IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT: THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD WRIT PETITION Nos.27972 and 28051 of 2010 Date: June, 2011 WP No. 27972 of 2010 Between: R. Subba Ramaiah … Petitioner And: The Registrar Administration High Court of A.P and 2 others … Respondents WP No. 28051 of 2010 Between: E. Venkata Rami Reddy … Petitioner And: The Registrar Administration High Court of A.P and 2 others … Respondents The Court made the following: THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD WRIT PETITION Nos.27972 and 28051 of 2010 COMMON ORDER: (per the Hon’ble Sri Justice P. Durga Prasad) Both the Writ Petitions are filed for issuance of Writ of Mandamus, declaring the action of respondents in communicating the official memorandum issued by the 3rd respondent vide Dis No.1516 dated 06.08.2010, by raising objection that the petitioners are not entitled for re-fixation of their pay by exercising revised option and in ordering to recover the arrears paid to the petitioners and also returning the revised pension papers submitted by the petitioner for revision of their pension based on the revised pay on account of exercise of the revised option as illegal and contrary to law, and consequently direct the respondents 2 and 3 to re-fix the pay of the petitioners on the basis of the revised option exercised by the petitioners in terms of G.O.Ms No.50 dated 23.04.2009 and also G.O.Ms No.213 dated 27.08.2005 and submit the pension papers to the petitioners for revised pension based on the pay scale after exercising revised option. W.P.No.27972 of 2010 The petitioner in this Writ Petition is a retired Superintendent in the Court of Junior Civil Judge, Gadwal of Mahabubnagar District. It is averred that he retired on 30.04.2008 on attaining the age of superannuation and on issuance of the G.O.Ms.No. 50 Law (L.A & J. Home Courts D) dated 23.04.2009, by the Government on the basis of the recommendations made by Hon’ble Justice Jagannath Setty Commission, his pay was re-fixed. In terms of the said G.O., he is entitled to get one increment to be added at the initial rate of pay of existing scale as on 01.04.2003 to his pay and his pay has to be fixed at the next stage. Accordingly, in terms of the above G.O, his pay was fixed by taking into consideration the pay that was being drawn as on 01.04.2003 by adding initial increment of Rs.150/- and also release annual grade increment due on 01.04.2003. It is further averred that he exercised revised option with effect from the date of his next increment i.e., 01.03.2004 due to the revision of existing pay scales under A.P. Revised Pay Scale Rules, 2005 and his pay was re-fixed and he has drawn arrears of pay in pursuance of the fixation. It is further averred that the Government has revised the pay scales of the State Government employees with effect from 01.07.2003 vide G.O.Ms No.213 Finance, dated 27.08.2005. Under Rule 5 of the notification issued under G.O.Ms No.213, one can exercise option as contemplated under the said rule and accordingly an employee can opt for revised pay scales from 01.07.2003 or from the next date of increment. It was also contemplated under the G.O.Ms. 213 that the option once exercised will be final. However, in Sub Rule 6 of Rule 5, a provision was made that in case where the date of increment in the existing scale of pay of a Government employee is altered or the circumstances that existed on the date of exercise of the option are materially altered by any order of the Government or the authority, the individual may exercise a revised option within a period of one month from the date of receipt of the relevant Government orders. He further averred that he exercised his original option prior to issuance of G.O.Ms. No.50 from 01.04.2003, and his pay was fixed in the revised pay scale of 2005. Further consequent upon the issuance of G.O.Ms. No. 50 his pay has been changed and he has changed his earlier option by exercising right under Sub Rule 6 of Rule 5 of G.O.Ms. No. 213, since it is beneficial to him, and he opted from the next date of increment i.e., 01.04.2003 instead of 01.03.2003. Therefore, he exercised his revised option and got fixed his pay at Rs.15,975/- with effect from 01.03.2004. He further averred that he has submitted the revised pension papers to the 2nd respondent for revising his pension on account of re-fixation of the pay, but the same was returned with an objection that he is not entitled to change his earlier option since there is no provision in G.O.Ms. No. 50 dated 23.04.2009. In view of the Rule 5(6) of the A.P.Revised Pay Scales, 2005, the said objection is not correct. Therefore, he is entitled to re-fixation of his pension based on revised pay scales. W.P.No. 28051 of 2010 The petitioner in this Writ Petition retired as Superintendent in the Court of Senior Civil Judge, Gadwal, Mahabubnagar District with effect from 30.06.2006, on attaining the age of superannuation. The facts of this case are similar as in writ petition No.27972 of 2010. He is also questioning the directions of the 2nd respondent in rejecting his claim for revision of the pension in pursuance of the revised fixation of his pay. In W.P.No.27972 of 2010, counter was filed on behalf of the respondents No.2 and 3. It is averred in the said counter that G.O.Ms. 50 dated 23.04.2009 was issued basing on the recommendations of the Hon’ble Justice Jagannath Setty Commission, and in the said G.O. it was only ordered to fix the pay of the subordinate staff of judiciary by adding one increment at the initial rate of scale as on 01.04.2003. There is no provision in the said G.O. to exercise revised option. By virtue of G.O.Ms.No.213 Finance dated 27.08.2005, the Government has implemented revised pay scales wherein a provision has been made allowing employees to exercise their option to come under revised pay scales. In the normal circumstances, an employee is entitled to exercise option when (i) change of date of increment, (ii) re- fixation of pay on account of anomaly in the pay of Seniors and Juniors, (iii) in case of express orders of Government, (iv) promotion and (v) revision of pay scales. G.O.Ms.No.50 dated 23.04.2009 only gives the benefit of adding one increment at the initial rate by adding the increment in the time scale of pay and duties and responsibilities are not going to be changed as such the question of exercising the option does not arise. The individual resubmitted revised pension papers consequent on implementation of G.O.Ms.No.50 and the same was approved by the Office of Accountant General releasing the revised pensionary benefits. Hence the writ petition is devoid of merits and is liable to be dismissed. Since the facts and issues involved in both the Writ Petitions are one and the same, both the Writ Petitions are disposed of by this common order. Sri. Damodar Reddy, the petitioner’s counsel, has pleaded that the petitioner’s pay was fixed under G.O.Ms. No.50 dated 23.04.2009 as he has exercised option on 01.04.2003 and he has got the right to exercise revised option as per Sub Rule 6 of Rule 5 as per G.O.Ms. 213 Finance, 27.08.2005 and he has revised his option from 01.03.2003 instead of 01.04.2003 and got re-fixed his pay in the revised pay scales of 2005 and since the petitioner has retired from service, he has submitted the revised pensionary papers to the 2nd respondent, but the 2nd respondent has returned the same with an objection that the petitioner is not entitled to revise the earlier option exercised by him, and the said objection raised in letter of the 2nd respondent is not correct in view of the Sub Rule 6 of Rule 5 of the G.O.Ms. 213 Finance, dated 27.08.2005. The learned Standing Counsel appearing for the respondents 2 and 3 has pleaded that there is no provision for exercising option in G.O.Ms.No.50 dated 23.04.2009 as the said G.O. only granted one additional increment from 01.04.2003 and therefore, the contention of the petitioner he has exercised the option with effect from 01.04.2003 and the question of subsequently exercising revised option from 01.03.2003 does not arise. Admittedly, both the petitioners work in the District Judiciary of Mahaboobnagar District and retired from service on the respective dates of their superannuation. They got fixed their pay in pursuance of G.O.Ms.No.50 dated 23.04.2009 and also G.O.Ms.No.213 Finance, 27.08.2005. As per G.O.Ms. No.50 which was issued on the recommendations of the Hon’ble Justice Jagannath Setty Commission, the pay of the judicial employees has to be fixed by adding one increment on the initial rate of pay of existing scale as on 01.04.2003, and admittedly, in pursuance of the said G.O., an increment was added on the initial pay of the petitioners as on 01.04.2003 and granted subsequent annual grade increments. The contention of the petitioners is that they have exercised option for fixing their pay as per G.O.Ms.No.50 dated 23.04.2009, but there is no provision or right given to the employees to exercise any option as all the employees were granted one increment on the existing pay scales as on 01.04.2003. The petitioners counsel relied upon Sub Rule 6 of Rule 5 of notification issued under G.O.(P) No. 213 dated 27.08.2005. Sub Rule 6 of Rule 5 reads as under: “In a case where the date of increment in the existing scale of pay of a Government employee is altered or the circumstances that existed on the date of exercise of option are materially altered by any order of the Government or other authority, he may exercise a revised option within a period of one month from the date of receipt of the relevant order.” In the present case, the question of changing the date of increment in the existing scale of pay of the petitioner does not arise as he was only granted one increment in pursuance of G.O.Ms.No.50 dated 23.04.2009. The Rule 5 of the notification issued under G.O.(P) No.213 Finance dated 27.08.2005 governs the principles for exercising the option. The Rule 5(1) & (2) is as under: “(1) Subject to other provisions of this rule, a Government employee holding a post under the Government on 1st July, 2003 the scale of which is revised may opt: (a) to remain in the existing scale of pay, or (b) to draw pay in the Revised Pay Scales, 2005 either from 1st July, 2003 or from the date on which he earns his next increment in the existing scale of pay, but not beyond 30-6-2004. (2) A Government employee, who is entitled to exercise option under sub-rule (1) shall do so within a period of 6 (six) months from the date of publication of these rules, in the Andhra Pradesh Gazette. The option once exercised shall be final.” Therefore, as per the said rule, the revised pay scales are with effect from 01.07.2003 and the date for exercising the option for Revised Pay Scales, 2005 is 01.07.2003 or the date on which he earns next increment in the existing pay scales. In the present case, the petitioner is claiming that he has exercised revision from 01.03.2003. In view of Rule 5(1)(b) of the Notification, he cannot exercise the option prior to 01.07.2003. He is only entitled to exercise his option from the next date of his increment i.e., after 01.07.2003. Since Rule 5(1)(b) is not applicable, the petitioners are not entitled for revising their option as claimed by them. Therefore, the petitioners are not entitled for re-fixation of their pay and consequently submitting the revised pension papers and the petitioners are not entitled for any relief. Hence, both the Writ Petitions are dismissed. There shall be no order as to costs. _____________________________ JUSTICE GODA RAGHURAM _____________________________ JUSTICE P. DURGA PRASAD June, 2011 KSM