IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 16TH SEPTEMBER 2009 / 25TH BHADRA 1931 OP. No. 31231 of 2000(R) ----------------------------- PETITIONER: -------------- C.M. ALEKUTTY, W/O. PETER THOMAS, AGED 43 YEARS, H.S.A., V.H.M. HIGH SCHOOL, MORAYUR, MALAPPURAM. BY MR.A.J.JOSE(AEDAIODI), ADVOCATE. MR.K.V.RAJU, ADVOCATE. RESPONDENTS: ------------------ 1. THE STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14. 3. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. 4. THE DISTRICT EDUCATIONAL OFFICER, MALAPPURAM. 5. THE HEADMASTER, V.H.M. HIGH SCHOOL, MORAYUR, MALAPPURAM DISTRICT. BY MR. V.T.K. MOHANAN, GOVERNMENT PLEADER. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 16/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No.31231/2000 Order on C.M.P.No.53092/2000 in O.P.No.31231/2000 Dismissed. 16.09.2009 Sd/- T.R. RAMACHANDRAN NAIR, JUDGE. A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF THE G.O.(P) No.380/94(13)/FIN. DTD. 9.6.94. EXT. P2 : COPY OF LETTER DTD. 24.2.95. EXT. P3 : COPY OF REJECTION ORDER DTD. 22.8.95. EXT. P4 : COPY OF LETTER ISSUED BY R4 DTD. 15.1.99. EXT. P5 : COPY OF LETTER No.56375/A3/99/G.EDN. DTD. 9.1.99. EXT. P6 : COPY OF LETTER No.27962/PRU-1/2000/FIN. DTD. 15.5.00. EXT. P7 : COPY OF ORDER DTD. 3.8.94. EXT. P8 : COPY OF GOVT. LETTER DTD. 30.12.95. EXT. P9 : COPY OF G.O.No.101/80/(167) FIN. DTD. 30.1.1980. EXT. P10 : COPY OF LETTER OF R2 DTD. 6.10.99. EXT. P11 : COPY OF ORDER DTD. 1.4.00. EXT. P12 : COPY OF INTERIM ORDER DTD. 26.7.00. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- O.P. No.31231 OF 2000 --------------------------------------- Dated this the 16th day of September, 2009. J U D G M E N T The petitioner is mainly aggrieved by Exhibit P6 order passed by the Government in the Finance Department whereby it was informed that the time limit for exercising re-option as per G.O.(P) No.952/95(63)/Fin. dated 05.12.1995 and G.O.(P) No.616/96/(111)/Fin. dated 03.10.1996 has elapsed, long back. Accordingly, the Government refused to accede to the request of the petitioner for re-option in view of the restrictions imposed vide Rule 15 of the Rules for fixation of pay, in G.O.(P) No.3000/98/Fin. dated 25.11.1998. 2. The issue is covered in favour of the petitioner in the light of the decision of this Court in O.P.No.14736/2000. The bare facts necessary for the disposal of the original petition are the following: 3. The issue pertains to the re-option submitted by the petitioner for the 1992 pay revision. The petitioner exercised O.P. No.31231/2000 2 option for the 1992 pay revision on 31.01.1994 and her pay was fixed at Rs.1,520/- with effect from 01.03.1992 in the scale of pay of Rs.1350-2270 as per the proceedings of the District Educational Officer dated 17.05.1994. According to the petitioner, her pay was fixed at such rate in the post of H.S.A Grade II in the revised scale of Rs.1350-2000 sanctioned as per G.O.(P)No.600/93/Fin. dated 25.09.1993 and G.O.(P)No.600/ 93/Fin. dated 08.12.1993. Later her pay was also fixed in the higher grade scale of pay of Rs.1520-2660. The petitioner exercised a revised option for the time bond higher grade with effect from 01.07.1993 in terms of Exhibit P1 namely, G.O.(P) No.380/94(13)/Fin. dated 09.06.1994. She was directed to refund the excess amount drawn from 01.03.1992 to 30.06.1993 and accordingly, that was refunded at the Sub Treasury, Kondotty as per chalan No.292 dated 23.09.1994. But, when the proposal for re-option was submitted to the 4th respondent, it was rejected by Exhibit P2. 4. The petitioner even though filed an appeal, that was rejected by Exhibit P3. The revision petition filed against the O.P. No.31231/2000 3 same was also rejected, which is evident from Exhibit P4. In Exhibit P4, the District Educational Officer directed the petitioner to address the Government for permission to exercise re-option. Accordingly, the petitioner approached the Government. The request was rejected by Exhibit P5, and even though a review petition was filed, that was also rejected by Exhibit P6. 5. The re-option submitted by the petitioner was to change the date of grade promotion. The petitioner is relying upon Exhibits P7 and P8 to show that the same is permissible. It is also stated that if the petitioner is given a chance to re-opt, her 10 years Higher Grade promotion to 01.07.1993, the objection could be rectified. Reliance is placed on Exhibit P9 G.O.(P) No.101/80/(167)/Fin. dated 30.01.1980. 6. By Exhibit P10, the Director of Public Instruction requested the Government to consider the petitioner's request for re-option. Exhibit P11 is produced to show that the 1st respondent accorded sanction to one Smt.Annamma M.J. for re- option. Again the request was rejected by the Government. These orders are under challenge in this original petition. O.P. No.31231/2000 4 7. A reading of Exhibit P10 is relevant in this context to understand the difficulties experienced by the petitioner. The date of Exhibit P4 is 15.01.1999. It is true that by the time, the 1998 pay revision had also been implemented. In Exhibit P5, the Government was of the view that as per rule 15 of rules for fixation of pay laid down in G.O.(P)No.3000/98/Fin. dated 25.11.1998, the re-option for the past pay revisions can be permitted only in the cases involving court orders or retrospective promotion, and these conditions are not seen satisfied in this case. Therefore, the proposal cannot be accepted. 8. But, two things are important. The petitioner had submitted an option in terms of Exhibit P1 for claiming the benefit sanctioned as per the said Government Order and the excess amount drawn had already been refunded. Her request to the Government is to consider the re-option submitted for time bound higher grade promotion with effect from 01.07.1993 in the revised scale of Rs.1220-2150. 9. A similar issue was considered in the judgment in O.P. No.31231/2000 5 O.P.No.14736/2000. Therein also, the matter considered was in respect of the benefit of 1992 pay revision. After the fixation of the pay scale in terms of the re-option submitted, audit objection was raised in the year 1999. The petitioner thereafter submitted a re-option statement. It was disallowed stating that as per G.O.(P) No.3000/98/Fin. dated 25.11.1998 it was a belated request. While considering the said issue, it was held thus in paragraph 5: “...........In my view, the counsel for the petitioner is well founded in his submission that the petitioner's request for re-option made on 15.03.1999 cannot be disallowed on the basis of G.O.(P) No.3000/98/Fin. dated 25.11.1998 since the re-option exercised was not in relation to 1997 pay revision, but in relation to 1992 pay revision. It is evident from the facts of this case that the event which necessitated the re-option had well taken place prior to Govt. order dated 25.11.1998 and the right of the petitioner for re-option should be considered in the light of the orders issued in Ext.P4. The petitioner cannot be made to loose the right for re- option because the audit objections, in fact, were raised on 01.03.1999, after the issuance of G.O.(P) No.3000/98/Fin. dated 25.11.1998. Otherwise it will be clear discrimination amounting to arbitrariness O.P. No.31231/2000 6 and illegality. In my view the petitioner's request has to be dealt with under Ext.P4 G.O. Here, it is not the date of the request for reoption that matters, but the reasons which necessitated the exercise of reoption, namely, whether it pertains to pre 1997 revision or post 1997 revision”. 10. Going by the facts of this case also, the claim was denied clearly in the light of the fact that Exhibit P4 is dated 15.01.1999 and therefore, the petitioner also cannot be blamed. The reasoning adopted by this Court in the said judgment is squarely applicable to the facts of this case also. The relevant clause of 1998 pay revision order cannot be relied upon to reject the claim raised by the petitioner. 11. Going by the counter affidavit, the objection taken by the District Educational Officer is that there is no provision to re- opt the grade granted with effect from 01.07.1992 in Exhibit P1. It is further averred in paragraph 6 that the petitioner is eligible for re-option as per G.O.(P) No.101/80/Fin. dated 30.01.1980. In the light of the above, the impugned orders cannot be sustained. Exhibits P2 to P6 are quashed. Fresh orders will be passed in terms of the recommendation made in Exhibit P10 by O.P. No.31231/2000 7 the Government and after sanctioning the re-option submitted by the petitioner. The pay and allowances of the petitioner shall be determined on that basis and monetary benefits shall be worked out and paid expeditiously, at any rate, within a period of four months from the date of receipt of a copy of this judgment. This original petition is disposed of as above. T.R. RAMACHANDRAN NAIR JUDGE smp