IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 7TH FEBRUARY 2011 / 18TH MAGHA 1932 WP(C).No. 36268 of 2004(P) -------------------------- PETITIONER: ------------------ V.I. IYPE, AGED 58 YEARS, S/O. VARGHESE IYPE, ( PHARMACIST GR-I RETIRED) KURUNTHOTTATHIL HOUSE, PARAMPUZHA P.O., KOTTAYAM. BY ADV. SRI.ESM.KABEER RESPONDENTS: ---------------------- 1. THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH DEPARTMENT TRIVANDRUM. 2. THE CHIEF MEDICAL OFFIER, DISTRICT AYURVEDA HOSPITAL, KOTTAYAM. 3. THE DISTRICT MEDICAL OFFICER OF HEALTH, INDIAN SYSTEMS OF MEDICINES, KOTTAYAM. 4. THE ACCOUNTANT GENERAL OF KERALA (A & E) THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SMT.M.R.SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 36268 of 2004(P) ------------------------------------ APPENDIX ---------------- PETITIONER'S EXHIBITS ------------------------------------ EXT.P1. COPY OF THE G.O.(P) NO.399/(178)/99/FIN. DTD. 5.2.99 PERMITTING TO EXERCISE RE-OPTION. EXT.P2. COPY OF THE PROCEEDINGS DATED 1.1.2000 ACCEPTING RE-OPTION BY THE 3RD RESPONDENT. EXT.P3. COPY of the COMMUNICATION DATED 23.9.2000 OF THE 2ND RESPONDENT REGARDING RECOVERY FROM SALARY. EXT.P4. COPY OF THE JUDGMENT IN OP NO.29979/2002 DTD. 25.12.2003. EXT.P5. COPY OF THE COMMUNICATION REGARDING SANCTIONING OF PENSIONARY BENEFITS. EXT.P6. COPY of the COMMUNICATION FROM THE 3RD RESPONDENT DT. 18.8.2003. EXT.P7. COPY OF THE REPLY SUBMITTED BY THE PETITIONER DTD. 13.11.2003. EXT.P8. COPY of the REMINDER SUBMITTED BY THE PETITINER TO THE 3RD RESPONDENT DT.D 7.10.2004. RESPONDENT'S EXHIBITS : NIL --------------------------------------- / TRUE COPY / P.A. TO JUDGE VK VK T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.36268 Of 2004 ----------------------------------------------------- DATED THIS THE 7th DAY OF FEBRUARY, 2011 J U D G M E N T The petitioner retired from service on 31.10.2000 as Pharmacist Gr.I, District Ayurveda Hospital, Kollam. He started his career as Pharmacist on 13.3.1970 in the Department of Indian Systems of Medicine. With respect to 1992 pay revision, he submitted a re-option to come over to the said pay revision with effect from 13.3.1995 invoking G.O.(p)No.398(178)/99/Fin. dated 5.2.1999. This was accepted and the revised pay was fixed. 2. After retirement, the same was objected and therefore the petitioner approached this court by filing O.P.No.29979/02 which was allowed and the fixation of pay was restored. The challenge is against Exhibit P6 by which the petitioner is directed to refund the benefits already received for the periods from 13.3.1995 to 18.3.1999 ,on the plea that he will gain the benefit only from the date of submission of the re-option, namely 19.3.1999. W.P.(C)No.36268/04 -2- 3. The learned counsel for the petitioner submitted that the legal position in this respect has been laid down by a Division Bench of this Court in State of Kerala v. Lissy Joseph (2005 (4) KLT S.N.70(Case No.97). It is submitted that a reading of the judgment will show that what is intended is the date of effect of re-option. Therein the Division Bench held thus: The only dispute to be resolved in these appeals is whether arrears consequent on re- option of higher grades are admissible from the date of effect of re-option or from the date of filing of re-option. It is now clear that what is intended is the date of effect of re- option and not the date of actual exercise of re-option. Excess of amount due after calculating the same from the date of effect of re-option can be entitled to set off against the refunds due from the employee and the amount due, if any, arising after the date of re-option alone need be refunded to the Government. 4. The above dictum will squarely apply to the facts of this case. W.P.(C)No.36268/04 -3- 5. In that view of the matter, Exhibit P6 is quashed. The petitioner is not liable to refund any amount. The benefits due to the petitioner, if any, will be released, within a period of two months from the date of receipt of a copy of this judgment. The Writ petition is disposed of as above. No costs. Sd/-( T.R.RAMACHANDRAN NAIR, JUDGE) dsn True copy P.A. to Judge