IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 WP(C).No. 11523 of 2007(V) ---------------------------------- PETITIONER(S): ---------------------- GEORGE JOSEPH, H.S.A., ST.GEORGE'S HIGHER SECONDARY SCHOOL, MUTHALAKODAM, THODUPUZHA, IDUKKI DISTRICT. BY ADV. SRI.M.P.ASHOK KUMAR RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM. 2. THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM. SR. GOVERNMENT PLEADER SRI. MUHAMOOD T.T. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 11523/2007 V APPENDIX PETITIONER'S EXHIBITS : EXT.P1. COPY OF THE FORM OF OPTION DT. 5/09/94. EXT.P2. COPY OF THE STATEMENT OF FIXATION OF PAY IN THE REVISED PAY SCALE WITHOUT ANNEXURES. EXT.P3. COPY OF THE CHALAN RECEIPT DT. 3/09/94. EXT.P4. COPY OF THE LETTER DT. 11/12/2002 BY THE PRINCIPAL. EXT.P5. COPY OF THE MODIFIED GO P NO. 615/97/138/FIN DT. 28/6/97. EXT.P6. COPY OF THE JUDGMENT DT. 8/11/2006 IN WPC NO. 39192/2003. EX.T.P7. COPY OF THE ARGUMENTS DT. 2/1/2007 BY THE PETITIONER. EXT.P8. COPY OF THE LETTER DT. 20/2/07 AND THE MINUTES OF THE HEARING. RESPONDENTS' EXHIBITS : NIL. / TRUE COPY / PS TO JUDGE. Tga T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.11523 of 2007-V - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of August, 2009. JUDGMENT The dispute raised herein relates to the audit objection regarding the pay fixation of the petitioner consequent on the pay revision of the year 1993. Ext.P8 is under challenge herein. 2. The pay revision of Government employees and teachers was effected with effect from 1.3.1992 as per G.O.(P) No.600/93/Fin. dated 25.9.1993, subsequent to which the petitioner exercised his option to retain the existing scale of pay upto 30.6.1992 and for the revised scale since 1.7.1994. Ext.P2 is the said option statement. The petitioner refunded an amount of Rs.3,914/- in terms of the option thus accepted. In the year 2002, an objection was raised by the Accountant General evidenced by Ext.P4. The petitioner submitted explanation and ultimately by Ext.P8, that was rejected. 3. The objection raised by the audit, going by Ext.P4, is that the petitioner had opted the higher grade with effect from 1.7.1993 in a particular scale and the pay revision 1992 was opted with effect from 1.7.1994 which is against the directions contained in para 7(1) of G.O.(P) wpc 11523/2007 2 No.930/93(2)Fin. dated 8.12.1993 read with G.O.(P) No.615/93(178)/Fin. dated 28.6.1997. This view is reiterated in Ext.P8 which is the minutes of the hearing held pursuant to the objection raised by the petitioner. 4. The petitioner has mainly raised the following contentions: In the light of Ext.P5 Govt. Order dated 28.6.1997, which is effective from 1.3.1992, the option submitted by the petitioner is perfectly in order. The regular service of the petitioner started with effect from 15.6.1983 and on completion of 10 years of service he is entitled to the benefit of higher grade. Hence, the petitioner had opted for higher grade with effect from 1.7.1993 and it is not necessary to postpone the higher grade with effect from 1.7.1993 to 1.7.1994. The higher grade claimed by the petitioner on completion of 10 years of service from 1.7.1994 is not against the pay revision order or the related Govt. Orders. Learned counsel for the petitioner also submitted that in the light of the fact that the audit objection was raised only in the year 2002, the petitioner ought to have been given a chance to submit fresh option/re-option. Support is sought on the judgment of this court in W.P.(C) No.24172/2007. 5. A detailed counter affidavit has been filed on behalf of the first respondent. With regard to the option submitted by the petitioner, it is stated that the petitioner elected to retain the pre-revised scale of Rs.1220- wpc 11523/2007 3 2150 of the higher grade up to 30.6.1994 and to come over to the revised scale of Rs.1520 – 2660 of 1992 pay revision with effect from 1.7.1994 which is not valid in terms of para 7(1) of G.O.(P) No.930/93 (2)/Fin. dated 8.12.10993. It is further averred in para 7 that the petitioner should have opted the revised scale with effect from 1.7.1993, i.e. date of option for higher grade. In this case, the higher grade and pay revision are at different dates. 6. Reliance is placed on Rule 7(1) of G.O.(P) No.930/93/(2)/Fin. dated 8.12.1993. It is therefore pointed out in para 8 of the counter affidavit that the teacher could be permitted to opt the revised scale of pay of the higher grade promotion sanctioned on or after 1.3.1992 with effect from the date of sanction of grade, i.e. from 1.7.1993 and his pay in the revised scale was to be fixed on the basis of the pay he drew in the pre-revised scale of higher grade on that date. 7. In a nutshell, the objection taken is that the petitioner had not exercised the option for time bound grade with effect from 1.7.1994 and pay revision as per Govt. Order dated 28.6.1997 (Ext.P5). The petitioner opted the grade promotion with effect from 1.7.1993 and pay revision with effect from 1.7.1994. This is not allowed in Govt. Order dated 28.6.1997. As per the said Govt. Order, the petitioner could have opted the grade wpc 11523/2007 4 promotion with effect from 1.7.1994 (the date of his choice) to come over to the revised scale from the same date. The petitioner has not exercised option for grade promotion and pay revision as per the said order. 8. In the light of the above, it is clear that the option submitted by the petitioner pursuant to the pay revision of the year 1993 was found to be irregular in terms of para 7(1) of the 1993 G.O. dated 8.12.1993. It provided that if an employee wishes to opt the revised scale of pay of his promoted post to which he was promoted on or after 1.3.1992, he will be permitted to opt the revised scale of the promoted post with effect from the date of promotion and his pay in the revised scale fixed on the basis of the pay he drew in the pre-revised scale of the promoted post on that date. 9. It is evident from Ext.P5 that teachers were allowed to exercise a re-option in terms of para 2 of the same, within a period of three months from the date of order. The order is effective from 1.3.1992. Learned counsel for the petitioner submitted that the option submitted by the petitioner is perfectly justified in terms of para 2 of the said Govt. Order, whereas learned Govt. Pleader submitted that it is not in terms of the said Govt. Order. Specific mention is made by the learned Govt. Pleader in respect of the last sentence in para 2 which states that “the date of option for the revised scales of pay sanctioned as per Government Orders read as first wpc 11523/2007 5 and second paper above, will be on the same date of option for time bound higher grade.” 10. It is in the above context the judgment of a learned Single Judge of this court in W.P.(C) No.24172/2007 assumes importance. The pay fixation statement was prepared in the year 1994 and the petitioner remitted the excess amount as per Ext.P3 dated dated 3.9.1994. The audit objection is raised only by Ext.P4 dated 11.12.2002. By that time the period provided in Ext.P5 to submit re-option was over. Therefore, the petitioner cannot be faulted for not submitting any re-option in terms of the Govt. Order, Ext.P5. In the judgment in W.P.(C) No.24172/2007, in similar circumstances, this court held thus in para 4: “The petitioner’s pay is sought to be re-fixed on account of an audit objection after a long period of six years of original fixation of pay. When pay is sought to be re-fixed after such a long time, that too after the last date for re-option as permitted by the Government, it is only just and equitable that petitioner be given a chance for re-option so as to avoid adverse effect on the audit objection of his pay. The said view is supported by Ext.P16 judgment of this court in W.P.(C) No.33334/2005.” Accordingly, the petitioner therein was allowed to exercise re-option for wpc 11523/2007 6 coming over to the revised scale of pay as per the 1998 pay revision order, within one month from the date of receipt of a copy of the judgment. 11. The above dictum will squarely apply to the fact of this case also. Therefore, the petitioner shall be allowed to exercise re-option for coming over to the revised scale of pay as per the 1993 pay revision, within one month from the date of receipt of a copy of this judgment in terms of Ext.P5 Govt. Order. On receipt of the re-option, the respondent shall take appropriate action to refix the pay of the petitioner in accordance with the said re-option, within a period of two months thereof. The writ petition is accordingly disposed of. No costs. (T.R. Ramachandran Nair, Judge.) kav/