IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 15TH SEPTEMBER 2009 / 24TH BHADRA 1931 WP(C).No. 34975 of 2003(L) -------------------------- PETITIONER(S): --------------- C.M.ALEYKUTTY, H.S.A(PHYSICAL SCIENCE) G.H.S.KOROM, KOROM P.O. PAYYANNUR, KANNUR DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): --------------- 1. STATE OF KERALA REP.BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. DEPUTY DIRECTOR OF EDUCATION, KANNUR. 3. THE ACCOUNTANT GENERAL (A&E) OFFICE OF THE ACCOUNTANT GENERAL (A&E)KERALA, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. K. SANAL KUMAR FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO. 34975/2003 APPENDIX PETITIONER'S EXHIBITS: Ext.P1: True copy of the audit objection issued by the 2nd respondent. Ext.P2: True copy of G.O.(P)101/80(167)/Fin dated 30.1.1980. Ext.P3: True copy of the representation dated 10.7.2003 filed by the petitioner before the 1st respondent. Ext.P4: True copy of the order dated 25.8.2003 issued by the 1st respondent. RESPONDENTS' EXHIBITS: Ext.R1: True copy of the G.O.(P) 592/2003/Fin dated 10.11.2003. C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C) NO. 34975 OF 2003 -------------------------------------------- Dated this the 15th day of September, 2009 JUDGMENT The petitioner who had provisional service under Rule 9(a)(i) of Part II of the Kerala State and Subordinate Services Rules (hereinafter referred to as “the K.S. & S.S.R.”) was subsequently appointed on regular basis as High School Assistant (Physical Science) under the General Education Department. She had opted for pay revision with effect from 1.7.1999, pursuant to which her pay was fixed at Rs.6,500/- in the scale of pay of Rs.5000-8150/-, reckoning the service rendered by her under Rule 9(a)(i) of Part II of the K.S. & S.S.R. from 20.9.1977 to 6.3.1978 for weightage. The petitioner had also opted for senior grade with effect from 1.7.1999 and her pay was also regulated based on the aforesaid pay fixation. Later, Ext.P1 audit objection was raised by the second respondent in regard to the pay fixation. The main objection in Ext.P1 is that the service rendered by the petitioner during the period from 20.9.1977 to 6.3.1978 under Rule 9 (a)(i) of Part II of the K.S. & S.S.R. was not one which would earn increment and, therefore, the same should not have been reckoned for W.P.(C)NO. 34975/2003 2 weightage. In the light of the said objection, a direction was issued to refix the pay of the petitioner as shown in Ext.P1. Thereupon, the petitioner filed Ext.P3 representation before the first respondent. She relied on clause (2) of Ext.P2 Government Order, G.O.(P) 101/80/(167)/Fin dated 30.1.1980. According to the petitioner, the respondents are estopped from deviating from the stand taken in Ext.P2 and also from taking a contrary or conflicting stand. After considering the contentions of the petitioner, the first respondent rejected Ext.P3 representation by Ext.P4 order which reads as follows: “ ..................... I am to inform you that the option once exercised shall be final. Re-option will not be allowed for past Pay Revision except in the cases involving Court orders and retrospective promotions only vide Rule 15 to Annexure III of the Government Order cited. Hence the request for re-option cannot be considered.” The Writ Petition is filed challenging the said order. 2. I have heard Sri. Kaleeswaram Raj, learned counsel for the petitioner and also the learned Government Pleader. 3. Learned counsel for the petitioner reiterated all the contentions W.P.(C)NO. 34975/2003 3 raised in the Writ Petition for challenging Ext.P4 order. A counter affidavit is filed on behalf of the first respondent to support and sustain Ext.P4 order. Ext.P1 audit objection was raised in respect of the pay fixation effected pursuant to the 1998 Pay Revision on the ground that the service rendered by the petitioner under Rule 9(a)(i) of Part II of the K.S. & S.S.R could not earn increments and, therefore, it should not have been reckoned for the purpose of weightage. As noticed before, the petitioner challenged Ext.P1 mainly relying on clause (2) of Ext.P2. As per Ext.P2 Government Order, Government employees are entitled to exercise re- option in certain contingencies and one such contingency is a situation where reduction in the revised pay fixed, takes place consequent on audit scrutiny and which can be reduced by a change of option, it is submitted. 4. The said contention is resisted by the respondents on the ground that the reliance placed by the petitioner on clause (2) of Ext.P2 has become non-existent with the incorporation of the provisions contained for re-option in Rule 15 to Annexure III of G.O.(P) No.3000/98/Fin dated 25.11.1998. Further, it is contended that the Government have clarified the above position as per Ext.R1 Government Order, G.O.(P) No. 592/2003/Fin dated 10.11.2003. W.P.(C)NO. 34975/2003 4 5. There cannot be any doubt that the matter of pay revision is governed by the orders issued by the Government from time to time and the right for re-option is also governed by such orders. An option which was exercised in terms of a particular order would become final unless and until a right of re-option is granted by a subsequent Government Order. In this case, admittedly, the petitioner had exercised option with effect from 1.7.1999 and her pay was fixed in terms of the said option and that has become final. When Ext.P1 audit objection was raised, the petitioner, relying on clause (2) of Ext.P2 contended that she is entitled to exercise re- option. As contended by the respondents, the petitioner cannot rely on clause (2) of Ext.P2 to exercise re-option as a matter of right in regard to the 1998 Pay Revision, especially in the light of Rule 15 to Annexure III of G.O.(P) No.3000/98/Fin dated 25.11.1998 which was subsequently clarified by Ext.R1 Government Order, G.O.(P) No. 592/2003/Fin dated 10.11.2003. In short, the petitioner cannot succeed in sustaining the pay fixation effected based on her option by reckoning the service rendered by her for the period from 20.9.1977 to 6.3.1978 under Rule 9(a)(i) of Part II of the K.S. & S.S.R. 6. Learned counsel for the petitioner raised another contention to sustain the pay fixation based on her option with effect from 1.9.1997. It W.P.(C)NO. 34975/2003 5 is contended that the objection raised in Ext.P1 is illegal and unsustainable as the right of the petitioner to get the provisional service rendered by her under Rule 9(a)(i) of Part II of the K.S. & S.S.R. counted, in the light of Government decision No.2 under Rule 33 of Part I of the Kerala Service Rules was never taken into consideration by the respondents. Counsel strenuously attempted to read that contention into ground (E) of the Writ Petition. Evidently, such a ground is not specifically taken either in Ext.P3 or in the Writ Petition. Further, it is contended that the facts relevant for the purpose of taking a decision in the light of Government decision No.2 under Rule 33 of Part I of the Kerala Service Rules are incontrovertible in her case. The respondents cannot dispute the fact that the petitioner had rendered provisional service under Rule 9(a)(i) of Part II of the K.S. & S.S.R during the period from 20.9.1977 to 6.3.1978. It is also contended that the fact that such provisional service was followed by appointment on regular basis in the year 1980 also cannot be disputed by the respondents. It is in the light of such indisputable facts that the learned counsel attempted to canvass the position that the petitioner is entitled to get increment sanctioned, reckoning the aforesaid provisional service. 7. Government decision No.2 was incorporated as per G.O.(P) W.P.(C)NO. 34975/2003 6 No.279/79/Fin dated 16.3.1979 and condition No.(iii) therein was partly deleted as per G.O.(P) No.479/86/Fin dated 11.7.1986 and was completely deleted only on 1.10.1994 as per G.O.(P) No. 540/94/Fin dated 30.9.1994. It is in the light of the said contentions that the learned counsel for the petitioner contended that the audit objection in Ext.P1 is unsustainable. But, it cannot be ignored that such a contention was not specifically taken either in Ext.P3 or in the Writ Petition. Whether the conditions required to be satisfied under Government decision No.2 for the purpose of getting the provisional service counted for the grant of increments and whether the petitioner is entitled to retain benefits of increments already granted and consequential weightage based on such service are matters which were not considered by the respondents, ofcourse, on account of her own failure to raise such contentions before them. 8. However, considering the fact that the service rendered by the petitioner was taken into account more than two decades ago and consequential benefits were granted to her by reckoning the same and the same was decided to be denied only long later, I am inclined to accept the contention raised by the learned counsel for the petitioner for the limited purpose of directing the respondents to make such a consideration. The fact that the factual aspects required for consideration for the grant of W.P.(C)NO. 34975/2003 7 benefits based on Government decision No.2 under Rule 33 of the Part I of the Kerala Service Rules, rather to retain the already granted benefits of increments based on the same, were available before the authorities also persuades me to show such an inclination. Accordingly, the Writ Petition is disposed of with a direction to the first respondent to consider the entitlement of the petitioner for retaining the increments granted to her by reckoning the provisional service rendered by her from 20.9.1977 to 6.3.1978 under Rule 9(a)(i) of Part II of the K.S. & S.S.R. Needless to say that if it is found that the petitioner is entitled to retain such increments by virtue of Government decision No.2 under Rule 33 of Part I of the Kerala Service Rules, that would nullify the very basis of the objection in Ext.P1. The petitioner is given liberty to submit a representation raising all such contentions, as mentioned above, within a period of one month from today. If such a representation is received within the above stipulated time, the first respondent shall consider the same and pass orders thereon within a period of two months thereafter. Till such a decision is taken, no further action to implement Ext.P4 shall be taken by the respondents. (C.T. RAVIKUMAR, JUDGE) sp/ W.P.(C)NO. 34975/2003 8 C.T. RAVIKUMAR, J. W.P.(C) NO. 34975/2003 JUDGMENT 15th September, 2009 W.P.(C)NO. 34975/2003 9