IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 36952 of 2003(Y)
1. BRIGEETHA.C.V,
... Petitioner
Vs
1. THE STATE OF KERALA, REP. BY THE
... Respondent
2. THE DEPUTY DIRECTOR OF EDUCATION,
3. THE DISTRICT EDUCATIONAL OFFICER,
4. THE HEADMASTER,
For Petitioner :SRI.V.A.MUHAMMED
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
Dated :30/01/2009
O R D E R
K. BALAKRISHNAN NAIR J.
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W.P.(C) No. 36952 OF 2003
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Dated this the 30th day of January, 2009
J U D G M E N T
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The petitioner was a drawing teacher working in the 4th
respondent’s school. She, recently, retired from service. When
the pay revision was introduced with effect from 1.3.1992, she
got a chance to opt the date on which she wish to come over to
the new scale of pay. The said right was conferred by Ext.P1
Government Order dated 9.6.1994 to all teachers. The
petitioner did not exercise her option in the light of Ext.P1
Government Order. But, later the Government issued Ext.P2
Government Order dated 5.12.1995 giving a chance to
government servants to exercise option between the 5.12.1995
and 4.5.1996. She exercised her option in the light of Ext.P2.
The same was accepted and salary was refixed. While so, as per
Ext.P3, objection was raised against the acceptance of her
option. It was followed by Ext.P3(a) dated 4.9.2003 issued by
Deputy Director or Education, Thrissur, directing to rectify the
irregularity in the fixation of pay in the light of Ext.P3 audit
objection. The petitioner submits, teachers like her got chances
W.P.(C) No.36952/2003 2
to opt under Ext.P4 Government Order Dated 28.6.1997 and
Ext.P5 Government Order dated 5.2.1999. Since her option
under Ext.P2 was accepted, she could not avail the chance to opt
either under Ext.P4 or Ext.P5. Therefore, the present objection
taken against the option is unsustainable. The pleadings of the
petitioner on this point is contained in para 8 of the writ
petition. Though the 1st respondent has filed a counter affidavit
dealing with the averments in the writ petition, the above
averment has not been specifically denied. The relevant portion
of the counter affidavit is contained in para 7. But the claim of
the writ petitioner made relying on Exts.P4 and P5 is not dealt
with in paragraph 7.
2. Since the teachers like the petitioner were not eligible
to opt under Ext.P2, the audit objection, Ext.P3, and
consequential action contemplated under Ext.P3(a) may be
correct. But, the petitioner has a genuine grievance that if her
option under Ext.P2 was not accepted, she could have opted
either under Ext. P4 or under Ext.P5. This grievance of the
petitioner has to be examined by the 1st respondent.
W.P.(C) No.36952/2003 3
Accordingly, the 1st respondent is directed to consider the claim
of the petitioner to treat the option exercised by her under
Ext.P2 as regular, for the reason that if she got a chance under
Ext.P4 or Ext.P5, she would have opted what she has done
under Ext.P2. The petitioner is directed to produce a copy of
this judgment before the 1st respondent, within one months from
today. In that event, the said respondent shall take a decision on
the above claim of the petitioner, after affording an opportunity
of being heard, within three months from the date of receipt of a
copy of this judgment. There was already a stay against the
proposed recovery pursuant to the impugned orders. The same
will remain in force until the government takes a decision as
directed above, provided the petitioner produced a copy of this
judgment before the 1st respondent within one month from today.
The writ petition is disposed of as above.
(K.BALAKRISHNAN NAIR, JUDGE)
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