IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 WP(C).No. 34361 of 2007(N) -------------------------- PETITIONER(S): --------------- P.K.MAHADEVAN NAIR, HIGH SCHOOL ASSISTANT(MALAYALAM), GOVERNMENT HIGHER SECONDARY, RESIDING AT PRANAVAM HOUSE, KALANI P.O., THODUPUZHA. BY ADV. SRI.M.RAMESH CHANDER SRI.SIJI ANTONY RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. DEPUTY DIRECTOR OF EDUCATION, IDUKKI, D.D.E.OFFICE, THODUPUZHA. 3. HEADMASTER, GOVERNMENT HIGHER SECONDARY SCHOOL, THODUPUZHA. GOVERNMENT PLEADER (FINANCE) SRI.MANOJ KUMAR FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/07/2009, ALONG WITH WPC No.8144/2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). No. 34361/2007. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK. P1A. COPY OF THE COMMUNICATION DTD.6.10.2005. P2. COPY OF THE JUDGMENT IN W.P.(C). No. 30452/05 DTD.12.9.06. P3. COPY OF THE GOVT. ORDER DTD.18.4.07. P4. COPY OF THE REVIEW PETITION BEFORE THE EDUCATION MINISTER DTD.8.5.07. P5. COPY OF THE ORDER DTD.1.11.07. P6. COPY OF THE ORDER DTD.8.2.07. P7. COPY OF THE GOVT. ORDER DTD.9.6.94. P7A. COPY OF THE ORDER DATED 23.8.94. P8. COPY OF THE PAGE 15 OF THE SERVICE BOOK. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).Nos.34361/2007 & 8144/2008 ================== Dated this the 10th day of July, 2009 J U D G M E N T In these two writ petitions, two Government school teachers are challenging the orders cancelling their re-potions submitted by them pursuant to 1992 pay revision order and re-fixation of their pay resulting in direction to refund the excess amount drawn by them on account of the wrong fixation of pay based on the re-options submitted by them. 1992 pay revision came into force with effect from 1.3.1992. By that order, the Government for the first time introduced time bound higher grade promotion for Government servants. As per the same, a Government servant who completes 10 years of service in the entry post, is entitled to a higher scale of pay in the next higher grade as provided in the pay revision order. Originally, the petitioners submitted their options for both revision of pay and time bound higher grade promotion. Subsequently, the petitioner in W.P.(C).No. 8144/2008 submitted a re-option for pay revision. The petitioner in W.P.(C).No. 34361/20076 filed a re-option for availing of the first higher grade. Both re-options were accepted and pay was accordingly re-fixed. Subsequently, the audit party objected to the re-fixation on the basis of the re-options. That audit objection was finalised reversing the fixation of pay and directing the petitioners to repay the excess amount drawn by them found to be refundable on re-fixation after w.p.c.34361/07 & cc 2 cancelling the re-options. Orders in this regard are under challenge in these writ petitions. 2. According to the petitioners, both of them are entitled to have their pay fixed in accordance with their re-options in view of G.O.(P)No.380/94(13)/Fin. dated 9.6.1994. In addition to that, they would also take a contention that even assuming that the fixation of pay was wrong, they are not liable to refund the excess amount paid in view of the decisions of the Supreme Court in Aleyamma Varghese v. Secretary, General Education Department and others [ILR 2007 (3) 105] and the decision of the Division Bench of this Court in Narayanan v. State of Kerala [2008 (3) KLT 188]. 3. The learned Government Pleader would oppose the contentions of the petitioners. According to him, the rules of fixation of pay consequent on pay revision is contained in Annexure III of pay revision order itself. He submits that those rules of option shall not be admissible to any person appointed to a post on or after the 1st day of March, 1992, whether for the first time in Government Service, or by transfer or promotion from another post and he shall be allowed pay in the new post, only in the revised scale. Therefore, according to the Government Pleader, since time bound higher grade promotion being a promotion, the said rule of fixation of pay is applicable and therefore, the petitioners cannot opt to come over to the scale of pay applicable w.p.c.34361/07 & cc 3 to time bound higher grade promotion on any date subsequent to their date of promotion itself. They have to come over to the scale of pay applicable to the promoted post from the date when they become eligible for promotion, which only has been done in these two cases. He also submits that going by the rules of option, the petitioners cannot opt for two different dates for pay revision and time higher grade promotion. 4. I have considered the rival contentions in detail. 5. Admittedly both the petitioners opted for a date far beyond the date when they became eligible for time bound higher grade for fixation of pay in the higher grade and they opted for two different dates for pay revision and time bound higher grade. The rules regarding the exercise of option for fixation of pay reads thus; “8. Exercise of Option (a) A government servant may elect to continue to draw pay in the existing scale until the date on which he earns his next increment or until he vacates his post or ceases to draw pay in that scale or until such date as the employee considers necessary. Provided that the option to retain the existing scale under the proviso to this rule shall be admissible only in respect of one existing scale. In cases of subsequent reversions only, the employees will be allowed to exercise option in r/o the lower post also. Such option will be exercised within a period of 3 months from the date of order of reversion. The aforesaid option shall not be admissible to any person appointed to a post on or after the 1 st day of March 1992, whether for the first time in Government service, or by transfer or promotion from another post and he shall be allowed pay in the new post, only in the revised scale.” Going by the said rule, it admits of no doubt whatsoever that the w.p.c.34361/07 & cc 4 petitioners could not have opted for the time bound higher grade promotion on any date subsequent to the date when they became eligible for such promotion. Therefore, cancellation of their option by which they opted to a date subsequent to the date of becoming eligible for time bound higher grade promotion is clearly against the rules of fixation of pay. Moreover, I am satisfied that they could not have opted for different dates for pay revision and time bound higher grade. Therefore, I do not find any merit in the challenge against the action of the Government in reversing the fixation of pay of the petitioners. But the imbroglio arose only because, after the pay revision order the Government issued so many further orders which confused the persons who exercised options and who permitted those options. It cannot be said that the petitioners had contributed anything to the imbroglio. 6. In the above circumstances, I am of opinion that this is a fit case where the principle enunciated by the Supreme Court and the Division Bench of this Court in the decisions in Aleyamma's case (supra) and Narayanan's case (supra) should be applied. Therefore, following that principle, I direct that the excess amount drawn by the petitioners need not be recovered from them. The Government Pleader opposes that prayer also citing the Division Bench decisions of this Court in Anthroyose v. R.T.O. Idukki [2005 (4) KLT 659] and in w.p.c.34361/07 & cc 5 State of Kerala v. Saiful Islam [2006 (1) KLT 619]. I am of opinion that in view of the later decisions of the Supreme Court and this Court relied on by the petitioners, this is a fit case where the Government should be directed not to recover the excess amounts drawn by the petitioners on account of the wrong fixation of pay. However, I direct that the fixation now done would stand. They have already retired from service. Their retirement benefits would be fixed in accordance with the refixation done after cancelling the re-option. The writ petitions are disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge