Antony Dominic, J. The respondent filed WP(C) No.37239/10 challenging the objection raised by the audit against acceptance of the option exercised by him following the implementation of 8th pay commission report. The learned single Judge interfered with the audit objection and it is this judgment which is challenged by the appellants.
2. We heard the learned Government Pleader appearing for the appellants and the learned counsel appearing for the respondent/writ petitioner.
3. Briefly stated, the case was that, on 15/7/91, the respondent was appointed as LPSA in the ALPS, Painkannur, Kuttipuram, Malappuram District. By Ext.P1 order dated 1/5/95, he was promoted as Headmaster. On completion of 15 years of service, on 15/7/2006, the respondent was given the scale of pay of `5500- 9075, the scale of Headmaster.
4. In the meanwhile, on 25/3/2006, the Government issued orders accepting the 8th pay commission report. According to the respondent, Clause 12 of the Government order enabled him to opt for the effective date of the revised scale and that by Exts.P2 and P2(a), he opted for 15/7/2006. The option was accepted and revised pay was fixed w.e.f. 15/7/2006 in the revised scale of pay of `9590-16650. Accordingly, the respondent was receiving pay on that basis. Subsequently, by Ext.P3 order dated 14/2/2009, the 2nd appellant raised an objection, where he inter alia stated thus;
“But as per pay revision order 2004, the option for coming over to the revised scale of the higher grade post is admissible only in respect of promotion up to 25.3.2006 and since the fixation done in this case is not in order. His pay should have been fixed in the revised scale of the lower post and in the higher scale under rule 28 A part I KSR. His pay should have been fixed in the revised scale of the lower post and in the higher scale under rule 28 A part I KSR. The pay as on 15.7.06 is to be fixed at Rs.9830 in the scale of pay of Rs.9690-16650 and the excess drawal on this account will be Rs.14850 + Allowance. The defect is brought to notice.
It was replied that the defects will be rectified and final reply furnished.”
It was in such circumstances, the writ petition was filed.
5. The contention raised by the learned counsel for the respondent is that in view of clause 12 of the Government order dated 25/3/2006, an employee like him was entitled to exercise option to come over to the revised scale of pay w.e.f. 1/7/2004 or with effect from any subsequent date that he opts, provided that such date shall not be beyond the date of his next promotion or one year from the date of the Government Order (25/3/2006), whichever is earlier. It was this contention which was accepted by the learned single Judge.
6. However, right of option is provided in Clause 7 of the Government order dated 25/3/2006 referred to above. Clause 7(2) and (3), being relevant, is extracted below;
“(2) However, an employee promoted to a higher scale (whether by regular promotion, ratio promotion or under the time bound higher grade scheme) on or after 1.7.2004 but before the date of this Government Order will have the option to continue in the pre-revised scale of the lower post till the date of such promotion and then first avail promotion to the pre-revised scale of the higher post and thereafter avail the benefits of this pay revision on the same date as such promotion. This option will be available only for the first promotion after 1.7.2004. This benefit of option will be restricted to the employees who were promoted on or after 1.7.2004 but before the date of this order.
(3) Employees who are promoted on or after 1.7.2004 are not allowed to exercise option to continue in the pre-revised scale of the lower post beyond the date of such promotion.”
7. Reading of the above would show that right of option is available to an employee only if his date of promotion was before the Government Order dated 25/3/2006 was issued and that employee promoted subsequently did not have that freedom to opt. If that be so, the respondent having been promoted only on 15/7/2006 could not have exercised the option as done by him.
8. In so far as Clause 12 relied on by the learned counsel for the respondent is concerned, Clause 12 dealing with the manner in which option is to be exercised is subject to Clause 7(1) and (2) read above and cannot be divorced from the above two provisions and read as independently creating any right of option. If that be so, the respondent could not have exercised option nor could such an invalid option be accepted and relied on by the appellants.
9. However, learned counsel for the respondent contended that if this be the interpretation of the provisions of the Government order dated 25/3/2006, an employee like the respondent, who was promoted, is not benefitted in any manner. In our view, if that is the purport of the Government Order dated 25/3/2006, we have to accept the above, and cannot, on the grounds of equity as pleaded now, issue any directions as sought for. Be that as it may, if as stated by the respondent, the Government order creates an anomaly as contended by him, it is for the respondent to move the Government and it is for the Government to remedy the situation for which the respondent will have the liberty.
Subject to the above, the judgment of the learned single Judge is set aside and the appeal is disposed of.
Rp //True Copy// PA to Judge Sd/-
ANTONY DOMINIC JUDGE Sd/-
ANIL K. NARENDRAN JUDGE