IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 WP(C).No. 25782 of 2007(T) ------------------------------------- PETITIONER(S): ------------------------ K.P.PADMANABHAN, AGED 58 YEARS, RETD.HEADMASTER, GOVERNMENT L.P.SCHOOL BEERICHERY RESIDING AT KODAKKAL HOUSE, KOROM, CHALAKODE P.O. PAYYANNUR, KANNUR DISTRICT. BY ADVS. MR.M.SASINDRAN MR.TOJAN J. VATHIKULAM RESPONDENT(S): -------------------------- 1. STATE OF KERALA - REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIATE, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, KASARAGOD. 3. THE ASSISTANT EDUCATIONAL OFFICER, CHERUVATHOOR, KASARGOD. 4. THE ACCOUNTANT GENERAL KERALA, THIRUVANANTHAPURAM. GOVERNMENT PLEADER MR.MUHAMOOD T.T FOR R1 - R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.25782/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE STATEMENT OF FIXATION OF PAY IN THE SENIOR GRADE BASED ON 1989 PAY REVISION. P2:- COPY OF THE STATEMENT OF FIXATION SANCTIONED IN FG.O.(P) NO.600/93/FIN. DT. 25.9.93. P2(a):- COPY OF THE STATEMENT OF FIXATION OF PAY IN THE HEADMASTER'S SCALE. P3:- COPY OF THE GOVERNMENT ORDER G.O.(P) 380/94(13)/FIN. DT. 9.6.94. P4:- COPY OF THE STATEMENT OF FIXATION OF PAY IN THE SCALE SANCTIONED IN G.O.(P) NO.3000/98/FIN. DT. 25.11.98. P5:- COPY OF THE AUDIT OBJECTION. P6:- COPY OF THE JUDGMENT DT. 28.8.03 IN OP. 21833/01. P7:- COPY OF THE FIXATION GRANTED ON THE BASIS OF EXT.P6 JUDGMENT. P8:- COPY OF THE ORDEDR NO. 592/03/FIN. DT. 10.11.03. P9:- COPY OF THE REPRESENTATION DT. 4.4.06. P10:- COPY OF THE JUDGMENT IN WPC. 31359/06 DT. 27.11.06. P11:- COPY OF THE ORDER DT. 25.4.07. TRUE COPY P.A. TO JUDGE TSS T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.25782/2007-T ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 12th day of June, 2009 J U D G M E N T The petitioner herein retired from service as Headmaster of Government L.P. School, Beerichery on 31/03/2003. He had commenced his continued service with effect from 05/07/1969. The petitioner was granted higher grade on completion of 13 years with effect from 06/04/1982 and senior grade on completion of 20 years on 06/04/1989. He was promoted as Headmaster with effect from 24/06/1986. The petitioner was granted selection grade on completion of 25 years of service on 06/04/1994. Thereafter, the petitioner was granted Headmaster's higher grade with effect from 24/06/1996 on completion of 10 years in the post of Headmaster. Consequent to the 1988 Pay Revision, the petitioner had opted for senior grade with effect from 06/04/1989 and his pay was fixed at Rs.1,590/-. Ext.P1 is the pay fixation statement. Simultaneously, his pay scale was fixed at Rs.1,710/- with effect from 06/04/1989. On completion of 25 years of service, his pay was fixed at Rs.2,070/- with effect from 06/04/1994. Subsequent to the introduction of 1992 Pay Revision, the petitioner had opted to come over to the revised scale with effect from 06/04/1994 and his W.P.(C). No.25782/2007 -:2:- pay was fixed at Rs.2,250/- in the selection grade, which is evidenced by Ext.P2. The scale for Headmaster was fixed at Rs.2,360/- as per Ext.P2(a). Thereafter, he was granted higher grade in the post of Headmaster with effect from 24/06/1996. 2. Ext.P3 is the Government Order dated 09/06/1994, inviting re- option for various teachers who were promoted as Headmaster prior to 01/03/1992 and would have been eligible for selection grade of P.D teachers but for their promotion as Headmasters. Accordingly, the petitioner submitted revised option to come over to the higher grade with effect from 06/04/1994. The petitioner's pay in the lower post in the scale of pay of Rs.1640-2900 was arrived at Rs.2,540/-. After adding personal pay of Rs.60/- and the total pay has come to Rs.2,600/- and the pay was arrived at Rs.2,675/-. The petitioner's pay in the higher grade was accordingly fixed at Rs.2,750/- as on 01/03/1997. Pursuant to 1997 Pay Revision, the petitioner's pay was fixed at Rs.8,150/- with effect from 01/04/1997 in the revised scale. The same is evidenced from Ext.P4. He was drawing pay in the revised scale pursuant to 1997 pay revision. 3. There were certain objections regarding the above fixation. The audit objection is evidenced as Ext.P5. Based on the above audit W.P.(C). No.25782/2007 -:3:- objection, the petitioner's pay has been reduced to Rs.7,750/- with effect from 01/04/1997. The petitioner had to refund Rs.31,951/- being the alleged excess drawn by him from 06/04/1994 to 31/07/2000. The Government by Ext.P8, withdrew the eligibility of re-option consequent on audit objection with retrospective effect from 25/11/1998. The petitioner has filed Ext.P9 representation for re-option in the light of Ext.P6 judgment, rendered in a similar issue, of this Court in O.P.No.21833/2001 and connected case. Thereafter, he filed W.P.(C).No.31359/2006 wherein a direction was issued to consider his representation. The Government passed orders as per Ext.P11, rejecting his request to drop the audit objection and also to permit the petitioner to re-opt. 4. Heard the learned counsel for the petitioner and the learned Government Pleader. The learned counsel for the petitioner submitted that the respondents, in the light of Ext.P6 ought to have allowed the petitioner to submit re-option. In Ext.P6 judgment in O.P.No.21833/2001 and connected case, in similar circumstances, this Court held that:- “the point raised by the petitioners is covered in their favour by several decisions of this Court. According to the respondents re-option can be allowed W.P.(C). No.25782/2007 -:4:- only if the pay is revised as per the orders of a court or promotion is ordered with retrospective effect. Earlier, re-fixation of pay on audit objection was also a ground for allowing re-option. With the issuance of 1997 Pay Revision order, the said ground has been omitted. But, this court has been taking the consistent view that if the pay is re-fixed on audit objection, the option exercised earlier will become meaningless, and therefore the incumbent is entitled to re-opt. The judgment in O.P.No.12457/2001 is one of those judgments in which the claim for re-option was upheld.” 5. The stand taken in the counter affidavit is that the petitioner is not a party to Ext.P6 judgment. Accordingly, a distinction is sought to be made by the respondents. It is also submitted that the re-option for notional promotion is not admissible and re-option for past pay revision except in cases involving retrospective revision or change in the scale of pay prior to the option exercised is not admissible as per Rule 16 of Annexure 2 to the Government Order dated 25/03/2006. 6. The stand taken by the respondents cannot be accepted in the W.P.(C). No.25782/2007 -:5:- light of dictum laid down in Ext.P6 judgment rendered by this Court. Herein, the pay is re-fixed on the basis of the audit objection. In that view of the matter, the respondents should have considered Ext.P9 representation of the petitioner and granted a further opportunity to the petitioner to claim re-option in the light of Ext.P6. 7. The said aspect has not been considered in Ext.P11. Therefore, Ext.P11 is quashed. The writ petition is disposed of with the following directions:- If the petitioner submits a re-option within one month from today, the same will be accepted and acted upon and appropriate orders granting the benefits will be passed by the first respondent within a period of two months thereafter. The monetary benefits flowing therefrom will be disbursed within a further period of two months. The recovery made will be repaid, in terms of the orders thus passed, within three months. (T.R. Ramachandran Nair, Judge.) ms