IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 12TH MARCH 2008 / 22ND PHALGUNA 1929 OP.No. 15026 of 2002(L) ---------------------------------- PETITIONER: ------------------- K.M.SANTHAKUMARI,HSA (MALAYALAM), GOVT.H.S., KIZHAKKUPURAM,PATHANAMTHITTA DISTRICT. BY ADV. SRI.S.MUHAMMED HANEEFF. RESPONDENTS: ------------------------ 1. THE HEAD MISTRESS,GOVT.H.S.KIZHAKKUPURAM KAITHAPARAMPU P.O.,PATHANAMTHITTA DISTRICT. 2. DEPUTY DIRECTOR OF EDUCATION PATHANAMTHITTA AT THIRUVALLA, THIRUVALLA P.O. 3. ACCOUNTANT GENERAL,THIRUVANANTHAPURAM. 4. STATE OF KERALA, REP.BY IT'S SECRETARY, GENERAL EDUCATION DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. SANDESH RAJA. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 20/02/2008, THE COURT ON 12/03/2008 DELIVERED THE FOLLOWING: ORDER ON C.M.P. NO. 25355/2002 IN O.P. NO. 15026/2002-L DISMISSED 12/03/2008. SD/- P.N.RAVINDRAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE ORDER NO. G.O. (P). NO. 399/(178)/99/FIN. DTD. 05/02/99. EXT.P.2: COPY OF THE ORDER NO. G.O. (P). NO. 1062/2001/FIN. DTD. 25/09/2001. EXT.P.3: COPY OF THE AUDIT OBJECTION DTD. NIL. EXT.P.4: COPY OF THE LETTER NO. F2/9279/2000 ISSUED BY THE R.2. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. P.N.Ravindran, J. ============== O.P.No.15026 of 2002 =============== Dated this the 12th day of March, 2008. JUDGMENT The petitioner entered service as H.S.A. (Mal) on 9.8.1980. In terms of G.O.(P) No.3000/98/Fin dated 25.11.1998 the petitioner was granted second higher grade on completion of 18 years of service with effect from 1.11.1998 in the scale of pay of Rs.5500-9075 and her pay was fixed at Rs.6450/- 2. By Ext.P1 government order dated 5.2.1999 the State Government permitted those employees who could not exercise option/re-option for time bound higher grade sanctioned on or after 1.3.1992 in terms of G.O.(P)No.615/97/Fin dated 28.6.1997 due to the restriction imposed by G.O.(P)No.352/96/Fin dated 11.4.1996. By Ext.P2, such option/re-option was to be exercised within a period of three months from the date of Ext.P2, namely, 5.2.1999. After the 1992 pay revision which took effect from 1.3.1992, the State Government had issued G.O.(P) No.952/95/Fin dated 5.12.1995 permitting the State Government OP 15026/02 -: 2 :- employees to opt for the time bound higher grade that fell due/was granted first on or after 1.3.1992 cancelling the option already exercised by them in respect of the post held by them prior to 1.3.1992. The Government employees desirous of exercising re-option were granted six months time from 5.12.1995 to exercise such re-option. By G.O.(P)No.352/96/Fin dated 11.4.1996, the State Government had ordered that only those Government employees and teaching and non-teaching staff of aided educational institutions who were granted regular promotions/time bound higher grade upto 31.5.1996 will be entitled to opt for the 1992 pay revision. In view of the cut off date fixed in G.O.(P)No.352/96/Fin dated 11.4.1996, many Government employees and teachers could not avail the benefit of G.O.(P)No.615/97/Fin dated 28.6.1997. It was in these circumstances that Ext.P1 government order dated 5.2.1999 was issued, enabling those employees who could not exercise option/re-option in respect of the time bound higher grade sanctioned to them on or after 1.3.1992 in terms of G.O.(P) No.615/97/Fin dated 28.6.1997, to exercise option/re-option within a period of three months from 5.2.1999. OP 15026/02 -: 3 :- 3. In terms of Ext.P1 government order, the petitioner opted for the second time bound higher grade with effect from 1.11.1998. The re-option exercised by the petitioner was accepted and the pay of the petitioner was refixed after she refunded the excess salary drawn by her till 31.10.1998. Later, by Ext.P2 government order dated 25.9.2001, the State Government directed that the benefit of Ext.P1 will be available only to those employees whose time bound higher grade fell due or was sanctioned between 31.5.1996 and 5.1.1998. Since the second time bound higher grade was sanctioned to the petitioner with effect from 1.11.1998, the audit officer attached to the office of the Accountant General objected to the fixation of the petitioner's pay based on the re-option exercised by her in terms of Ext.P1 and directed the Headmaster of the school to modify the petitioner's pay fixation. Thereafter, the Deputy Director of Education sent Ext.P4 letter dated 27.11.2001 enclosing a copy of the review report on the audit of accounts of the school and directed the Headmaster to make necessary corrections in the pay fixation and to recover the excess amount drawn by the petitioner. Ext.P4 discloses that the fixation of pay pursuant to OP 15026/02 -: 4 :- the re-option exercised by the petitioner in terms of Ext.P1 was held under objection only for the reason that by Ext.P2, the operation of Ext.P1 was restricted to those employees whose time bound higher grade fell due/was sanctioned between 31.5.1996 and 5.1.1998. The petitioner has in this original petition challenged Exts.P2 and P4. 4. I have heard Sri.S.Muhammed Haneef, the learned counsel appearing for the petitioner and Sri. K.Sandesh Raja, the learned Government Pleader appearing for the respondents. The learned counsel for the petitioner submitted relying on the decision of this Court in O.P.No.20280 of 2001 that the restriction imposed by Ext.P2 pay fixation and the cut off date fixed therein are bad in law and are liable to be invalidated. The learned counsel for the petitioner also brought to my notice that in view of G.O.(P) No.206/03/Fin dated 5.4.2003, the objection raised in Exts.P3 and P4 is liable to be dropped. Per contra, the learned Government Pleader appearing for the respondents contended that the decision of this court in O.P.No.20280 of 2001 has no application to the facts of this case and that there is no merit in the challenge to Ext.P2 or to Ext.P4. OP 15026/02 -: 5 :- 5. I have considered the rival contentions. In my opinion, in view of the stipulations in G.O.(P)No.206/03/Fin dated 5.4.2003, the petitioner is entitled to succeed in this original petition. The State Government has taking note of the decision of this Court in O.P.No.20280 of 2001 issued G.O.(P) No.206/03/Fin dated 5.4.2003 wherein inter alia it is ordered as follows: "4. The Hon'ble High Court of Kerala in its judgment dated 11.3.2002 in O.P.20280/2001 have set aside the general clarification issued by Government on re-option with reference to the cut off date and ordered to accept the re-option exercised by the petitioners as per the G.Os. read as 7th and 9th above and to pay consequential benefits to them. The above orders of High Court have been upheld in the judgment dated 25.9.2002 in the Writ Appeal 2293/2002 and the SLP No.1026/2003 filed by Government against the orders of High Court was dismissed on 31.1.2003. 5. Under the circumstances, Government in compliance with the judgment, are pleased to order that the re-option exercised in pursuance of the G.O. dated 28.6.1997 during the period from 28.6.1997 to 27.9.1997 and the re-option exercised in pursuance OP 15026/02 -: 6 :- of the G.O. dated 5.2.1999 during the period from 5.2.1999 to 4.5.1999 by those employees whose time bound higher grade fell due/sanctioned on or after 1.3.1992 as per the scheme of time bound higher grade in Pay Revision Orders 1992 shall be accepted as valid subject to the general conditions in the Circulars read as 2nd and 4th paper above viz. (i) arrears consequent on re-option shall be admissible from the date of filing of re-option only and not from the date of effect of re-option. (ii) The excess amount drawn consequent on re-option can be adjusted against the arrears due. Balance amount, if any, has to be refunded in lump. 5. If the date opted for higher grade in pursuance of G.O. dated 5.2.1999 is a date on or after the date of option for Pay Revision 1997, the option for pay revision as per G.O.(P) No.3000/98/Fin. dated 25.11.1998 will automatically be shifted to the date of effect of re-option as per G.O. dated 5.2.1999 and, therefore, benefit if any drawn as per previous option for Pay Revision 1997 already exercised is to be refunded. This is because re-option for 1992 Pay Revision cannot go beyond the date of option for Pay Revision 1997." OP 15026/02 -: 7 :- 6. It is clear from a reading of the government order dated 5.4.2003 quoted above that the re-option exercised by the petitioner pursuant to Ext.P1 government order was validly made. In the light of the government order dated 5.4.2003 referred to above, the objection raised in Exts.P3 and P4 to the fixation of the petitioner's pay based on the re-option exercised by her in terms of Ext.P1 cannot stand scrutiny. However, it will be open to the respondents to verify whether the re-option exercised by the petitioner pursuant to Ext.P1 satisfies the requirements of paragraphs 5 and 6 of G.O.(P)No.206/03/Fin dated 5.4.2003. Since the cut off date fixed in Ext.P2 government order no longer holds the field, it is not necessary to adjudicate on the validity of Ext.P2. 7. For the reasons stated above, I hold that the objection raised in Ext.P4 is not tenable. Ext.P4 is accordingly quashed. The original petition is allowed as above. No costs. P.N.Ravindran, Judge. ess 3/3