IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 12TH DECEMBER 2011 / 21ST AGRAHAYANA 1933 WP(C).No. 24767 of 2010(U) ---------------------------------------- PETITIONER(S): ----------------------- P.REMA, HEADMISTRESS, D.S.L.P.SCHOOL, ALAKKAD, PAYYANNUR, KANNUR DISTRICT. BY ADV. SRI.M.SASINDRAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA - REPRESENTED TO SECRETARY TO GOVERNMENT, GENERAL EDUCATION (P) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ASSISTANT EDUCATIONAL OFFICER, PAYYANNUR. BY GOVT. PLEADER SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.24767/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE COMMUNICATION DTD. 10.11.2009 ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER TO THE PETITIONER. P2:- COPY OF THE PETITION DTD. 2.12.2009 SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT . P3:- COPY OF THE REPORT DT.D 7.12.09 SUBMITTED BY THE 2ND RESPONDENT TO THE IST RESPONDENT. P4:- COPY OF THE STATEMENT OF FACTS FILED BY THE ASSISTANT EDUCATIONAL OFFICER BEFORE THE GOVERNMENT P5:- COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT. P6:- COPY OF THE JUDGMENT IN OP.21833/2001 DTD. 28.8.03. P7:- COPY OF THE JUDGMENT IN OP.12457 /2001 DTD. 5.6.03. P8:- COPY OF THE ORDER G.O (RT) NO.2591/10/G.EDN. DTD. 15.6.2010 ISSUED BY THE IST RESPONDENT. P9:- COPY OF THE COMMUNICATION DTD. 1.7.2010 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.24767/2010-U ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 12th day of December, 2011 J U D G M E N T The petitioner is working as Headmistress in D.S.L.P School, Alakkad in Kannur District. The matter concerns an audit objection Ext.P1 which finally resulted in Ext.P8 which are under challenge in this writ petition. The bare facts necessary for the disposal of the writ petition are the following:- The petitioner was initially appointed as Assistant Teacher on provisional basis from 07/07/1983 to 02/10/1983 and her regular appointment in the said post is from 01/10/1984. The promotion of the petitioner to the post of Headmistress was with effect from 01/10/1990. On completion of 15 years of service, the scale of Headmistress was granted from 04/07/1999 reckoning the provisional service also. The petitioner opted 01/07/2004, for coming into the scale prescribed as per the Pay Revision Order 2004, which was also granted. The said option was submitted since the increment fell due on that date and the same was W.P.(C). No.24767/2010 -:2:- beneficial. As per the Pay Revision Order, the petitioner is entitled to get higher grade in the scale of Headmistress on completion of 8 years of service and when applied for the same, Ext.P1 objection was issued. The objection is that the reckoning of provisional service is not proper. 2. This required a re-option to be submitted by the petitioner and Ext.P2 application was submitted requesting for a change of opted date from 01/07/2004 to 01/10/2004 and it was also agreed to by the petitioner to refund the excess amount drawn by her consequent on such re-option. This was forwarded to the Government along with a report Ext.P3 and the Government heard the matter. 3. The petitioner relies upon Exts.P6 and P7 Judgments in support of the plea that re-option is permissible. Ext.P8 is the order passed by the Government wherein Government has taken a view that: “As per Rule 16 in Annexure II of G.O. (P).No.145/06/Fin., dated 25/03/2006 it is stated that, W.P.(C). No.24767/2010 -:3:- 'Re-option will not be allowed for any pay revision (including the present pay revision) except in cases involving retrospective revision of or change in scale of pay that takes effect on a date prior to the date of option excercised by the employee for the concerned pay revision.' Here in this case, no such condition exists. Hence, the request of the petitioner is inadmissible and thus the appeal petition stands rejected.” Learned counsel for the petitioner submitted that the said reasoning is not correct as the pay has been revised retrospectively and the revision of pay has taken effect prior to the date of option exercised by her and, therefore, Rule 16 will squarely apply. 4. Apart from that the issue is covered by the decisions of this Court rendered in Exts.P6 and P7. The question herein is whether, when once the option exercised by a person like the petitioner is accepted and the audit objection comes after a number of years W.P.(C). No.24767/2010 -:4:- resulting in refixation of pay fixed already, the person concerned is entitled to submit a fresh option to set right the anomaly. In para.2 of Ext.P6 Judgment in O.P.No.21833/2001 and connected case it was held thus:- “.........According to the respondents, re-option can be allowed only if the pay is revised as per the orders of a court or promotion is ordered with retrospective effect. Earlier, re-fixation of pay on audit objection was also a ground for allowing re- option. With the issuance of 1997 Pay Revision Order, the said ground has been omitted. But, this court has been taking the consistent view that if the pay is re-fixed on audit objection, the option exercised earlier will become meaningless, and therefore the incumbent is entitled to re-opt. The Judgment in O.P.No.12457/2001 is one of those Judgments in which the claim for re-option was upheld in view of the above position. ....” W.P.(C). No.24767/2010 -:5:- 5. In Ext.P7 Judgment in O.P.No.12457/2001, in para.2, the legal position has been explained thus:- “......The employee is in no way responsible for the said fixation. Therefore, this Court has been consistently taking the view that if amounts are paid to the employees due to the errors on the part of the Controlling Officers, the same should not be recovered. Fixation happened to be revised in this case on the basis of an audit objection. As stated earlier, the employee is in no way responsible for the said mistake. In such circumstances, unless re-option is not allowed, the same will cause serious prejudice. .....” 6. In that view of the matter, the petitioner's re-option will have to be accepted. Therefore, the Government Order Ext.P8 to the extent to which it refuses to accept the re-option is held as illegal and, therefore, the same is quashed. There will be a direction to the second respondent to accept the re- W.P.(C). No.24767/2010 -:6:- option submitted by the petitioner as per Ext.P2 and pass appropriate orders based on the same, refixing the salary and quantifying the excess pay received by the petitioner. The interim order staying recovery pursuant to Exts.P8 and P9 will continue till the order is passed. The excess pay received by the petitioner will be adjusted against the pay revision benefits, if any, due to the petitioner or the petitioner will repay the same on passing the order as above. The writ petition is accordingly allowed. No costs. (T.R. Ramachandran Nair, Judge.) ms