IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 WP(C).No. 5980 of 2008(J) ------------------------------------ PETITIONER: ------------------- K.SUBHADRAKUMARI,HIGH SCHOOL ASSISTANT, GOVT.HIGHER SECONDARY SCHOOL, ERUMAPETTY, THRISSUR DISTRICT. BY MR.N.N.SUGUNAPALAN, SENIOR ADVOCATE, ADV. MR.S.SUJIN. RESPONDENTS: ------------------------ 1. DEPUTY DIRECTOR OF EDUCATION, THRISSUR. 2. DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. 3. SENIOR AUDIT OFFICER, INDIAN AUDIT AND ACCOUNTS DEPARTMENT, OFFICE OF THE ACCOUNTANT GENERAL (AUDIT), KERALA BRANCH, THRISSUR. 4. PRINCIPAL,GOVT.HIGHER SECONDARY SCHOOL, ERUMAPETTY, THRISSUR. 5. PRINCIPAL SECRETARY (FINANCE), GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 6. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVT.,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. R1 TO R6 BY SPL. GOVERNMENT PLEADER MR. N. MANOJ KUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/12/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.5980/2008-J: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER IN APRIL TO THE R.2. EXT.P.2: COPY OF THE LETTER DTD. 21/10/2003 SUBMITTED BY THE PRINCIPAL OF THE SCHOOL TO THE R.3. EXT.P.3: COPY OF THE PROCEEDING DTD. 12/12/2003 ISSUED BY THE R.3. EXT.P.4: COPY OF THE G.O.(P).NO.615/97 (138)/FIN. DTD. 28/06/1997. EXT.P.5: COPY OF THE G.O.(P).NO.206/2003/FIN. DTD. 05/04/2003. EXT.P.6: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE R.5 DT. 03/03/04. EXT.P.7: COPY OF THE ORDER DTD. 01/11/2007 PASSED BY THE GOVERNMENT AS PER COMMUNICATION NO.29647/PRU-1/07/FIN. DTD. 01/11/2007. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.5980 OF 2008 --------------------------------------- Dated this the 7th day of December, 2009. J U D G M E N T The petitioner herein is working as High School Assistant in the Government Higher Secondary School, Erumapetty in Thrissur District. The writ petition concerns audit objection for the 1992 pay revision. The petitioner was working in the Government High School, Ezhur in Malappuram District at that point of time. The petitioner exercised option for higher grade with effect from 01.03.1992. Thereafter reoption was exercised for higher grade in the revised scale with effect from 01.07.1993 as per G.O.(P) No.380/94/Fin. dated 09.06.1994. The petitioner thereafter was receiving pay in the higher grade as such. 2. The audit objection was raised to the effect that 10 years higher grade originally granted to the petitioner from 01.07.1992 do not permit to change the date of higher grade already sanctioned and therefore, the change of date of higher grade from 01.07.1992 to 01.07.1993 was not in order. W.P.(C) No.5980/2008 2 Exhibit P1 is the explanation submitted by the petitioner. But, the pay of the petitioner was re-fixed and to avoid action in the matter, the petitioner had refunded the amount also. By Exhibit P3, it was informed by the 3rd respondent that the change of date of higher grade from 01.07.1992 to 01.07.1993 was not in order. 3. It is the case of the petitioner that as per the earlier orders passed by the Government dated 28.06.1997 and 14.08.1997, it was clarified that the State Government employees and teachers who got time bound grade on or after 01.03.1992 will be permitted to opt time bound higher grade on the date of their choice and to continue in the pre-revised scale till the date of option. Exhibit P4 is the copy of the said Government Order. 4. It is the case of the petitioner that various writ petitions were filed before this Court in respect of the said Government Order which were allowed by this Court and confirmed in Writ Appeal No.2293/2002 and by the Apex Court in SLP No.1026/2003. Revised order was later passed by the W.P.(C) No.5980/2008 3 Government as per Exhibit P5. It is the case of the petitioner that going by the same also, permission was granted to all persons who have not so far exercised option for grade promotion fell due after 01.03.1992. 5. The petitioner filed a representation to get its benefit as per Exhibit P6 which was directed to be disposed of by this Court in the judgment in W.P.(C) No.11838/2004. Exhibit P7 is the resultant order passed by the Government, which is under challenge in this writ petition. 6. The 5th respondent has filed a counter affidavit. In paragraph 3 of the counter affidavit it is stated that the change of date of higher grade from 01.07.1992 to 01.07.1993 was not in order as per G.O.(P) No.380/94(13)/Fin. dated 09.06.1994. Government in G.O.(P) No.615/(138)/97/Fin. dated 28.06.1997 have permitted to the employees to re-opt time bound grade sanctioned on or after 01.03.1992. But the petitioner has not availed this chance. 7. Learned counsel for the petitioner relied upon a judgment of this Court in W.P.(C) No.24172/2007 wherein it was held that W.P.(C) No.5980/2008 4 when pay is sought to be re-fixed after such a long time, it is only just and equitable that the parties should be given a chance for re-option. In W.P.(C) No.24172/2007, in paragraph 6, it was held thus: “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”. 8. This was followed in W.P.(C) No.30060/2006 by allowing the petitioner to submit re-option for coming over to the revised scale of pay of the same pay revision and directing the Government to accept the same. Same principle can be adopted regarding reoption for change of date of higher grade. In that view of the matter, the petitioner herein can be given an opportunity to submit a re-option. Therefore, Exhibit P7 order is quashed. If the petitioner W.P.(C) No.5980/2008 5 submits a re-option within a period of one month from today along with a copy of the judgment, the same will be accepted and appropriate orders shall be passed refixing the pay of the petitioner. Final orders shall be passed within a further period of two months by the competent authority. Depending upon the same, the monetary benefits due to the petitioner will be quantified and the same will be released within a further period of three months. This writ petition is allowed as above. T.R. RAMACHANDRAN NAIR JUDGE smp