IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 19455 of 2009(B)
1. RAMACHANDRAN V.K., 'SMRITHI',
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY
... Respondent
2. THE PRINCIPAL ACCOUNTANT GENERAL(AUDIT),
3. THE DEPUTY DIRECTOR OF EDUCATION
For Petitioner :SRI.P.K.RAMKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :03/11/2009
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) No.19455 of 2009-B
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Dated this the 3rd day of November, 2009.
JUDGMENT
The petitioner is aggrieved by Ext.P7 order by which the first
respondent refused to act upon the re-option submitted by the petitioner in
terms of Ext.P1 judgment. The reason stated is that going by Rule 16 of
Annexure 2 to G.O.(P) No.145/06/Fin. dated 25.3.2006, re-option will not
be allowed for any pay revision (including the present pay revision) except
in cases involving retrospective revision or change in scale of pay that takes
effect on a date prior to the date of option exercised by the employee for the
concerned pay revision.
2. The circumstances under which the petitioner approached this
court by filing this writ petition are the following: The petitioner had
approached this court earlier in W.P.(C) No.20844/2006. There was an
audit objection in the matter of fixation of pay while he was working as a
High School Assistant. Before being appointed as a High School Assistant,
the petitioner had rendered service as an aided school teacher also He
opted for the 1997 pay revision with effect from 1.7.1997. He was granted
weightage counting 18 years service including the aided school service.
wpc 19455/2009 2
The petitioner challenged the audit objection in W.P.(C) No.20844/2006.
When the writ petition came up for final hearing, the petitioner withdrew
the challenge against the recovery of overdrawn salary. As per the final
judgment, this court permitted the petitioner to file a re-option to the pay
revision of 1997. Ext.P1 is the copy of the said judgment. Therein, this
court passed the following order:
“If the petitioner submits a re-option within two weeks from today
along with a certified copy of this judgment, the 1st respondent shall
consider the same and re-fix the salary in accordance with that
option, if that option is otherwise in order.”
3. Ext.P2 is the copy of the audit objection forwarded to the school.
It is clear from Ext.P2 that objection is raised in respect of the pay
revision of the year 1997. He opted for 1997 pay revision with effect from
1.7.1997. Apart from that, Ext.P3 is the Government Order by which
permission has been granted for exercising re-option by employees in
certain cases which to be exercised before 31.10.2005. The petitioner
could not avail the benefit of Ext.P3 because of the delay in communication
of the audit objection. It is in these circumstances, he could not submit a re-
option in terms of Ext.P3 Govt. Order. After Ext.P1 judgment, the
petitioner submitted a re-option on 14.8.2008 as per Ext.P6. Without
wpc 19455/2009 3
correctly appreciating the fact that Ext.P1 judgment permitted re-option to
be submitted, in respect of 1997 pay revision, the request was rejected as
per Ext.P5 treating it as a re-option in respect of the pay revision ordered as
per G.O.(P) No.145/06 dated 25.3.2006. Even though the petitioner
submitted Ext.P6 to reconsider the same, it stands rejected as per Ext.P7.
4. It is clear from the facts pointed out by the petitioner that the re-
option submitted by the petitioner in terms of the directions issued in
Ext.P1 judgment is in respect of the 1997 pay revision, because he was
aggrieved by Ext.P2 audit objection which related to the 1997 pay revision.
He was ordered to refund an amount of Rs.25,117/- as per Ext.P2 itself.
Therefore, it was a wrong on the part of the Government to treat the same as
one covered under the Pay Revision Order dated 25.3.2006. Therefore, the
view taken in Exts.P5 and P7 cannot be sustained. The event which
necessitated the re-option, had well taken place before issuance of G.O.(P)
No.145/06 dated 25.3.2006. Therefore, the re-option submitted by the
petitioner ought to have been acted upon and the Government went wrong
in applying the relevant rules contained in the Govt. Order dated 25.3.2006
for considering the reoption submitted by the petitioner, in respect of 1997
pay revision. The direction issued in Ext.P1 judgment is binding on the
respondents.
wpc 19455/2009 4
5. A similar issue was considered by this Court in
O.P.No.14736/2000. Therein, the matter considered was in respect of the
1992 pay revision. After the fixation of the pay scale in terms of the re-
option submitted, audit objection was raised in the year 1999. The
petitioner thereafter submitted a re-option statement. It was disallowed
stating that as per G.O.(P) No.3000/98/Fin. dated 25.11.1998 it was a
belated request. While considering the said issue, it was held thus in
paragraph 5:
“………In my view, the counsel for the petitioner is well founded in
his submission that the petitioner’s request for re-option made on
15.3.1999 cannot be disallowed on the basis of G.O.(P)
No.3000/98/Fin. dated 25.11.1998 since the re-option exercised was
not in relation to 1997 pay revision, but in relation to 1992 pay
revision. It is evident from the facts of this case that the event
which necessitated the re-option had well taken place prior to Govt.
Order dated 25.11.1998 and the right of the petitioner for re-option
should be considered in the light of the orders issued in Ext.P4.
The petitioner cannot be made to lose the right for re-option
because the audit objections, in fact, were raised on 1.3.1999, after
the issuance of G.O.(P) No.3000/98/Fin. dated 25.11.1998.
Otherwise, it will be clear discrimination amounting to arbitrariness
and illegality. In my view, the petitioner’s request has to be dealt
with under Ext.P4 G.O. Here, it is not the date of the request for
wpc 19455/2009 5
reoption that matters, but the reasons which necessitated the
exercise of reoption, namely, whether it pertains to pre 1997
revision or post 1997 revision.”
In the above view of the matter also, I find that Exts.P5 and P7 cannot be
sustained.
5. Therefore, Exts.P5 and P7 are quashed. There will be a direction
to the Government to reconsider the matter, and in terms of Ext.P1
judgment, the reoption submitted by the petitioner will be accepted and the
salary will be refixed in accordance with the re-option. Appropriate orders
will be passed within two months from the date of receipt of a copy of this
judgment.
The writ petition is allowed as above. No costs.
(T.R. Ramachandran Nair, Judge.)
kav/