IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 26TH NOVEMBER 2009 / 5TH AGRAHAYANA 1931 WP(C).No. 32157 of 2005(C) -------------------------------------- PETITIONER(S): ----------------------- 1. R.DIVAKARAN, AGED 49 YEARS, S/O.C.RAMASWAMI, H.S.A., SREE VIDYA HIGH SCHOOL, ERUTHEMPATHY, PALAKKAD DIST. 2. T.RAMACHANDRAN, H.S.A, SREE VIDYA HIGH SCHOOL, ERUTHEMPATHY, PALAKKAD DIST. BY ADVS.MR.T.A.UNNIKRISHNAN SMT.RESHMI POULOSE RESPONDENT(S): ------------------------ 1. THE GOVERNMENT OF KERALA, REP. BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE ACCOUNTANT GENERAL (AUDIT), TRIVANDRUM. 3. THE DISTRICT EDUCATION OFFICER, PALAKKAD. 4. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD. R1 TO R4 BY GOVERNMENT PLEADER MR.DILIP MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.32157/2005 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER NO.15001/A1/05/G1.EDN. DTD. 19.5.05 ISSUED BY IST AND 3RD RESPONDENT. TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.32157 OF 2005 --------------------------------------- Dated this the 26th day of November, 2009. J U D G M E N T The petitioners are aggrieved by the audit objection resulting in non-consideration of the re-option submitted by them. 2. The petitioners are working as High School Assistants in the S.V.H.S, an aided High School in Palakkad District. They are having regular service in the post from 15.06.1983. On 09.11.1983, the petitioners were granted the first increment and the pay was raised to Rs.433/-. The same was revised from time to time. They became eligible for the ten years Higher Grade with effect from 18.11.1992, as per the pay revision order of 1988, in the scale of pay of Rs.1220-30-1250-40-1530-60-1730- 80-2150. With effect from 09.11.1992, the scale of pay was fixed at Rs.1530/-. This was duly approved by the 3rd respondent and later the pay was raised to Rs.1590/- with effect from 01.11.1993. Revision of pay was also made later in the scale of W.P.(C) No.32157/2005 2 pay of H.S.A Grade II and Grade I. 3. The petitioners exercised revised option with effect from 01.11.1993 for the Higher Grade in the revised scale of Rs.1520- 2660. This was based on G.O.(P) No.457/94(19)/Fin. dated 03.08.1994. Their pay was refixed also accepting the same. The excess salary drawn for the period from 01.03.1992 to 31.10.1993 was remitted back on 07.09.1994. 4. The fixation of pay was objected to by the audit and the petitioners have been moving the authorities to wave the audit objection. Finally, the Government by Exhibit P1 communicated their decision in the matter. The Government was of the view that as per the existing rules, option once exercised be treated as final. Re-option is permissible in case of retrospective promotions or cases involving specific court direction. Accordingly, the request of the petitioners for allowing the option was held not admissible. It is in these circumstances, the petitioners have filed this writ petition. 5. Mainly it is contended that option was exercised on 07.09.1994 and the audit objection came only in 1999. It is pointed out that after the issuance of G.O.(P) No.952/1995(63)/ W.P.(C) No.32157/2005 3 Fin. dated 05.12.1995, the petitioners could have exercised revised/fresh option, in case the authorities had directed that the option exercised by them on 07.09.1994 cannot be accepted. 6. The question is whether in the light of the above factual position, the petitioners are entitled for an opportunity for submitting a fresh option. In the light of the fact that the audit objection came only after a period of five years, naturally the petitioners ought to have been granted a chance to submit a re-option. This point is covered in their favour in the light of the judgment in W.P.(C) No.33334/ 2005. 7. This Court, in the judgment in W.P.(C) No.30060/2006, considered the judgment passed in a similar case, W.P.(C) No.24172/2007, wherein also reliance is placed on the judgment in W.P.(C) No.33334/2005. In paragraph 6 of the judgment in W.P.(C) No.24172/2007, 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 W.P.(C) No.32157/2005 4 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, in W.P.(C) No.30060/2006, this Court allowed the petitioner therein to submit re-option for coming over to the revised scale of pay as per 1993 pay revision. A similar direction can be issued in this case also since the petitioners are similarly placed. It is a case where the Government has taken the view that re-option can be permitted only if there is a specific direction from this Court. Therefore, Exhibit P1 is quashed. If the petitioners submit a fresh re-option within a period of one month from today, the 4th respondent will take appropriate action and refix their pay in terms of the re-options thus submitted. Action will be finalized within a period of two months from the date of receipt of a copy of this judgment. This writ petition is allowed as above. T.R. RAMACHANDRAN NAIR JUDGE smp