IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 WP(C).No. 25954 of 2007(M) -------------------------------- PETITIONER: -------------- S.SATHEESHKUMAR, S/O.N.NARAYANA MARAR, SATHEESH BHAVANAM, S.N.PURAM POST, PAMPADI, KOTTAYAM (WORKSHOP INSTRUCTOR (MECH), TECHNICAL HIGH SCHOOL, PAMPADI). BY ADV. SRI.S.SUBHASH CHAND RESPONDENTS: ------------------ 1. STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION (L)/ADDITIONAL CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SENIOR JOINT DIRECTOR (PS), OFFICE OF THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. BY SMT. RANI DIOTHIMA, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.25954/2007 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF ORDER DTD.17.10.2001 ISSUED BY R2. EXT. P2 : COPY OF ORDER DTD. 15.3.96 ISSUED BY R2. EXT. P3 : COPY OF ORDER BEARING No.31646/L3/04/H.EDN. DTD. 2.2.05 ISSUED BY R1. EXT. P4 : COPY OF SAID ORDER DTD. 25.2.05 ISSUED BY R2. EXT. P5 : COPY OF ORDER DTD. 13.12.06 ISSUED BY R2. EXT. P6 : COPY OF REPRESENTATION DTD. 4.1.07 SUBMITTED BY PETITIONER BEFORE R1 (EXCLUDING ANNEXURES). EXT. P7 : COPY OF JUDGMENT DTD. 2.3.07 PASSED BY THIS HON'BLE COURT IN WP(C) No.7067/2007. EXT. P8 : COPY OF PERSONAL HEARING NOTICE BEARING No.9623/J3/07-H.EDN. DTD. 31.5.07 ISSUED TO THE PETITIONER. EXT. P9 : COPY OF ORDER DTD. 3.8.07 ISSUED BY R1. EXT. P10 : COPY OF GOVT. ORDER BEARING G.O.(MS)/83/66/EDN. DTD. 22.2.1966. EXT. P11 : COPY OF ORDER DTD. 30.10.09 ISSUED BY R2 TO PRINCIPAL, GOVT. POLYTECHNIC COLLEGE, KASARAGOD. EXT. P12 : COPY OF CHART INDICATING EXISTING SCALES OF PAY AND REVISED SCALES OF PAY ON PAY REVISION. EXT. P13 : COPY OF GOVT. ORDER DTD. 10.2.09. EXT. P14 : COPY OF CIRCULAR DTD. 7.12.09 AND THE RELEVANT PORTION OF THE INTER-SE SENIORITY LIST. EXT. P15 : COPY OF INTER-SE SENIORITY LIST 16.1.10. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.25954 OF 2007 --------------------------------------- Dated this the 24th day of May, 2011. J U D G M E N T The petitioner challenges Ext.P9 order passed by the Government whereby it was found by the Government that the petitioner is eligible for 8 years higher grade in the scale of pay of Rs.8390-13270 only. The petitioner is also aggrieved by the last sentence in the said order directing the Director of Technical Education to take steps to recover the increment wrongly sanctioned to him on 7/05 and 7/06 since he availed Leave Without Allowance upto 04.08.2004. 2. The factual matrix is in a narrow compass. The petitioner entered service in the Department of Technical Education as a Workshop Instructor in Horology on 02.07.1990, in the Government Technical High School, Thottada in Kannur District. After about 4 years, the petitioner was transferred to the Technical High School in Adoor. The said school was upgraded by the Government as a Polytechnic. This resulted in W.P.(C) No.25954/2007 2 abolition of Horology Course and the surplus staff in the Horology Wing was ordered to be accommodated in the Mechanical Engineering Wing as evident from Ext.P1 order. It is pointed out that both the disciplines ie. Horology and Mechanical Engineering are almost identical in nature. 3. After Ext.P1 order was passed, the petitioner was transferred to Government Polytechnic, Pala as Demonstrator in Instrument Technology as a temporary measure by Ext.P2 order. But, the said order was not conducive to him as the subject was totally a strange one which resulted in the petitioner seeking a posting in the Mechanical Engineering Wing. The same was allowed as per Ext.P3 order and thus he became a staff in the Mechanical Engineering discipline. The consequent order has been produced as Ext.P4. 4. The dispute herein arose when option given by the petitioner for higher grade on completion of 8 years in the scale of pay of Rs.9190-15510 was not granted. Ext.P5 is the order by which it was held that the petitioner was only entitled for the lower scale of Rs.8390-13270. The said order issued by the W.P.(C) No.25954/2007 3 2nd respondent was challenged by the petitioner before the Government by Ext.P6 representation and by judgment in W.P.(C) No.7067/2007, a copy of which has been produced as Ext.P7, this Court directed the Government to consider the matter and finally Ext.P9 order has been passed. 5. The petitioner has raised various grounds in the writ petition and in the reply affidavit. One thing that is to be noticed is that Ext.P9 is not a reasoned order and no specific reasons are forthcoming. But attempts have been made by the respondents to state certain reasons in the counter affidavit. 6. Heard the learned counsel for the petitioner Sri.S.Subhash Chand and the learned Government Pleader. Learned counsel for the petitioner submitted that it is evident from Exts.P1 to P4 orders that the petitioner and one Sri.K.Joseph Varghese who were in the Horology department were accommodated in the Mechanical Engineering Wing. The accommodation was required since the Horology department was abolished. It is pointed out that the reasons stated to deny the 8 years higher grade cannot be supported. W.P.(C) No.25954/2007 4 7. My attention is invited to two aspects. Firstly, it is submitted that the plea that he is not having the qualification namely, Diploma in Mechanical Engineering need not prevent the respondents from considering his claim in the light of the alternate qualification prescribed as per Ext.P10 which is clearly in force as indicated in Ext.P13 order passed by the Government. It is further pointed out that Sri.K.Joseph Varghese who has placed in the Mechanical Engineering Department from the Horology Wing has been granted the higher grade on a different higher scale than that was granted to the petitioner and therefore, the petitioner cannot be discriminated. Finally it is pointed out that the direction to recover the increment cannot be supported since he was not given any notice in the matter and the increment was not granted reckoning the period of leave without allowance. 8. The stand taken by the 1st respondent in the counter affidavit is mainly that the existing rules regarding grant of time bound higher grade envisages that an employee will be granted the scale of pay of next promotion post as time bound higher W.P.(C) No.25954/2007 5 grade only if he is otherwise qualified for regular promotion to that post. Unqualified hands will be given only the next higher scale of pay above that of the scale of pay of the post held at that time. Accordingly, the petitioner was granted the next higher scale of pay of Workshop Instructor ie.Rs.8390-13270. Even though the petitioner has filed a reply affidavit, no additional counter affidavit has been filed disputing the contentions raised therein. 9. Going by the qualification prescribed in Ext.P10, the alternate qualification given is as follows: “ i) Minimum educational qualification SSLC. ii) Ten years experience of which atleast 5 years shall be as W/s. Instr/II Grade Instr. Demonstrator, skilled Assistant Grade I on Rs.80-180”. The above qualification is prescribed by an executive order dated 22.02.1966. 10. Ext.P13 is a clarification issued by the Government with regard to promotion to the post of Workshop Foreman. The said order also shows that the qualification prescribed is as per Ext.P10 itself survives even as on today. Therefore, the learned W.P.(C) No.25954/2007 6 counsel for the petitioner submitted that the entitlement of the petitioner based on the alternate qualification has not been considered by the Government. Evidently, the said aspect has not been examined by the Government. Apart from the same, the learned counsel is right in submitting that the petitioner's colleague Sri.Joseph Varghese has been granted the higher grade in the pre-revised scale of pay of Rs.5250-8150 as per G.O.(P) 3000/98 dated 25.11.98 which is evident from Ext.P11. 11. Ext.P12 shows the revised scale of pay and going by the same, the revised scale of pay of 5250-8150 will be Rs.8790- 13610. There is nothing to discriminate between these two persons. What is explained in the counter affidavit is that the said person was not granted the scale which was opted by the petitioner namely, Rs.9190-15510. That need not stand in the way of granting the scale granted at Rs.8790-13610. Both these persons are from the Horology Department and they are accommodated in the Mechanical Engineering Wing. Apart from the same, it is a case where the petitioner cannot be faulted as the entire thing happened because of the abolition of the W.P.(C) No.25954/2007 7 Department and absorption of the petitioner in the new Department. In that view of the matter also, the petitioner was entitled for some leniency in the matter. 12. As far as the increment granted to the petitioner is concerned, it is explained in the writ petition that it was not granted after counting the period of leave without allowance. Therefore, the said aspect also will have to be examined. For all these reasons, Exts.P5 and P9 are quashed. The matter will be reconsidered by the Government, after hearing the petitioner, and appropriate orders will be passed within a period of two months from the date of receipt of a copy of this judgment, in the light of the findings rendered above. This writ petition is disposed of as above. T.R. RAMACHANDRAN NAIR JUDGE smp