IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 WP(C).No. 11943 of 2008(V) --------------------------------------- PETITIONER(S): ----------------------- V.N. KUNHILAKSHMI FAIR COPY SUPERINTENDENT (RETD) DISTRICT MEDICAL OFFICE (HEALTH) KANNUR, RESIDING AT AKSHARA, GOVINDAPURAM .PO, KOZHIKODE BY ADV. MR.T.G.RAJENDRAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP. BY THE SECRETARY FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT MEDICAL OFFICER OF HEALTH KANNUR. 3. THE ACCOUNTANT GENERAL (AUDIT) KERALA BRANCH OFFICE, TRICHUR. R1 TO R3 BY GOVERNMENT PLEADER MR.V. MANU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 11943/2008-V APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE OBJECTION MADE BY THE 3RD RESPONDENT AGAINST THE PETITIONER DATED 23/11/2004. EXT.P2: COPY OF THE ENDORSEMENT MADE BY THE 2ND RESPONDENT. EXT.P3: COPY OF THE REPRESENTATION SENT BY THE PETITIONER TO THE 3RD RESPONDENT DATED 19/08/2005. EXT.P4: COPY OF THE ORDER IN G.O.(P)NO.365/05/(150)/FIN. DATED 06/08/2005. EXT.P5: COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 12/12/2005. EXT.P5(a): COPY OF THE CHELAN RECEIPT DATED 28/12/2005. EXT.P6: COPY OF THE REPRESENTATION SENT BY THE TO THE 2ND RESPONDENT DATED 21/03/2006. EXT.P7: COPY OF THE NOTES SENT BY THE 2ND RESPONDENT DATED 18/04/2006. EXT.P8: COPY OF THE REPRESENTATION SENT BY THE PETITIONER TO THE 2ND RESPONDENT DATED 08/05/2006. EXT.P8(a): COPY OF THE STATEMENT SUBMITTED BY THE PETITIONER DATED 08/05/2006. EXT.P9: COPY OF THE LETTER SENT BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT DATED 10/07/2006. EXT.P10: COPY OF THE LETTER SENT BY THE 2ND RESPONDENT TO THE PETITIONER DATED 08/05/2007. EXT.P11: COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 16/05/2007. EXT.P12: COPY OF THE REPRESENTATION SENT BY THE PETITIONER TO THE 2ND RESPONDENT DATED 03/07/2007. EXT.P13: COPY OF THE REPRESENTATION SENT BY THE PETITIONER TO THE 1ST RESPONDENT DATED 04/07/2007. EXT.P14: COPY OF THE LETTER SENT BY THE 2ND RESPONDENT TO THE PETITIONER DATED 03/07/2007. (PTO) WP(C) NO. 11943/2008-V EXT.P14(a): COPY OF THE LIABILITY CERTIFICATE ISSUED BY THE 2ND RESPONDENT DATED 03/07/2007. EXT.P15: COPY OF THE REPRESENTATION SENT BY THE PETITIONER TO THE 2ND RESPONDENT DATED 10/08/2007. EXT.P16: COPY OF THE ORDER IN GO(P)NO.75/2007/FIN. DATED 27/02/2007. EXT.P17: COPY OF THE CIRCULAR ISSUED BY THE GOVERNMENT DATED 16/06/2007. EXT.P18: COPY OF THE REPRESENTATION SENT BY THE PETITIONER TO THE 2ND RESPONDENT DATED 24/09/2007. EXT.P19: COPY OF THE COMMUNICATION SENT BY THE 2ND RESPONDENT TO THE PETITIONER DATED 03/10/2007. EXT.P20: COPY OF THE COMMUNICATION SENT BY THE 1ST RESPONDENT TO THE PETITIONER DATED 03/01/2008. EXT.P21: COPY OF THE LETTER SENT BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT DATED 03/01/2008. RESPONDENT'S EXHIBITS: N I L //TRUE COPY// P.S. TO JUDGE rs. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.11943 OF 2008 (V) -------------------------------------------------- Dated this the 3rd day of March, 2010 J U D G M E N T Petitioner was a Fair Copy Superintendent in the office of the District Medical Officer of Health, Kannur. He retired from service on 31.3.2007. Consequent on the fixation of pay following 1992 pay revision, her pay was wrongly fixed and this continued for many years and as a result of which, in the audit, an amount of Rs.17,170/- was found to be recoverable from the petitioner. Petitioner contested the matter by filing Ext.P3. In the meantime 1997 pay revision was implemented and the petitioner opted for 1997 pay revision with effect from 1.6.1997. Subsequently, Government issued Ext.P5 giving the employees a chance for exercising re-option. Para 2 of Ext.P4 reads as under. “Government after having examined the matter in detail are pleased to order that a chance for re- option may be granted to State Government employees, aided school and college employees coming under state pay scales, in respect of 1997 pay revision, in cases involving retrospective reduction in the revised pay consequent on audit scrutiny or any other reason, subject to the following conditions. I. Monetary benefit on account of re-option will be allowed only from the date of exercise of the re- WPC.No.11943 /08 :2 : option. ii. Excess amount if any drawn for the period from the date of original option to the date of effect of re-option shall be adjusted in the arrears if any admissible vide clause (i) above (from the date of exercise of the re-option). Balance if any will be refunded by the employee. iii. Re-option in such cases should be exercised before 31.10.2005.” 2. Based on Ext.P4, petitioner exercised re-option, which was accepted by Ext.P5 with effect from 1.6.1997 and was asked to repay the excess amount drawn for the period from 1.3.1997 to 31.5.1997. Subsequently, the DMO issued Ext.P6 stating that as per Ext.P5 petitioner's entitlement for monetary benefit is only from 25.8.2005 when she exercised option and therefore she is liable to refund the excess amount drawn. She was thereafter issued Ext.P7 requiring her to remit an amount of Rs.17,170/-. Petitioner submitted a representation which finally culminated in Ext.P20 order passed by the Government rejecting her request. It is in these circumstances the writ petition is filed 3. The claim of the petitioner is that in view of the re-option that She exercised the respondents are not entitled to recover the excess amount if any received by her prior to 25.8.2005, when WPC.No.11943 /08 :3 : she exercised re-option. I my view this is an unsustainable claim. A reading of Ext.P4 Government Order itself shows that the monetary benefits following the re-option are due only from the date on which re-option is exercised. Paragraph 2(ii) also provides that excess if any drawn will be adjusted from the arrears if any admissible to the employee. In this case, based on the re-option her pay has been notionally fixed with effect from 1.6.1997. When such a fixation has been made, arrears if any due to the petitioner is to be quantified, excess that has been received by the petitioner is liable to be adjusted from such arrears. This precisely is what is seem to have been done in this case. It is has been so stated in paragraph 8 of the counter affidavit also. Therefore the claim of the petitioner that respondents cannot recover any amount towards excess pay received is unsustainable. Writ petition fails and is dismissed. (ANTONY DOMINIC) JUDGE vi/ WPC.No.11943 /08 :4 :