IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN WEDNESDAY, THE 6TH DECEMBER 2006 / 15TH AGRAHAYANA 1928 WP(C).No. 8419 OF 2004(B) ------------------------- PETITIONER: ------------ T.L.INASU, (RETIRED CLERK), ST.MARY'S HIGH SCHOOL, CHENGALOOR P.O. VIA, PUTHUKKAD, THRISSUR DISTRICT. BY ADV. SRI.P.K.ABOOBACKER(EDAPPALLY) RESPONDENTS: 1 -------------- 1. STATE OF KERALA REP. BY THE SECRETARY TO GOVERNMENT (FINANCE DEPARTMENT), GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR. 3. THE DISTRICT EDUCATION OFFICER, IRINJALAKUDA 4. THE HEADMASTER, ST.MARY'S HIGH SCHOOL, CHENGALOOR. GOVERNMENT PLEADER SRI. M.P. PRAKASH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/12/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP.(C) 8419/2004 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF TE RELEVANT PORTION OF THE AUDIT ENQUIRY IN RESPECT OF THE PETITIONER. EXT.P2 PHOTOCOPY OF THE REPRESENTATION DATED 8.12.98 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P3 TRUE COPY OF THE LETTER DATED 13.1.1999 FORWARDED BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT. EXT.P4 TRUE COPY OF THE LETTER DATED 18.12.1999 FORWARDED BY THE 2ND RESPONDENT TO THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. EXT.P5 TRUE COPY OF THE LETTER DATED 23.3.2001 ISSUED BY THE 2ND RESPONDENT. EXT.P6 TRUE COPY OF THE RELEVANT EXTRACYT OF G.O.(P) 101/80 (167)/FIN. DATED 30.1.80. EXT.P7 TRUE COPY OF THE ORDER DATED 10.11.2003 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P8 TRUE COPY OF THE G.O.(P) NO. 592/03/FIN. DATED 10.11.2003. RESPONDENTS' EXHIBITS: NIL. // TRUE COPY // P.S. TO JUDGE. knc/- P.R. RAMAN, J. = = == = = = = = W.P.© 8419/2004 = = = = = = = = = DATED THIS, THE 6TH DAY OF DECEMBER, 2006. J U D G M E N T Petitioner entered service as a Watchman on 25.7.1967 in St. Mary’s High School, Chengaloor which is an aided school. He was promoted as a Peon on 16.7.1968. Thereafter, when a vacancy of Clerk arose, he was appointed against that post with effect from 24.1.1979. His pay was accordingly fixed invoking Rule 28A of Part I of the Kerala Service Rules and he had been drawing the pay as fixed by the Department. Long thereafter, in the year 1989 the audit party raised an objection in the matter of pay fixation of the petitioner and advised to collect the excess pay drawn by him. Ext.P1 is the relevant extract of the audit objection. Though the objection was raised only ten years after fixation of the pay of the petitioner, he abided by the audit objection and sought to redress his grievance emanating there from resulting in refund of an amount of Rs. 15,000/- by way of seeking re-option. But it appears that the same was turned down by the Department as a result of which he had no option but to seek redressal of his grievance by approaching this Court. Accordingly, WP(C) 8419/2004 :2: he filed a writ petition before this Court as O.P. 8101/2003 for appropriate direction to consider his request for re-option. This Court, it is submitted, eventually allowed the writ petition, directing the Principal Secretary, Finance, to consider the representation of the petitioner and to dispose of the same in accordance with law. Thereafter, Ext.P7 order was passed on 10.11.2003, informing the petitioner that his request for re-option cannot be considered favourably, though as per G.O.(P) 101/80/167/Fin dated 30.1.1980, produced as Ext.P6 in this case, the period for re-option shall stand extended in cases where there is a retrospective change in the pre- revision pay due to audit scrutiny or any other reason, the said order has been annulled by G.O.(P) 3000/98/Fin. Dated 25.11.1998 (1997 pay revision order). Hence, petitioner, aggrieved by Ext.P7, has approached this Court for appropriate directions. 2. It is the specific contention of the petitioner that the judgment of this court in O.P. 8101/2003, it being a court order, the authority ought to have considered his case favourably rather than pinning in down to Government Order G.O.(P) No. 3000/98/Fin. Dated 25.11.1998. According to him, even in the said Government Order, re-option will be granted when there is a court order to that effect and when the petitioner had approached this Court and this Court having directed the authorities to WP(C) 8419/2004 :3: consider his claim, nothing prevented the respondents from considering his case based on the court order and should have extended him the benefit. On the other hand, learned Government Pleader, appearing on behalf of the State would contend that the earlier Government Order Ext.P6, with reference to which the petitioner was claiming the benefit of re-option within an extended period in the circumstances as stated by him, however stood nullified by the subsequent Government Order G.O.(P) 3000/98/Fin. Dated 25.11.1998 and as such the petitioner cannot claim the benefit of re- option at a belated stage since as on the date on which Ext.P7 was passed, the law relating to a time limit for re-option is G.O.(P) 3000/98/Fin. Dated 25.11.1998. 3. Heard both sides. Ext.P7 is dated 10.11.2003. The only reason stated in Ext.P7 is that Ext.P6, giving the benefit of re-option and enlarging the time limit in cases where such re-option is necessary based on audit objection, has been nullified by the order dated 25.11.1998. However, on the very same day, Ext.P8 order was passed by the Government, which clearly shows that in spite of G.O.(P) No. 3000/98/Fin. Dated 25.11.1998, number of requests were forthcoming from different quarters claiming the benefit of Ext.P6 order and therefore, the Government, by Ext.P8 clarified that no re-option will be available except on conditions specified in para 15 WP(C) 8419/2004 :4: of Annexure III to G.O.(P) No.3000/98/Fin. At least this will show that G.O.(P) 3000/98/Fin dated 25.11.1998, in the matter of the extended period of re-option has not strictly been followed and in appropriate cases, relief had been granted and only after Ext.P8 had been issued, a definite position was emerged that no such relaxation will hitherto be made. Therefore, as on 10.11.2003 and prior to Ext.P8, petitioner’s case should have been considered fabourably, especially in view of the judgment of this Court in O.P. 8101/2003 and further, that re-option was necessitated because of the objection by the audit party, that too, ten years after the pay fixation by the Department to which mistake, petitioner had not contributed at all. At any rate, even after Ext.P8, the facts remain that whenever there is a court order, that is sufficient ground for extending the benefit of re-option. Considering the totality of the facts and circumstances of the case, as narrated above, I find that this is a fit case where the petitioner’s request for re-option ought to have been allowed. Ext.P7, in such circumstances, cannot be justified and the same is accordingly quashed. 4. The matter will be reconsidered by the authorities in the light of what is stated above and grant the petitioner the benefit of re-option. However, it will be subject to the condition that the actual benefit flowing from such re-option will be granted to the petitioner only after he actually WP(C) 8419/2004 :5: refunds the excess amount drawn by him as provided for in G.O.(P) No.101/80/(167)/Fin dated 30.1.1980. The writ petition is allowed as above. There will be no order as to costs. P.R. RAMAN, (JUDGE) knc/-