IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 WP(C).No. 23518 of 2008(Y) -------------------------- PETITIONER: -------------- M.HAMZAKOYA , FIRST GRADE DRAFTSMAN (DEPLOYMENT TO L.S.G.D.) NILAMBUR BLOCK PANCHAYAT NILAMBUR, MALAPPURAM DISTRICT BY ADV. DR.K.P.SATHEESAN RESPONDENTS: ---------------- 1. STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY WATER RESORCES DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM 2. THE CHIEF ENGINEER IRRIGATION AND ADMINISTRATION, THIRUVANANTHAPURAM BY GOVERNMENT PLEADER, SMT.SMITHA SUKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC : 23518/08 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 12.09.06. EXT.P2 : TRUE COPY OF THE LETTER NO.A4-12176/2006 DATED 14.11.06. EXT.P3 : TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 09.08.07. /TRUE COPY/ PA TO JUDGE S. SIRI JAGAN, J. ------------------------------------------------- W.P.(C)No. 23518 OF 2008 ------------------------------------------------- Dated this the 15th day of June, 2009 JUDGMENT Petitioner entered service as a First Grade Draftsman in the Irrigation Department of the Government of Kerala on 05.10.96. As per the pay revision orders applicable, petitioner was entitled to next higher grade after completing 10 years in the entry grade, namely that of Assistant Engineer. By GO(P) No.145/2006/FIN dated 25.03.06, the Government revised the scales of pay of Government employees. Along with the same, the time bound higher grade promotion scheme was also revised, as per which for the first time bound higher grade, number of years service stipulated for eligibility was reduced from 10 to 8. But, by Clause 53 of the pay revision order regarding the date of effect of revised scales of pay and revised time bound higher grade scheme it was provided thus: “53. Date of Effect - Date of effect of revised scales will be from 01.07.04. Date of effect of revised time bound higher-grade scheme, various allowances and other benefits (except surrender of earned leave) will be from 01.03.06. Date of effect of improved ratio/percentage based higher grades will be from the date of this order. Modification to rules 28A and 37(a) Part I KSR(vide clauses WPC :23518/08 -:2:- 47 to 52 above) will apply to promotions, etc taking place after the date of this order.” 2. Thereafter regarding exercise of option on promotion, Clause 7 of Annexure (2) provided thus: “Exercise of Option on Promotion 7.(1) All appointments and promotions made on or after 01.07.04 shall be deemed to have been made in the revised scale of pay. (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 01.07.04 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 01.07.04. This benefit of option will be restricted to the employees who were promoted on or after 01.07.04 but before the date of this order. (3) Employees who are promoted on or after 01.707.04 are not allowed to exercise option to continue in the pre-revised scale of the lower post beyond the date of such promotion. 8. Provisional employees recruited through the employment exchange who were in service on 30.06.04 and continued thereafter shall be eligible only for the minimum of the revised scale of pay from 01.07.04, so however that the monetary benefit will be payable only from 01.04.05 (if they had continued in service till then).” WPC :23518/08 -:3:- 3. The petitioner opted to take advantage of Clause 7(2) and opted to continue in the pre-revised scale of pay of First Grade Draftsman till 01.03.06, which was his date of first time bound higher grade promotion in accordance with the revised time bound higher grade promotion scheme read with Caluse 53 of the Pay Revision Order. This is because on 01.03.06 he had not completed 10 years as per the pre-revised scheme and although he had complted 8 years on 04.10.04, he was eligible for the revised scheme only from 01.03.06. However, by Ext.P2 order, that option was rejected and the petitioner was directed to submit fresh option. The petitioner is challenging Ext.P2 order. Petitioner's contention is that he, having entered service on 05.10.96, would complete 8 years of service on 04.10.04. Since the time bound higher grade promotion after 8 years was given effect to from 01.03.06 only, the petitioner was eligible for first time bound higher grade promotion only on 01.03.06. That date falls between 01.07.04 and the date of pay revision the order, namely 25.03.06. Therefore the petitioner is entitled to exercise his option in accordance with Section 7(2) is the contention raised by the petitioner. He therefore challenges Ext.P2 order and WPC :23518/08 -:4:- seeks the following reliefs: “i. to issue a writ of certiorari or such other appropriate writ, order or direction quashing Ext.P2 letter No.A4-12176/2006 dated 14.11.06 issued by the 2nd respondent as it is arbitrary, illegal and void; ii. To issue a writ of mandamus or order or direction to the 2nd respondent to accept the option exercised by the petitioner as per Ext.P1 dated 29.12.06 and to give all monetary benefits therefrom; iii. to issue a writ of mandamus or order or direction to the 2nd respondent to consider and pass appropriate orders on Exts.P3 as expeditiously as possible and at any rate within a time limit that may be fixed by this Hon'ble Court;” 4. A counter affidavit has been filed by the 1st respondent taking the stand that Clause 7(2) of Annexure 3 of the Pay Revision Order is not applicable to the petitioner insofar as, as per the pre- revised scheme he is entitled to first higher grade after 10 years which would fall only on 05.10.96, which is not a date between 01.07.04 and 25.03.06 as stipulated in Clause 7(2) of Annexure 3. 5. I have considered the rival contentions in detail. I am of opinion that the 1st respondent has misread Clause 7(2). Although as per the pay revision order the number of years of service for the purpose of first time bound grade promotion was reduced from 10 to WPC :23518/08 -:5:- 8, in view of Clause 53 of the pay revision order that would take effect only from 01.03.06. Therefore, the petitioner would become entitled to first higher grade promotion after completing 8 years on 01.03.06 and he does not have to wait till 05.10.06 for claiming that benefit insofar as that would be on the basis of the pre-revised scheme which has ceased to become applicable with effect from 01.03.06. Since the petitioner's date of first time bound higher grade promotion, namely 01.03.06, is between 01.07.04 and 25.03.06 (date of pay revision order), the petitioner has squarely become eligible to exercise his option in accordance with Section 7(2). Therefore, he rightly opted to continue in the pre-revised scale of pay of First Grade Draftsman till 01.03.06, to get the first time bound higher grade in the pre-revised scale and for fixation of revised pay applicable to Assistant Engineer from 01.03.06. That being so, his option date 01.03.06 is clearly in order. As such Ext.P2 is against Clause 7(2) of Annexure 3 of the pay revision order. Accordingly the same is quashed. Respondents are directed to fix his pay in accordance with his option date, namely 01.03.06, on the basis of Clause 7(2). Orders in this regard shall be passed and arrears, if any, due to the WPC :23518/08 -:6:- petitioner on such fixation shall be disbursed to the petitioner as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE ttb