983 and 1988 Pay Revisions already submitted by Shri P.K. Alexander, Superintendent, Government Juvenile Home, Kottayam in view of the review of higher grades allowed to the incumbent in terms of G.O. read as fourth paper above. Government have examined the proposal in detail and are pleased to permit Shri P. Alexander, Superintendent, Juvenile Home, Kottayam to exercise re-option in respect of 1983 and 1988 Pay Revisions and related higher grades in terms of the provisions contemplated in the Govt. Orders read as second and third papers above subject to the following conditions: 1. Arrears on account of re-option will be paid only from the date of exercise of re-option. 2. Excess if any, consequent on re-option is to be refunded. 3. Re-option will be exercised within two months from the date of this order. 4. Conditions laid down in Circular No.46/90/Fin. dated 22.6.1990 should be followed.” Immediately on receipt of that order, the petitioner submitted Ext.P12 representation forwarding his options as directed in Ext.P11. The W.A.NO.1274/2006 3 petitioner also voiced his grievance in Ext.P12 regarding non-payment of arrears of salary. By Ext.P13, the Director of Social Welfare refixed the pay of the petitioner taking into account the options submitted by him along with Ext.P12. Later, this Writ Petition was filed by the first respondent seeking the following relief: “To issue a writ of mandamus or any other writ or direction or order directing the respondents to grant arrears of salary and allowances to the petitioner from 1/8/85 and from 1/8/88 consequent on refixation of the petitioner's salary as per Ext-P13 order dated 13/6/96.” 3. The respondents filed a detailed counter affidavit resisting the relief sought in the Writ Petition. The learned Single Judge allowed the Original Petition and ordered to pay arrears of salary to the petitioner with retrospective effect. Feeling aggrieved by the above direction, the appellants have preferred this appeal. 4. The respondent/petitioner was allowed to reopt as per Ext.P11 order of the Government, subject to the conditions mentioned therein. The first condition therein expressly provides that the arrears will be admissible only from the actual date of submission of the option by the respondent. In the absence of any challenge to that clause in Ext.P11, no W.A.NO.1274/2006 4 relief can be granted to the writ petitioner. The petitioner has got a right to get reoption and the benefits flowing from it on the strength of Ext.P11. Taking advantage of Ext.P11, he cannot be heard to complain about one of the conditions imposed therein. So, we are of the view that the petitioner/respondent was not entitled to get any relief in the Original Petition. Accordingly, the Writ Appeal is allowed. The judgment under appeal is reversed and the Original Petition is dismissed. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A.NO.1274/2006 5 K.BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.A.NO. 1274/2006 JUDGMENT 11th June, 2009