IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 WA.No. 1312 of 2008() --------------------- AGAINST THE JUDGEMENT/ORDER IN OP.32509/2001 Dated 06/02/2008 .................... APPELLANTS/ RESPONDENTS 1 TO 3 IN THE O.P --------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION (J) DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF TECHNICAL EDUCATION, TRIVANDRUM. 3. THE JOINT DIRECTOR OF TECHNICAL EDUCATION, KOTHAMANGALAM. BY GOVERNMENT PLEADER, SRI.BENNY GERVASIS RESPONDENTS/ PETITIONER & RESPONDENTS 4 & 5 IN THE O.P ------------------------- 1. KURIAKOSE JACOB, INSTRUCTOR GRADE II (CIVIL) MAR ATHANACIOUS COLLEGE OF ENGINEERING, KOTHAMANGALAM. 2. THE SECRETARY, M.A.COLLEGE ASSOCIATION & CHAIRMAN GOVERNING BODY M.A.COLLEGE OF ENGINEERING, KOTHAMANGALAM. 3. THE PRINCIPAL, M.A.COLLEGE OF ENGINEERING, KOTHAMANGALAM. ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE FOR R1 SRI.B.UNNIKRISHNA KAIMAL FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------- W.A.No.1312 OF 2008 ------------------------------- Dated this the 30th day of July, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The respondents 1 to 3 in the Writ Petition are the appellants. The 1st respondent herein was the writ petitioner. 2. The brief facts of the case are the following: The 1st respondent was appointed as Instructor Grade-II in M.A.College of Engineering on 15.9.1976. He completed 10 years' service on 15.9.1986 and therefore, became eligible for the First Higher Grade. In the College, there was no promotion post of Instructor Grade-I and therefore, he was given the next higher scale in the standard scales of pay, that is, Rs.1050-2000/-. At the relevant time, the scale of pay of Instructor Grade-I was Rs.1250-2500/-. When 1988 pay revision was introduced, it was specifically provided what should be the Higher Grade scale of pay for various posts. Normally, in such cases the equivalent scale of pay under the W.A.No.1312/2008 2 new pay revision is granted. But, in the 1988 pay revision order issued on 1.11.1989, it was provided at para 10(ix) as follows: “The persons enjoying time-bound higher grades in various posts in accordance with the existing pattern will be given only the specified scales of pay indicated above and not the corresponding scales of their present time bound grades unless ordered otherwise.” The relevant table of scales is given in para 10(i). Going by that table, the specified scale for ten years' higher grade in the place of Rs.1050-2000 was Rs.1220-2150. But, instead, the 1st respondent was given the normal corresponding scale of pay of Rs.1050-2000, that is, Rs.1330-2555. This mistake was not noticed. When 1993 pay revision came, he was given the scale of pay Rs.1640-2900, which was corresponding to the pre-revised scale of pay of 1330-2555. In fact, he was entitled to get only the scale of pay of Rs.1520-2660, which is corresponding to the pre- revised scale of pay of Rs.1220-2150. In 1996 the 1st respondent became eligible for 20 years' higher grade. The management placed him in the scale of Rs.2000-3200, which is the W.A.No.1312/2008 3 corresponding scale of pay of Rs.1640-2900 by Ext.P2 proposal dated 15.9.1996. The said proposal was returned by Ext.P3 on 24.3.1999. Ext.P4 is the communication of the Director of Technical Education objecting to the proposal which was forwarded along with Ext.P3 to the 1st respondent. Based on Exts.P3 and P4, the management sent Ext.P5 modified proposal for grant of Higher Grade. In Ext.P5 the proposal placed was in the scale of pay of Rs.2500-4000, which is even higher than the scale of pay suggested in Ext.P2 to which the appellants herein took objection. The 1st respondent/petitioner would explain that the scale of pay mentioned in Ext.P5 was the one suggested by the Assistant Director of Technical Education. In the above factual background, the petitioner preferred Ext.P6 representation putting forward a new claim. He for the first time said that in 1986, as First Higher Grade, he should have been granted the scale of pay of Instructor Grade-1 instead of the scale of pay provided in the standard scales of pay. That representation was rejected by Ext.P7 by the Government followed by Ext.P8 by the Joint Director of Technical Education. Challenging Exts.P7 and P8 and praying to grant the relief sought in Ext.P6, the Writ Petition was filed. The 1st respondent/petitioner submitted that in identical cases, where there was no promotion post of Instructor W.A.No.1312/2008 4 Grade-I, as First Higher Grade, the scale of pay of Instructor Grade-I was granted. In support that submission, the 1st respondent/petitioner relied on Exts.P10 and P11. 3. The respondents filed a counter affidavit resisting the prayers in the Original Petition. According to them, the grant of Higher Grade under Exts.P11 and other similar cases can only be treated as a mistake and the same cannot be treated as a precedent. The learned Single Judge after hearing both sides, allowed the prayer of the petitioner to grant him the First Higher Grade in 1986 in the scale of pay of the promotion post Instructor Grade-I. Feeling aggrieved by the said direction of the learned Judge, this Writ Appeal is filed. 4. We heard learned counsel on both sides. In every College, where there is a post of Instructor Grade-I, which is the promotion post of Instructor Grade-II, undisputedly the incumbent working as Instructor Grade-II is entitled to get the scale of pay of the post of Instructor Grade-I as First Higher Grade. Though the respondents have a case that the method of W.A.No.1312/2008 5 appointment to the post of Instructor Grade-I is by transfer, the same does not make any difference, as far as the grant of Higher Grade is concerned. But, in the case of the petitioner's College, there is no post of Instructor Grade-I. In such circumstances, whether the 1st respondent/petitioner is entitled to get the scale of pay of Instructor Grade-I or the next Higher Grade scale in the standard scales of pay is the point to be decided in the Writ Petition. 5. Going by the aforementioned facts, two views are definitely possible in this case. The learned Single Judge has took the view, which was found to be followed in the case of other private Engineering Colleges, where there was no post of Instructor Grade-I. So, we feel that the the view taken by the learned Single Judge is not illegal or otherwise unsupportable in law warranting interference by the Appellate Bench. But, if the grant of Higher Grade in other Colleges was only isolated incidents and the Government proposes to correct the same also in tune with the view canvassed by the Government in this appeal, they may do so, after affording an opportunity of being W.A.No.1312/2008 6 heard to the affected persons. If such a decision is proposed to be taken, the judgment of the learned Single Judge will not stand in the way of the Government doing that. As long as the present situation continues, we find no reason to interfere with the directions issued by the learned Single Judge. Accordingly, this Writ Appeal is dismissed subject to the above observation. (K.BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps