IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 WP(C).No. 27545 of 2007(D) -------------------------- PETITIONER: --------------- U.N.VALSALAKUMARI, HIGH SCHOOL ASSISTANT T.P.S.HIGH SCHOOL TRIKKUR, THRISSUR DISTRICT. BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SRI.S.SUJIN RESPONDENTS: --------------- 1. DEPUTY DIRECTOR OF EDUCATION, THRISSUR. 2. SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT SECRETARIAT,THIRUVANANTHAPURAM. 3. STATE OF KERALA-REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. BY SR. GOVT. PLEADER SMT. M.R. SREELATHA FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27545 of 2007 -2- APPENDIX PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF OBJECTION RAISED BY THE DEPUTY DIRECTOR OF EDUCATION DATED 21.1.2006 EXT.P2: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER ON 10.4.2006 BEFORE THE GOVERNMENT EXT.P3: TRUE COPY OF THE LETTER DATED 4.7.07 ISSUED BY THE DY. DIRECTOR OF EDUCATION, THRISSUR. /TRUE COPY/ P.A TO JUDGE T.R RAMACHANDRAN NAIR,J. ------------------------- W.P ( C) No.27545 of 2007 -------------------------- Dated this the 10th November,2009 J U D G M E N T The petitioner herein is working as High School Assistant. The matter relates to fixation of pay under 1983 and 1988 pay revisions. 2. The petitioner was initially appointed as H.S.A and her probation was declared by the Manager on 2.12.1983 and that was subsequently revised to 29.9.1983 taking into account her broken service as Teacher. Consequently her annual increment was also revised on the basis of the revised date of satisfactory completion of her probation. Pursuant to 1983 and 1988 pay revisions, the benefits were granted by fixing the pay and it was regularised also. Thereafter, the petitioner was granted 10 years higher grade with effect from 29.9.1992 and 18 years Senior Grade from 30.9.2000. It is averred that these were all made by the order dated 15.6.1993. 3. By Ext.P1, an objection was raised by the Deputy Director of Education in the year 2006 regarding the date of option, in respect of 1983 and 1988 pay W.P ( C) No.27545 of 2007 2 revisions and with a direction to refund the excess amount drawn. Petitioner filed a representation against the same before the Government as per Ext.P2. By Ext.P3 the same was rejected stating that in the light of Rule 15 to G.O (P) 3000/98/Fin. dated 25.11.98 re-option will not be allowed for past pay revision except in the cases involving court orders and retrospective promotion. Rule 16 of Annexure 2 to G.O)(P) 145/06/Fin. dated 25.3.2006 is relied on, therein. 4. Learned Senior Counsel appearing for the petitioner submitted that in this case it is evident that going by the Government decision to Ruling No.1 under Rule 30 of Part I Kerala Service Rules, what was granted at the right point of time cannot be disputed. It is pointed out that the as per the Circular No.24/89 retrospective effect is sought to be introduced regarding the inapplicability of Rule 30 of Part I KSR and the said Circular is only of the year 1996. It cannot be retrospectively applied. The restriction regarding re-option have also been introduced in 1998 only. W.P ( C) No.27545 of 2007 3 5. It is also contended that the matters which have been finalised long prior to Ext.P1 cannot be reopened by an exercise like Ext.P1 without even giving an opportunity to submit an option to the petitioner. It is pointed out that the same will result in undue hardship and the petitioner will have to refund so much amount without getting benefits of the pay revisions granted by different orders. 6. In the counter affidavit filed on behalf of the 1st respondent, reliance is placed on Clause 1 of G.O (P) 3000/98/Fin. Dated 25.11.1998 and Rule 16 of Annexure 2 to G.O (P) 145/06/Fin. Dated 28.3.2006. The stand taken is that re-option will not be allowed for any pay revision except in cases involving retrospective revision or change in scale of pay that takes effect on a date prior to the date of option exercised by the employee for the concerned pay revision. It is explained that since no such situation exists in this case the change of re-option in the revised scale of 1983 and 1988 pay revisions with effect from 1.9.1984 and 1.9.88 instead of the earlier date of option of 1.12.1984 and 1.12.1988 respectively are not in order. W.P ( C) No.27545 of 2007 4 7. Reliance is placed on Circular No.24/96 (89)/ Fin. dated 13.5.1996 wherein the Government clarified that re-option for pay revision do not come under Ruling (1) under Rule 30 Part I of Kerala Service Rules. 8. Going by the facts of the case, it is evident that there had been undue delay in raising the audit objection. The petitioner was granted the benefits of 1983 and 1988 pay revisions and subsequent higher grades were granted at the right point of time. It is evident that the authorities granted the benefits to her based on Ruling No.1 under Rule 30 of Part I of Kerala Service Rules. 9. The state of affairs that was settled at that point of time is sought to be unsettled after along lapse of time also. Petitioner will be put to undue hardship since she is not getting any opportunity to submit re-option. The respondents have taken the view that in the light of G.O (P) 3000/98/Fin. Dated 25.11.1998 and G.O (P)145/06/Fin. Dated 28.3.2006 re-option cannot be permitted. Therefore, evidently for no fault of the petitioner, petitioner will be denied the benefit of 1983 and 1988 pay revisions W.P ( C) No.27545 of 2007 5 as well as the benefit of higher grades. Such a position cannot be appreciated at all. In fact, a similar question was considered by this Court in WPC No.24172/2007, wherein, it was held thus. "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" 10. It is also submitted that the petitioner is due to retire from service on 31.3.2010. At this stage, it is not fair to put in her hardship for no fault of her. 11. Apart from that, the order dated 15.6.1993 by which the 10 years higher grade and 18 years senior grade was sanctioned, was never recalled. The fixation of pay for 1983 and 1988 pay revisions has also become final. Herein, the matters which have become final as sought to be rechecked only in the year 2006. Therefore there had been W.P ( C) No.27545 of 2007 6 undue delay in taking up the action. Petitioner is entitled to believe that the state of affairs existed at that point of time will continue and that too on the basis of the competent orders which were issued at that point of time. 12. If that be so, petitioner cannot be denied the benefit of 1983 and 1988 pay revisions in terms of the change effected with regard to the date of completion of her probation. Therefore on the said ground impugned order cannot be sustained. Hence, Exts.P1 and P3 are quashed. It is declared that the benefits obtained by the petitioner in 1983 and 1988 pay revisions as well as higher grades sanctioned based on the same will be treated as valid. Writ petition is allowed. No Costs. T.R RAMACHANDRAN NAIR, JUDGE ma W.P ( C) No.27545 of 2007 7 W.P ( C) No.27545 of 2007 8 W.P ( C) No.27545 of 2007 9 W.P ( C) No.27545 of 2007 10