IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 13TH JUNE 2011 / 23RD JYAISHTA 1933 WP(C).No. 25862 of 2007(D) -------------------------------- PETITIONER: -------------- T.P.PURUSHOTHAMAN, HIGH SCHOOL ASSISTANT (RETD.), GOVT. HIGH SCHOOL, THIRUVANGAD, THALASSERY-1, KANNUR DISTRICT, RESIDING AT THAMPURANPARAMBATH HOUSE, CHOKLI P.O., KANNUR DISTRICT. BY ADV. SRI.P.M.PAREETH RESPONDENTS: ------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DEPUTY DIRECTOR OF EDUCATION, KANNUR. 3. ACCOUNTANT GENERAL AUDIT, KERALA BRANCH THRISSUR. 4. THE HEADMISTRESS, G.H.S. THIRUVANGAD, THALASSERY-1, KANNUR DISTRICT. BY SMT.RANI DIOTHIMA, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.25862/2007 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF AUDIT OBJECTION DTD. 19.9.02. EXT. P2 : COPY OF REPRESENTATION DTD.28.10.02 FILED BY PETITIONER BEFORE R1. EXT. P3 : COPY OF G.O.(P) No.101/80(167)/FIN. DTD. 30.1.80. EXT. P4 : COPY OF ORDER DTD. 16.8.05 ISSUED BY R4. EXT. P5 : COPY OF G.O.(Rt) No.646/07 DTD. 13.2.07. EXT. P6 : COPY OF G.O.(P) No.592/03 DTD. 10.11.03. EXT. P7 : COPY OF JUDGMENT DTD. 5.6.03 IN O.P.12457/01 OF THIS HON'BLE COURT. EXT. P8 : COPY OF JUDGMENT DTD. 5.10.04 IN WPC. 35786/03. EXT. P9 : COPY OF LETTER No.OA(2)/19633/02 DTD. 21.6.07 ISSUED BY R2. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.25862 OF 2007 --------------------------------------- Dated this the 13th day of June, 2011. J U D G M E N T An audit objection which resulted in refixation of the pay of the petitioner is the subject matter of dispute herein. The petitioner entered service as High School Assistant on 16.07.1982 and retired from service on superannuation on 31.03.2007. For the 1992 pay revision, the petitioner opted 01.07.1993 and his pay was revised to Rs.1750/- in the scale of Rs.1520-2660. The petitioner opted 1997 pay revision with effect from 05.08.1997 and got his pay fixed accordingly. The audit was conducted at a later point of time and by Ext.P1 dated 19.09.2002, the objection was communicated. It was proposed to postpone the dates from which increments were granted. 2. The petitioner submitted a representation as per Ext.P2. Therein, the petitioner requested for permission to exercise reoption for 1992 pay revision from 01.08.1993 instead of 01.07.1993 as a special case. The same was rejected and the W.P.(C) No.25862/2007 2 petitioner finally approached the Government. Ext.P5 is the order passed by the Government wherein by relying upon paragraph 16 of Annexure 2 of G.O.(P) No.145/06/Fin. dated 25.03.2006, the Government held that reoption is not admissible for any pay revision including the present pay revision except the cases involving retrospective revision of or change in scale of pay that has taken effect on the date prior to the date of option exercised by the employee for the concerned pay revision. Accordingly, it is held that no such situation exists in this case. 3. Learned counsel for the petitioner relied upon Exts.P7 and P8 judgments of this Court wherein this Court allowed the parties concerned to submit re-option in the light of the fact that audit objection resulted in cancellation of the reoption already submitted and in such circumstances the non granting of fresh opportunity will cause serious prejudice to the parties. 4. Heard the learned counsel for the petitioner and the learned Government Pleader. 5. Evidently, it is a case where the reoption submitted by the petitioner was accepted and the pay was fixed. It is with W.P.(C) No.25862/2007 3 respect to the 1992 pay revision that the petitioner opted the relevant date. The objection came only 10 years later as per Ext.P1. In that view of the matter, it cannot be said that the petitioner was at fault as regards the acceptance of his option is concerned. 6. In Ext.P7 judgment, a similar issue was considered as noted already. This Court held therein 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 the employees due to the errors on the part of the Controlling Officers, the same should not be recovered. 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 reoption is not allowed, the same will cause serious prejudice.....”. 7. In Ext.P8 judgment also a similar view has been adopted and relief has been granted to the petitioner. While rejecting the claim of the petitioner, the Government has relied upon the pay revision order of 2006 and the conditions therein. Actually those W.P.(C) No.25862/2007 4 conditions cannot have any retrospective effect as far as 1992 and 1997 pay revisions are concerned. The same also justifies the contentions of the learned counsel for the petitioner. Petitioner has to be allowed an opportunity to submit a reoption. For all these reasons, the petitioner is entitled to succeed in the writ petition. Therefore, Exts.P4, P5 and P9 are quashed. There will be a direction to the Government to grant permission to accept the reoption submitted by the petitioner as per Ext.P2. Appropriate orders will be passed within a period of three months from the date of receipt of a copy of this judgment. It is evident from Ext.P9 that an amount of Rs.54,769/- has been directed to be refunded and it is stated that the said amount has been recovered from the DCRG of the petitioner. Consequent on the order thus passed by the Government, an appropriate order will be passed by the competent authority with regard to the pay fixation and re-computation of pension and other benefits, and based on the same, benefits due to the petitioner will be released. As per the revised fixation of pensionary benefits, the adjustment of the recovered amount will be made and excess W.P.(C) No.25862/2007 5 amount if any will be released along with other benefits. This writ petition is allowed as above. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp