IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 18TH NOVEMBER 2011 / 27TH KARTHIKA 1933 WP(C).No. 17818 of 2010(B) ---------------------------------------- PETITIONER(S): ----------------------- R. VALSALAKUMARI, HEAD MISTRESS, GOVT. U.P. SCHOOL, PANDALAM, PATHANAMTHITTA DISTRICT. BY ADV. SRI.SIBY MATHEW, SRI.PHILIP J.VETTICKATTU, SRI.B.PREMNATH. RESPONDENT(S): ---------------------------- 1. THE ACCOUNTANT GENERAL (A&E), THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE ASSISTANT EDUCATION OFFICER, PANDALAM. BY GOVT. PLEADER SMT.M.T. SHEEBA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 17818 of 2010(B) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE AUDIT REPORT FOR THE PERIOD 01/04/2006 TO 30/01/2009. EXT.P2: COPY OF THE NOTICE DATED 09/03/2009 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P3: COPY OF THE STATEMENT ALONG WITH FORM OF OPTION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P4: COPY OF THE REPRESENTATION DATED 12/05/2009 FILED BY THE PETITIONER BEFORE THE GOVERNMENT. EXT.P5: COPY OF THE ORDER DATED 14/05/2009 REJECTING THE REQUEST OF THE PETITIONER. EXT.P6: COPY OF THE GO(P) NO.365/05/FIN. DATED 06/08/2005. EXT.P7: COPY OF THE REVIEW PETITION DATED 05/12/2009 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P8: COPY OF THE ORDER DATED 11/11/2009 REJECTING THE PETITION FOR REVIEW FILED BY THE PETITIONER. EXT.P9: COPY OF THE JUDGMENT DATED 17/07/2007 IN WP(C) NO. 20848/2003 OF THIS HONOURABLE COURT. EXT.P10: COPY OF THE JUDGMENT DATED 06/08/2009 IN WP(C) NO. 30935/2006 OF THIS HONOURABLE COURT. EXT.P11: COPY OF THE ORDER DATED 21/11/2008 PASSED BY THE GOVERNMENT. EXT.P12: COPY OF THE AUDIT REPORT FOR THE PERIOD UPTO 31/03/2005. EXT.P13: COPY OF THE ORDER NO.C-963/2009 DATED 04/01/2011 ISSUED BY THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE rs T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 17818 of 2010-B - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of November, 2011. JUDGMENT The short question is whether the petitioner's request to accept the reoption ought to have been acted upon by the respondents herein. 2. This is a case where the petitioner who was working as P.D. Teacher in Government U.P. School, Pandalam, submitted reoption pursuant to G.O.(P) No.3000/98/Fin. dated 25.11.1998 in respect of revised scale of pay of Rs. 2500 - 7000 with effect from 1.3.1997. The same was accepted and pay was fixed at Rs.4600/- taking into account her aided school service from 1.10.1981 to 15.2.1983 for weightage. 3. During the audit conducted by the Local Audit of Accounts of the office of the Asst. Educational Officer, for the period from 1.4.2006 to 31.1.2009, they noted an objection against the pay fixation of the petitioner. The objection was regarding the inclusion of aided school service. Accordingly, a refixation was made. 4. Ext.P1 is the copy of the audit objection and Ext.P2 is the notice issued to the petitioner. Thereafter, the petitioner submitted a statement along with a form of option/reoption as per Ext.P3. She opted to have the wpc 17818/2010 2 revised scale of pay of Rs.4500 - 7000 with effect from 1.10.1997 instead of 1.3.1997, after cancelling the earlier option. The request made by the petitioner as per Ext.P4 to the Government to permit her to exercise the reoption of the revised scale, was rejected by Ext.P5 stating that the chance of re option of pay revision 1997 has not been extended beyond 31.10.2005. 5. Learned counsel for the petitioner submitted that when the reoption submitted is accepted and fixation is made accordingly and when the same is objected and pay is refixed after an audit conducted some years later, the person cannot be deprived of an opportunity to submit a fresh option. Reliance is placed on Exts.P9 and P10 judgments of this Court. In Ext.P9, under similar circumstances, this Court directed the authority to grant permission to exercise the option/reoption. In Ext.P10 also, the very same question was considered. Reliance was placed on the judgment in W.P.(C) No.24172/2007. Paragraphs 6 and 7 of Ext.P10 judgment reiterating the principle, are extracted below: “6. In similar circumstances, this court in W.P.(C) No. 24172/2007 held thus in para 4: “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 wpc 17818/2010 3 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.” It was directed that the petitioner therein shall be allowed to exercise re-option for coming over to the revised scale of pay as per the 1998 pay revision order, within a period of one month from the date of receipt of a copy of the judgment and with a further direction to the respondents to take appropriate steps to refix the pay of the petitioner in terms of the re-option thus submitted. 7. In the light of the factual position emerging in this case also, the said course can be adopted. Therefore, the writ petition is disposed of with the following directions: The petitioner shall be allowed to submit re-option for coming over to the revised scale of pay as per the 1993 pay revision order, within a period of one month from the date of receipt of a copy of this judgment in terms of Ext.P10 Govt. Order or any other Government Order in force applicable to the case of the petitioner. On submitting re-option, the second respondent shall take appropriate steps to refix the pay of the petitioner, in accordance with such re- option, within a further period of two months from the date of receipt of re-option. The recovery ordered will be kept in abeyance in the meanwhile. No costs.” The position herein is identical. The audit objection was raised 12 years wpc 17818/2010 4 after acceptance of option and refixation of pay. Unless the petitioner is allowed to submit a fresh reoption, the same will deprive her of a proper pay. 6. In that view of the matter, the petitioner is entitled to succeed in this writ petition. Exts.P5, P8 and P13 are therefore quashed. The non grant of an opportunity to the petitioner to submit reoption will result in reduction of salary. The petitioner is now working as Headmistress. Learned counsel for the petitioner submitted that the petitioner is prepared to refund the excess amount drawn which fact is stated in Ext.P4. 7. In that view of the matter, there will be a direction to the third respondent to accept the reoption submitted by the petitioner as per Exts.P3and P4 and refix the pay after notice to the petitioner and affording an opportunity of hearing. Such orders will be passed within a period of two months from the date of receipt of a copy of this judgment. The authority will indicate the amount to be refunded by the petitioner on acceptance of the revised option, which will be refunded by the petitioner as per the terms of the order to be passed. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/