IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 8TH JUNE 2010 / 18TH JYAISTHA 1932 WA.No. 151 of 2010() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.29870/2006 Dated 24/03/2008 .................... APPELLANT(S): RESPONDENTS:- -------------------------------------------- 1. STATE OF KERALA, REP. BY THE SECRETARY, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL ACCOUNTANT GENERAL(AUDIT), KERALA, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM P.O., MALAPPURAM. BY GOVERNMENT PLEADER SMT.T.B.REMANI. RESPONDENT/PETITIONER:- --------------------------------------- K.M.JOSEPH, S/O.MATHEW, KUTTIPUVATHINGAL HOUSE, P.O.VALILLAPUZHA, HEADMASTER, G.U.P.SCHOOL, ODAKKAYAM, VETTILAPARA P.O., AREECODE, MALAPPURAM DISTRICT. ADV. SRI.P.K.RAMKUMAR. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04/06/2010, THE COURT ON 08/06/2010 DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. = = = = = = = = = = = = = = Writ Appeal No.151 of 2010. = = = = = = = = = = = = = = Dated this the 8th day of June, 2010. J U D G M E N T Gopinathan, J. Appellants are the respondents in WP(C). No.29870/2006. The respondent herein is the petitioner. The respondent was working as Headmaster in an Upper Primary School. Before he joining in government service as Assistant, he had worked in an aided school. Pursuant to the pay revision in 1997 his pay was re-fixed after counting his service in the aided school, which is not allowed to be counted for pay revision. The audit party detected the same and issued Ext.P1 audit note whereby it was reported that there is drawal of an excess amount of Rs.25,800.00 which is liable to be recovered. Steps were in move for recovery WA.No.151/2010. -: 2 :- of the same. Being aggrieved, he preferred the writ petition with the following main reliefs: A. A writ of mandamus other appropriate writ order or direction commanding the respondents not to implement the finding in Ext.P1 to the effect that Rs.25,800 is to be reimbursed by the petitioner to the state exchequer towards the over drawn salary. B. To declare that the petitioner is not liable to reimburse an amount of Rs.25,800 being over drawn salary due to the mistake in the fixation of his salary. 2. The learned Single Judge basing upon a decision of another Division Bench arrived at a finding that the respondent could not validly challenge the audit objection and consequent recovery. However, the writ petition was disposed by giving an opportunity to the respondents to submit a re-option within three weeks from the date of Judgment and the appellants were directed to consider the same and re-fix the salary according to the re-option. 3. Feeling aggrieved, this writ appeal was preferred. According to the learned Govt.Pleader, the WA.No.151/2010. -: 3 :- right to file re-option was over as early as 31.10.2005 and that even without a prayer for that, the learned Single Judge granted the same. The matters settled for about five years is directed to be unsettled in exercise of discretionary jurisdiction under Article 226 of the Constitution, so submitted. On the other hand, the learned counsel appearing for the respondent submitted that in WA.No.825/2010, we had sustained a re-option and that this is an identical case. Going by the judgment in WA.No.825/2010 it is seen that in that case the respondent therein had earlier applied for re-option and on failure of the authorities to consider the same he moved a writ petition wherein this Court had given a direction to the authorities to consider the re-option. But, the request for re-option was declined without assigning any good reason. Assailing that order, a second Writ Petition was filed. It was allowed. Taking note that the earlier direction of this Court permitting WA.No.151/2010. -: 4 :- re-option was not assailed by the authorities, as an exceptional case, we sustained the order directing to dispose the re-option submitted way back by the respondent therein. Here in this case, there is no such circumstance. Re-option is yet to be submitted. Adding to the above, it is submitted from the bar that the respondent had already retired from service. In the above circumstance, especially taking note of the fact that the respondent had no prayer in the writ petition for allowing him to submit a re-option, we find that what was settled years back shall not be re-opened by exercising writ jurisdiction. The permission granted to the respondent to submit re-option at this long distance of time, that too without a prayer is not sustainable and is liable to be set aside. In the result, appeal is allowed. Permission granted to the respondent to file re-option as per the Judgment impugned would stand set aside. However, the respondent is WA.No.151/2010. -: 5 :- permitted to remit the amount in three monthly instalments commencing from 5th July, 2010. No costs. C.N.RAMACHANDRAN NAIR (Judge) P.S.GOPINATHAN (Judge) kvs/-