High Court Kerala High Court

R.Divakaran vs The Government Of Kerala on 26 November, 2009

Kerala High Court
R.Divakaran vs The Government Of Kerala on 26 November, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 32157 of 2005(C)


1. R.DIVAKARAN, AGED 49 YEARS,
                      ...  Petitioner
2. T.RAMACHANDRAN, H.S.A,

                        Vs



1. THE GOVERNMENT OF KERALA,
                       ...       Respondent

2. THE ACCOUNTANT GENERAL (AUDIT),

3. THE DISTRICT EDUCATION OFFICER,

4. THE DEPUTY DIRECTOR OF EDUCATION,

                For Petitioner  :SRI.T.A.UNNIKRISHNAN

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR

 Dated :26/11/2009

 O R D E R
                T.R. RAMACHANDRAN NAIR, J.
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                 W.P.(C) No.32157 OF 2005
              ---------------------------------------
         Dated this the 26th day of November, 2009.


                        J U D G M E N T

The petitioners are aggrieved by the audit objection

resulting in non-consideration of the re-option submitted by

them.

2. The petitioners are working as High School Assistants in

the S.V.H.S, an aided High School in Palakkad District. They are

having regular service in the post from 15.06.1983. On

09.11.1983, the petitioners were granted the first increment and

the pay was raised to Rs.433/-. The same was revised from time

to time. They became eligible for the ten years Higher Grade

with effect from 18.11.1992, as per the pay revision order of

1988, in the scale of pay of Rs.1220-30-1250-40-1530-60-1730-

80-2150. With effect from 09.11.1992, the scale of pay was

fixed at Rs.1530/-. This was duly approved by the 3rd respondent

and later the pay was raised to Rs.1590/- with effect from

01.11.1993. Revision of pay was also made later in the scale of

W.P.(C) No.32157/2005 2

pay of H.S.A Grade II and Grade I.

3. The petitioners exercised revised option with effect from

01.11.1993 for the Higher Grade in the revised scale of Rs.1520-

2660. This was based on G.O.(P) No.457/94(19)/Fin. dated

03.08.1994. Their pay was refixed also accepting the same. The

excess salary drawn for the period from 01.03.1992 to

31.10.1993 was remitted back on 07.09.1994.

4. The fixation of pay was objected to by the audit and the

petitioners have been moving the authorities to wave the audit

objection. Finally, the Government by Exhibit P1 communicated

their decision in the matter. The Government was of the view

that as per the existing rules, option once exercised be treated as

final. Re-option is permissible in case of retrospective

promotions or cases involving specific court direction.

Accordingly, the request of the petitioners for allowing the option

was held not admissible. It is in these circumstances, the

petitioners have filed this writ petition.

5. Mainly it is contended that option was exercised on

07.09.1994 and the audit objection came only in 1999. It is

pointed out that after the issuance of G.O.(P) No.952/1995(63)/

W.P.(C) No.32157/2005 3

Fin. dated 05.12.1995, the petitioners could have exercised

revised/fresh option, in case the authorities had directed that the

option exercised by them on 07.09.1994 cannot be accepted.

6. The question is whether in the light of the above factual

position, the petitioners are entitled for an opportunity for

submitting a fresh option. In the light of the fact that the audit

objection came only after a period of five years, naturally the

petitioners ought to have been granted a chance to submit a

re-option. This point is covered in their favour in the light of the

judgment in W.P.(C) No.33334/ 2005.

7. This Court, in the judgment in W.P.(C) No.30060/2006,

considered the judgment passed in a similar case, W.P.(C)

No.24172/2007, wherein also reliance is placed on the judgment

in W.P.(C) No.33334/2005. In paragraph 6 of the judgment in

W.P.(C) No.24172/2007, it was held thus:

“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 long time, that too

after the last date for re-option as permitted by the

Government, it is only just and equitable that

W.P.(C) No.32157/2005 4

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″.

Accordingly, in W.P.(C) No.30060/2006, this Court allowed the

petitioner therein to submit re-option for coming over to the

revised scale of pay as per 1993 pay revision. A similar direction

can be issued in this case also since the petitioners are similarly

placed. It is a case where the Government has taken the view

that re-option can be permitted only if there is a specific direction

from this Court.

Therefore, Exhibit P1 is quashed. If the petitioners submit a

fresh re-option within a period of one month from today, the

4th respondent will take appropriate action and refix their pay in

terms of the re-options thus submitted. Action will be finalized

within a period of two months from the date of receipt of a copy

of this judgment.

This writ petition is allowed as above.

T.R. RAMACHANDRAN NAIR
JUDGE
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