IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 WP(C).No. 30935 of 2006(G) ------------------------------------ PETITIONER(S): ---------------------- CHINNAMMA K.P., HIGH SCHOOL ASSISTANT, ST.THOMAS HIGH SCHOOL, KILIYANTHARA, KANNUR DISTRICT. BY ADV. SRI.M.VIJAYAKUMAR RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, KANNUR. 3. DISTRICT EDUCATIONAL OFFICER, THALASSERY, KANNUR DISTRICT. SR. GOVERNMENT PLEADER SRI. MUHAMMED T.T THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 30935/2006 G APPENDIX PETITIONER'S EXHIBITS : EXT.P1. COPY OF THE ORDER FIXING THE PAY OF THE PETITIONER DT. 24/10/04. EXT.P2. COPY OF THE FIXING THE PAY OF THE PETITIONER DT. 24/10/04. EXT.P3. COPY OF THE OBJECTION RAISED BY THE DDE. EXT.P4. COPY OF THE REPRESENTATION BEFORE THE R1 DT. 8/10/04. EXT.P5. COPY OF THE ORDER OF DEO DT. 29/3/05. EXT.P6. COPY OF THE JUDGMENT OF THIS COURT IN WPC 21935/05. EXT.P7. COPY OF THE GO RT NO. 1180/06 DT. 18/3/06. EXT.P8. COPY OF THE GO MS NO. 367/74/FIN DT. 8/11/74. EXT.P9. COPY OF THE GO P NO. 380/94/13 FIN DT. 9/6/94. EXT.P10. COPY OF THE GO P NO. 615/97/138 FIN DT. 28/6/97. EXT.P11. COPY OF THE COMMUNICATION OF THE DDE DT. 12/07/05. RESPONDENTS' EXHIBITS : NIL. / TRUE COPY / tga T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.30935 of 2006-G - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of August, 2009. JUDGMENT The petitioner was appointed as H.S.A. in St. Thomas High School on 11.6.1982. She was sanctioned higher scale with effect from 1.7.1992. The petitioner opted for revised scale from 1.3.1992. The pay of the petitioner was fixed as per the option statement. The higher scale sanctioned in the pre-revised scale was also revised and refixed from 1.7.1992. The petitioner filed re-option to grade promotion in the pre- revised scale from 1.7.1993 instead of 1.7.1992 and her pay was fixed at Rs.1590/- in the scale of Rs.1220-2150 on that date. Later, the pay of the petitioner was also refixed at Rs.1750/- in the revised scale of Rs.1520-2660 by the respondents. Consequently, the petitioner refunded Rs.4,389/-. 2. Ten years thereafter, audit objections were raised by the Deputy Director, as per Ext.P3. It was objected to by the petitioner as per Ext.P4 representation. Without anything further, the District Educational Officer refixed the pay of the petitioner as per Ext.P5 order. This was challenged in W.P.(C) No.21935/2005 and the Government was directed to take a decision. The resultant order is produced as Ext.P7. The petitioner wpc 30935/2006 2 contends that Ext.P7 is illegal, in the light of Exts.P8, P9 and P10 orders. A similar order passed by the Deputy Director in respect of another teacher, relying upon Ext.P10, is produced as Ext.P11. Mainly, it is contended that the orders have been passed without considering the relevant Govt. Orders. It is further pointed out that if there was any objection in the refixation, the petitioner could have submitted re-option in the light of Ext.P10 Govt. Order, which opportunity has also not been given by the respondents. Reliance is placed on the judgment of this court in W.P.(C) No.24172/2007 to the effect that in such circumstances, an opportunity should be given afresh. 3. In the counter affidavit filed by the second respondent, it is pointed out in para 3 that the Government gave permission as per G.O.(P) No.380/94 (13)/Fin. Dated 9.6.1994 to opt the revised scale of time bound grade fell due/granted first on or after 1.3.1992 cancelling the pay revision option already exercised in respect of the post held immediately prior to 1.3.1992. But the option in such cases should be exercised in such a manner that the date of pay revision falls on the date of grant of time bound higher grade itself. There was no permission to shift the grade already opted/granted to a new date. It is submitted that the Deputy Director of Education, Kannur raised objection against the refixation of pay since re- wpc 30935/2006 3 option exercised to come over to the revised scale of pay beyond the date of grade already granted citing the Govt. Order dated 9.6.1994 is not in order. In the instant case the higher grade already opted from 1.7.1992 was changed to 1.7.1993 which is not permissible as per the existing rules. 4. In that view of the matter, the argument of the learned counsel for the petitioner that the petitioner should have been furnished a fresh opportunity, is of importance. Herein, the petitioner’s option was accepted as per Exts.P1 and P2. This was in the year 1994. The audit objection came only in the year 2002. Now the petitioner is put to real difficulty and hardship in the light of the fact that she was not given any fresh opportunity also. 5. Therefore, the matter will have to be considered in the light of Ext.P10. Ext.P10 Govt. Order introduced a modification of the various orders issued earlier. In para 2 it was clarified that “the State Government employees and teachers who got time bound grade on or after 1.3.1992 will be permitted to opt time bound higher grade on the date of their choice and to continue in the pre-revised scale till the date of option. The date of option for the revised scales of pay sanctioned as per Government Orders read as first and second paper above will be on the same date of option for time bound higher grade.” In fact, going by Ext.P11, the Deputy Director wpc 30935/2006 4 of Education itself accepted the request to exercise reoption in terms of Ext.P10 in the case of another teacher. Ext.P11 is dated 12.7.2005. 6. In similar circumstances, this court in W.P.(C) No. 24172/2007 held thus in para 4: “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.” It was directed that the petitioner therein shall be allowed to exercise re- option for coming over to the revised scale of pay as per the 1998 pay revision order, within a period of one month from the date of receipt of a copy of the judgment and with a further direction to the respondents to take appropriate steps to refix the pay of the petitioner in terms of the re-option thus submitted. 7. In the light of the factual position emerging in this case also, the said course can be adopted. Therefore, the writ petition is disposed of with the following directions: wpc 30935/2006 5 The petitioner shall be allowed to submit re-option for coming over to the revised scale of pay as per the 1993 pay revision order, within a period of one month from the date of receipt of a copy of this judgment in terms of Ext.P10 Govt. Order or any other Government Order in force applicable to the case of the petitioner. On submitting re-option, the second respondent shall take appropriate steps to refix the pay of the petitioner, in accordance with such re-option, within a further period of two months from the date of receipt of re-option. The recovery ordered will be kept in abeyance in the meanwhile. No costs. (T.R. Ramachandran Nair, Judge.) kav/