IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 1ST JUNE 2011 / 11TH JYAISHTA 1933 WP(C).No. 3719 of 2010(L) ------------------------- PETITIONER: --------------- J.ABRAHAM, S/O.JOHN, AGED 54 YEARS, PARAPPAT HOUSE, PALAKUZHA.P.O, ATPRESENT WORKING AS HEADMASTER, GOVERNMENT U.P.SCHOOL, SOUTH MARADY. BY ADV. SRI.BIJU ABRAHAM RESPONDENTS: --------------- 1. THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION (L) DEPARTMENT, THIRUVANANTHAPURAM. 2. THE ACCOUNTS GENERAL (A&E), KERALA STATE, THIRUVANANTHAPURAM. * 3. THE ASSISTANT EDUCATIONAL OFFICER, KOTHAMANGALAM. (ADDRESS OF R3 CORRECTED AS PER ORDER DATED 03.03.2010 IN I.A. NO. 2913/2010) R3. ASSISTANT EDUCATIONAL OFFICER, KOOTHATTUKULAM. ADV. SRI. T.T. MAHAMOOD, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT. P1: A TRUE COPY OF THE EXTRACT OF THE AUDIT OBJECTION FORWARDED TO THE PETITIONER FOR HIS HIGHER OFFICIAL BY LETTER DATED 27.10.2007. EXT.P2: A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 1ST RT DATED 07.11.2007. EXT.P3: A TRUE COPY OF THE COMMUNICATION DATED 26.08.2009 OF THE 3RD RESPONDENT TO THE PETITIONER. EXT.P4: A TRUE COPY OF THE REPRESENTATION DATED 07.08.2009 WITH STATEMENT OF PAY FIXATION AND LIABILITY SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT THROUGH PROPER CHANNEL. EXT.P5: A TRUE COPY OF THE COMMUNICATION DATED 15.01.2010 OF THE 1ST RESPONDENT TO THE PETITIONER. EXT.P6: A TRUE COPY OF THE GOVERNMENT ORDER DATED 11.022008. EXT.P7: A TRUE COPY OF THE ORDER DATED 04.04.2008 OF THE 3RD RESPONDENT. RESPONDENTS' EXHIBITS: NIL //True Copy// P.A to Judge. T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.3719 Of 2010-L ----------------------------------------------------- DATED THIS THE 1st DAY OF JUNE, 2011 J U D G M E N T The petitioner is aggrieved by the rejection of the representation submitted to the Government, objecting to the audit objection with regard to the 1997 pay revision. 2. This is a case where the petitioner before entering the Government School service was having three years' service in an aided school from 10.7.1980 to 20.6.1983. In the 1997 pay revision, he was given fixation of pay with effect from 1.3.1997 by reckoning his aided school service for the weightage of calculating the pay. This was objected in the audit by Exhibit P1 and apart from the petitioner another teacher, namely Smt.Alley Thomas in whose case also same method was adopted was also included in the audit objection. Both of them filed representations before the Government. The petitioner's representations are produced as Exhibits P2 and P4. In the representations the petitioner sought for issuance of sanction to exercise re-option in respect of 1997 pay revision with effect W.P.(C)No.3719/10 -2- from 1.7.1997, cancelling the option already exercised with effect from 1.3.1997. This was rejected by Exhibit P5 relying upon G.O. (P)No.145/06/G.Edn. Dated 25.6.2006. 3. Exhibit P6 is the order passed by the Government in respect of Smt.Alley Thomas wherein the Government granted sanction to submit the re-option. It is pointed out that the re- option thereafter submitted by her has been accepted, as evident from the proceedings of the Assistant Educational Officer, Koothattukulam produced as Exhibit P7. 4. Heard the learned counsel for the petitioner and the learned Government Pleader. 5. This is a case where the petitioner's option was accepted with regard to the 1997 pay revision. The audit objection came only after a number of years as evident from Exhibit P1. Once option submitted is interfered with, the aggrieved persons should be granted an opportunity to submit re-option. It is not the fault of the persons like the petitioner that the option was accepted. Therefore, a chance ought to have been granted to the petitioner to submit a re-option. Apart from the same, in this case the Government has allowed the request of W.P.(C)No.3719/10 -3- the other teacher, namely Smt.Alley Thomas, who is similarly placed, to exercise the revised re-option. 6. There are various judgments of this Court in which similar issues have been considered and this Court has already held that when the re-option submitted is accepted and is objected by the audit at a later point of time leading to cancellation of the pay fixed, the parties involved should be given a chance to submit a fresh or revised option. 7. For all these reasons, the petitioner is entitled to succeed in the Writ Petition. Exhibit P5 is therefore quashed. 8. The learned Government Pleader submitted that in the light of the decision of the Division Bench of this Court in Writ Appeal No.288/2001, aided school service cannot be reckoned for weightage. 9. Herein the petitioner has submitted the re-option as per Exhibit P4. Therefore, there will be a direction to the Government to grant the petitioner's request for accepting the re-option as sought for in Exhibit P4 and appropriate orders will be passed within a period of two months from the date of receipt of a copy of this judgment. There will be a further direction to W.P.(C)No.3719/10 -4- the 3rd respondent to expedite the matter after orders are passed by the Government. 10. This Court had passed an interim order of stay of recovery on 4.2.2010. Therefore, after accepting the re-option, excess amount drawn by the petitioner will be adjusted in the light of the new fixation. Since the petitioner has already retired from service, appropriate decision will be taken to sanction due pensionary benefits also. The Writ Petition is allowed as above. Sd/-(T.R.RAMACHANDRAN NAIR, JUDGE) dsn True copy P.A.to Judge