IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 28TH MARCH 2008 / 8TH CHAITHRA 1930 WP(C).No. 15622 of 2007(I) PETITIONERS: 1. T.A.VIJAYAN, RETD ASI, HC NO.2284, THARLY HOUSE, P.O.MANNUTHI, TRISSUR. 2. V.PRABHAKARAN, RETD ASI, HC NO.2283, VELENGATTIL HOUSE, P.O.PURANATTUKARA, TRISSUR. 3. C.R.VAREED, RETD ASI, HC NO.2277, CHIRAYATH HOUSE, LENIN NAGAR, PATTALAKKUNNU, MANNUTHI, TRISSUR. 4. C.K.VELAYUDHAN, RETD SI, HC NO.2276, CHAYIKKOTH HOUSE, PATTIKKAD P.O., TRISSUR. BY ADV. SMT.P.V.ASHA RESPONDENTS: 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM. 3. DEPUTY SUPERINTENDENT OF POLICE (ADMINISTRATION), TRISSUR. WP(C).No. 15622 of 2007 :: 2 :: 4. SUPERINTENDENT OF POLICE, MALAPPURAM. 5. ACCOUNTANT GENERAL (AUDIT), KERALA, TRISSUR. BY SENIOR GOVERNMENT PLEADER SRI.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------- W.P.(C).No.15622 of 2007 ------------------------- Dated this the 28th day of March, 2008. JUDGMENT The petitioners commenced service as Police Constable Trainees on 24.10.1971. They completed 20 years of service in the year 1992 and 25 years of service in 1997. Time bound higher grade was sanctioned to them with effect from 1.7.1992. It was thereafter that the 1992 pay revision orders were issued on 25.9.1993, to be effective from 1.3.1992. Accordingly, the petitioners submitted their option to come over to the revised scale with effect from 1.7.1992, the date on which they were granted the higher grade. Their pay was accordingly fixed in the revised scale and higher grade was also granted to them with effect from 1.7.1992. Pay was accordingly fixed reflecting the higher grade with effect from 1.7.1992. 2. The petitioners became eligible for 25 years higher grade in 1997 and accordingly they were sanctioned such 25 years grade with effect from 5.8.1997, 27.9.1997 and 1.7.1997 respectively. W.P.(C).NO.15622/07 :: 2 :: Subsequently, by G.O.(P)No.399(178)2/Fin dated 5.2.1999, an opportunity was afforded to all Government employees to submit re-options in relation to any grades which fell due or were sanctioned after 1.3.1992. Insofar as petitioners 1 and 2 are concerned, they had submitted their option for higher grade with effect from 1.7.1997, 27.9.1997 and petitioners 3 and 4 had opted for the same grade with effect from 1.7.1997. Taking note of Government Order dated 5.2.1999, they exercised re- option to come over to the revised scale on the aforementioned respective dates. Their pay was also accordingly fixed as evidenced by Exts.P1, P3 and P4. The petitioners contend that, accordingly the pay of petitioners 3 and 4 was fixed at Rs.5,900/- with effect from 1.7.1999 in the scale of pay of Rs.5000-8150. Since this was apparently on the basis of the acceptance of the re-option exercised by them pursuant to the Government Order dated 5.2.1999, the excess pay, which was drawn by them for the period from 1.3.1992 to 30.6.1997 and from 1.7.1997 and 30.6.1999 was to W.P.(C).NO.15622/07 :: 3 :: be recovered from the arrears, which they would, otherwise, be entitled to consequential upon Exts.P2, P3 and P4. The petitioners contend that accordingly the excess pay found to be drawn by them were recovered and the petitioners' pay was fixed at the higher rates reflecting the sanction of the higher grade opted to by them pursuant to the Government Order dated 5.2.1999. Increments were also sanctioned to them, in the revised scale. The petitioners contend that, while so, their pay was reduced in November, 2002 and recovery was made from their salary till their retirement on 31.5.2003, 31.1.2003, 31.8.2004 and 30.11.2003 respectively. 3. The petitioners submit that the reduction in their pay from November, 2002 was apparently on the basis of the objection raised by the Accountant General to the pay fixation made in their cases based on the re- option exercised by them pursuant to the Government Order dated 5.2.1999. The objection was that the re- option, pursuant to the Government Order dated 5.2.1999, was restricted to cases where grade W.P.(C).NO.15622/07 :: 4 :: promotions which fell due or sanctioned between 1.6.1997 and 5.1.1998. Ext.P6 is one of the orders issued in this regard. Similar orders were issued in the case of petitioners 1, 3 and 4. Accordingly, the recovery was effected pursuant to Ext.P6 and similar orders. 4. While so, the Government issued Ext.P7, G.O.(P)No.206/03/Fin dated 5.4.2003. The relevant portion of Ext.P7 reads as follows: “5. Under the circumstances, Government in compliance with the judgment, are pleased to order that the re-option exercised in pursuance of the G.O. dated 28.6.1997 during the period from 28-6-1997 to 27-9-1997 and the re-option exercised in pursuance of the G.O. dated 5-2-1999 during the period from 5- 2-199 to 4-5-1999 by those employees whose time bound higher grade fell due/sanctioned on or after 1-3-1992 as per the scheme of time bound higher grade in Pay Revision Orders 1992 shall be accepted as valid subject to the general conditions in the circulars read as 2nd and 4th paper above viz., (i) arrears consequent on re-option shall be admissible from the date of receipt of filing of re-option only and not from the date of receipt of re-option. W.P.(C).NO.15622/07 :: 5 :: (ii) the excess amount drawn consequent on re-option can be adjusted against the arrears due. Balance amount, if any, has to be refunded in lump. 6. If the date opted for higher grade in pursuance of G.O. dated 5-2-1999 is a date on or after the date of option for Pay Revision 1997, the option for Pay Revision as per G.O. (P)No.3000/98/Fin. dated 25.11.1998 will automatically be shifted to the date of effect of re-option as per G.O. dated 5-2-1999 and therefore, benefit if any drawn as per previous option for Pay revision 1997 already exercised is to be refunded. This is because re-option for 1992 Pay Revision cannot go beyond the date of option for Pay Revision 1997.” 5. Coming to know of Ext.P7, the petitioners submitted representations before the Superintendents of Police, requesting for restoration of their pay accepting the re-option submitted by them pursuant to Government Order dated 5.2.1999. 6. No action was taken on the representations, submitted by the petitioners, as Exts.P8, P9, P10, P11 and P11(a) for the benefit of Ext.P7 Government Order. The petitioners contend that, on enquiry, they came to W.P.(C).NO.15622/07 :: 6 :: know that they would be given the benefit of Ext.P7 Government Order, only if they are prepared to refund further amounts, stated to be the excess pay drawn by them between 1.7.1992 to 2004. It is, in these circumstances, that they have approached this court with this writ petition, essentially praying for a direction that their pay, as fixed in Exts.P3 and P4 and similar proceedings, should be restored to them and they should be granted the benefit of Ext.P7 Government Order, without insisting on a refund. 7. A statement has been filed by the 3rd respondent. It is contended that as per Government Order dated 5.2.1999, the petitioners had re-opted for their higher grade, on completion of 20 years and 25 years, which fell due after 1.3.1992 with effect from 5.8.1997, 27.9.1997 and 1.7.1997. Such options were apparently accepted. That re-options for the first grade promotion after 1.3.1992 was not admissible, inasmuch as that Government Order dated 5.2.1999 permits re- option for higher grade sanctioned/due between 1.6.1996 W.P.(C).NO.15622/07 :: 7 :: and 5.1.1998 only. That since in the case of the petitioners, the first higher grade was granted prior to 1.6.1996, a re-fixation of their pay allowed on 5.8.1997, 27.9.1997 and 1.7.1997 were not in order. That when this was realised, their pay was decreased and excess pay drawn due to irregular fixation was recovered from them. It is thereafter that Ext.P7 Government Order dated 5.4.2003 was issued subject to certain conditions. That Ext.P1 Government Order contemplates a revision of the pay with the benefit of one more increment, provided, the employee remits the excess amount drawn by him. That essentially, the recovery sought from the petitioners is consequential upon the cancellation of the wrong fixation effected in the case of the petitioners, which itself was because of the acceptance of the re- option effected by the petitioners, with reference to the first time bound higher grade, which was sanctioned to them prior to 1.6.1996, the cut off date mentioned in Government Order dated 5.2.1999. Re-option for grade promotion would be sanctioned only when the grade fell W.P.(C).NO.15622/07 :: 8 :: due during the period between 1.6.1996 and 5.1.1998 and therefore, since the petitioners became eligible for 25 years' higher grade only on 5.8.1997, 27.9.1997 and 1.7.1997 respectively, the re-option exercised by them in relation to the first time bound higher grade, wrongly accepted under Exts.P3 and P4 was rightly objected to by the Accountant General. 8. The petitioners have filed a reply affidavit. It is pointed out therein that the benefit of the pay fixation effected in 2002 was cancelled on audit objections and admittedly recovery of excess pay drawn by the petitioners from 1992-2002 was already effected from their salary and terminal benefits. Paragraph 5 of Ext.P7 Government Order makes it clear that the re- option submitted pursuant to the Government Order dated 5.2.1999 shall be accepted. The pay drawn by the petitioners in accordance with Government Order dated 5.2.1999 was already recovered from them and therefore, denial of the benefit contemplated in paragraph 5 of Ext.P7 Government Order is illegal. W.P.(C).NO.15622/07 :: 9 :: 9. I heard learned learned counsel for the petitioners Smt.P.V.Asha and learned Government Pleader Sri.Nandakumar. 10. Essentially, the petitioners seek the benefit of Ext.P7 Government Order, which itself came to be issued pursuant to an earlier judgment of this court as to the entitlement of the Government Servants to exercise re-option pursuant to the Government Order dated 5.2.1999. A reading of paragraph 5 of Ext.P7 Government Order will show that the prescription of the cut off date as per Government Order dated 5.2.1999 viz., that the time bound higher grade should have fallen due or must have been sanctioned after 31.5.1996 and upto 5.1.1998 was intentionally extended under Ext.P7 Government Order. Though the first time bound higher grade was sanctioned to the petitioners with effect from 1.7.1992, as evidenced by Ext.P1 (and similar orders), the Government Order dated 5.2.1999 afforded an opportunity to the Government employees to re-opt the grades, which fell due or were sanctioned after 1.3.1992. W.P.(C).NO.15622/07 :: 10 :: It was accordingly that re-option was submitted by the petitioners for their grades and as evidenced by Exts.P3 and P4, such re-options were accepted as well. The excess pay drawn by them during the period from 1992 to 1997 was directed to be recovered consequent upon the sanctioning of the 20 years' higher grade with effect from the dates given by the petitioners in August, 1997 and the sanctioning of the 25 years of higher grade with effect from the same date and at the same scale of pay in the same revised scale of pay be given effect to from the same date. Apparently, the objection raised by the Accountant General was to the acceptance of the re- option relatable to the first time bound higher grade on completion of 20 years of service with effect from 5.8.1997 (notwithstanding the fact that it actually fell due in 1992 and was sanctioned with effect from 1.7.1992). Accordingly, the acceptance of the re-option relatable to the first time bound higher grade with effect from 5.8.1997 was cancelled and recovery was also effected from the salary of the petitioners. W.P.(C).NO.15622/07 :: 11 :: 11. But, it is thereafter that the Government issued Ext.P7 order and as noted above, paragraph 5 thereof made it clear that the re-option exercised pursuant to Ext.P2 Government Order dated 5.2.1999, by those employees whose time bound higher grade fell due or were sanctioned on or after 1.3.1992, shall be accepted as valid. This is, of course, subject to the conditions mentioned therein. One of the conditions is the refund of the excess amount drawn consequent upon the re-option. 12. It is a fact that, in the case of the petitioners, recovery has been effected in terms of Ext.P2 Government Order consequent upon the acceptance of the re-option effected by the petitioners. In such cases, the condition mentioned in sub-clause (ii) of paragraph 5 of Ext.P7 Government Order had been satisfied by the petitioners. Consequently, the reduction in the pay of the petitioners with effect from November 2002 is not justified any longer in the light of Ext.P7 Government Order. Refusal on the part of the respondents to afford W.P.(C).NO.15622/07 :: 12 :: to the petitioners the benefit of Ext.P7 Government Order and restore the fixation under Exts.P3 and P4 cannot be justified. 13. In the result, the writ petition is allowed. It is declared that the revision of the petitioners' pay and consequential fixation effected as per Exts.P3 and P4 are correct. Recovery from the salary of the petitioners already effected, if made in consonance with Exts.P3 and P4, will have to be treated as valid and proper and such recovery, along with the adjustments made from the petitioners' salary, will have to be treated as one in consonance with condition No.(ii) in paragraph 5 of Ext.P7 Government Order. The petitioners are also entitled to consequential benefits including re-fixation of their pay and pension based on Exts.P3 and P4. Arrears, if any, due to the petitioners consequential upon the same shall also be disbursed to them. Accordingly, an order shall be passed by the 4th respondent, fixing the pay of the petitioners in consonance with Exts.P3 and P4 and re-computing the pensionary benefits due to the W.P.(C).NO.15622/07 :: 13 :: petitioners, within a period of three months from the date of receipt of a copy of this judgment. Sd/- (V.GIRI) JUDGE sk/ //true copy//