IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931 WP(C).No. 19455 of 2009(B) --------------------------------------- PETITIONER: ------------------- RAMACHANDRAN V.K., 'SMRITHI', KARIPPATH, P.O.MAITHRA, AREECODE, MALAPPURAM DISTRICT, PRESENTLY WORKING AS A.E.O, KAZHISSERI. BY ADV. MR.P.K.RAMKUMAR. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF GENERAL EDUCATION, THIRUVANANTHAPURAM. 2. THE PRINCIPAL ACCOUNTANT GENERAL(AUDIT), KERALA, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, P.O.MALAPPURAM DISTRICT. R1 TO R3 BY GOVT. PLEADER MR. V.T.K. MOHANAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/11/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.19455/2009-B: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE JUDGMENT IN W.P.(C).NO.20844/06. EXT.P.2: COPY OF THE LETTER ISSUED AG (AUDIT) DDE, MALAPPURAM DT. 04/05/06. EXT.P.3: COPY OF THE GOVT. ORDER NO. 365/05/(150)FIN. DT. THIRUVANANTHAPURAM DTD. 06/08/05. EXT.P.4: COPY OF THE RE-OPTION FORMS AND ACCOMPANYING APPLICATIONS SUBMITTED BY THE PETITIONER TO THE R.1. EXT.P.5: COPY OF THE GOVT. ORDER NO. 3271/08/G. EDN. DT. THIRUVANANTHAPURAM DT. 18/07/08. EXT.P.6: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE R.1. DT. 14/08/08. EXT.P.7: COPY OF THE GOVT. ORDER NO. 547/09/G. EDN. DT. THIRUVANANTHAPURAM DTD. 04/02/09. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.19455 of 2009-B - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of November, 2009. JUDGMENT The petitioner is aggrieved by Ext.P7 order by which the first respondent refused to act upon the re-option submitted by the petitioner in terms of Ext.P1 judgment. The reason stated is that going by Rule 16 of Annexure 2 to G.O.(P) No.145/06/Fin. dated 25.3.2006, re-option will not be allowed for any pay revision (including the present pay revision) except in cases involving retrospective revision or change in scale of pay that takes effect on a date prior to the date of option exercised by the employee for the concerned pay revision. 2. The circumstances under which the petitioner approached this court by filing this writ petition are the following: The petitioner had approached this court earlier in W.P.(C) No.20844/2006. There was an audit objection in the matter of fixation of pay while he was working as a High School Assistant. Before being appointed as a High School Assistant, the petitioner had rendered service as an aided school teacher also He opted for the 1997 pay revision with effect from 1.7.1997. He was granted weightage counting 18 years service including the aided school service. wpc 19455/2009 2 The petitioner challenged the audit objection in W.P.(C) No.20844/2006. When the writ petition came up for final hearing, the petitioner withdrew the challenge against the recovery of overdrawn salary. As per the final judgment, this court permitted the petitioner to file a re-option to the pay revision of 1997. Ext.P1 is the copy of the said judgment. Therein, this court passed the following order: “If the petitioner submits a re-option within two weeks from today along with a certified copy of this judgment, the 1st respondent shall consider the same and re-fix the salary in accordance with that option, if that option is otherwise in order.” 3. Ext.P2 is the copy of the audit objection forwarded to the school. It is clear from Ext.P2 that objection is raised in respect of the pay revision of the year 1997. He opted for 1997 pay revision with effect from 1.7.1997. Apart from that, Ext.P3 is the Government Order by which permission has been granted for exercising re-option by employees in certain cases which to be exercised before 31.10.2005. The petitioner could not avail the benefit of Ext.P3 because of the delay in communication of the audit objection. It is in these circumstances, he could not submit a re- option in terms of Ext.P3 Govt. Order. After Ext.P1 judgment, the petitioner submitted a re-option on 14.8.2008 as per Ext.P6. Without wpc 19455/2009 3 correctly appreciating the fact that Ext.P1 judgment permitted re-option to be submitted, in respect of 1997 pay revision, the request was rejected as per Ext.P5 treating it as a re-option in respect of the pay revision ordered as per G.O.(P) No.145/06 dated 25.3.2006. Even though the petitioner submitted Ext.P6 to reconsider the same, it stands rejected as per Ext.P7. 4. It is clear from the facts pointed out by the petitioner that the re- option submitted by the petitioner in terms of the directions issued in Ext.P1 judgment is in respect of the 1997 pay revision, because he was aggrieved by Ext.P2 audit objection which related to the 1997 pay revision. He was ordered to refund an amount of Rs.25,117/- as per Ext.P2 itself. Therefore, it was a wrong on the part of the Government to treat the same as one covered under the Pay Revision Order dated 25.3.2006. Therefore, the view taken in Exts.P5 and P7 cannot be sustained. The event which necessitated the re-option, had well taken place before issuance of G.O.(P) No.145/06 dated 25.3.2006. Therefore, the re-option submitted by the petitioner ought to have been acted upon and the Government went wrong in applying the relevant rules contained in the Govt. Order dated 25.3.2006 for considering the reoption submitted by the petitioner, in respect of 1997 pay revision. The direction issued in Ext.P1 judgment is binding on the respondents. wpc 19455/2009 4 5. A similar issue was considered by this Court in O.P.No.14736/2000. Therein, the matter considered was in respect of the 1992 pay revision. After the fixation of the pay scale in terms of the re- option submitted, audit objection was raised in the year 1999. The petitioner thereafter submitted a re-option statement. It was disallowed stating that as per G.O.(P) No.3000/98/Fin. dated 25.11.1998 it was a belated request. While considering the said issue, it was held thus in paragraph 5: “.........In my view, the counsel for the petitioner is well founded in his submission that the petitioner's request for re-option made on 15.3.1999 cannot be disallowed on the basis of G.O.(P) No.3000/98/Fin. dated 25.11.1998 since the re-option exercised was not in relation to 1997 pay revision, but in relation to 1992 pay revision. It is evident from the facts of this case that the event which necessitated the re-option had well taken place prior to Govt. Order dated 25.11.1998 and the right of the petitioner for re-option should be considered in the light of the orders issued in Ext.P4. The petitioner cannot be made to lose the right for re-option because the audit objections, in fact, were raised on 1.3.1999, after the issuance of G.O.(P) No.3000/98/Fin. dated 25.11.1998. Otherwise, it will be clear discrimination amounting to arbitrariness and illegality. In my view, the petitioner's request has to be dealt with under Ext.P4 G.O. Here, it is not the date of the request for wpc 19455/2009 5 reoption that matters, but the reasons which necessitated the exercise of reoption, namely, whether it pertains to pre 1997 revision or post 1997 revision.” In the above view of the matter also, I find that Exts.P5 and P7 cannot be sustained. 5. Therefore, Exts.P5 and P7 are quashed. There will be a direction to the Government to reconsider the matter, and in terms of Ext.P1 judgment, the reoption submitted by the petitioner will be accepted and the salary will be refixed in accordance with the re-option. Appropriate orders will be passed within two months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/