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
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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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