IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 2ND MARCH 2010 / 11TH PHALGUNA 1931 WP(C).No. 23444 of 2009(A) ----------------------------------------- PETITIONER(S): ------------------------- I.V.RAJENDRAN, HSA (PHYSICAL SCIENCE), CMC BOYS HIGH SCHOOL, ELATHUR, KOZHIKODE. BY ADV. MR.R.K.MURALEEDHARAN RESPONDENT(S): --------------------------- 1. THE STATE OF KERALA REP.BY SECRETARY TO GENERAL EDUCATION DEPARTMENT, TRIVANDRUM. 2. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE. 3. THE DISTRICT EDUATIONAL OFFICER, KOZHIKODE. R1 TO R3 BY GOVERNMENT PLEADER MR. SANDESH RAJA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.23444/2009 A APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE RELEVANT PAGE OF THE OBJECTION RAISED BY THE 2ND RESPONDENT DURING 2001. P2: COPY OF THE REQUEST SUBMITTED THROUGH THE HEADMISTRESS TO THE 3RD RESPONDENT. P3: COPY OF PAGE NO.27 OF THE SERVICE BOOK OF THE PETITIONER. P4: COPY OF THE ORDER DTD. 19/10/07 OF THE 3RD RESPONDENT. P5: COPY OF THE OBJECTION BY THE 2ND RESPONDENT DTD. 23/11/07. P6: COPY OF THE REPRESENTATION DTD. 29/10/2008 SUBMITTED THROUGH PROPER CHANNEL BY THE PETITIONER. P7: COPY OF THE COMMUNICATION FROM 1ST RESPONDENT DTD. 23/3/2009. P8: COPY OF THE G.O.(P) 281/89/(256)/FIN DTD. 6/06/1989. P9: COPY OF THE CIRCULAR NO.52373/J2/98/G.EDN. DTD. 6/03/1998. P10: COPY OF THE G.O.(P)615/97/(138)/FIN DTD. 28/06/1997. P11: COPY OF THE JUDGMENT IN WPC.NO.27860/07 DTD. 27/09/2007. P12: COPY OF THE JUDGMENT IN WP(C) NO.33545/07 DTD. 13/02/2008. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S. SIRI JAGAN, J. ~~~~~~~~~~~~~~~~~~~ W.P.(C). No.23444 OF 2009 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 2nd day of March 2010 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ J U D G M E N T The petitioner is a HSA (Physical Science) in an aided school. Prior to his entry into regular service, the petitioner had provisional service also. Taking into account that provisional service also, the petitioner's pay was fixed in accordance with the pay revision order. That fixation was on 1.8.1992. After 9 years, an objection was raised regarding reckoning of the provisional service for the purpose of the pay revision. Pursuant to the said objection, the petitioner submitted revised option for the pay revision by Ext.P4 on 19.10.2007. The pay was refixed on the basis of the reoption submitted by the petitioner excluding the provisional service. Now that also is sought to be cancelled on the ground that the revised option could not have been accepted under law. Under the circumstances, the W.P.C. No.23444 OF 2009 -2- petitioner seeks the following reliefs; “ a. Issue a writ of certiorari or any other appropriate writ order or direction, quashing Ext.P5 objection raised by the 2nd respondent dated 23.11.2007 and Ext.P7 communication of the 1st respondent dated 23.3.2009. And b. Issue a writ of mandamus or any other appropriate writ order or direction, directing the respondents to accept the re-fixation submitted by the petitioner excluding the period of provisional service from 2.9.80 to 31.10.80 and further direct to drop the objection, grant the benefits already withheld due to the objection and permit the petitioner to exercise option in respect of 2004 pay revision and disburse the consequential benefits. c. Issue such other orders as this Hon'ble Court may deem fit to grant. ” 2. A counter affidavit has been filed by the second respondent opposing the contentions of the petitioner. After hearing the matter for some time on 22.2.2010, I passed the following interim order: “The learned counsel for the petitioner admits that the petitioner is not entitled to have the provisional service counted for the purpose of fixation of pay. The petitioner submits that excluding the provisional service, the petitioner had submitted Ext.P3 option which has been W.P.C. No.23444 OF 2009 -3- acted upon by Ext.P4. Now, it is sought to be again revised on the ground that Ext.P3 could not have been accepted. The petitioner submits that this Court has held in several cases that, when on account of an objection, refixation is called for, employee should be given an opportunity to submit a re-option, although the date for re-option is already over. The petitioner relies on Ext.P11 and P12 judgments of this Court in support of the said contention. The learned Government Pleader seeks further time. Post on 1/3/2010.” The learned Government Pleader today submits that under law, that reoption could not have been permitted. 3. I have considered the rival contentions in detail. The original fixation was as early as 1.8.1992 against which objection was raised only on 29.11.2001. Therefore, normally going by the Supreme Court decisions, the arrears could not have been recovered from the petitioner. But the petitioner filed a revised option accepting the fact that, the provisional service could not have been counted for the purpose of the pay fixation. That reoption was accepted as per Ext.P4 and pay was refixed as early as on 19.10.2007. W.P.C. No.23444 OF 2009 -4- Therefore, I am of the opinion that the petitioner's fixation of pay as per Ext.P4 cannot now be disturbed on the ground that the option which was accepted as per Ext.P4 could not have been accepted. Further in Exts.P11 and P12 judgment, in somewhat similar circumstances, I myself had permitted similarly situated persons to submit reoption on the ground that the reoption became necessary because of the audit objections raised after the period prescribed for submitting reoption were on. As such, I am not inclined to permit the respondents to disturb the fixation by Ext.P4, on the basis of the reoption submitted by the petitioner. Accordingly, Exts.P5 and P7 are quashed and this writ petition is disposed of holding that petitioner's pay would be regulated in accordance with Ext.P4 fixation for service benefit of the petitioner. S. SIRI JAGAN JUDGE nl