IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 19206 of 2007(J)
1. P.MOHANAN,
... Petitioner
2. C.MOHANAN,
3. A.SIVAKRISHNAN,
4. A.V.BALAKRISHNAN NAMBIAR,
5. M.BALAKRISHNAN,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. ACCOUNTANT GENERAL (A & E),
3. DIRECTOR OF SURVEY & LAND RECORDS,
For Petitioner :SMT.I.SHEELA DEVI
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice V.GIRI
Dated :01/01/2008
O R D E R
V.GIRI, J
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W.P.(C)s. 19206/2007, 31781/2007, 26324/2007,
35685/2007, 31391/2007, 28203/2007 & 20196/2007
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Dated this the 1st day of January, 2008
JUDGMENT
Common issues arise for consideration in all these
cases. Therefore, they have been considered together and
are disposed of by a common judgment.
2. Petitioners in all these cases were appointed as 2nd
Grade Surveyor during the period 1972-73. They were
then fitted in the scale of 90-190. Apparently at that point
of time, certain other 2nd Grade Surveyors in the same
department, who had passed the higher Survey test,
were appointed in the scale of pay of Rs.100-210/-. Since
the nature of the duties being discharged by the
petitioners and similarly situated persons who do not pass
higher Survey test were the same of those who passed
the same, several writ petitions were filed before this
Court claiming the same scale of pay. By several
judgments, including Exts.P1 and P2, this Court found
that the petitioners and similarly situated persons were
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entitled to the pay scale of Rs. 100-210/-
3. Ext.P2 judgment was accepted and Ext.P3
Government Order was issued on 13.1.2000 declaring
that the scale of pay of 2nd Grade Surveyors will be
revised to 100-210 from 19-190 with retrospective
effect. Consequently directions were also issued. Since
by the time Ext.P3 was issued several pay revisions had
taken place, the Accountant General requested the
Government for a general Government Order in the
matter of accepting re-options from the petitioners and
similarly situated persons, relatable to the pay revisions
which had been effected subsequent to 1973.
Notwithstanding Ext.P3, by Ext.P7 communication dated
16.3.2001, Government intimated the Director of
Survey that no re-option may be permitted by those 2nd
Grade Surveyors whose scale of pay was revised from
19-190 to 100-210 on the basis of Ext.P3 Government
Order dated 13.1.2000.
4. Ext.P7 was challenged in a batch of writ petitions
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before this Court and the same was quashed. Appeal by
the State was also dismissed by Ext.P8 judgment and
affirmed by the Supreme Court as evidenced by Ext.P9.
The result of the same was that the petitioners and
similarly situated persons were given the facility of re-
option in relation to the pay revisions which took place
subsequent to 1973. Consequent upon the revision of
pay from 90-190, applications were submitted for such
re-options also. The said options were directed to be
accepted under Ext.P11 series judgments. But by
Ext.P13 order, Government issued a communication to
the Director stating that the benefit of re-option
consequent on the directions of this Court, shall be
granted only subject to the following conditions.
(i). The benefit of re-option will be limited to the
pensionary benefits only.
(ii). Neither excess amount drawn consequent on re-
option will be refunded nor arrears will be paid.
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(iii). Re-option will be exercised within two months from
the date of order permitting the exercise of re-option.
5. In the case of some of the 2nd Grade Surveyors who
were already beneficiaries of the directions for
acceptance of the re-option, proceedings under the
Contempt of Courts Act was moved and thereupon the
Government issued a direction to the Director to
disburse the arrears of pay to the said petitioners but
subject to the outcome of SLP No.2662/2006 and
connected cases pending before the Supreme Court
relating to the payment of arrears consequent upon re-
option. By Ext.P15 communication dated 16.12.2006, it
was intimated that the date of re-option to be permitted
to the petitioners and similarly situated persons pursuant
to the directions of this Court with regard to the time
bound higher Grade, shall not be extended beyond the
date of effect of the subsequent pay revision order.
Apparently the petitioners’ re-options were not accepted
by the Director as evidenced by Ext.P16 series
essentially on the basis of Exts.P13 and P15 orders. It is
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in these circumstances that the petitioners have
approached this Court.
6. Counter affidavit has been filed on behalf of the
first respondent in Writ Petition No.19206/2007 and
adopted in other cases also. They have justified
Exts.P13, P15, P17 and P18.
7. I heard learned counsel for the petitioners, Smt. I
Sheela Devi and the learned Special Government
Pleader, Sri. Manoj Kumar.
8. In my view, the short issue that arises for
consideration is whether the conditions contained in
Ext.P13 as regards the manner in which the re-option
exercised by the petitioners and similarly situated
persons, and the conditions contained in Ext.P15 as
regards time bound Higher Grade promotion are
sustainable or not. In so far as Ext.P13 is concerned, I
am of the view that the conditions imposed cannot be
enforced against the petitioners for the simple reason
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that this Court in Ext.P2(and reportedly in other similar
judgments) specifically held that the scale of pay
applicable to 2nd Grade Surveyors appointed in 1973
shall be revised to 100-210. In Ext.P2 judgment, there is
a specific direction to pay the arrears of wages also.
Consequently, there cannot be an interdiction against
the benefit of the re-option being reflected in the actual
wages due to the petitioners nor is there any justification
confining the benefit of the re-option. After all it is found
that the scale of pay made available to some of the 2nd
Grade Surveyors was illegal. There is no justification for
denying the petitioners and similarly situated persons,
the actual benefit of the scale of pay by way of arrears of
wages also. Condition No.1 in Ext.P3 is therefore bad in
law. In so far as condition No.2 is concerned, it is
difficult to postulate drawal of excess amounts in the
context of exercise of re-option by anyone of the
petitioners and therefore, it would actually operate only
against the petitioners who would be entitled to arrears,
in certain cases, on re-option being exercised and
accepted. For the same reason as has been mentioned
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above, and taking note of the directions contained in
Ext.P2 judgment, I am of the view that arrears are to be
paid consequent upon the acceptance of re-option. In
so far as condition No.3 is concerned, it is to be verified
whether it will have a real impact in as much as in
almost all the cases this Court had permitted the persons
who had approached this Court to exercise re-option. In
the light of the fact that this Court had interfered with
Ext.P7 and the judgment of the learned Single Judge was
upheld by the Division Bench, there seems to be no
justification for excluding a category of 2nd Grade
Surveyors from the benefit of the re-option, by referring
to the time limit for exercising re-option as such. In my
view, condition No.3 in Ext.P13 also need not be
enforced.
9. I should hasten to make it clear that the
communication contained in Ext.P14 does not seem to,
in any manner, warrant any interference. Learned
Special Government Pleader submits that the special
Leave Petition referred in Ext.P14 is one involving an
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issue as to whether the benefit of re-option will have to
be granted with reference to the date of re-option or the
submission of the application for re-option as such. In
my view, if the judgment of the Supreme Court in the
Special Petition referred to in Ext.P14 is of general
application that is intended to apply to all cases where
re-option is exercised consequent upon the revision of
the scale of pay, it may not be possible for the
petitioners to say that they shall be left unaffected by
this. Question as to whether the judgment of the
Supreme Court will have any impact on the petitioners
need not be considered at this stage. Suffice it to say
that if the final decision of the Supreme Court in the
aforementioned Special Leave Petition referred to in
Ext.P14 affects the petitioners also, then obviously it is
open to the Government to take action after issuing
notice.
10. Petitioners also challenged Exts.P15, P17 and P18.
In so far as the conditions in Ext.P15 are concerned, I am
of the view that no interference is warranted. In so far
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as time bound higher grades are concerned, I do not
think there is anything illegal in the stipulation that the
date of re-option should not extend beyond the date of
the specific pay revision. As a matter of fact, I do not
think that the petitioners will be aggrieved by Ext.P15. I
do not therefore find any grounds to interfere with
Ext.P15. In so far as Exts.P17 and P18 are concerned,
suffice it to say, that enforcement of the same shall be
subject to the findings which are already made as
regards the conditions in Ext.P13 and the enforceability
of the same as such.
11. In the result writ petitions are disposed of in the
following terms.
(i). Petitioners shall be entitled to the actual
benefit of the revision of scale of pay from 90-190
to 100-210 in the light of the directions given in
Ext.P2 and similar judgments.
(ii). Conditions contained in Ext.P13 shall not be
enforced against the petitioners in the matter of
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considering their re-options which they would have
submitted consequent upon Ext.P3.
(iii). Re-option submitted by the petitioners
pursuant to Ext.P3 shall be re-considered in the
light of the findings herein issued and
consequential benefit shall be granted within a
period of three months from the date of receipt of a
copy of this judgment.
(iv). The declaration as regards Exts.P14 and P15
shall govern the petitioners.
(v). Exts.P17 and P18 circulars shall be enforced
only subject to the directions issued above as
regards Ext.P13.
There will be no orders as to costs.
V.GIRI,
Judge
mrcs
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