IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 27TH SEPTEMBER 2011 / 5TH ASWINA 1933 WP(C).No. 7284 of 2011(I) ------------------------- PETITIONER(S): --------------- JAYAPRAKASH U, H.S.A MALAYALAM GOVERNMENT V.H.S.S, CHELARY,MALAPPURAM DISTRICT. BY ADV. SRI.R.K.MURALEEDHARAN RESPONDENT(S): --------------- 1. STATE OF KERALA REP BY SECRETARY TO GOVT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION MALAPPURAM. 4. THE HEADMISTRESS GOVT V.H.S.S., CHELARY, P.O.THENHIPALAM, PIN 673 636. GOVERNMENT PLEADER SMT.RANI DIOTHIMA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 7284 of 2011 APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE STATEMENT OF FIXATION OF PAY IN THE REVISED PAY SCALE SUBMITTED BY THE PETITIONER DATED 01/08/2006. EXT.P2 TRUE COPY OF THE RELEVANT PORTION OF THE AUDIT OBJECTION RAISED BY THE 3RD RESPONDENT DATED 10/06/2008 EXT.P3 TRUE COPY OF THE REQUEST MADE BY THE PETITIONER DATED 14/08/2008 EXT.P4 TRUE COPY OF THE FORWARDING LETTER BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT DATED 26/08/2008 EXT.P5 TRUE COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT DATED 04/03/2011 EXT.P6 TRUE COPY OF THE COMMUNICATION DATED 23/03/2009 OF THE 2ND RESPONDENT TO THE 3RD RESPONDENT. EXTS.P6 AND P6(a) PRODUCED ALONG WITH I.A.NO.13912/2011:- EXT.P6 TRUE COPY OF THE FORM OF OPTION DATED 05/07/2011 EXT.P6(a) TRUE COPY OF THE STATEMENT OF FIXATION OF PAY DATED 05/07/2011. RESPONDENTS' EXTS: NIL \\TRUE COPY// P.A TO JUDGE T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.7284/2011-I ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 27 th day of September, 2011 J U D G M E N T It is a case where the re-option submitted by the petitioner pursuant to 2004 pay revision was objected after the refixation of the pay. The petitioner sought for a fresh opportunity for submitting re-option but that did not succeed and ultimately, the Government also rejected the representation by Ext.P6. 2. The facts necessary for the disposal of the writ petition are the following:- The petitioner commenced service as High School Assistant (Malayalam) with effect from 10/06/1993. The Pay Revision 2004 was implemented by G.O.(P). No.145/2006/Fin., dated 25/03/2006 and the petitioner opted the date 10/06/2005 to come over to the revised scale i.e., on completion of 12 years of service, by Ext.P1. The same was accepted and the pay was revised. Ext.P2 is the audit report which is dated 10/06/2008. The objection concerning the pay fixation of the petitioner is that he had availed leave without allowance for two days, namely, 05/10/1993 and W.P.(C). No.7284/2011 -:2:- 24/11/1993, and, therefore, as on 10/06/2005 he will not be completing 12 years as the two days have to be excluded. The petitioner, thereafter, submitted Ext.P3 representation to grant permission for re-option to 12/06/2005 instead of 10/06/2005. Even though that was forwarded by Ext.P4 that did not succeed. 3. Therefore, herein the only objection as far as the pay fixation of the petitioner is that it will be postponed from 10/06/2005 to 12/06/2005. 4. Learned counsel for the petitioner submitted that when the option exercised by the petitioner for the concerned Pay Revision is objected after a long lapse of time, the person concerned will have to be given an opportunity to give a fresh option, as otherwise he will be denied the benefit of the concerned Pay Revision for no fault of his. 5. The second respondent has filed a counter affidavit justifying the actions taken. It is pointed out that as far as the petitioner is concerned, there is no change in the scale of pay with retrospective effect and therefore, the permission sought cannot be granted. W.P.(C). No.7284/2011 -:3:- 6. The learned counsel for the petitioner further relied upon G.O.(P).No.572/2007/(83)/Fin, dated 29/11/2007 whereby the Government has issued further directions modifying the relevant instructions as far as the Pay Revision 2004 is concerned. Therein, in para.7, the date for submitting re-option has been extended upto 31/03/2008. The said paragraph reads as follows: “7.Re-option for Pay Revision 2004. As a last chance, all Government Employees and Teachers, Staff of Aided Educational Institutions and Local Bodies who are governed by the Pay Revision Orders issued as per the Government Order read as 1 st paper above will be permitted to exercise re-option for Pay Revision 2004, subject to the conditions prescribed below. This permission will not be applicable to previous Pay Revisions, and time bound higher grades. (i) Re-options shall be exercised on or before 31/03/2008. Employees who have W.P.(C). No.7284/2011 -:4:- retired on or after 01/07/2004 will also be permitted to exercise re-option. ...” 7. Evidently, therefore, the date for submission of re-option stood extended upto 31/03/2008. Herein, the option submitted originally by the petitioner as per Ext.P1 is dated 01/08/2006. The audit objection as evident from Ext.P2 is dated 10/06/2008. The time initially fixed having being extended by 31/03/2008, the permission sought could have been allowed also. If the audit objection was raised earlier, he could have utilised the said opportunity. Apart from that this Court in various Judgments has upheld the right of the person concerned for submitting a fresh option when, due to audit objection, the fixation already sanctioned is interfered with. In O.P.No.12457/2001, in similar circumstances, this Court felt that a fresh opportunity should have been given if the option submitted earlier is cancelled and the same view was adopted by this Court in the Judgment in W.P.(C). No.25862/2007. I have also considered similar issues in various cases and has held that when the option submitted is once accepted but interfered with because W.P.(C). No.7284/2011 -:5:- of audit objection etc., the person concerned will have to be given a fresh opportunity to submit re-option as otherwise, it will be a discriminatory and the person concerned will not be able to exercise option. 8. For all the above reasons, the petitioner is entitled to succeed in this writ petition. Ext.P6 order is quashed. The petitioner is permitted to submit a revised option for the 2004 Pay Revision in terms of Ext.P3 and the same will be submitted through the fourth respondent within a period of three weeks along with a copy of this Judgment and appropriate orders will be passed accepting the same by the third respondent and the pay will be fixed accordingly. Appropriate orders as above will be passed within a further period of three months. The interim order passed herein will continue till the order is passed. The writ petition is allowed as above. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms