IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 10TH SEPTEMBER 2009 / 19TH BHADRA 1931 OP.No.6478 of 2003(U) -------------------------- PETITIONER: -------------- V.S.LEELAMMA, AGED 55 YEARS, W/O. K.N.GOPINATHAN, KAROTTKARIMPIKKAL, VAZHAVARA P.O., KATTAPPANA IDUKKI, (RETIRED HEADMISTRESS, G.U.P.S., VAZHAVARA) BY MR.ESM.KABEER, ADVOCATE. RESPONDENTS: ------------------ 1. THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE ASSISTANT EDUCATIONAL OFFICER, KATTAPPANA. 3. THE ACCOUNTANT GENERAL (A&E) KERALA, THIRUVANANTHAPURAM. BY MR.BINOY CHANDRAN, GOVERNMENT PLEADER FOR R1TO R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 10/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No.6478/2003 Order on C.M.P.No.11448/2003 in O.P.No.6478/2003 Dismissed. 15.09.2009 Sd/- T.R. RAMACHANDRAN NAIR, JUDGE. A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF CHALAN SHOWING THE REFUND OF THE AMOUNT. EXT. P2 : COPY OF RELEVANT EXTRACT OF SERVICE BOOK OF PETITIONER. EXT. P3 : COPY OF RELEVANT EXTRACT OF THE AUDIT OBJECTION. EXT. P4 : COPY OF .GO.(P) No.380/94/(13)/FIN. DTD. TVM.9.6.94. EXT. P5 : COPY OF STATEMENT OF FIXATION OF PAY OF PETITIONER. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- O.P.No.6478 OF 2003 --------------------------------------- Dated this the 10th day of September, 2009. J U D G M E N T The petitioner retired from service as Headmistress on 31.03.2002. The challenge is against Exhibit P3 audit objection and consequent re-fixation of pay. The petitioner exercised her re-option to come over to 1992 pay revision and accordingly her pay has been fixed at Rs.1,800/- on the scale of Rs.1520-2660. The petitioner exercised her option as permitted by Exhibit P4 G.O.(P) No.380/94/(13)/Fin. dated 09.06.1994. 2. Exhibit P1 shows that the petitioner had refunded an amount of Rs.8,885/- before the Sub Treasury, Kattappana on 28.01.1995. Exhibit P2 shows that the petitioner's pay has been refixed by the 2nd respondent on the scale of pay of Rs.6,500- 10,550. Exhibit P3 audit objection is dated 01.08.2001. It was recorded therein that the Higher Grade was due on a future date i.e. 22.08.1995 and as such the re-option was not valid. It was cancelled and accordingly, the pay was refixed. O.P. No.6478/2003 2 3. Learned counsel for the petitioner submitted that it is long after the refixation that the audit objection was raised. Therefore, the petitioner is put to real hardship in the matter. It is also submitted that the cancellation of the pay fixed based on the audit objection cannot be sustained in the light of the various decisions of this Court. Reliance is placed on the decision reported in Sukumaran Nair vs. State of Kerala (2000(3) KLT S.N.27). 4. The 1st respondent has filed a counter affidavit justifying the action taken. It is mentioned therein that the petitioner exercised re-option on 31.08.1994 in terms of Government Order dated 09.06.1994 to fix her pay in the Selection Grade in the pre-revised scale (Rs.1250-2230) with effect from 22.08.1995. On the date of option namely, 31.08.1994, the Selection Grade was neither due nor sanctioned. Re-option to a scale of pay which was not existing on that date was not valid. Option for the grade which would fall due on subsequent date was not envisaged in the Government Order dated 09.06.1994. Grades became due and sanctioned alone could be re-opted. Grades O.P. No.6478/2003 3 which would become due only on a future date was not envisaged in the Government Order and hence cannot be re-opted. It is finally submitted in paragraph 9 that the Government allowed chances of re-option of grade subsequently, which were not utilised by the petitioner. 5. In Sukumaran Nair vs. State of Kerala (2000(3) KLT S.N.27) it was held that any alleged excess amount drawn by an employee while he was in service due to wrong pay fixation cannot be recovered from the pensionary benefits of the pensioner. Reliance was placed on the decision of this Court in Satyapalan vs. Deputy Director of Education (1998(1) KLT 399). It was held therein that as “the petitioners were not at fault in granting the increment, it is the administrative authority which granted the increment counting the period which could not have been counted. Therefore, it is arbitrary to mulct the petitioners with the liability to refund the amount which they obtained by reason of a wrong fixation of pay made by the administrative authority for the period upto 1984...”. 6. In the light of the above principles, learned counsel for O.P. No.6478/2003 4 the petitioner submitted that the audit objection cannot be sustained. It is further submitted that at any rate, the petitioner should have been given a chance to submit re-option, if at any time it was found that re-option submitted by the petitioner was not in order. 7. Going by the averments in the counter affidavit itself, the Government had allowed chances of re-option of grade subsequently. It is pointed out that they were not utilised by the petitioner. But, the learned counsel for the petitioner submitted that since the re-option submitted by the petitioner was already accepted, the petitioner did not avail of the said chances. This Court, in various cases, has held, in similar circumstances wherein audit objection is raised after a long period of time and by which time the period to submit re-option is also over, that the employee should be granted a chance to submit a fresh option. Otherwise, the employees will be put in real difficulty even though they are eligible for various benefits of the pay revision orders from time to time. Therefore, if the petitioner submits a fresh option/re-option O.P. No.6478/2003 5 within a period of one month from today before the 2nd respondent, the same will be processed and appropriate action will be taken by the respondents 1 and 2 to sanction due benefits to the petitioner. Appropriate orders shall be passed within a further period of three months. Depending upon the final order thus passed, pensionary benefits of the petitioner will be quantified and due benefits will be disbursed, within a further period of two months. This original petition is disposed of as above. T.R. RAMACHANDRAN NAIR JUDGE smp