IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 WP(C).No. 27836 of 2003(L) -------------------------------- PETITIONER: -------------- DR.V.GOPAKUMAR, S/O.V.C.VELAYUDHAN VAIDYAR, AGED 58 YEARS, RESIDING AT VALLIKATTU HOUSE, P.O.IRINGOLE, PERUMBAVOOR, ERNAKULAM DISTRICT (MEDICAL OFFICER (RETD), GOVERNMENT AYURVEDA HOSPITAL, CHERUVATOOR) BY MR.V.A.MUHAMMED, ADVOCATE. MR.K.E.HAMZA, ADVOCATE. RESPONDENTS: ----------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DISTRICT MEDICAL OFFICER, INDIAN SYSTEMS OF MEDICINE, ERNAKULAM. 3. THE MEDICAL OFFICER, GOVERNMENT AYURVEDA HOSPITAL, CHERUVATTUR, ERNAKULAM DISTRICT. 4. THE ACCOUNTANT GENERAL (A & E) KERALA, TRIVANDRUM. BY MR. A.J. VARGHESE, SR. GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27836/2003 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF LETTER No.OA(HQ)/II/IV/12-1048/99-00/244 OF R4 DTD. 10.5.00. EXT. P2 : COPY OF ORDER No.E1-5419/2000 OF R2 DTD. 18.1.01. EXT. P3 : COPY OF G.O.(Rt). No.438/2003/H&FWD OF GOVT. DTD. 7.2.03. EXT. P4 : COPY OF LETTER No.10096/PRU.3/2003/FIN. OF GOVT. DTD. 5.3.03. EXT. P5 : COPY OF ORDER No.E1/5419/00 OF R2 DTD. 16.6.03. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.27836 OF 2003 --------------------------------------- Dated this the 19th day of May, 2010. J U D G M E N T This is a case where the petitioner even after retirement had to face audit objection regarding fixation of pay which adversely affected him. The re-option once submitted by him was accepted and pay was fixed accordingly. The audit objection came on 10.05.2000 ie. after his retirement on 30.04.2000. Based on the audit objection, refixation was made and the petitioner had sought for an opportunity to submit a fresh re- option. This was rejected by Exhibit P3 order by the Government stating that such re-option cannot be allowed. The point is covered in favour of the petitioner by the decision of this Court in O.P.No.12457/2001 and other similar judgments. 2. The petitioner was a Medicial Officer who retired from service on 30.04.2000 from Government Ayurveda Hospital, Cheruvattur in Ernakulam District. He was granted Time Bound W.P.(C) No.27836/2003 2 Higher Grade on completion of 10 years of service on 20.08.1992. The pay scales of the State Government Employees were revised as on 01.03.1992 and the petitioner opted the revised scale of pay with effect from 01.03.1992. 3. As per G.O.(P) No.615/(138)/97/Fin. dated 20.06.1997, the employees were permitted to opt the Time Bound Higher Grade on the date of their choice and to continue in the pre- revised scale till the date of option. The petitioner had availed of the above benefit and opted the revised scale with effect from 20.08.1992. Accordingly, his pay was fixed in the revised scale followed by the sanction of Higher Grade with effect from 20.08.1992. Subsequently, the petitioner was granted the benefit of pay revision as on 01.03.1997. Exhibit P1 is the copy of the audit objection according to which the fixation of pay of Rs.2,275/- in the scale of pay of Rs.2,200-3,500 instead of as Rs.2,200/- (in the minimum of the time scale of pay Rs.2,200- 3,500) is not correct. Even though explanation was submitted, the same was rejected as per Exhibit P2 Government Order. There was a direction to refund the pay and allowances W.P.(C) No.27836/2003 3 amounting to Rs.17,393/-. 4. The petitioner thereafter approached this Court by filing O.P.No.24449/2002 after filing a representation. The petitioner sought for a chance to submit a re-option in the light of the fact that there will be a drop in the increments and in other due benefits. This was rejected by Exhibit P3 stating that there are no rules/orders to change the option/re-option once allowed. After 25.11.1998, re-options to past pay revisions are allowed only in cases involving Court orders/retrospective promotion as per paragraph 14 of Annexure III to G.O.(P) No.3000/98/Fin. dated 25.11.1998. This is under challenge in this writ petition. The petitioner even though moved the Government by filing a representation, the same was rejected by Exhibit P4. 5. In O.P.No.12457/2001, a similar situation was considered and this Court held thus in paragraph 2: “The fixation of pay approved by the competent authority happens to be revised after several years on the basis of audit objection. The employee is in no way responsible for the said fixation. Therefore, this court has been consistently taking the view that if amounts are paid to the employees due to the W.P.(C) No.27836/2003 4 errors on the part of the Controlling Officers, the same should not be recovered. Fixation happened to be revised in this case on the basis of an audit objection. As stated earlier, the employee is in no way responsible for the said mistake. In such circumstances, unless re-option is not allowed, the same will cause serious prejudice. The Government have also permitted re-option in such circumstances as per Exhibit P4 Government order dated 01.05.2000. The petitioner relies on Exhibit P5 Government order whereunder re-option was allowed on the basis of an audit objection. If the Government order dated 30.01.1980 was not in force after the issuance of the pay revision order of 1998, Exhibit P5 order would not have been issued. Accordingly, the Original petition is allowed. Exhibit P6 is quashed. It is declared that the petitioner is entitled to re-opt on the basis of Exhibit P4 Government order. The re-option submitted by the petitioner shall be accepted by the competent authority and her pay shall be regulated accordingly within three months from the date of receipt of a copy of this judgment”. 6. Thus in the above original petition, this Court directed that the re-option submitted by the petitioner shall be accepted by the competent authority and the pay shall be regulated W.P.(C) No.27836/2003 5 accordingly within a specified time. 7. Herein, the re-option submitted by the petitioner was once accepted and pay was accordingly refixed. The audit objection came long after the fixation was made. As noticed already it is dated 10.05.2000 hence is after his retirement. If the audit objection had been there at the relevant time, he could not have submitted a re-option. It is not because of any fault of the petitioner that re-option could not be submitted to cure the defects pointed out in the audit objection. 8. In that view of the matter, as held by this Court in the above mentioned judgment, the employee cannot be faulted. If at all there is a mistake in the re-fixation, the employee is no where responsible for that. Therefore, unless re-option is allowed, it will cause serious prejudice to the petitioner. Therefore, this writ petition is allowed. Exhibit P3 is quashed. The petitioner will submit a re-option within one month from today. The same will be accepted and appropriate orders shall be passed refixing his pay and eligible benefits will be granted. Depending upon the same, pension and other benefits W.P.(C) No.27836/2003 6 will also be refixed and the arrears will be disbursed within a further period of three months. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp