IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 WP(C).No. 30060 of 2006(C) ---------------------------------------- PETITIONER(S): -------------------------- GEORGE.T.V., H.S.A. (MATHS), ST.MARY'S H.S.S.EDOOR, PAYAM.P.O., KANNUR DISTRICT. BY ADV. MR.M.VIJAYAKUMAR RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. DEPUTY DIRECTOR OF EDUCATION, KANNUR. 3. DISTRICT EDUCATIONAL OFFICER, THALASSERY. R1 TO R3 BY SR.GOVERNMENT PLEADER SMT. T.B.REMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.30060/2006 C APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF OBJECTION BY THE DY.DIRECTOR OF EDN. P2: COPY OF REPRESENTATION BEFORE THE 2ND RESPONDENT DTD. 2/20/02. P3: COPY OF PETITION SUBMITTED BY PRINCIPAL DTD.12/08/04. P4: COPY OF ORDER ISSUED BY 2ND RESPONDENT DTD. 31/08/04. P5: COPY OF REPRESENTATION BEFORE 1ST RESPONDENT DTD.7/10/04. P6: COPY OF JUDGMENT IN WPC.12395/2005 DTD. 8/3/2005. P7: COPY OF G.O.RT.NO.3216/06/G.EDN. DTD. 26/07/06. P8: COPY OF G.O.(MS) NO.367/74/FIN.DTD. 8/11/1974. P9: COPY OF G.O.(P) 380/94/(13)/FIN. DTD. 9/06/1994. P10: COPY OF G.O.(P) 615/97/(138)/FIN. DTD. 28/06/1997. P11: COPY OF COMMUNICATION OF THE 2ND RESPONDENT DTD.12/07/05. P12: COPY OF ORDER OF THE DIST. EDL.OFFICER DTD. 19/03/2005. P13: COPY OF JUDGMENT IN WPC.NO.30935/2006 DTD. 6/08/2009. RESPONDENT'S EXHIBITS: R2(A): COPY OF THE GOVERNMENT ORDER NO.952/95/(63) DTD.5/12/1995. /TRUE COPY/ P.A.TO JUDGE Kss T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.30060 OF 2006 --------------------------------------- Dated this the 5th day of October, 2009. J U D G M E N T The petitioner is working as H.S.A (Maths) in the St.Mary's Higher Secondary School, Edoor in Kannur District. He entered service as H.S.A on 12.06.1982. His grievances relate to the pay revision of the year 1992. The pay of the petitioner was fixed in the Higher Scale from 01.07.1993 at Rs.1750/- on the basis of re-option exercised by him. The fixation was verified by the District Educational Officer also. But, after six years, the same was objected to by the Deputy Director of Education. This resulted in cancellation of the pay fixed in his favour. 2. The petitioner submitted Exhibit P2 explanation to Exhibit P1 apart from Exhibit P3 explanation submitted by the Principal. Both these were rejected by the Deputy Director of Education. Thereafter, the petitioner moved the 1st respondent by Exhibit P5 representation and he approached this Court by W.P.(C) No.30060/2006 2 filing W.P.(C) No.12395/2005. By Exhibit P6 judgment, this Court directed the 1st respondent to consider and pass orders on the said representation. But, the representation was rejected by Exhibit P7. It was mainly held therein that at present there are no rules/orders permitting for re-option for past Pay Revision except in those cases involving retrospective promotion. Accordingly, it was held that the request of the petitioner to permit him to exercise re-option in terms of G.O.(P)No.615/97 (138)/Fin dated 28.06.1997 is inadmissible. 3. The petitioner relies upon Exhibit P8 order to contend that the stand taken by the Government in Exhibit P7 is not correct. Reliance is placed on Exhibit P9 Government Order dated 09.06.1994 also. Relying upon Exhibit P9, it is contended that the petitioner submitted the re-option at the time of grant of Higher Grade in terms of Exhibit P9 and therefore, the objection taken by the Deputy Director of Education is not correct. 4. The petitioner has got a case that if the petitioner's pay was checked at the time of option and not after six years, the W.P.(C) No.30060/2006 3 petitioner would have submitted an option in terms of Exhibit P10 Government Order also. 5. Exhibit P12 is the order passed by the District Educational Officer directing recovery of amounts from the petitioner. In fact, the petitioner is relying upon Exhibit P11 passed in a similar case by which one M.Janaki was permitted by the Government to submit a fresh option. 6. A similar issue was considered by this Court in W.P.(C) No.30935/2006 and a copy of the judgment has been produced as Exhibit P13. In that case also, the option was submitted in terms of 1992 pay revision and ten years later, audit objections were raised by the Deputy Director. This Court found that in the light of Exhibit P10 Government Order which had modified the orders issued by the Government, appropriate directions will have to be issued allowing the petitioner therein to exercise re-option. Reliance was placed on the judgment in W.P.(C) No.24172/2007 in paragraph 6 of the judgment. The relevant portion is extracted below: W.P.(C) No.30060/2006 4 “The petitioner's pay is sought to be re-fixed on account of an audit objection after a long period of six years of original fixation of pay. When pay is sought to be re-fixed after such a long time, that too after the last date for re-option as permitted by the Government, it is only just and equitable that petitioner be given a chance for re-option so as to avoid adverse effect on the audit objection of his pay. The said view is supported by Ext.P16 judgment of this court in W.P.(C) No.33334/2005”. 7. In the said judgment this Court allowed the petitioner therein to exercise re-option for coming over to the revised scale of pay as per the 1998 pay revision order within a period of one month from the date of receipt of a copy of the judgment with a further direction to the respondents to take appropriate steps to refix the pay of the petitioner in terms of the re-option thus submitted. In the light of the factual situation emerging above also, the same course can be adopted. 8. In the counter affidavit filed by the 2nd respondent, various contentions have been raised in support of the steps taken. It is stated in paragraph 7 of the counter affidavit that the W.P.(C) No.30060/2006 5 petitioner originally opted 1992 Pay Revision with effect from 01.03.1992. He was granted Higher Grade with effect from 01.07.1992. Later, he exercised re-option to the pay revision and his pay was fixed in the revised Higher Grade Scale with effect from 01.07.1993 shifting the date of grade originally opted from 01.07.1992 to 01.07.1993. This is not admissible as per G.O.(P) No.380/94(13) dated 09.06.1994 and G.O.(P) No.952/95 (63) dated 05.12.1995. Really, the benefit of Exhibit P10 could not be obtained by the petitioner at the right point of time as audit objection came only after six years. 9. In that view of the matter, I find that the petitioner is also entitled for a similar direction as is issued in Exhibit P13 judgment in W.P.(C) No.30935/2006. Therefore, this writ petition is allowed. The petitioner is hereby allowed to submit re-option for coming over to the revised scale of pay as per 1993 pay revision order within a period of one month from the date of receipt of a copy of this judgment, in terms of Exhibit P10 Government Order or any other Government W.P.(C) No.30060/2006 6 Order in force applicable to the case of the petitioner. On submitting re-option, the Deputy Director of Education namely, the 2nd respondent shall take appropriate steps to refix the pay of the petitioner in accordance with such re-option within a further period of two months from the date of receipt of re-option. The recovery ordered will be kept in abeyance till orders are passed. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp