IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 WP(C).No. 30980 of 2004(K) -------------------------- PETITIONERS: -------------------- 1. C.H.NARAYANA, AGED 55 YEARS, S/O.LATE MANA MASTER, R/AT BAYAR VILLAGE, KASARAGOD TALUK & DIST. (RETIRED AS HEAD MASTER, AVALA A.L.P.SCHOOL, BAYAR). 2. K.KUSUMA, AGED 54 YEARS, W/O.LATE PURUSHOTHAMAN, R/AT KUNJATHUR VILLAGE, KASARAGOD TALUK & DIST. (RETIRED AS HEAD MISTERS, A.L.P.SCHOOL, UDYAVAR BHAGAVATHI). BY ADV. SRI.KODOTH SREEDHARAN RESPONDENTS: ---------------------- 1. THE DISTRICT EDUCATIONAL OFFICER, MANJESWAR AT UPPALA, P.O.UPPALA, KASARAGOD. 2. THE DEPUTY DIRECTOR OF EDUCATION, KASARAGOD, P.O.VIDYA NAGAR, KASARAGOD. 3. STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM-1. 4. ACCOUNTANT GENERAL, KERALA, THIRUVANANTHAPURAM. R1 TO R4 BY GOVT. PLEADER SRI. M.A. FAYAZ THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AMG W.P (C) No.30980/2004. APPENDIX PETITIONER'S EXHIBITS EXT.P1 – TRUE COPY OF THE G.O. (P) No.380/94 (13) DT.09-06-1994 ISSUED BY THE 3RD RESPONDENT. EXT.P2 – TRUE COPY OF THE AUDIT OBJECTION DATED 03-11-1997 ISSUED BY THE 1ST RESPONDENT. EXT.P3 – TRUE COPY OF THE LETTER No.30623/01 DATED 25-06-2011 ISSUED BY THE 3RD RESPONDENT. EXT.P4 – TRUE COPY OF THE LETTER No.D949/2001 DATED 17-04-2001 TO THE PETITIONER ISSUED BY THE 1ST RESPONDENT. EXT.P5 – TRUE COPY OF THE JUDGMENT IN OP No.12457/01 DT.05-06-2003 BY THIS HON'BLE COURT. EXT.P6 – TRUE COPY OF THE REPRESENTATION DATED 26-11-2003 BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P7 – TRUE COPY OF THE G.O. (P) No.592/2003 DT. 10-11-2003 ISSUED BY THE GOVERNMENT. EXT.P8 – TRUE COPY OF THE G.O. (P) No.399/99 (178)/Fin DT. 05-02-1999 ISSUED BY THE GOVERNMENT EXT.P9 – TRUE COPY OF THE G.O. (P) No.101/80/(167) Fin DT.30-01-1980 ISSUED BY THE GOVERNMENT EXT.P10 – TRUE COPY OF THE JUDGMENT IN W.P (c) No.9389/04 DATED 18-03-2004 OF THIS HON'BLE COURT. EXT.P11 – TRUE COPY OF THE ORDER DATED 12-07-2004 ISSUED BY THE 3RD RESPONDENT TO THE 1ST PETITIONER. EXT.P11 (a) – TRUE COPY OF THE ORDER DT. 12-07-2004 ISSUED BY THE 3RD RESPONDENT TO THE 2ND PETITIONER. RESPONDENTS EXHIBITS EXT.R3 (a) – TRUE COPY OF THE G.O (P) No.592/03/Fin DATED 10-11-2003. TRUE COPY P.A. TO JUDGE AMG T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 30980 of 2004-K - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of October, 2011. JUDGMENT The main relief sought for in the writ petition is for a direction to the respondents to permit the petitioners to exercise reoption as requested for in Exts.P6 and P6(a). Reliance is placed on Ext.P5 judgment of this Court. 2. Both the petitioners have retired from service as Headmaster and Headmistress respectively. The first petitioner was promoted as Primary Headmaster with effect from 1.4.1993. He started his service with effect from 18.6.1973. At the time of promotion as Headmaster, he did not enjoy the benefit of Senior Grade of P.D. Teacher, to which he was eligible from 18.6.1993. As regards the second petitioner, she entered service as Assistant Teacher with effect from 28.6.1972, was promoted as Primary Headmistress with effect from 28.11.1989 and became eligible for Senior Grade of P.D. Teacher with effect from 28.6.1992. Both of them submitted options for senior grade in the pre revised pay scale of 1988 pay revision. 3. At the time of 1992 pay revision, Ext.P1 order was issued, whereby clause 2(ii)(c) allowed a chance for reoption for 1992 pay revision after enjoying grade promotions fell due/granted on or after 1.3.1992 in wpc 30980/2004 2 1988 pay scale. After refunding the excess pay they reopted 1992 pay revision and the pay was accordingly fixed. An objection was raised by the fourth respondent as per Ext.P2 which was challenged by the first petitioner in O.P.No.6440/2001. This Court disposed of the writ petition directing the third respondent to consider the representation therein, but the same stood rejected as per Ext.P3. Thereafter, a refixation was made by the first respondent with a direction to refund the excess pay drawn, as per Ext.P4. The refixation resulted in the drop of pay also. 4. In the light of Ext.P5 judgment of this Court rendered in the case of certain other similarly placed persons, the petitioners filed representations as per Exts.P6 and P6(a). It is pointed out that the Government itself has permitted reoption as per Exts.P8 and P9. Their representations were again directed to be considered as per Ext.P10 judgment in O.P.No.9389/2004, but they have been rejected as per Exts.P11 and P11(a), which are under challenge in this writ petition. 5. In Exts.P11 and P11(a), the view taken is that no permission can be granted to exercise reoption for past pay revisions, in the light of existing rules for reoption. 6. By relying upon Ext.P5 judgment of this Court, learned counsel wpc 30980/2004 3 for the petitioners submitted that the principle stated therein will squarely apply to the facts of this case. It is pointed out that this Court was of the view that when pay was refixed on the basis of an audit objection and refixation thus made resulted in drop in pay, the employee should be given a chance to submit reoption. In Ext.P5 judgment, this Court in para 2 held as follows: “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. 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 reoption is not allowed, the same will cause serious prejudice. “ 7. Evidently, the principles therein will be of application as far as the fact situation herein is also concerned. The refixation as far as the petitioners are concerned, is because of Ext.P2 audit objection. But the view now taken is that for accepting a fresh reoption there is no specific provision, which contention is reiterated by the respondents in the counter wpc 30980/2004 4 affidavit also. Ext.R3(a) order stating that G.O.(P) No.101/80(167)/Fin. dated 30.1.1980 will be inoperative with effect from 25.11.1998, is also relied upon. 8. I am of the view that even without the aid of the said Government Order of the year 1980, the petitioners are entitled to succeed in the light of the general principles restated by this Court in Ext.P5 judgment. This is a case where the refixation is purely as a result of Ext.P2 audit objection. That the petitioners were entitled to submit reoption based on 1988 pay revision as well as Ext.P1 order, cannot be of any dispute. What is objected is the pay fixation made, after accepting the reoption submitted by them. This Court in Ext.P5 judgment, has considered the consistent view taken by this Court even earlier in similar matters. It cannot be said that the employee has contributed anything by way of fraud or misrepresentation for adopting the fixation which was later objected in the audit. By the time the audit objection was raised, the period prescribed for submitting reoption is over. Herein, if the reoption is not permitted their pay will be dropped. Such a contingency will amount to grave discrimination also. Hence, they will be entitled for an opportunity to submit reoption, which alone will subserve the ends of justice. wpc 30980/2004 5 For all these reasons, the petitioners are entitled to succeed. Exts.P11 and P11(a) are therefore quashed. The reoption submitted by the petitioners as per Exts.P6 and P6(a) will be accepted. Accordingly, there will be a direction to respondents 1 and 2 to refix the pay in accordance with law. Appropriate orders will be passed within a period of three months from the date of receipt of a copy of this judgment and the monetary benefits, if any, due to the petitioners will be released accordingly. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/