IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR THURSDAY, THE 3RD JULY 2008 / 12TH ASHADHA 1930 WP(C).No. 17639 of 2004(Y) -------------------------- PETITIONER: ------------ JANCY M.C., HEAD NURSE, MEDICAL COLLEGE HOSPITAL, TRIVANDRUM. BY ADV. SRI.M.C.CHERIAN SMT.SARAMMA CHERIAN SMT.ASHA CHERIAN SRI.E.D.GEORGE SRI.P.M.SANEER RESPONDENTS: ------------- 1. GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 3. THE SUPERINTENDENT, MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM. 4. THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM. BY SMT.SMITHA, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/072008 , THE COURT ON 03/07/2008 DELIVERED THE FOLLOWING: WP(C) No.17639/2004 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF AUDIT OBJECTION OF 4TH RESPONDENT. P2 : COPY OF REPRESENTATION DATED 16/04/2003 OF THE PETITIONER TO 1ST RESPONDENT. P3 : COPY OF ORDER NO.G.O.(P)/101/80/167/FIN. DATED 30/01/1980 OF GOVERNMENT OF KERALA. P4 : COPY OF ORDER/LETTER NO.E1-11336/2003/MCH DATED 08/02/2004 OF 3RD RESPONDENT TO PETITIONER. P5 : COPY OF ORDER NO.G.O.(P) 2670/98/FIN. DATED 02/11/1998 OF FINANCE DEPARTMENT, GOVERNMENT OF KERALA, TRIVANDRUM. //TRUE COPY// PA TO JUDGE. jg C.N.RAMACHANDRAN NAIR, J. ------------------------- W.P.(C) No. 17639 of 2004 --------------------------------- Dated, this the 3rd day of July, 2008 J U D G M E N T The writ petition is filed challenging Ext.P1 & P4 issued by the respondents to the petitioner, who is a Staff Nurse in the Government Service, at the fag end of retirement. Petitioner was paid a pay revision based on option exercised by her in the new scale with effect from 01/03/1992 and 01/03/1997 based on the two pay revisions of 1992 & 1997 respectively. Petitioner was paid salary and allowances based on her options so exercised by her. However, after a long period Accountant General raised objection, as evidenced in Ext.P1. It is seen from the audit objection that petitioner has drawn an amount of Rs.300/- per month over and above the eligible amount based on her option from 1992 onwards. Under Ext.P3 order of the Government dated 30/01/1980, petitioner was entitled to make a change of option to the new scale of pay, and according to petitioner, if the option is exercised once again in terms of Ext.P3 from 01/03/1992 to 01/10/1993 and from 01/03/1997 to 23/10/1997, the salary and allowances drawn by petitioner could not be excess as pointed out by the Accountant General. According to the petitioner, one ground permitted under Ext.P3 for change of WP(C) No.17639/2004 -2- option once exercised is where due to audit scrutiny or any other reasons there is a retrospective change in the pre-revised pay with reference to which the pay is fixed in the revised scale. Similarly, yet another ground provided for change of exercise of option is that when there is a case of reduction in the revised pay fixed takes place consequent to audit scrutiny, it can be got over by a change of option. According to petitioner, petitioner is entitled to one more change of option to the date above referred. If that is allowed, the audit objection raised by the audit party about the excess pay drawn will disappear. However, on going through Ext.P4, I find that Government has referred to a later order dated 07/01/2004 and the order relied on by the petitioner, namely Ext.P3 and it is not known whether Ext.P3 is currently in force or whether it is superceded by any other order. Petitioner has also relied on judgment of this Court in O.P.No.12457/01 dated 05/06/2003, whereunder this Court permitted change of option once exercised. Petitioner, however, stated that if she is not called upon to refund excess salary drawn, she is willing to forego her claim for reoption. Having regard to this contention, I feel, the matter has to be re-considered by the Government. Accordingly, this writ petition is disposed of WP(C) No.17639/2004 -3- vacating Ext.P4 with direction to 1st respondent to consider petitioner's entitlement to exercise of one more change of option to the dates above referred for taking benefits under the new scales of pay pursuant to pay revision of 1992 & 1997 in the light of Ext.P3 and any other Government Order relevant in the subject and the judgment of this Court above referred. I also make it clear that if the amount involved is not very significant and petitioner is waiting retirement, Government can forego the claim based on the audit objection and drop the matter. If any adverse order is proposed against the petitioner, she should be heard in the matter before orders are issued. On the other hand, if the matter is closed, dropping proposal to make recovery from petitioner as excess pay, the same should also be communicated to petitioner. 1st respondent is directed to take a decision as above within three months from the date of receipt of a copy of this judgment. (C.N.RAMACHANDRAN NAIR, JUDGE) jg