IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 23RD SEPTEMBER 2011 / 1ST ASWINA 1933 WP(C).No. 34036 of 2006(B) -------------------------------- PETITIONER: -------------- MALLIKA ANTONY, AGED 55 YEARS, W/O. V.I. JOSE, HIGH SCHOOL ASSISTANT (RETD.), S.N.D.P. HIGHER SECONDARY SCHOOL, PALISSERY, ANNAMANADA, THRISSUR DISTRICT (RESIDING AT VADAKKAN HOUSE, P.O. KOTTAMURAY (VIA) MALA, THRISSUR DISTRICT-680 732). BY ADVS. SRI.V.A.MUHAMMED SRI.K.E.HAMZA SRI.T.V.VIJAYARAJAN RESPONDENTS: ------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DEPUTY DIRECTOR OF EDUCATION, AYYANTHOLE, THRISSUR DISTRICT. 3. THE DISTRICT EDUCATIONAL OFFICER, IRINJALAKUDA, THRISSUR DISTRICT. 4. THE PRINCIPAL, S.N.D.P. HIGHER SECONDARY SCHOOL, PALISSERY, ANNAMANADA, THRISSUR DISTRICT. BY SMT. RANI DIOTHIMA, GOVERNMENT PLEADER FOR R1 TO R3. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.34036/2006 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF G.O.(P) 615/97/(138)/FIN. OF GOVT. DTD. 28.6.97. EXT. P2 : COPY OF FORM OF OPTION OF PETITIONER DTD. 1.10.97. EXT. P3 : COPY OF STATEMENT OF FIXATION OF -DO- DTD. 1.10.97. EXT. P4 : COPY OF LETTER No.B1-7400/05 OF District Educational Officer, IRINJALAKUDA ALONG WITH EXTRACT OF AUDIT ENQUIRY DTD. 16.12.05. EXT. P5 : COPY OF G.O.(P) 399/(178)/99/FIN. OF GOVT. DTD. 5.2.99. EXT. P6 : COPY OF G.O.(P) 101/80/(167)/FIN. OF GOVT. DTD. 30.1.80. EXT. P7 : COPY OF JUDGMENT OF HON'BLE COURT IN O.P.14736/00-D DTD. 18.12.03. EXT. P8 : COPY OF JUDGMENT IN O.P.12457/01-G DTD. 5.6.03. EXT. P9 : COPY OF REPRESENTATION FILED BEFORE GOVT. DTD. 9.1.06. EXT. P10 : COPY OF ORDER No.31870/A1/06/GE OF GOVT. DTD. 20.10.06. EXT. P11 : COPY OF DECISION REPORTED IN 1997(1) KLT 417 DTD. 15.1.97. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.34036 OF 2006 --------------------------------------- Dated this the 23rd day of September, 2011. J U D G M E N T The petitioner retired from service on 30.04.2006 while working as High School Assistant in the S.N.D.P. Higher Secondary School, Palissery, Annamanada in Thrissur District. The issue pertains to the audit objection raised against the re- option submitted by the petitioner as per Ext.P2 based on Ext.P1 Government Order. By Ext.P3, the District Educational Officer fixed his pay, after accepting the re-option according to the petitioner on 24.03.1999. The audit objection has been raised by Ext.P4 which was forwarded along with a letter dated 16.12.2005. Even though the petitioner submitted various representations in the matter seeking for an opportunity to file reoption, the same has been finally rejected by the Government by Ext.P10. Therefore, both Exts.P4 and P10 are under challenge in this writ petition. 2. By Ext.P1 Government Order dated 28.06.1997, permission was granted to submit option/re-option based on the W.P.(C) No.34036/2006 2 said order within a period of three months from the date of the order. The re-option had to be submitted with respect to time bound higher grade. The petitioner's re-option submitted is dated 01.10.1997. The same was accepted and the pay was fixed. 3. The objection raised in Ext.P4 is that the option submitted is beyond the permitted period. Accordingly, it was held that it will not come within the period permitted to exercise option or re-option as per the Government Order Ext.P1. Learned counsel for the petitioner submitted that the Government had granted further time to submit re-option as evident from Ext.P5 order dated 05.02.1999. The petitioner could have utilised the said opportunity if any objection was raised in time, with respect to the option submitted as per Ext.P2. 4. It is pointed out that the audit objection itself has been raised long after the issuance of Ext.P5 and the petitioner has not been granted any opportunity to submit an option afresh. It is further pointed out that since the re-option submitted by the petitioner will be within the extended period provided under W.P.(C) No.34036/2006 3 Ext.P5, the objection cannot survive. The petitioner also relies upon the principles adopted in the judgments namely, Exts.P7 and P8 wherein this Court was of the view that the right of re- option of persons like the petitioner cannot be denied. 5. Heard the learned counsel for the petitioner and the learned Government Pleader. In the counter affidavit filed by the 1st respondent, what is contended is that the option submitted was on 01.10.1997 that is beyond the time fixed in Ext.P1. 6. After going through the details, I find that the objection raised cannot be sustained for more reasons than one. It is true that in Ext.P1 the period fixed is three months from the date of the order. The re-option submitted by the petitioner was accepted and the benefit was granted. A reading of Ext.P5 order shows that the said order was passed in the light of the fact that various representations were filed to extend the period provided under Ext.P1 as many of the Government employees could not exercise option owing to the restriction imposed in another Government Order namely, G.O.(P)No.352/96/Fin. Dated 11.04.1996 and even after it was lifted by ref(3) therein. Therefore, in Ext.P5, the Government after considering various W.P.(C) No.34036/2006 4 aspects ordered as follows: “Government have examined the matter in detail and are pleased to accord permission to exercise option/re-option to those employees, who could not exercise option/re-option for time bound higher grades sanctioned on or after 01.03.1992, due to the prevalence of cut-off date. Such option/re-option will be exercised within a period of three months from the date of this order. No further extension will be allowed”. 7. Therefore, the time was extended upto 05.05.1999 with a rider that no further extension will be allowed. The date on which the petitioner submitted option is 01.10.1997. Evidently, the outer limit provided under Ext.P5 is three months from 05.02.1999 that is 05.05.1999. In that view of the matter, the objection raised against the acceptance of option is only hyper technical as it can be treated as valid and within the time extended. Apart from that, when the option submitted by the petitioner is interfered with, it is only natural that the petitioner should be granted an opportunity to avail the benefit of Ext.P5. The petitioner did not submit an option at that point of time as pay fixation was already made and he had no doubt about the pay fixation and there was no occasion for the petitioner to W.P.(C) No.34036/2006 5 submit a fresh option/re-option based on Ext.P5. The audit objection came only after about six years. In that view of the matter also, if it is held that the option exercised cannot be accepted, then the petitioner will be deprived of the benefit of Ext.P1 as well as Ext.P5. The same cannot be accepted. 8. Therefore, I am of the view that the option submitted by the petitioner as per Ext.P2 could have been treated as valid. Based on Ext.P2, Ext.P3 fixation has already been made. The same is said to be dated 24.03.1999 significantly after issuance of Ext.P5 also. The averment of the petitioner about the date of approval of the fixation as 24.03.1999 is not disputed in the counter affidavit. The proceedings No. as evident from Ext.P3 is B6-769/99. Hence it can be treated as properly fixed. It is not a case where there is any dispute regarding the scale opted. Therefore, even though the petitioner is also seeking for an opportunity to submit a fresh option, as I am of the view that fixation as per Ext.P3 can be held as valid as the same was fixed within the outer time limit provided in Ext.P5, the petitioner can be granted the benefits which are remaining to be paid based on the said pay fixation. W.P.(C) No.34036/2006 6 9. Learned Government Pleader submitted that the audit objection raised is perfectly valid. It is also pointed out that in the counter affidavit various reasons have been stated relying upon the outer time limit provided in Ext.P1. But, I am of the view that since the outer time limit itself has been extended by Ext.P5, the said contention cannot be accepted as it will enure to the benefit of Exts.P2 and P3 also. The outer time limit provided under Ext.P1 thus became irrelevant and immaterial. It is submitted by the learned counsel for the petitioner that because of the above disputes, the petitioner has not been sanctioned the full pension. In that view of the matter, this writ petition is allowed. Exts.P4 and P10 are quashed. There will be a direction to the respondents 2 and 3 to pass appropriate orders granting full pension and other benefits, if any, to the petitioner on the basis of Ext.P3 fixation and the remaining benefits will be disbursed within a period of three months. This writ petition is allowed as above. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp