IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 OP.No. 24060 of 2001(L) ----------------------- PETITIONER(S): ---------------------- A. ABDUL LATHEEF RETIRED ASSISTANT SUB INSPECTOR S/O. ABDULLA KUTTY PONNAMINA HOUSE CHATHINAMKULM CHANDANATHOPU KOLLAM DISTRICT BY ADV. SRI.M.V.THAMBAN RESPONDENT(S): ------------------------- 1. SUPERINTENDENT OF POLICE. KOLLAM 2. DIRECTOR GENERAL OF POLICE THIRUVANANYHAPURAM 3. ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT DEPARTMENT OF HOME GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM 4. ACCOUNTANT GENERAL (KERALA) THIRUVANANTHAPURAM. BY SR. GOVERNMENT PLEADER SMT.N.SUDHA DEVI THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 30/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 24060 of 2001(L) APPENDIX PETIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF ORDER NO. A4-13118/97-Q DATED 8.4,97 ISSUED BY THE FIRST RESPONDENT. EXT.P2 - TRUE COPY OF REPRESENTATION DATED24.4.98 SUBMITTED BEFORE THE GOVT. EXT.P3 - TRUE COPY OF LETTER DATED 16.12.98 ISSUED BY THE SECOND RESPONDENTS EXT.P4 - TRUE COPY OF REPRESENTATION DATED 10.2.1999 SUBMITTED BEFORE THE FIRST RESPONDENT. EXT.P5 - TRUE COPY OF RE-OPTION DATED 3.3.2000 SUBMITTED BY THE PETITIONER. EXT.P6 - TRUE COPY OF JUDGMENT DATED 28.3.2000 IN O.P. NO. 7613/2000 OF THE HON; HIGH COURT OF KERALA. EXT.P7 - TRUE COPY OF JUDGMENT DATED 4.12.2000 IN CCC NO. 1157/2000. EXT.P8 - TRUE COPY OF G.O.(Rt) NO. 4666/2000/HOME DATED 25.11.2000. EXT.P9 - TRUE COPY OF REPRESENTATION DT.9.1.2001 SUBMITTED BY THE PETITIONER BEFORE THE SUPERINTENDENT OF POLICE. EXT.P10 - TRUE COPY OF G.O.(P) NO. 101/80/(167)/FIN. DATED 30.1.1980. EXT.P11 - TRUE COPY OF PENSION SANCTIONING ORDER DATED 6.11.1999 ISSUED BY THE 4TH RESPONDENT. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... O.P. No. 24060 of 2001 ................................................. Dated this the 30th day of November, 2009 J U D G M E N T The petitioner joined the police department of Government of Kerala as a Police Constable on 16.4.1962. He was promoted as a Head Constable on 21.11.1985. He was further promoted as Assistant Sub Inspector on 28.12.1992. He retired on 30.4.1997. On the eve of his retirement, the petitioner was served with Ext.P1 order dated 8.4.1997 regarding the fixation of his pay, taking into account several punishments imposed on him during his period of service. During his period of service, the petitioner was under suspension from 10.1.1984 to 14.7.1984, from 16.1.1988 to 14.9.1990 and from 24.10.1990 to 28.12.1992. The petitioner filed Exts.P2 and P5 representations in respect of the fixation of pay by Ext.P1. By Ext.P6 judgment, the petitioner obtained a direction to consider those representations. Since the same was not complied with, petitioner moved CCC No. 1157 of 2000, which was closed by Ext.P7 judgment recording the fact that Ext.P8 order has been passed in the meanwhile. The petitioner has now filed this original petition seeking the following reliefs: O.P. No. 24060 of 2001 -2- “i. to issue a writ of certiorari or other writ, or order or direction calling for the records leading upto Ext.P10 and quash Ext.P1 and P8. ii. to issue a writ of mandamus or any other writ, or order or direction directing the respondents as follows:- (a) to accept the re-option submitted in Ext.P2 from 1983 pay revision onwards or alternatively to permit a re-option to get over Ext.P1 objections, on the basic pay of Ext.P10 G.O. and pay consequential arrears and revised pensionary benefits with 18% interest. (b) to grant subsistence allowance as per the pay entitled at the relevant time taking into account the increments and grade promotions and pay the arrears of salary. (c) to restore the pay already fixed from 1983 onwards after ignoring Ext.P1. (d) to consider and pass orders on Ext.P4 representation. (e) to direct the respondents to pay consequential arrears of salary and pensionary benefits after implementing Ext.P2 and P5 and granting 25 years higher grade with 18% interest. (f) to direct the respondents to pay full subsistence allowance during the period of suspension at 80% of the basic pay that arrived at after restoring the fixation already allowed and after granting 25 years higher grade.” 2. Before dealing with the case, I must note that the original petition itself is drafted so confusing and it is extremely difficult to understand even the basic facts necessary for consideration of the original petition. When this was pointed out to the counsel for the O.P. No. 24060 of 2001 -3- petitioner, he made available to me a note containing the contentions of the petitioner. After filing that note, the counsel for the petitioner argued that Ext.P1 order and the punishment orders referred to therein were not served on the petitioner prior to filing of Ext.P5. The learned Government Pleader pointed out that this is not correct since in Ext.P2 itself petitioner refers to Ext.P1. That being so, Exts.P2 and P5 representations were filed after Ext.P1 order was served on the petitioner. In Exts.P2 and P5 representations, petitioner has no case that the punishment orders referred to in Ext.P1 were not served on him. The petitioner does not challenge Exts.P1 and P8 as such, as is clear from the prayers quoted above. In fact in the counter affidavit of the 1st respondent it is stated that Ext.P1 order has been passed strictly in accordance with the orders of punishment issued to the petitioner. 3. As far as the first prayer is concerned, the petitioner cannot be given an option to get over Ext.P1. The question of filing option arises only for coming over to the revised scale of pay on pay revision. That chance is long over. Simply because Ext.P1 order has been issued to the petitioner, the petitioner cannot be given an opportunity to file fresh option to get over Ext.P1 objections. O.P. No. 24060 of 2001 -4- 4. As far a the prayer regarding subsistence allowance is concerned, payment of subsistence allowance is governed by Rule 55 of Part I of KSR read with Rule 93 thereon. Going by the same, subsistence allowance cannot be calculated taking into account, increments and grade promotions as is clear from Rule 55 itself, which categorically states that the benefit of any increase in pay due to increment falling due during the period of suspension will not be admissible during period. 5. As far as the 3rd prayer is concerned, in so far as the petitioner is not challenging Ext.P1, his pay cannot be restored from 83 onwards ignoring Ext.P1. For the very same reason, the petitioner is not entitled to the other prayers. As such petitioner is not entitled to the reliefs prayed for in this original petition. Accordingly this original petition is dismissed. sd/- S. SIRI JAGAN, JUDGE rhs // True copy // PA to Judge