IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 11TH NOVEMBER 2009 / 20TH KARTHIKA 1931 WP(C).No. 39901 of 2003(A) ----------------------------------------- PETITIONER(S): ------------------------ P.J.AUGUSTINE, HEADMASTER, ST.MARY'S IMMACULATE L.P.SCHOOL, EZHUPUNNA, CHERTHALA, ALAPPUZHA DISTRICT. BY ADVS. MR.K.MOHANAKANNAN SMT.A.R.PRAVITHA RESPONDENT(S): -------------------------- 1. THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ACCOUNTANT GENERAL (A&E) KERALA, THIRUVANANTHAPURM. 3. THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA. 4. THE ASSISTANT EDUCATIONAL OFFICER, THURAVOOR, CHERTHALA. R1 TO R4 BY GOVERNMENT PLEADER MR.V.T.K.MOHANAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.39901/2003 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE IST RESPONDENT. P2:_ COPY OF THE LETTER NO.C-394/01 DTD. 22.10.01 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. P3:- COPY OF THE JUDGMENT IN OP. 5043/02 DTD. 14.2.02 OF THIS HONOURABLE COURT. P4:- COPY OF THE LETTER NO.SPL. CELL(HQ) /II/133174/a/153 DTD. 15.7.03 ISSUED BY THE SR. AUDIT OFFICER, AUDIT & A/CS DEPARTMENT. P5:- COPY OF THE GO(P) NO.206/FIN. DTD. 5.4.03. P6:- COPY OF THE GRATUITY PAYMENT ORDER DTD. 4.8.04. TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.39901/2003-A ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 11th day of November, 2009 J U D G M E N T The issue raised by the petitioner is covered in his favour in the light of the decision of this Court in State of Kerala v. Lissy Joseph [2005 (4) KLT SN.70 C.No.97]. 2. The petitioner has since retired from service on 31/03/2004. He was the Headmaster of St.Mary's Immaculate L.P.School, Ezhupunna. While he was working as U.P.S.A at St.Augustin's High School, Aroor, his pay in the Selection Grade was sanctioned by the Department with effect from 01/07/1995 in the scale of pay of Rs.1600-2660/- fixing the pay at Rs.2,100/- instead of fixing the pay at Rs.2,050/-. To rectify the said defect, the petitioner had submitted a re-option in terms of G.O.(P).No.399/99/(178)/Fin, dated 05/02/1999 to come over to the Selection Grade with effect from 01/07/1997 in a pre-revised scale of Rs.1250-2230/-, to the District Educational Officer through the Headmaster of St.Augustin's High School, Aroor. Since the said re- option statement was returned for presentation to the Assistant Educational Officer, Thuravoor, the same was submitted on 19/04/2000. Again, it was returned on two grounds of which the second ground alone is relevant for this purpose, which reads thus:- W.P.(C). No.39901/2003 -:2:- “2.) The G.O dated 28/06/1999 permits re-option in the '97 pay revision orders only.” 3. Thereafter, the petitioner submitted Ext.P1 representation to the Government through proper channel which was returned by Ext.P2 letter to the petitioner again with a direction to submit revised proposal. The same was challenged in O.P.No.5043/2002 wherein this Court directed the fourth respondent to forward the representation (Ext.P1 herein) to the first respondent within one month from the date of receipt of a copy of that Judgment and directed the Government to consider and pass orders on the representation within three months from the date of receipt of the copy of the representation. Thereafter, by Ext.P4 letter issued by the Senior Audit Officer of the office of the Audit and Accounts Department, it was informed that the irregular fixation of pay of the petitioner may be rectified in terms of G.O.(P).No.399/178/99, dated 05/02/1999 and subject to the conditions specified in para 5(i) and 5(ii) of the G.O.No.206/2003/Fin, dated 05/04/2003. Paras 5(i) and 5(ii) contains the following terms with regard to the acceptance of re-option. “i. arrears consequent on re-option shall be admissible from the date of filing W.P.(C). No.39901/2003 -:3:- of re-option only and not from the date of effect of re-option. ii. the excess amount drawn consequent on re-option can be adjusted against the arrears due. Balance amount, if any, has to be refunded in lump.” 4. It is the submission of the learned counsel for the petitioner that the insistence of the same goes against the dictum laid down in Lissy Joseph's case [2005 (4) KLT SN.70 C.No.97]. Therein, it was held thus:- “The only dispute to be resolved in these appeals is whether arrears consequent on re-option of higher grades are admissible from the date of effect of re-option or from the date of filing of re-option. It is now clear that what is intended is the date of effect of re-option and not the date of actual exercise of re-option. Excess of amount due after calculating the same from the date of effect of re-option can be entitled to set off against the refunds due from the employee and the amount due, if any, arising after the date of re-option alone need be refunded to the Government.” W.P.(C). No.39901/2003 -:4:- Therefore, the petitioner is entitled to succeed. 5. In the light of the above, the pay fixation has to be effective from the date of option of the petitioner. If that be so,the fixation of the higher grade benefits cannot be said to be wrong. 6. It is submitted by the learned counsel for the petitioner that already fixations have been effected but the amount represented by the audit objection has been shown as liability and the remaining amount alone was disbursed to the petitioner. The objected portion of the amount is withheld from the D.C.R.G. Therefore, the writ petition is allowed and Ext.P4 as far as it relates to the non sanctioning of monetary benefits in terms of G.O.No.206/2003/Fin, dated 05/04/2003 is set aside. There will be a direction to the respondents to release the withheld portion of D.C.R.G within two months from the date of receipt of a copy of this Judgment. No costs. (T.R. Ramachandran Nair, Judge.) ms