IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 WP(C).No. 17342 of 2006(M) ----------------------------------------- PETITIONER(S): ------------------------ DEVADASAN K., HEADMASTER (RETD.), G.T.J.B. SCHOOL, KUMBIDI, THRITHALA, PALAKKAD DISTRICT, RESIDING AT "RADHA NIVAS", TIRUR ROAD, KUTTIPURAM, MALAPPURAM DISTRICT. BY MR.N.N.SUGUNAPALAN, SENIOR ADVOCATE BY ADV. MR .S.SUJIN RESPONDENT(S): ------------------------- 1. THE ASSISTANT EDUCATIONAL OFFICER, THRITHALA. 2. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. 3. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. R1 TO R3 BY GOVERNMENT PLEADER MR.N.MANOJKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.17342/2006 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE LETTER NO.D5/3259 DTD. 25.3.99 ISSUED BY THE 2ND RESPONDENT. P2:- COPY OF THE EXPLANATION DTD. 27.4.99 GIVEN BY THE PETITIONER TO THE 2ND RESPONDENT. P3:- COPY OF THE LETTER DTD. 1.2.99 GIVEN BY THE IST RESPONDENT TO THE PETITIONER. P4:- COPY OF THE GO(P) NO.275/90(2) DTD. 18.4.90. P5:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY TO GOVERNENT , GENERAL EDN. DEPT. ON 10.9.99. P6:- COPY OF THE JUDGMENT DTD. 7.3.2000 IN OP. 7268/2000 OF THIS HONOURABLE COURT. P7:- COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT VIDE ORDER NO.GO(RT) NO.4060/2000 GE DTD. 6.10.2000. P8:- COPY OF THE JUDGMENT DTD. 13.10.04 IN OP. 448/01 OF THIS HONOURABLE COURT. P9:- COPY OF THE PROCEEDINGS DTD. 26.11.04 ISSUED BY THE IST RESPONDENT. P10:- COPY OF THE PROCEEDINGS DTD. 22.8.98 ISSUED BY THE IST RESPONDENT. P11:- COPY OF THE GO(P) 457(19) /FIN DTD. 3.8.94. TRUE COPY P.A. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 17342 of 2006-M - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of November, 2009. JUDGMENT The petitioner herein retired from service as Headmaster. The matter concerns an audit objection raised against the grant of Senior Grade to the petitioner. 2. The petitioner entered service as LPSA on 13.6.1967. On 1.4.1986 he was promoted as Headmaster. Senior Grade was granted to him on 1.7.1988. This was objected as per Ext.P1, by the Deputy Director of Education. Ext.P2 is the explanation submitted by the petitioner. It is the case of the petitioner that the option exercised by him has been recorded in volume II of his Service Book and therefore, the fixation should have been made in terms of the re-option. 3. The Government introduced the pay revision on 25.9.1993 with effect from 1.7.1992. The petitioner was entitled to one more increment, but after the pay revision was introduced, he was not given the said increment. After considering the re-option the Asst. Educational Officer refixed the petitioner’s pay from 1.7.1994 at Rs.2,480/- which is now objected by the Deputy Director. Even though the petitioner moved the wpc 17342/2006 2 Asst. Educational Officer in the matter, that was rejected by Ext.P3. Many of the juniors of the petitioner were getting higher pay which also had to be rectified in terms of Ext.P4 Govt. Order. 4. The petitioner thereafter moved the Government as per Ext.P5 and since the Government did not take any action, the petitioner moved this Court by filing O.P.No.7268/2000. This Court, by Ext.P6 judgment directed the Government to pass appropriate orders. Ext.P7 is the resultant order passed by the Government. The request of the petitioner to drop the audit objection was rejected. 5. Thereafter, the petitioner approached this Court by filing O.P.No.448/2001. Ext.P8 is the judgment rendered by this Court. Therein, this Court issued a direction to permit the petitioner to exercise re-option as per Ext.P4 Govt. Order (G.O.(P) No.275/90(20)/Fin. Dated 18.4.1990. This was directed to be made within a period of one month with a further direction to fix the pay by the controlling authority based on the reoption thus exercised, within one month thereafter. It was also directed that based on such fixation, the entire pensionary benefits shall be disbursed within another two months. Lastly it was directed that in the event of the delay beyond the period as fixed, the petitioner will be entitled to get interest at the rate of 10% with effect from 1.1.2004 on the revised pension and the wpc 17342/2006 3 officers responsible for the delay will be personally liable for the same. Ext.P9 is the subsequent order passed by the first respondent. It is the case of the petitioner that while fixing his pay as per Ext.P9, the first respondent failed to take into account the selection grade granted to the petitioner as per Ext.P10. Ext.P10 was issued as provided in Ext.P11 Govt. Order dated 3.8.1994. 6. It is in these circumstances, the petitioner has filed this writ petition. It is the case of the petitioner that going by Exts.P10 and P11, the petitioner’s pay has been fixed at Rs.2,480/- with effect from 1.7.1994, whereas in Ext.P9, the same has been fixed at Rs.2,360/- + Personal Pay of Rs.40/-. 7. In para 7 of the counter affidavit filed by the respondents, the stand taken is that the selection grade sanctioned to the petitioner in the revised scale with effect from 1.7.1994 as per order dated 22.8.1998 of the Assistant Educational Officer was cancelled, as he has not exercised reoption as per G.O.(P) No.457/19/Fin. Dated 3.8.1994. Hence, the grade was sanctioned with effect from 1.7.1992 and the petitioner is not eligible for the benefit of the reoption. It is also averred that the full and final benefits based Ext.P9 has been disbursed to the petitioner. 8. This stand of the respondents cannot be accepted in the light of the wpc 17342/2006 4 directions issued by this Court in Ext.P8 judgment. It is clear that the petitioner was granted the benefit of submitting a re-option as per the said judgment. It also clear that the petitioner’s salary with effect from 1.7.1994 was fixed after accepting the option submitted by him. At any rate, this Court in Ext.P8, permitted the petitioner to exercise reoption as per Ext.P4 Govt. Order. It is noticed in the judgment that the case of the petitioner is that the option was pasted in the Service Book itself. Therefore, the benefit conferred by the judgment cannot be taken away by the respondents while passing Ext.P9. A reading of Ext.P10 gives details of option submitted by the petitioner. The said proceedings also justifies the plea raised by the petitioner. What is important is the date which the petitioner opted and not the date of submission of the option. In that view of the matter, the stand taken in the counter affidavit in support of Ext.P9 cannot be justified. Therefore, the writ petition is allowed. Ext.P9 so far as it alters the pay fixation granted as per Ext.P10, is quashed. There will be a direction to the respondents to issue revised proceedings in tune with Ext.P10 and after taking note of the pay fixed with effect from 1.7.1994 and the re-option submitted pursuant to Ext.P8 judgment. Appropriate orders shall be passed wpc 17342/2006 5 and consequential benefits will be disbursed to the petitioner within a period of two months from the date of receipt of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) kav/