Anies T.A. v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 4TH AUGUST 2011 / 13TH SRAVANA 1933 WP(C).No. 9438 of 2007(W) ------------------------------- PETITIONER: -------------- ANIES T.A., W/O. M.V.XAVIER, RETIRED HIGH SCHOOL ASSISTANT, RESIDING AT MARY BHAVAN, MAKKAPARAMBIL, ELAMAKKARA P.O., KOCHI - 682 026. BY ADVS. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA RESPONDENTS: ------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT FINANCE (PRU) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ACCOUNTANT GENERAL (A & E), THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, - ERNAKULAM. BY SMT. RANI DIOTHIMA, GOVERNMENT PLEADER FOR R1-R3. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 9438/2007 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF OPINT SUBMITTED BY PETITIONER AND the STATEMENT OF FIXATION. EXT. P2 : COPY OF ENDORSEMENT MADE BY R3 WHILE RETURNING THE OPTION PROPOSAL DTD. 23.1.01. EXT. P3 : COPY OF ORDER DTD. 9.6.06 ISSUED BY R2. EXT. P4 : COPY OF G.O.(P) 365/05(150)/FIN. DTD. 6.8.05. EXT. P5 : COPY OF FORWARDING LETTER DTD. 2.10.05 ALONG WITH FORM OF REOPTION SUBMITTED BY PETITIONER. EXT. P6 : COPY OF JUDGMENT DTD. 4.7.06 IN WP(C) 17381 OF THIS COURT. EXT.P6(a) : COPY OF ACKNOWLEDGMENT CARD ACKNOWLEDGING EXT.P6 RECEIVED FROM R3. EXT. P7 : COPY OF CHALAN No.1/42 DTD. 9.10.06 REMITTING A SUM OF RS.19,933/-. EXT. P8 : COPY OF ORDER DTD. 26.12.06 No.B6/11012/06/K.DIS ISSUED BY R3. EXT. P9 : COPY OF REPRESENTATION DTD. 13.1.07 SUBMITTED BY PETITIONER BEFORE R3. EXT. P10 : COPY OF ORDER ISSUED BY R3 VIDE No.B6-519/07/K.DIS DTD. 17.2.07. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp ## **T.R. RAMACHANDRAN NAIR, J.** **--------------------------------------W.P.(C) No.9438 OF 2007 --------------------------------------Dated this the 4[th] day of August, 2011.** ## **J U D G M E N T** The petitioner who is a pensioner is aggrieved by the non acceptance of re-option submitted at the time of 1997 pay revision. Initially, the re-option submitted was returned by the endorsement that the petitioner will have to remit the excess amount. The petitioner had not admittedly refunded the amount at that point of time and subsequently she retired from service on 31.03.2005. 2. The pensionary benefits of the petitioner were sanctioned as per Ext.P3 order dated 09.06.2005. Therein, the emoluments drawn during the last ten months were reckoned going by the admitted payments received by the petitioner. The petitioner, subsequently, based on Ext.P4 Government Order dated 06.08.2005, submitted a re-option proposal before the Headmistress of the school on 07.10.2005 and the Headmistress has forwarded the option with statement to the 3[rd] respondent as **W.P.(C) No.9438/2007** **2** per Ext.P5. It is the case of the petitioner that the same should have been accepted and higher pay ought to have been sanctioned and naturally the petitioner will be entitled for the revision of the pensionary benefits also. 3. The petitioner thereafter approached this Court by filing W.P.(C) No.17381/2006 wherein a direction was issued to the 3[rd] respondent to consider and pass orders on Ext.P5 representation. A further direction was also issued to consider the effect of Ext.P4 Government Order also. The petitioner, in the meanwhile, remitted an amount of Rs.19,933/- as evident from Ext.P7, a copy of the chalan. Ext.P8 order, according to the petitioner, did not consider the effect of Ext.P4 Government Order and the fact of remittance of amount by the petitioner. 4. This Court is only concerned with the reasoning adopted in Ext.P8 order. Two reasons have been stated therein mainly to reject the contentions of the petitioner. It is pointed out that Ext.P4 order will not apply to the case of the petitioner as the same provided a chance of re-option to the State Government employees, aided school and college employees coming under the **W.P.(C) No.9438/2007** **3** State pay scale in respect of 1997 pay revision in cases involving retrospective reduction in the revised pay consequent on audit scrutiny or any other reason. The order does not apply to time bound grade promotion. The petitioner re-opted Selection Grade fixation sanctioned on 21.08.1999 which does not come within the ambit of the order therein. The second reason stated is that the petitioner has not re-opted 1997 pay revision. 5. Learned counsel for the petitioner submitted that the petitioner was asked to refund the excess amount and that is why a fresh re-option was submitted and there is actually a mistake on the part of the District Educational Officer in the matter of fixation of pay. It is further pointed out that the petitioner has to suffer financially since pension is being received by the petitioner only on a reduced rate than that was due. 6. Evidently, the plea raised by the petitioner cannot be accepted in the light of the plain terms of Ext.P4 order itself. It is a case where the Government found that as per Note (1) below rule 4 of Annexure III to the Government Order, service reckoned for increment alone will be counted as qualifying service for **W.P.(C) No.9438/2007** **4** weightage for pay fixation benefits. It was found by the Government that in many cases including that of teachers, service not reckoned for increment has been counted for weightage and this resulted in retrospective reduction in revised pay already fixed earlier. After considering all these aspects, the Government allowed a chance to the persons concerned to submit re-option under the conditions provided in Ext.P4 and in that context, in paragraph 2 therein a direction was also issued to refund the excess amount drawn for the period in question and the date for submission of re-option was fixed as on or before 31.10.2005. 7. Evidently, the objection raised in respect of the petitioner's fixation has nothing to do with the situation provided in Ext.P4. Actually, the petitioner had opted the Selection Grade and the option if any to be submitted for a time bound higher grade or the like is not covered by Ext.P4. The scope of Ext.P4 is only in respect of teachers under whose cases the service not reckoned for increment has been counted for weightage and there was retrospective reduction of the revised pay because of **W.P.(C) No.9438/2007** **5** the non acceptance of the option submitted. Therefore, the reasoning in Ext.P8 that Ext.P4 will not apply to the petitioner do not call for any interference. Prior to issuance of Ext.P4 order, the petitioner had retired from service. 8. Learned counsel for the petitioner submitted that the petitioner was entitled for the benefit of re-option from the date of effect of option itself and in support of the said plea reliance was placed on the decision of a Division Bench of this Court in _**State of Kerala** vs._ _**Lissy Joseph**_ (2005 (4) KLT S.N.70 Case No.97). It is true that in the said case it was held that when reoption is accepted and the pay fixation is made, the benefit is liable to be granted from the date of effect of reoption and not from the date of filing of option. But, herein the case of the petitioner is different. It is a case where the fixation was finalised by 03.04.1999 as evident from Ext.P2 as well as from paragraph 3 of the counter affidavit filed by the 1[st] respondent. 9. It is averred in paragraph 3 of the counter affidavit that the petitioner failed to comply with the direction of the District Educational Officer in Ext.P2 and the re-option submitted by the **W.P.(C) No.9438/2007** **6** petitioner as on 03.04.1999 was treated as settled. Evidently, the matter was allowed to be settled by the petitioner at that point of time without any challenge. Therefore, finalisation of pay fixation at that point of time also cannot be revised at this distance of time. Exts.P8 and P10 are therefore properly issued. For all the above reasons, the petitioner is not entitled for any relief in the writ petition and the same is dismissed. Learned counsel for the petitioner submitted that the petitioner had refunded an amount of Rs.19,933/- as evident from Ext.P7 chalan. In the light of the fact that re-option submitted by the petitioner cannot be accepted, the said amount will be refunded 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** smp