IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 13TH JANUARY 2010 / 23TH POUSHA 1931 WA.No. 2978 of 2007() --------------------- AGAINST THE JUDGEMENT IN OP.36261/2000 Dated 27/09/2006 .................... APPELLANTS/ RESPONDENTS 1 & 2 IN THE OP ----------------------------------------- 1. THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT (A) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF MUNICIPAL ADMINISTRATION THIRUVANANTHAPURAM. BYSPL. GOVERNMENT PLEADER, SRI.N.MANOJ KUMAR RESPONDENT/ PETITIONER IN THE OP ----------------------------------- S.SOMARAJAN, S/O.LATE V.SANKARAN, (RETD. LAW OFFICER), DIRECTORATE OF MUNICIPAL ADMN., T.C.NO.9/920, KRISHNA BUILDINGS, A-20, PANICKERS LANE, SASTHAMANGALAM, THIRUVANANTHAPURAM-695 010. ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------ W.A. No.2978 OF 2007 ------------------------------ Dated this, the 13th day of January, 2010 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellants are the respondents in the Writ Petition. The respondent herein was the writ petitioner. 2. The brief facts of the case are the following: The respondent joined Government Service as L.D. Clerk in the Medical College, Kozhikode on 9.12.1963. Later, he sought and obtained inter-departmental transfer and joined the Directorate of Municipal Administration on 01.01.1965. The Government created a post of Legal Assistant in the Directorate of Municipal Administration by Ext.P13 order dated 30.5.1975. It was created as a temporary post and it was to be filled up on temporary basis. The respondent being a law graduate, he was initially appointed in that post under Rule 9(a)(i) of the Kerala State and Subordinate Service Rules on 31.5.1975. Later, by Ext.P1, the qualification and method of appointment for the said post was prescribed. It was W.A. No.2978/2007 - 2 - found that the petitioner was a suitable and qualified hand for appointment to the said post. Therefore, his appointment was regularised by Ext.P12 order dated 18.6.1979 with effect from 31.5.1975. At the relevant time, the scale of pay of the post was that of U.D.Clerk. Later, its scale of pay was upgraded on 13.11.1980 as equivalent to that of Junior Superintendent. Later, the post was redesignated as Law Officer on 3.5.1983. At that time, there was no change in the scale of pay. Still later, on 30.1.1987 the scale of pay of the said post was further upgraded as equivalent to that of Senior Superintendent. Apart from the above upgradations, the respondent was getting the benefit of pay revision introduced by the Government from time to time. 3. The petitioner moved for grant of 1st higher grade with effect from 30.1.1997. He contended that he was appointed by transfer to the post of Law Officer. He was stagnating in that post from 30.1.1987 without any promotion. Since he came to that post on appointment by transfer, as per the 1992 Pay Revision order, it should be treated that he was in the entry post. Appointment by W.A. No.2978/2007 - 3 - transfer was treated as fresh appointment for the limited purpose of grant of higher grade by the said Pay Revision order. But, the petitioner's claim was considered by the Government and rejected by Exts.P8 and P11 orders. Therefore, the Writ Petition was filed challenging Exts.P8 and P11. 4. The appellants filed a detailed counter affidavit resisting the prayers in the Writ Petition. They contended that the petitioner got upgradation twice; one from the scale of U.D.Clerk to that of Junior Superintendent and thereafter from the scale of pay of Junior Superintendent to that of Senior Superintendent. At the time of both the upgradations, he was granted fixation under Rule 28 A of Part I of the KSR. That means, in effect the upgradations were treated as promotions. Since the respondent has got two upgradations after being appointed by transfer to the post of Legal Assistant/Law Officer, he is not entitled to get grade promotion, it was contended. The respondent filed a reply affidavit dealing with the averments in the counter affidavit and reiterating his contentions. W.A. No.2978/2007 - 4 - 5. The learned Single Judge, after hearing both sides, quashed Exts.P8 and P11 and ordered to grant the reliefs sought for in the Writ Petition. The appellants, feeling aggrieved, have preferred this Writ Appeal. 6. The learned Government Pleader canvassed the very same point, which was unsuccessfully canvassed before the learned Single Judge. According to the Special Government Pleader, who appeared for the appellants, the scale of pay of the petitioner was upgraded and those upgradations were treated as promotions and he was granted fixation under Rule 28 A of Part I of the K.S.R. on both occasions. In view of the above position, the present grievance raised by the appellant is unsustainabale. The learned counsel for the respondent supported the decision of the learned Single Judge. 7. We considered the rival submissions made at the Bar and perused the materials and documents on record. In this case, we notice that apart from the pay revision benefits granted from time to time, the respondent was granted W.A. No.2978/2007 - 5 - upgradation of the scale of pay twice. Between two pay revisions, it is not unusual to grant better or higher scale of pay to certain categories of employees for various reasons. In this case, apparently, noticing the ardous nature of the work of the respondent, the Government might have decided to give him a better deal by giving him higher scale of pay. But, the point is whether such upgradation will stand in the way of the said incumbent claiming grade promotion on stagnating in the very same post for more than 10 years. The respondent was working in the post of Legal Assistant/Law Officer all along. There is no promotion post for him. Therefore, the respondent was entitled to get grade promotion as provided in paragraph (3) of G.O.(P) 930/93/(2)/ Fin. dated 8.12.1993. Paragraph 4 thereof supports the claim of the respondent that the post to which appointment by transfer is made shall be treated as entry post for the purpose of grant of promotion. Going by the said Government Order, we find there is no provision, which disentitle an employee to get higher grade for the reason that the scale of pay of the post held by him was upgraded for other reasons. W.A. No.2978/2007 - 6 - In view of the above position, we find no reason to interfere with the judgment under appeal. Accordingly, the Writ Appeal is dismissed. (K. BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps