IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 17TH NOVEMBER 2011 / 26TH KARTHIKA 1933 WP(C).No. 38423 of 2010(C) -------------------------------------- PETITIONER(S): ----------------------- 1. PETER A.A, LAB ASSISTANT, ST.JOSEPH'S COLLEGE, DEVAGIRI, CALICUT- 673 008. 2. ROSAMMA. P, LAB ASSISTANT, ST.JOSEPH'S COLLEGE, DEVAGIRI, CALICUT- 673 008. BY ADV. SRI.JOSHI N.THOMAS RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION, SECRETARIAT,THIRUVANANTHAPURAM- 695 001. 2. DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, P.M.G. SECTION, THIRUVANANTHAPURAM-695 002. 3. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOZHIKODE -673 001. 4. C. MOHAN KUMAR, LAB ASSISTANT, ST.JOSEPH'S COLLEGE, DEVAGIRI, CALICUT- 673 008. 5. THE PRINCIPAL, ST.JOSEPH'S COLLEGE, DEVAGIRI, CALICUT- 673 008. R1 TO R3 BY GOVT. PLEADER SMT.NISHA BOSE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 38423 of 2010(C) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE STATEMENT ANNEXED TO THE ORDER ESTT.E3.46990/8/K/DIS. DATED 18/11/1989 ISSUED BY THE 3RD RESPONDENT. EXT.P2: COPY OF THE ORDER NO.ESTT.E3/16808/2000/COLL. EDN. DATED 20/03/2001 ISSUED BY THE 2ND RESPONDENT. EXT.P3: COPY OF THE ORDER NO.A29820/2001 DATED 03/01/2002 ISSUED BY THE 3RD RESPONDENT. EXT.P4: COPY OF THE PAY FIXATION OF 1ST PETITIONER DATED 12/05/2006 ISSUED BY 5TH RESPONDENT. EXT.P5: COPY OF THE PAY FIXATION OF 2ND PETITIONER ISSUED BY 5TH RESPONDENT. EXT.P6: COPY OF THE PAY FIXATION OF 4TH RESPONDENT DATED 21/07/2007 ISSUED BY 5TH RESPONDENT. EXT.P7: COPY OF THE ORDER A2 530/07 DATED 14/11/2009 ISSUED BY 3RD RESPONDENT. EXT.P8: COPY OF THE ORDER G2/ESTT/NTS/PAA/961/CB DATED 29/03/2008 OF THE 5TH RESPONDENT. EXT.P9: COPY OF THE ORDER G2/ESTT/NTS/RP/959/08 DATED 29/03/2008 OF THE 5TH RESPONDENT. EXT.P10: COPY OF THE LETTER C3/2492/C9/COL.EDN/DEPT. DATED 21/03/2009 ISSUED BY THE 3RD RESPONDENT. EXT.P11: COPY OF THE LETTER C3/2488/08 DATED 21/03/2009 ISSUED BY THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE rs T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.38423 of 2010-C - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of November, 2011. JUDGMENT The issue pertains to the claim for grant of higher grade as regards the two petitioners herein. They are working as Lab Assistants in St. Joseph's College, Devagiri. The higher grades were actually sanctioned, but later when they sought for relief of step up of pay, the department objected to the grant of higher grades itself. 2. The first petitioner was appointed as L.G.S. (Peon) in the college from 1.9.1989 and the second petitioner was appointed as L.G.S. (Sweeper) from the said date. The fourth respondent was appointed as L.G.S. on 16.10.1989, after the appointment of the petitioner. The petitioners were promoted as L.G.S. Grade I with effect from 1.3.1992 and the same was approved as per Ext.P2. They were granted higher grade on completion of 8 years in the promoted post which was approved as per Ext.P3. Exts.P4 and P5 are proceedings fixing their pay scale. But the pay scale of the fourth respondent was fixed at a higher scale than that of the petitioners on sanction of higher grade, as evident from Ext.P7. The petitioners being seniors to the fourth respondent, they sought for the benefit of step up of wpc 38423/2010 2 pay. A request was made by the fifth respondent to the third respondent to grant the said relief, which is evident from Exts.P8 and P9. At that stage the third respondent objected to the grant of higher grade of the petitioners. The objection taken is that the grant of higher grade after 8 years is not proper and it should have been granted on completion of 10 years. Thereafter, the Deputy Director informed the Principal about the same by Exts.P10 and P11. These communications are under challenge herein. 3. Heard learned counsel for the petitioner and learned Government Pleader. 4. In the counter affidavit filed by the third respondent, it is explained that the first petitioner was granted higher grade on completion of 8 years of service on 1.9.2000 (date of option), clubbing his last grade service with effect from 1.3.1992 erroneously. Similarly, the second petitioner was also granted higher grade on completion of 8 years of service. It is stated that actually the first petitioner is eligible for the 10 years grade promotion with effect from 1.10.2004 only, i.e. on completion of 10 years from the date of promotion as Lab Assistant on 1.10.1994. In the case of the second petitioner she is eligible for 10 years grade promotion only with effect from 1.9.2000. Reliance is placed on a letter dated 27.11.2004 of the Director of Collegiate Education clarifying that for the wpc 38423/2010 3 employees who have been promoted as Lab/Library Assistant the higher grade will be sanctioned only after completing 10 years service in the said post. 5. The proceedings granting higher grade to the petitioners show that it is in tune with G.O.(P) No.3000/1998 dated 25.11.1998, viz. the pay revision order. Ext.P3 proceedings specifically refers to the said Government Order. 6. A copy of the Government Order dated 25.11.1998 was made available by the learned counsel for the petitioners. Therein, under para 5 (b), Time bound higher grade promotion scheme has been provided. Paragraphs 1 and 2 are extracted below: “(1) The existing time bound higher grade promotion scheme and the grades to be assigned on revision of pay scales under the scheme, will be modified as specified in the Table I and II given below (with effect from the date of order). (2) Employees who remain in their entry posts on scale of pay ranging from Rs.2610-3680 to Rs.4600-7125 will be granted three higher grades on completion of the period of qualifying service in their posts as follows with the scale of pay indicated in Table - I. (i) The first higher grade on completion of 10 years service in the entry post. (ii) The second higher grade on completion of either 8 years of wpc 38423/2010 4 service in the first promoted post or a total service of 18 years in the entry post and the first regular promotion post/time bound higher grade together, whichever is earlier. (iii) The third higher grade on completion of 23 years of total service in the entry post and the regular promotion post(s)/time bound higher grade (s) together. (iv) A fourth time bound higher grade in the scale of Rs.3350- 5275 will be allowed to Class IV employees on completion of 30 years.” Para 2(ii) shows that the second higher grade can be granted on completion of 8 years of service in the first promoted post or a total service of 18 years in the entry post and the first regular promotion post/time bound higher grade together, whichever is earlier. Herein, a reading of Ext.P3 shows that 8 years is reckoned from the respective dates of the first promotion obtained by the petitioners, viz. from 1.3.1992 as L.G.S. Grade I. Therefore, learned counsel for the petitioners explained that they are entitled to be granted the benefit as per para 2(ii) of the Government Order, viz. the second higher grade on completion of 8 years of service in the first promoted post. It is pointed out by the learned counsel for the petitioners that 10 years is reckoned when the first higher grade is granted from the entry level post, which is not applicable as far as the petitioners are concerned. 7. Learned Government Pleader invited my attention to the definition wpc 38423/2010 5 of entry post given in para 11 of the Government Order dated 25.11.1998 and contended that the following sentence in the said para will apply as far as the petitioners are concerned. viz: “Those who get regular promotion or appointment to higher posts within the period specified for each time bound higher grade will not be granted further time bound higher grade during that period.” It is submitted that the petitioners have obtained two promotions and therefore the objection is sustainable. 8. What is specified in the last limb of para 11 quoted above, is that “those who get regular promotion or appointment to higher posts within the period specified for each time bound higher grade will not be granted further time bound higher grade during that period.” According to me, the said limb will not apply as far as the petitioners are concerned, since their case will come squarely under para 2(ii) noted above. Herein, we are concerned with the eligibility for second higher grade which is permissible on completion of 8 years in the first promoted post. The reason stated in Exts. P10 and P11 is that they are eligible for higher grade on the completion of 10 years in the promoted post of Lab Assistant, which is the stand taken in the counter affidavit also. Therefore, when there is a specific provision under para 2(ii) above, we need not go into the provisions wpc 38423/2010 6 of para 11. Even going by the meaning of the term “entry post”, what is specified is that the same is the post to which an employee is initially appointed to the service by direct recruitment by the competent authority. Therefore, according to me, as far as the petitioners are concerned, the post held by them as Lab Assistant is not the entry level post at all. The contention taken in the counter affidavit appears to be that they are entitled only for 10 years grade from the date of promotion to the post of Lab Assistant. Even though a letter dated 27.11.2004 of the Director of Collegiate Education is referred to, which also is stated to be based on a Government letter and both these are not available for perusal. Evidently, the time bound higher grade scheme is one covered by the Government Order dated 25.11.1998 and the petitioners' case squarely comes within para 2(ii) as already noted. There is no plea that there is any other scheme for grant of Higher Grade, as far as the categories of posts held by persons like the petitioners are concerned. 9. In that view of the matter, the writ petition is allowed. Exts.P10 and P11 are quashed. There will be a direction to the respondents to consider the request of the petitioners for stepping up of pay and appropriate orders will be passed by the competent authority among the respondents, within a period of three months from the date of receipt of a wpc 38423/2010 7 copy of this judgment, in the light of the findings rendered above. Consequential monetary benefits also will be sanctioned. No costs. (T.R. Ramachandran Nair, Judge.) kav/