IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 31ST AUGUST 2011 / 9TH BHADRA 1933 WP(C).No. 5498 of 2006(D) -------------------------------- PETITIONER(S): ------------------- 1. K.GOPAKUMAR, LIFT OPERATOR, THIRUVANANTHAPURAM MUNICIPAL CORPORATION, CORPORATION OFFICE, THIRUVANANTHAPURAM. 2. C.MOHANAKUMAR, LIFT OPERATOR, THIRUVANANTHAPURAM MUNICIPAL CORPORATION, CORPORATION OFFICE, THIRUVANANTHAPURAM. 3. K.S.PRASANNAN, LIFT OPERATOR, THIRUVANANTHAPURAM MUNICIPAL CORPORATION, CORPORATION OFFICE, THIRUVANANTHAPURAM. 4. S.VIJAYAN, LIFT OPERATOR, THIRUVANANTHAPURAM MUNICIPAL CORPORATION, CORPORATION OFFICE, THIRUVANANTHAPURAM. BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE ADV. SRI.S. SUJIN RESPONDENT(S): -------------------- 1. SECRETARY, THIRUVANANTHAPURAM MUNICIPAL CORPORATION, CORPORATION OFFICE, THIRUVANANTHAPURAM. 2. DIRECTOR OF URBAN AFFAIRS, DIRECTORATE OF URBAN AFFAIRS, THIRUVANANTHAPURAM. 3. PRINCIPAL SECRETARY TO GOVT., GENERAL ADMINISTRATION DEPARTMENT, GOVT. OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. svs ............2/-.... ...2... WPC. NO.5498/2006 4. PRINCIPAL SECRETARY TO GOVT., LOCAL SELF GOVERNMENT (A) DEPARTMENT, GOVT. OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 5. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVT., SECRETARIAT, THIRUVANANTHAPURAM. R1 BY ADV. SRI. NANDAKUMARA MENON, SC. R2 TO R5 BY GOVT. PLEADER SRI.ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/08/2011, THE COURT ON 31/08/2011 DELIVERED THE FOLLOWING: svs W.P.(C). NO. 5498/2006 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 04/04/2005 IN WPC. NO.11221/2005(J). P2: COPY OF THE GOVERNMENT ORDER G.O.(MS)NO.313/2005/LSGD DATED 26/10/2005 ISSUED BY THE LOCAL SELF GOVERNMENT DEPARTMENT. P3: COPY OF THE ORDER DATED 13/02/2006 ISSUED BY THE DIRECTOR OF URBAN AFFAIRS GIVING PROMOTIONS TO 104 PEONS AS LD CLERKS/BILL COLLECTORS. P4: COPY OF THE GOVERNMENT ORDER G.O.(MS) NO.31/06/GAD DATED 25/01/2006 ISSUED BY THE GENERAL ADMINISTRATION DEPARTMENT. P5: COPY OF THE REPRESENTATION DATED 01/12/2005 SUBMITTED BY THE PETITIONERS BEFORE THE GOVERNMENT. P6: COPY OF THE COMMUNICATION DATED 31/01/2006 ISSUED BY THE GOVERNMENT REJECTING THE REPRESENTATION EXT.P5. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 5498 of 2006 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 31st day of August, 2011. J U D G M E N T The petitioners are lift operators working in the Kerala Municipal Common Service. According to them, they are Class IV employees. The peons working in Municipal Common Service are also Class IV employees. The peons sought inclusion of them also in the feeder category for appointment to the post of L.D. Clerk/Bill Collector in the inservice quota. Pursuant to the directions of this Court in Ext.P1 judgment, the claims of the peons were considered and by Ext.P2 Government Order, 10% of the cadre strength was set apart to be filled up by direct recruitment from qualified low paid employees. Pursuant to the said order, by Ext.P3 order, 104 peons were appointed as L.D. Clerks/Bill Collectors. The petitioners' grievance in this writ petition is that they have no other promotion avenues and they have not been given the benefit given to peons. They would further point out that by Ext.P4 Government Order, lift operators in Secretariat Service were also given similar benefit. Still the petitioners representation in this regard was rejected by Ext.P6 order on the ground that the scale of pay of the petitioners is more than that of the peons and lift operators are entitled to 10 year, 18 year and 23 year higher grades also. The petitioners are challenging Ext.P6 order, seeking the following reliefs: “i. issue a writ of certiorari or any other appropriate writ, order or direction, quashing Ext.P6 communication dated W.P(C) No. 5498 of 2006 -: 2 :- 3.1.2006 issued by the Government. ii. issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to treat the petitioners working as Lift Operators in the Thiruvananthapuram Municipal Corporation, along with the Peons for the purpose of giving promotions to them as Lower Division Clerks by taking appropriate steps amending the Recruitment Rules; iii. Award to the petitioner the costs of these proceedings.” 2. The 2nd respondent has filed a counter affidavit supporting Ext.P4 but saying that a decision in this regard has to be taken by the Government only. 3. I have considered the rival contentions in detail. 4. I am of opinion that the petitioners have been treated unjustly. There is not much difference as between the peons and lift operators insofar as the scale of pay is concerned. It is the aspiration of every Government employee to go upward and not to stand still, notwithstanding the fact that they are entitled to higher grades in the absence of promotion avenues. More over, the other employees who are given the benefit of being considered for appointment to higher posts also are also entitled to higher grades. When peons in the Municipal Common Service and lift operators in the Secretariat Service are given opportunity for being appointed to higher posts, if they have the necessary qualifications prescribed, it is unjust to leave out the lift operators of the Municipal Common Service from similar benefits. W.P(C) No. 5498 of 2006 -: 3 :- Otherwise, the said rules in this regard can be termed as arbitrary and unreasonable. 5. In the above circumstances, I am of opinion that the Government should take a second look into the claim of the petitioners in tune with Exts. P2 and P4 orders in respect of peons of Municipal Common Service and lift operators of Secretariat Service. For this purpose, Ext.P6 order is quashed. The Government is directed to re- consider the issue in the light of the observations herein above. Orders in this regard shall be passed as expeditiously as possible at any rate within 3 months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/