IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 1ST APRIL 2011 / 11TH CHAITHRA 1933 WP(C).No. 21010 of 2008(A) ---------------------------------- PETITIONER(S): ------------------- KURIAKOSE A.P., H.S.A., MARYGIRI HIGH SCHOOL, THERTHALLY P.O., KANNUR DISTRICT. BY ADV. SRI.GEORGE MECHERIL RESPONDENT(S): -------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KANNUR. 4. THE DISTRICT EDUCATION OFFICER, KANNUR. 5. THE HEADMASTER, MARYGIRI HIGH SCHOOL, THERTHALLY P.O., KANNUR. R1-4 BY GOVT.PLEADER SMT.M.R.SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs. W.P.(C). NO. 21010/2008 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE GOVERNMENT ORDER G.O.(P) NO.380/94/(13)/FIN. DATED 09/06/1994. P2: COPY OF RELEVANT EXTRACT OF THE AUDIT OBJECTION. P3: COPY OF THE REPLY DATED 17/09/2003 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. P4: COPY OF THE JUDGMENT DATED 11/02/2002 IN O.P.NO.20280/2001. P5: COPY OF THE RELEVANT EXTRACT OF THAT PROCEEDINGS. P6: COPY OF THE REPLY DATED 23/04/2004 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT. P7: COPY OF THE LETTER NO.L.DIS.B5/10093/2005 DATED 19/10/2005 ISSUED BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT. P8: COPY OF THE PETITION DATED 28/08/2006 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. P9: COPY OF THE LETTER NO.B5/6295/03 DATED 01/01/2007 ISSUED BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT. P10: COPY OF THE PETITION DATED 23/01/2007 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT. P11: COPY OF THE LETTER DATED 23/02/2007 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONEER. P12: COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 12/03/2007. P13: COPY OF THE LETTER NO.R(4)/37474/2007/D.P.I. DATED 13/08/2007 SUBMITTED BY THE 2ND RESPONDENT TO THE PETITIONER. P14: COPY OF THE LETTER NO.44481/A2/07/G.EDN. DATED06/05/2008. P15: COPY OF THE ORDER NO.B5/6295/2003 DATED 16/06/2008 OF THE DISTRICT EDUCATIONAL OFFICER, KANNUR. svs. ..................2/-.... ...2... WPC.NO.21010/2008 P16: COPIES OF THE CHALAN RECEIPTS. P17: COPY OF THE STATEMENT SHOWING THE FIXATION OF PAY IN THE HIGHER/SENIOR/SELECTION GRADE AND OTHER GRADES APPLICATIONS TO ALL EMPLOYEES AS PER PROCEEDINGS NO.B1/11585/94 DATED 06/02/1995. P18: COPY OF THE STATEMENT OF FIXATION OF PAY IN THE REVISED SCALE SANCTIONED IN G.O.(P) NO.3000/98/FIN DATED 25/11/1998. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.21010 OF 2008 --------------------------------------- Dated this the 1st day of April, 2011. J U D G M E N T The petitioner is aggrieved by the steps taken to cancel the benefits granted as per the pay revision order which was implemented from 01.03.1992 (1992 pay revision). The short facts necessary for the disposal of the writ petition are the following: 2. The petitioner is a High School Assistant working in the Marygiri High School, Therthally which is an aided school. He joined service as H.S.A on 24.06.1982. Pursuant to the pay revision order issued by the Government as per G.O(P) No.600/93/Fin. dated 25.09.1993, the petitioner exercised option to the revised scale of pay from 01.03.1992 and his pay was fixed at Rs.1520/- in the scale of pay of Rs.1350-Rs.2200. He opted higher scale from 01.07.1992 and his pay was fixed at Rs.1650/- on 01.07.1992 in the scale of pay of Rs.1520-Rs.2660. 3. Ext.P1 is the Government Order dated 09.06.1994 W.P.(C) No.21010/2008 2 granting permission to the teachers to submit re-option of the time of time bound grade fell due/granted first on or after 01.03.1992 cancelling the option already exercised. The petitioner exercised re-option on 11.08.1994 after cancelling the option already exercised and accordingly, the pay was refixed. For getting the said benefit, the petitioner remitted back the excess amount drawn by him for the period from 01.03.1992 to 30.06.1993. 4. After a number of years, audit objection was raised in the year 2003, a copy of the same has been produced as Ext.P2. Ext.P2 shows that the objection was with respect to the date opted. Accordingly, it was ordered to recover the excess amount from the petitioner, after cancelling the option and revising his pay. The petitioner submitted a reply as per Ext.P3. It is pointed out that the same was discarded by the office of the 3rd respondent by Ext.P5 to which the petitioner submitted a further reply as per Ext.P6 seeking to waive the audit objection. 5. Even though Selection Grade was due to the petitioner, the proposal submitted was returned in the light of the audit W.P.(C) No.21010/2008 3 objection, as per Ext.P7 communication. As the matter was remaining without any further action, the petitioner submitted Ext.P8 representation and in the meanwhile, by Ext.P9, the 4th respondent directed the 5th respondent to revise the pay of the petitioner in the light of the audit objection. This prompted the petitioner to submit a further representation as per Ext.P10. The same was rejected by Ext.P11. Even though the petitioner challenged the same before the 2nd respondent, it was rejected by Ext.P13 and the Government also rejected his representation as per Ext.P14. After rejection of the same, a further communication was issued by the District Educational Officer by Ext.P15 to recover the excess drawn. 6. The consequential orders issued against the petitioner show that the apparent objection is that the option for 1992 pay revision could have been made with effect from 01.07.1992 on the date on which grade promotion was granted to the petitioner. Instead, he had opted 01.07.1993 which cannot be adopted. 7. Heard the learned counsel for the petitioner and the learned Government Pleader. W.P.(C) No.21010/2008 4 8. A counter affidavit has been filed on behalf of the 3rd respondent. Ext.P1 Government Order is dated 09.06.1994 namely, G.O.(P) No.380/94/(13)/Fin. Therein, as far as the teachers are concerned, clause (a) is applicable which will show that the teachers will be permitted to opt the time bound grade fell due/granted first on or after 01.03.1992 after cancelling the option already exercised in respect of the post held immediately prior to 01.03.1992. Therefore, option had to be submitted with respect to the date on which the higher grade fell due or granted. 9. In this case, there is no dispute that the higher grade fell due to the petitioner on 01.07.1992 but the opted date of the petitioner is 01.07.1993. In that view of the matter, audit objection is well founded and therefore, the audit objection and the consequential orders issued cannot be held as illegal for any reason shown by the petitioner. 10. It is a case where the pay revision was of the year 1992 and the re-option was also submitted in terms of Ext.P1 order dated 09.06.1994. The audit objection was raised long thereafter as per Ext.P2 in the year 2003. In the meanwhile, the W.P.(C) No.21010/2008 5 petitioner was enjoying the scale granted also. One more pay revision was effected in the year 1997 and he was drawing the benefit. If the re-option is cancelled, then it will cause undue hardship to the petitioner. But, even though the re-option has been cancelled, the petitioner has not been given any opportunity to submit a fresh option with the date 01.07.1992. 11. It is submitted by the learned counsel for the petitioner that a reading of Ext.P10 will show that the petitioner submitted the revised option along with the rectification report before the District Educational Officer. As per the said option, after cancelling the re-option submitted on 01.07.1993, pay fixation can be done by taking the opted date as 01.07.1992. It is submitted that no orders have been passed after accepting the same. The subsequent orders show that the same was not adverted to. Since the re-option submitted by the petitioner with the date 01.07.1993 is cancelled, he will have to be given an opportunity to submit a fresh option/revised option otherwise it would cause undue hardship to the petitioner. Even in the light of Ext.P1 order, he can opt the date on which the higher grade W.P.(C) No.21010/2008 6 fell due. The petitioner is, therefore, well entitled to have the revised pay scale fixed based on the date 01.07.1992. This Court in similar cases have permitted the parties who are affected by similar orders to submit fresh option in the light of the audit objection raised and its acceptance. 12. I had occasion to consider a similar matter in W.P.(C) No.9193/2008 which was disposed of by judgment dated 30.10.2009 that was in respect of the pay revision for the year 1997. Therein, the judgment in W.P.(C) No.27860/2007 dated 27.09.2007 was relied upon. In paragraph 3 of the said judgment, it was laid down thus: “3. The learned Government Pleader would submit that such an option would amount to re-option which is not permissible under law. I am of the opinion that this cannot be regarded as a re-option at all since the petitioners' options have already been accepted which was sought to be annulled now on the basis of an audit objection. When an option accepted is sought to be cancelled, certainly the petitioners are entitled to be given a chance to make the correct options, which cannot be termed as re-option at all. Therefore, I direct that the petitioners shall be given a chance to make the correct options without taking into account their aided school service. Accordingly, this writ petition is disposed of with W.P.(C) No.21010/2008 7 the following directions: The petitioners shall forward their correct options without taking into account the aided school service, to the 2nd respondent. On receipt of the above, the AEO shall refix the pay in the revised scale of pay in accordance with their options and pass appropriate orders thereon with consequential benefits. The petitioners shall forward options within two weeks from today and the AEO shall pass orders on the same within a period of one month thereafter. The other question as to whether the petitioners are entitled to tag on their aided school service for the purpose of service benefits is left open to be agitated appropriately. However, I note the contention of the learned Government Pleader that that question is covered by the Division Bench decision in W.A.No.288/2005 which contention would be available to the respondents, if and when the petitioners raise that issues.” 13. This Court was of the view that when an option is accepted and it is later sought to be cancelled, parties are entitled to get a chance for submitting a correct option. In the light of the above, even though the impugned orders are upheld, the petitioner will have to be given an opportunity to submit a fresh option as far as 1992 pay revision is concerned. There will be a direction to the Deputy Director of Education to consider the revised option submitted by the petitioner with W.P.(C) No.21010/2008 8 the date 01.07.1992 and grant the benefits accordingly by refixing the pay. If, after refixing the same, any excess amount is liable to be refunded, due facility will be given to the petitioner for refunding the same also. Subsequent pay revisions as granted will also be refixed accordingly depending upon the said order to be passed by the Deputy Director of Education. Action as above will be finalised within a period of two months from the date of receipt of a copy of this judgment. This writ petition is disposed of as above. T.R. RAMACHANDRAN NAIR JUDGE smp