IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 WP(C).No. 9459 of 2011(F) -------------------------------------- PETITIONER(S): ------------------------ M.B.RAVEENDRAN NAIR, AGED 56 YEARS, S/O.BHASKARAN NAIR, VAIKUNDAM, BHARANIKAVU, PALLICKAL P.O., FORMERLY WORKING AS HSA (SANSKRIT) AGRM HSS, VALLIKUNNU. BY ADV. SRI.C.HARIKUMAR SMT.MOLLY KOSHY RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FINANCE (PRC) DEPARTMENT, GOVT. SECRETARIAT, TRIVANDRUM-695 001. 2. DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA-688 001. R1 & R2 BY GOVERNMENT PLEADER SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.9459/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 14/7/2009. P2 COPY OF THE REPRESENTATION DATED 20/8/2009 SUBMITTED BY THE PETITIONER FOR CORRECTING ANOMALY OF 13 DAYS AND REFIXATION OF PAY. P3 COPY OF THE ORDER DATED 7/01/2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 9459 of 2011-F - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of October, 2011. JUDGMENT The controversy herein is regarding the objection taken by the Government on the request made by the petitioner as per Ext.P3 for accepting a re-option. The short facts leading to the dispute are the following: 2. The petitioner was working as H.S.A. in AGRM H.S.S., Vallikunnu. After completing 29 years of service, he retired from service on 31.3.2010. The petitioner opted revised scale of pay with effect from 1.7.1997. He had joined service as H.S.A. (Sanskrit) on 15.7.1981. The option was admitted and fixation was originally granted. Weightage was calculated reckoning 16 years of service instead of 15. Thereafter, an audit objection was raised as per Ext.P1. In the said audit objection what is stated is that the petitioner is entitled for the benefit from 15.7.1997. 3. According to the petitioner, the date opted as 1.7.1997 is only a bonafide mistake. Stating that he is prepared to refund the amount received from 1.7.1997 to 15.7.1997, the petitioner sought for acceptance of reoption and for refixation of pay as per Ext.P2 representation. The Government, by wpc 9459/2011 2 Ext.P3, rejected the same stating that the excess pay drawn by him by way of erroneous fixation need not be recovered, but his pay should be revised and calculated it as per the rules. It is pointed out that in para 15 of G.O. (P) No.3000/98/Fin. Dated 25.11.1998, it is stated that reoption will not be allowed for past pay Revisions except in cases involving Court Orders and retrospective promotion. 4. Learned counsel for the petitioner submitted that the reasoning adopted by the Government is not correct, since the reoption submitted by the petitioner was initially accepted and was interfered with only after six years and therefore the petitioner would have been granted the benefit on submitting a revised option. Reliance is placed on the judgment of this Court in O.P.No.12457/2011. Therein, an identical issue was considered in the light of the provisions of the very same Government Order, viz. G.O.(P) No.3000/98/Fin. Dated 25.11.1998. This Court, in para 2 of the judgment, held thus: “The fixation of pay approved by the competent authority happens to be revised after several years on the basis of audit objection. The employee is in no way responsible for the said fixation. Therefore, this court has been consistently taking the view that if amounts are paid to be employees due to the errors on the part of the Controlling Officers, the same should not be recovered. wpc 9459/2011 3 Fixation happened to be revised in this case on the basis of an audit objection. As stated earlier, the employee is in no way responsible for the said mistake. In such circumstances, unless re-option is not allowed, the same will cause serious prejudice. The Government have also permitted re-option in such circumstances as per Ext.P4 Government Order dated 1.5.2000. The petitioner relies on Ext.P5 Government Order where-under re-option was allowed on the basis of an audit objection. If the Government order dated 30.1.1980 was not in force after the issuance of the pay revision order of 1998, Ext.P5 order would not have been issued. Accordingly, the Original Petition is allowed. Ext.P6 is quashed. It is declared that the petitioner is entitled to re-opt on the basis of Ext.P4 Government Order. The re-option submitted by the petitioner shall be accepted by the competent authority and her pay shall be regulated accordingly within three months from the date of receipt of a copy of this judgment.” Therefore, the principle reiterated by this Court in the above judgment is that when the pay revision that is sanctioned and the fixation that is arrived at happens to be revised on the basis of audit objection and for which the employee is in no way responsible, unless reoption is not allowed, the same will cause serious prejudice. 5. In that view of the matter, the stand taken in Ext.P3 cannot be supported. The writ petition is therefore allowed. Ext.P3 is quashed. There wpc 9459/2011 4 will be a direction to the second respondent to accept the revised option submitted by the petitioner as evident from Ext.P2 and refix the benefit accordingly. Appropriate orders will be passed within a period of two months from the date of receipt of a copy of this judgment. Since the petitioner has expressed his consent that the amount drawn from 1.7.1997 to 14.7.1997 can be recovered, the same will be effected while revising the pay. No costs. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/