IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 WP(C).No. 29090 of 2006(K) -------------------------- PETITIONER: ----------- M.L. ROSILY, RETIRED UPPER PRIMARY SCHOOL ASSISTANT, ST.THOMAS HIGH SCHOOL, THIROOR, THRISSUR DISTRICT, RESIDING AT LOGO NIVAS WARRIAM LANE, THIRUVAMPADY P.O., THRISSUR. BY ADVS. SRI.K.R.B.KAIMAL, SENIOR ADVOCATE SRI.B.UNNIKRISHNA KAIMAL RESPONDENTS: ------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR. 3. THE DISTRICT EDUCATIOANAL OFFICER, THRISSUR. 4. THE HEADMASTER, ST.THOMAS HIGH SCHOOL, THIROOR, THRISSUR DISTRICT. R1-R3 BY GOVERNMENT PLEADER SRI.RAJESH VIJAYAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JJJ WP(C).No. 29090 of 2006(K) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER G.O.(P)380/94(13) FIN.DATED 9.6.1994 ISSUED BY THE 1ST RESPONDENT P2: COPY OF THE ORDER G.O.(P)NO:952/63/FIN.DATED 5.12.1995 ISSUED BY THE 1ST RESPONDENT P3: COPY OF THE REOPTION STATEMENT DATED 27.2.1996 SUBMITTED BY THE PETITIONER P4: COPY OF THE STATEMENT OF FIXATION OF PAY DATED 26.2.1996 P5: COPY OF THE CHALAN DATED 16.11.96 ISSUED BY THE SUB TREASURY THRISSUR TO THE PETITIONER P6: COPY OF THE GOVT.ORDER G.O.(P) NO:855/95(60)/FIN.DATED 21.11.1995 P7: COPY OF THE LETTER NO:B1-11932/2005 DATED 19.12.2005 OF THE 3RD RESPONDENT TO THE 4TH RESPONDENT P7(A) COPY OF THE AUDIT ENQUIRY NOTE ANNEXED TO EXT.P7 P8: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC NO:2559/2006 DATED 27.1.2006 P9: COPY OF TE NOTICE NO:E4-4790/06 DATED 31.3.2006 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER P10: COPY OF THE STATEMENT DATED 8.5.2006 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT P11: COPY OF THE ORDER NO:E4-4790/06 DATED 12.6.2006 ISSUED BY THE 2ND RESPONDENT RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A.TO JUDGE JJJ S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.29090 of 2006 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of October, 2011 J U D G M E N T The petitioner retired from service as a U.P. School Assistant on 31.3.2006. As per Ext.P1 Government order dated 09.06.1994, the Government granted extension of time to all teachers to exercise a re-option for coming over to new scale of pay as per 1992 pay revision. The petitioner did not file any re-option as per Ext.P1 Government order within the time stipulated therein. Later on, by Ext.P2 order dated 5.12.1995, the Government extended the benefit of Ext.P1 to Government employees as well and they were given six months' time from 05.12.1995 for re-option. Assuming that Ext.P2 applies to teachers as well, although Ext.P2 refers to only State Government employees, the petitioner submitted Ext.P3 re-option dated 27.02.1996. That re-option was accepted. The petitioner's pay was re- fixed according to the re-option and the petitioner had been W.P.(C)No.29090 of 2006 -2- receiving salary as per the pay fixation on the basis of the re-option. Later on, the audit party objected to the re- fixation of pay on the basis of Ext.P3 re-option by Ext.P7 and consequently by Ext.P7 (a) the petitioner's pay was re- fixed in accordance with the original option. The petitioner challenged the same by filing W.P. (C) No.2559/2006, in which, this Court by Ext.P8 judgment directed re- consideration. Pursuant to the same, Ext.P11 order has been passed rejecting the claim of the petitioner on the ground that the petitioner has submitted Ext.P3 re- option on the basis of Ext.P2, which is not applicable to teachers. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i) a writ of certiorari quashing/setting aside Ext.P11 order. ii) a writ of mandamus to respondents 2 and 3 to treat the pay fixation in the case of the petitioner based on reoption dated 27.2.96, is perfectly valid and legal and on that basis sanction and disburse the pensionary benefits due to the petitioner based on her retirement on 31.3.2006.” 2. The petitioner's contention is that although Ext.P2 has not been specifically made applicable to teachers, the W.P.(C)No.29090 of 2006 -3- petitioner's re-option submitted on 27.2.1996 was accepted and acted upon. Thereafter, by Ext.P6 dated 21.11.1995 for all employees, including teachers, six months time from 1.12.1995 was granted for submitting re-option. Since the petitioner's re-option as per Ext.P3 filed on 27.2.1996 had already been accepted and acted upon the petitioner could not take advantage of Ext.P6 and therefore the petitioner has been denied opportunity to re-opt in accordance with Ext.P6. Therefore, according to the petitioner, Ext.P3 re- option should be construed as one filed pursuant to Ext.P6 Government Order, extending time for re-option by six months from 1.12.1995 and therefore Ext.P11 order rejecting the representation of the petitioner is unsustainable. 3. A counter affidavit had been filed by the 1st respondent wherein they seek to sustain Ext.P11 order on the following grounds mentioned in paragraphs 4 & 5: “4. It is submitted that as per Ext.P1 order teachers were permitted to file re-option for electing pre-revised time bound higher grade and come over to its revised scale within 3 months from the date of Government Order dated 09.06.1994. But, the W.P.(C)No.29090 of 2006 -4- petitioner exercised re-option on 29.2.1996 not on the basis of Ext.P1 order, but on the basis of Ext.P2 order. Moreover, re- option dated submitted on 27.2.1996 by the petitioner does not come within the period allowed for filing re-option as per Ext.P1. So the Ext.P1 is not applicable for the petitioner. Ext.P2 is not applicable to the teachers. Government have issued G.O. (P) No.380/94/(13)/Fin. dated 9.6.1994 (Ext.P1 Order) in order to grant certain benefits exclusively for teachers. Later, a number of State Employees and Service Organizations have requested to extend the benefits in G.O. (P) No.380/94(13)/Fin. Dated 9.6.1994 which was allowed only for teachers, to the other categories also. As such, 1st respondent issued G.O. (P) No.952/95(63)/Fin. dated 5.12.1995 (Ext.P2) for extending benefits allowed to teachers in Ext.P1 to the other categories also. Ext.P2 was issued by the 1st respondent, only for employees other than teachers. So Ext.P2 is not applicable to teachers. Therefore the re-option exercised the petitioner on 27.2.1996 is not in order. The stand that Ext.P2 is not applicable to teachers has already been upheld by a Division Bench of this Hon'ble Court in Writ Appeal No.1428 of 2007 and connected cases. 5. As per Ext.P6 the time limit for filing re-option for 1992 Pay Revision was extended for a further period of 6 months from 1.12.1995. As per Ext.P6 the petitioner cannot elect to continue in the pre-revised Time Bound Higher Grade scale and to come over 1992 Pay Reivision scale. The re-option exercised by the petitioner was objected by the 2nd respondent since it was not in order as per Ext.P1 & P2.” 4. I have considered the rival contentions in detail. 5. It is true that the petitioner filed Ext.P3 re-option on 27.2.1996 quoting Ext.P2 Government Order, which was one extending Ext.P1 order applicable to teachers to State Government employees as well. That re-option was acted upon by the respondents. But as per Ext.P6, even apart from Ext.P2 the petitioner had a right to file re-option W.P.(C)No.29090 of 2006 -5- within six months from 1.12.1995 and therefore Ext.P3 re- option of the petitioner dated 27.2.1996 is well within the time prescribed by Ext.P6. Therefore, if the petitioner had not quoted Ext.P2 in Ext.P3, Ext.P3 would have been perfectly in order in accordance with Ext.P6 order. In such circumstances, I do not think that the petitioner should be denied the benefit of Ext.P3 re-option which was well within the time prescribed by Ext.P6 Government order although wrongly quoting Ext.P2 Government order. In the above circumstances, I am of opinion that the denial of benefit of re-option to the petitioner is clearly unjust and unreasonable. Accordingly Ext.P11 is quashed. It is declared that the re-fixation of pay on the basis of Ext.P3 re- option submitted by the petitioner is regular and in order. Orders on the above basis re-fixing the pay of the petitioner on the basis of Ext.P3 re-option, shall be issued by the 3rd respondent, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. All arrears of benefits including retirement W.P.(C)No.29090 of 2006 -6- benefits based on the orders to be so passed shall be disbursed to the petitioner, within a further period of one month therefrom. The writ petition is allowed as above. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/