IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 WP(C).No. 36991 of 2007(D) -------------------------- PETITIONER(S): ------------------ S.PRAKASINI AMMA, W/O. K.G.GOPINATHA PANICKER, AGED 54 YEARS, SANSKRIT TEACHER, K.V.U.P.SCHOOL, KARAVALLIL HOUSE, KADAPRA MURI, VALANJAVATTOM VILLAGE, THIRUVALLA TALUK. BY ADV. SRI.B.RENJITHKUMAR RESPONDENT(S): ------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE HEADMASTER, K.V.U.P.SCHOOL, VALANJAVATTOM, THIRUVALLA. 3. THE ASSISTANT EDUCATIONAL OFFICER, THIRUVALLA. 4. THE DEPUTY DIRECTOR OF EDUCATION, PATHANAMTHITTA, THIRUVALLA. 5. THE ACCOUNTANG GENERAL (A&E), THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.T.T.MOHAMOOD FOR R1 TO 5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/11/2008, THE COURT ON 10/12/2008 DELIVERED THE FOLLOWING: WPC NO.36991/07 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF ORDER NO.B/3555/2001 DT 11.09.2001 OF THE ASST.EDUCATIONAL OFFICER, THIRUVALLA. EXT.P2: TRUE COPY OF ORDER NO.A-1926/03 DT 10.1.2007 OF THE ASST.EDL.OFFICER, THIRUVALLA. EXT.P3: TRUE COPY OF ORDER NO.F3/18689/03 DT 22.09.2007 OF THE 4TH RESPONDENT. EXT.P4: TRUE COPY OF ORDER NO.20929/E3/07/G.EDN DT.24.11.2007 FROM THE GOVERNMENT. //TRUE COPY// P.A. TO JUDGE ANTONY DOMINIC, J. ============== W.P.(C) NO. 36991 OF 2007 (D) ==================== Dated this the 10th day of December, 2008 J U D G M E N T The prayer in this writ petition is for quashing Exts. P2 to P4 and to direct the respondents to regularise the increments, higher grade options and other benefits of the petitioner in accordance with Ext.P1. 2. Petitioner submits that she has been working as a full time Sanskrit Teacher in K.V.U.P School, Valanjavattom, Thiruvalla since 15/7/83. It is stated that during her probationary period, she had availed of 42 days of abortion leave from 15/12/83 to 25/1/84, as a result of which, satisfactory completion of her probation was declared only on 26/8/84. Accordingly, the 3rd respondent granted her the first increment on 26/8/84 and the yearly increments were granted w.e.f. 1st of August every year. 3. Realising that she was entitled to have her subsequent increments from 1st of July every year, petitioner submits that she represented to the 3rd respondent and that the 3rd respondent issued Ext.P1 rectifying the mistake. However, the 3rd respondent issued Ext.P2 order refixing the date of increment of the petitioner as 1st August instead of 1st July and following Ext.P2, the 4th respondent issued Ext.P3 order WPC 36991/07 :2 : withholding the salary of the petitioner from September, 2007 for non remittance of the excess amount found due in Ext.P2. Petitioner submits that she filed an appeal before the 1st respondent and that the appeal was also rejected by Ext.P4. It is in these circumstances, the writ petition has been filed. 4. According to the counsel, on account of the abortion leave for 42 days availed of by the petitioner, though her probation was declared only on 26/8/84 and she was granted her first increment on that date, she is entitled to have her subsequent increments granted on the 1st of July every year. On that basis, she is also entitled to have her pay fixed following the pay revision of 1988 also. 5. Counsel for the petitioner relied on Rule (2A) and (2B) of Chapter XIV A KER in support of this contention. Rule (2A) provided that a teacher appointed on probation shall draw his first increment in the time scale only with effect from the date of satisfactory completion of probation, but subsequent increments shall be drawn on the first day of the month in which they fall due. Rule (2B) is to the effect that delay in the declaration of satisfactory completion of probation of a teacher will not however, affect his future increments and these will accrue on the normal WPC 36991/07 :3 : increment dates. 6. Petitioner submits that but for the fact that she had availed of leave during the probation period, resulting in the first increment being granted on 26/8/84, she would have been entitled to first increment on the 1st of July itself. It is stated that in view of the provisions contained in Rule (2A) and (2B), though the respondents were justified in giving the first increment only on 26/8/84, subsequent increments are liable to be granted w.e.f. 1st of July, 1984. Therefore, it is contended that the correction carried out in Ext.P1 was unexceptionable and therefore Exts.P2 to P4 are illegal. 7. Although the interpretation assigned by the petitioner to Rule (2A) and (2B) of Chapter XIV A KER is unassailable, a reading of the impugned orders would show that at the time when the 1988 pay revision was implemented, petitioner had exercised her option and opted for 1st August for the benefit of General Pay Revision. In terms of the provisions contained in Rule 30 of Part I KSR, option exercised by a Government servant is final. If that be so, while extending her the benefit of General Pay Revision of 1988, petitioner's pay is liable to be fixed with reference to the date opted by her viz., 1st of August. It was because of the option WPC 36991/07 :4 : exercised by the petitioner and not because she was not entitled to have her normal increment date preponed to 1st of July, that audit objection was raised by the Accountant General. This factual position is clear from Ext.P2 itself. Since 1st August was the date thus opted by the petitioner and as the option exercised by a Government servant is final, petitioner is bound by the same and she cannot get her increment date preponed 1st of July, ignoring the option exercised by her. Since by Ext.P1, even for the purpose of fixing her pay, giving the benefit of 1988 pay revision, 1st of July has been taken as the increment date, the respondents are justified in directing its rectification. Therefore, the rectification issued by Ext.P2 was in the light of the option exercised by her and if that be so, Ext.P2 order cannot be faulted. 8. Necessarily, therefore, any excess pay that was received by the petitioner is liable to be recovered and the steps taken in that regard also cannot be faulted. Writ petition therefore fails and is dismissed. ANTONY DOMINIC, JUDGE Rp