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. 18578 of 2007(J) -------------------------- PETITIONER(S): --------------- ACHAMMA LUKOSE C., AGED 57 YEARS, W/O.JOHN, HEADMISTRESS (RTD.), UNION HIGH SCHOOL ANNANAD, IRINJALAKUDA, RESIDING AT KARIYIL HOUSE, K.K.ROAD, CHALAKKUDY, THRISSUR DISTRICT. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): --------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT , GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE ACCOUNTANT GENERAL (A & E), KERALA, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR. 4. THE DISTRICT EDUCATIONAL OFFICER, IRINJALAKUDA, THRISSUR DT. 5. THE HEADMASTER, UNION HIGH SCHOOL, ANNANAD, THRISSUR DISTRICT. R1 TO R4 BY G.P. SMT. M.T. SHEEBA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX EXT.P1-TRUE COPY OF GO DATED 18.4.1990 EXT.P2-TRUE COPY OF GO DATED 15.11.1990 EXT.P3-TRUE COPY OF OPTION DATED 18.4.1990 EXT.P4-TRUE COPY OF STATEMENT OF FIXATION DT.29.11.1990 EXT.P5- DO. DO. EXT.P6- DO. DO. DATED 1.4.1999 EXT.P7-TRUE COPY OF EXTRACT OF TGHE AUDIT OBJECTION EXT.P8-TRUE COPY OF ORDER DATED 15.10.2003 EXT.P9-TRUE COPY OF GO DATED 9.6.1994 EXT.P10-TRUE COPY OF GO DATED 11.9.1996 EXT.P11-TRUE COPY OF GO DATED 5.2.1999 EXT.P12-TRUE COPY OF GO DATED 8.11.1974 EXT.P13- TRUE COPY OF CIRCULAR DT.10.4.1996 EXT.P14-TRUE COPY OF ORDER DATED 7.10.2005 EXT.P15-TRUE COPY OF GO DATED 30.1.1980 EXT.P16-TRUE COPY OF JUDGMENT IUN OP 14736/2000 EXT.P17-TRUE COPY OF JUDGMENT IN OP 12457/2001 EXT.P18-TRUE COPY OF PETITION DATED 9.1.2006 EXT.P19-TRUE COPY OF JUDGMENT IN WPC 36507/2003 EXT.P20-TRUE COPY OF GO DATED 4.1.2007 EXT.P21-TRUE COPY OF JUDGMENT IN WPC 9459/2011 // TRUE COPY // P.S. TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 18578 of 2007-J - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of December, 2011. JUDGMENT Aggrieved by the rejection of the representation filed by the petitioner, challenging the observation of the audit and refixation of salary, by the Government as per Ext.P20, this writ petition has been filed. The copies of the audit objection by the Accountant General and the objection raised by the Deputy Director of Education have been produced as Exts.P7 and P14. 2. Learned counsel for the petitioner submitted that the re-option submitted by the petitioner was duly accepted and pay was refixed after collecting the excess pay drawn to the petitioner from 1.3.1992 to 30.6.1996. The audit objection came long after the same. The petitioner, even though sought for a chance to submit a re-option so as to rectify the anomaly, that facility was not allowed by the Government. Reliance is placed on Exts.P17 and P21 judgments of this Court, in this context. 3. The circumstances leading to the dispute are the following: The petitioner submitted re-option in respect of grade promotions prior to 1988 pay revision as per Exts.P1 and P2 which were duly accepted and the pay WPC.18578/2007 2 was fixed as per Ext.P4. She entered service as High School Assistant on 1.6.1976 and obtained promotion as Headmistress from 1.4.1995. At the time of promotion she was holding the post of H.S.A. Grade I. On completion of 20 years of service on 1.7.1996, she was eligible to get Senior Grade in the cadre of H.S.A.. She obtained the scale of pay applicable to Senior Grade H.S.A. for 1992 pay revision which was accepted after refunding an amount of Rs.9,834/-. The copies of the fixation statements have been produced as Exts.P5 and P6. The petitioner re-opted 1997 pay revision on 1.7.1997 in the Headmaster's scale and the pay was fixed at Rs.7750/-. 4. A reading of Ext.P7 shows that the fixation of 1997 pay revision from 1.3.1997 has been found correct and admissible. Later, when the petitioner reopted Senior Grade and 1997 pay revision based on G.O.(P) No.399/99/Fin. Dated 5.2.1999 and G.O.(P) No.1503/99/(180)/Fin. Dated 22.6.1999, the opted date was changed to 1.7. 1996 in the Senior Grade scale and 1.7.1997 in the Headmaster's scale and the same is objected to in Ext.P7. The objection raised mainly is that the option for pay revision cannot be postponed to a date beyond the date of first promotion post obtained after 1.3.1992. Her first promotion is as Headmistress with effect from 1.4.1995. The other objection taken is that the Government Orders WPC.18578/2007 3 mentioned above do not allow change of option for pay revision for notional fixations in grade promotion prior to grade promotion, but after 1.3.1992. G.O.(P) No.380/94/(13) Fin. dated 9.6.1994 does not allow fixation in pre revised scale of grade promotion obtained on or after 1.3.1992 in respect of Headmasters who got promotion as such prior to grade promotion. A consequent order was issued by the District Educational Officer as per Ext.P8. After retirement, the petitioner received Ext.P14 from the third respondent. Therein, the objection is regarding the re-option as per the option statement dated 10.8.1990 as well as the exercise of re-option as per G.O.(P) No.399/99 dated 5.2.1999. 5. In Ext.P18 representation filed by the petitioner, apart from challenging the proceedings, the petitioner sought for a chance for re-option to rectify the anomaly, so as to avoid huge loss occurred to her. The Government in Ext.P20, took the view that as per the existing rules and orders, the option for pay revision cannot be postponed beyond the date of promotion obtained after 1.3.1992 and hence the objection pointed out by the Accountant General is in order. 6. The respondents have filed detailed counter affidavits. In the counter affidavit filed by the second respondent, in para 3 it is stated that the petitioner's option for 1992 pay pay revision as well as grant of Senior WPC.18578/2007 4 Grade of H.S.A. (notional), with effect from 1.7.1996 and fixation of pay were accepted in audit. She had re-opted 1992 pay revision from 1.3.1992 to 1.7.1996 based on G.O.(P) No.399/99/(178)/Fin. dated 5.2.1999. It was not in order. The other respondents have also supported the audit objection and the Government Order. 7. The question therefore is whether the order passed by the respondents are justified. On the merits of the matter, it can be seen that as pointed out in Ext.P7, re-option on a date after the date of promotion as Headmistress on 1.4.1995, was not correct. To that extent, the audit objections will have to be upheld. But when a re-option is accepted and later after the audit it is interfered with, if the teacher is not allowed a chance to submit a fresh re-option, it will make the position hard as far as the party is concerned. Lot of amounts will have to be refunded. The competent authority had accepted the re-option at the relevant point of time and the audit objection has come after a long time also. Ext.P14 is issued after retirement only. Regarding this aspect, in paragraph 2 of Ext.P17 judgment, this Court has held thus: “The fixation of pay approved by the competent authority happens to be revised after several years on the basis of audit objection. The employee is in no way responsible for the said fixation. WPC.18578/2007 5 Therefore, this court has been consistently taking the view that if amounts are paid to be 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.” 8. In Ext.P21 judgment, I had occasion to consider a similar question and following the judgment in O.P.No.12457/2001 (Ext.P17) quoted above, it was held that the party concerned has to be given a chance to submit a revised option. In that view of the matter, the order Ext.P20, to the extent to which it denies an opportunity to the petitioner to submit a fresh revised option, is bad in law and in all other respects, the same is upheld. 9. Therefore, the writ petition is allowed to this extent with the following directions: The petitioner will submit a fresh re-option as far as the pay revision/Grade opted by her, so as to rectify the anomalies and to avoid huge loss occurred to her, and the same will be submitted along with a copy of this judgment, to respondents 3 and 4 within six weeks. The fourth respondent will accept the re-option thus submitted and pass appropriate orders with regard to the re-fixation of pay, within a further period of two WPC.18578/2007 6 months. Based on the same, the pay will be re-fixed and eligible amounts, if any, will be released to the petitioner after adjusting any excess pay due on acceptance of the fresh reoption. The pensionary benefits will be accordingly refixed and the eligible amounts also will be released to the petitioner, expeditiously. No costs. (T.R. Ramachandran Nair, Judge.) kav/