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2005 DIGILAW 571 (KER)

State of Kerala v. Lissy Joseph. M.

2005-08-25

J.B.KOSHY, K.R.UDAYABHANU

body2005
Judgment :- Koshy, J. The issues to be decided in all these writ appeals and in the writ petition are one and the same. When petitioners exercised re-options under the 1992 pay revision order. It was rejected on the ground that grade promotions were sanctioned after the cut off date, i.e., 31-5-1996. Scale of pay of State Government employees and teachers were revised with effect from 1-3-1992. Rules for fixation of pay in the revised scale were incorporated as annexure to G.O.(P) 600/93/Fin. Dated 25-9-1993. By Government Order dated 8-12-1993, Government made it clear that “if an employee wishes to opt the revised scale of pay of his promoted post to which he was promoted on or after 1-3-1992 he will be permitted to opt the revised scale of the promoted post with effect from the date of promotion and his pay in the revised scale fixed on the basis of the pay he drew in the pre-revision scale of the promoted post on that date.” But, it was also stipulated that “this will not be applicable in the case of those who exercise option in the promoted post on the date of promotion on or after 1-3-1992.” In view of the representations of the employees, relaxations were given and further benefits were given. Finally, by G.O.(P) No.399/99/178/Fin. Dated 5-2-1999, Governmetn accorded “permission to exercise option/re-option to those employees, who could not exercise option/re-option for time bound higher grades sanctioned on or after 1-3-1992, due to the prevalence of cut-off date. Such option/re-option will be exercised within a period of three months from the date of this order.” Even though it was withdrawn by order dated 30-4-1989, by G.O.(P) No.1503/99/(180)/Fin. Dated 22-6-1999, government ordered that applications submitted by employees between 5-2-19999 and 4-5-19999 will be entertained. There is no dispute with regard to the facts that all petitioners exercised re-option within this extended time, Similar employees were granted the benefit on such re-option in O.P.No.20280 of 2001. The above decision was affirmed in W.A.No.2293 of 2002. Now, that is accepted by the Government. 2. The only dispute to be resolved in these appeals is whether arrears consequent on re-option of higher grades are admissible from the date of effect of re-option or from the date of filing of re-option. The above decision was affirmed in W.A.No.2293 of 2002. Now, that is accepted by the Government. 2. The only dispute to be resolved in these appeals is whether arrears consequent on re-option of higher grades are admissible from the date of effect of re-option or from the date of filing of re-option. The learned Judge held that they are entitled to get the arrears from the date of effect of re-option and the amount which they are entitled to get by way of higher emoluments in between the date of re-option and the date of exercise of re-option need not be paid in cash a arrears and the same can be utilized to set off excess amount which the employee has to refund on account of re-option. The learned single Judge considered various circulars issued by the Government and then finally the Government order dated 28-6-1997 and clarifications issued by the Principal Secretary to Government dated 3-11-2000 and held as follows: “…… In G.O.(P) 615/97(138)/Fin. Dated 28-6-1997 it was ordered among others that the excess salary drawn consequent on fixation of pay in the revised scale of the lower post or time bound higher grade on the basis of option already exercised will be adjusted against the arrears due to revised option and the balance, if any; will be refunded in lump. The intention of the government by issuing the above orders is made more clear in letter No.63376/PRU-1/2000/Fin. Dated 3-11-2000 issued by the Principal Secretary (Finance), Government of Kerala, to the district Educational Officer, Thrissur, wherein it has been, inter alia, said as follows: “The excess to be refunded is the excess drawal after due adjustment and the arrears are payable to the employees only with effect from the date of filing re-option. The arrears due prior to the date of exercise of re-option may be adjusted against the excess drawal by the employees.” A combined reading of the orders thus issued by the Government goes to show that though the employees have got the right to opt the time bound higher grade from the date chosen by them, if arrears of pay and allowances become payable to the employees non account of such re-option, the said arrears will be paid in cash only from the date of exercise of option. However, the amount which they are entitled to get by way of higher emoluments in between the date of option and the date of exercise of option will not be paid in cash as arrears. But the same can be utilized to set off excess amount which the employee has to refund on account of such re-option and the balance alone need be refunded to the Government.” 3. Now, it is contended that while passing the above judgment, the learned Judge did not take into account G.O.(P) No.1062/2001/Fin. Dated 25-9-2001 wherein it was ordered as follows: “4. Government after having examined the matter in detail and in consultation with the Accountant General, Government are pleased to issue the following clarification: (i) The orders in G.O.(P) 399/(178)/99/Fin. Dated 5-2-1999 is applicable only to those employees whose time bound higher grade fell due/sanctioned after 31-5-1996 and upto 5-1-1998. (ii) Arrears consequent on re-option of higher grades are admissible only from the date of filing of options and adjustment can be made only against these arrears. (iii) Settled cases as per orders in Circular read as second paper need not be re-opened. 5. All Heads of Departments will ensure that the contents of this orders are brought to the notice of all employees under their control and the pending cases are settled strictly in accordance with the order.” (emphasis supplied) The above G.O. was modified by G.O.(P)263/2002/Fin. Dated 30-4-2002 and para 5 of the same was withdrawn. Para 2 of G.O.(P) NO.952/95/(63)/Fin/ dated 5-12-1995 reads as follows: “2. After having examined the matter in detail Government are pleased to issue the following in partial modification of the orders issued in para 9 of the government Order read as third paper above and in para 2 (i) of Government Order read as 4th paper above, that all State Government employees will be permitted to opt the time bound higher grade fell due/granted first on or after 1-3-1992, canceling the option already exercised in respect of the post held by them prior to 1-3-1992. The option in such cases should be exercised on the date of the time bound higher grade itself. Excess salary drawn consequent on fixation of pay in the revised scale of the lower post on the basis of the option already exercised should be refunded in lump before accepting such re-option. The option in such cases should be exercised on the date of the time bound higher grade itself. Excess salary drawn consequent on fixation of pay in the revised scale of the lower post on the basis of the option already exercised should be refunded in lump before accepting such re-option. Arrears, consequent on such option will be allowed from the date of effect of such option.”(Emphasis supplied.) In G.O.(P) No.615/97(135)/Fin. Dated 28-6-1997, it was ordered as follows in paragraphs 2 and 3: “2. In modification of the Government order fourth read above, Government wish to clarify that the State Government employees and teachers who got time bound grade on or after 1-3-1992 will be permitted to opt time bound grade on the date of their choice and to continue in the pre-revised scale till the date of option. The date of option for the revised scales of pay sanctioned as per Government orders read as first and second paper above will be on the same date of option for time bound higher grade. 3. The excess salary drawn consequent on fixation of pay in the revised scale of the lower post or time bound higher grade on the basis of option already exercised will be adjusted against the arrears due to revised option and the balance, if any, will be refunded in lump. The State Government employees and teachers desirous of exercising option/re-option based on this order will be permitted to do so within a period of three months from the date of order.” The Government orders are considered clearly by the Government in the Circular dated 3-11-2000 and we find that the interpretation given by the learned single Judge requires no interference. 4. In G.O.(P) No.206/2003/Fin. Dated 5-4-2003 issued in implementation of the judgment in O.P.NO.20280 of 2001 also, it is stated at para 6 as follows: “6. If the date opted for higher grade in pursuance of G.O. dated 5-2-1999 is a date on or after the date of option for pay revision 1997 the option for pay revision as per G.O.(P) No.3000/98/Fin. Dated 25-11-1998 will automatically be shifted to the date of effect of re-option as per G.O dated 5-2-1999 and, therefore, benefit if any drawn as per previous option for pay revision 1997 already exercised is to be refunded. Dated 25-11-1998 will automatically be shifted to the date of effect of re-option as per G.O dated 5-2-1999 and, therefore, benefit if any drawn as per previous option for pay revision 1997 already exercised is to be refunded. This is because re-option for 1992 pay revision cannot go beyond the date of option for pay revision 1997.” (Emphasis supplied). So, it is now clear that what is intended is the date of effect of re-option and not the date of actual exercise of re-option. 5. Alongwith Writ Appeal No.186 of 2004, Annexure A-III Circular dated 2-12-2003 was produced by the Government. It was issued while implementing the impugned judgment. Paragraphs 5 and 7 of the above Circular read as follows: “Now, it has come to the notice of Govt. that several Writ Petitions were filed in the High court quoting the Govt. letter 4th cited and the Hon’ble Court have delivered judgment on the basis of the letter vide the common judgment 7th cited. As stated above, it is the consistent stand of Govt. that the arrears are payable to the employees only with effect from the date of filing re-option and excess has to be adjusted against this arrear. The Govt. letter 4th cited above does not reflect the correct stand of the Govt. and the same is issued against the consistent stand taken by the Govt. Since the letter 4th cited is a deviation from the consistent stand taken by the Govt. from the very inception of the scheme of re-option, if the same is allowed to stand it will open a flood gate of request for re-option and the financial implication will be huge, which the Govt. cannot resist, in the present stringent financial position.” xx xx xx xx 7. It is once again clarified and emphasized that arrears of pay on account of re-option will be payable only from the date of filing re-option and not from the date of effect of re-option.” It is very unfortunate to notice that after a considered judgment of the learned single Judge passed after hearing both sides, Government overrules the above Circular nullify the Government orders dated 5-12-1995, 28-6-1997 and 5-4-2003 apart from overruling the findings of the learned single Judge. Annexure II Government Order dated 5-4-2003 very clearly says that re-option date will be shifted to the date of effect of re-option and not the date of exercise of re-option. By a Government circular, Government Orders or a considered judgment cannot be altered. By Government Orders, benefits cannot be retrospectively taken away and petitioner gave re-option on the basis of orders existing at that time. The impugned judgment was passed on 20-12-2002 following the judgment in O.P.No.20280 of 2001 which was implemented by G.O. dated 5-4-2003 clearly stating that the date of effect of re-option is the relevant date for granting benefit subject to the restriction that if there is excess amount after adjustment will be refunded only with effect from the date of filing re-option. The amount due prior to the date of exercise of re-option will only be adjusted against the excess drawn by the employee. Therefore, excess of amount due after calculating the same from the date of effect of re-option can be entitled to set off against the refunds due from the employee and the amount due, if any, arising after the date of re-option alone need be refunded to the Government. Annexure III Circular in so far as it overrules the judgment of the learned single Judge impugned in these appeals are honest and illegal. In fact, appeals are not filed against all cases covered by the common impugned judgment. We fully agree with the view of the learned single Judge. 6. We agree with the learned Government Pleader that oral hearing need not be granted to all persons. Their date of promotion, salary, date of effect of re-option, date of exercise of re-option, etc. are borne out by the records. Therefore, no further hearing is necessary. Government shall implement the impugned judgment as clarified therein within three months from the date of receipt of a copy of this judgment. All the writ appeals are dismissed and the writ petition is disposed of in terms of the impugned judgment.