IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 5TH FEBRUARY 2009 / 16TH MAGHA 1930 WP(C).No. 8433 of 2008(D) ----------------------------------- PETITIONER(S): ---------------------- M.N. MOHANAN, S/O. NARAYANAN, RETIRED COURT KEEPER, DISTRICT COURT, ERNAKULAM, RESIDING AT GIRISH NILAYAM, KUMBALAM P.O., COCHIN-682 506. BY ADV. SRI.S.K.BALACHANDRAN SRI.P.V.JYOTHI (K/169/1984) RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT JUDGE, ERNAKULAM. GOVERNMENT PLEADER SMT. ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/01/2009, THE COURT ON 05/02/2009 DELIVERED THE FOLLOWING: WP(C) NO. 8433/2008 D APPENDIX PETITIONER'S EXHIBITS : EXT.P1. COPY OF THE GO P NO. 817/95 (58)/FIN DT. 14/11/95. EXT.P2. COPY OF THE GO P NO. 899/89(155)/FIN DT. 10/3/98. EXT.P3. COPY OF THE LETTER NO. 44748/C1/2005/HOME DT. 5/11/05. EXT.P4. COPY OF THE OM NO. C1. 3470/06/ DT. 7/3/06 OF HIGH COURT REGISTRY ISSUED TO THE R2. EXT.P5. COPY OF THE MEMO NO. A1. 5/06 DT. 20/4/06 BY THE R2. EXT.P6. COPY OF THE LETTER NO. 27655/C1/06/HOME DT. 26/08/06 BY THE R1. EXT.P7. COPY OF THE REPRESENTATION DT. 16/6/07 BY THE PETITIONER. EXT.P8. COPY OF THE PROCEEDINGS NO. D483/07 DT. 30/6/07 OF THE SPECIAL COURT (IDAMALAYAR) ERNAKULAM. EXT.P9. COPY OF THE REPRESENTATION DT. 6/08/07. EXT.P10. COPY OF THE LETTER NO. 676/07 DT. 28/09/07 OF THE SPECIAL COURT (IDAMALAYAR) ERNAKULAM. EXT.P11. COPY OF THE PROCEEDINGS A1. 5/2007 DT. 16/11/2007 OF THE R2. RESPONDENTS' EXHIBITS : NIL. / TRUE COPY / tga T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.8433 of 2008-D - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of February, 2009. JUDGMENT The petitioner herein, a retired Court Keeper of the Civil Judicial Department of Ernakulam District, is aggrieved by the denial of 3rd and 4th time bound higher grade benefits to him. He retired from service on 31.1.1999 after 32 years of service. His scale of pay at the time of retirement was Rs.2750-70-3800-75-4625 (825-15-900-20- 1200-25-1450 pre-revised). The post of Court Keeper is a Class IV post and is included in the category of Last Grade Employees. 2. The Government as per Ext.P1 order dated 14.11.1995 ordered that the existing ratio 1 : 5 between the higher and lower grades of Last Grade Employees will be revised to 1 : 2. This was done after the Government felt that last grade employees have not enough promotional avenues and that they are stagnating the maximum of scales of pay on attaining higher grades. The scale of pay are also specified in Ext.P1. It was specified further that this order will take effect from 1.3.1992 but monetary benefits will be from 1.4.1995 WPC 8433/08 2 only. By Ext.P2 order dated 10.3.1998 the Government sanctioned 4th time bound higher grade to the last grade employees of Government service on completion of 30 years of service which was effective from 1.3.1992 with monetary benefits from 1.4.1995. By Ext.P3 letter addressed to the Registrar of the High Court (Subordinate Judiciary), the Government clarified that 1 : 2 ratio prescribed in Ext.P1 to the last grade employees will be extended to Process Server/Deffedars/Court Keepers of the Judicial Department. By Ext.P4, the High Court clarified, in the reply to the District Judge, Ernakulam that the date of implementation of ratio promotion should commence from the date of the Government letter (i.e. 5.11.2005). Ext.P5 is the reply given to the petitioner, whereby his request for the benefits was rejected. He was denied the benefits, since he has already retired and as on 5.11.2005 he was not in service. But, by Ext.P6 letter the Government issued a clarification addressed to the Registrar of High Court (Subordinate Judiciary) to the effect that Process Servers/Deffedars/Court Keepers of the Judicial Department are entitled to the monetary benefits of Ext.P1 order with effect from WPC 8433/08 3 1.4.1995. Again, the petitioner submitted Ext.P7 representation before the second respondent seeking the benefits due under Ext.P1. This was rejected by Ext.P8 stating that he had already received the ratio promotion with effect from 1.3.1995. The petitioner, in Ext.P9 representation, clarified that he is seeking further higher grade sanctioned as per Ext.P1. Pursuant to the same, as per Ext.P10, the Office of the Special Judge, Idamalayar Investigation, where the petitioner was working at the time of retirement, directed him to submit the declaration and option for fixation of pay for onward transmission to the second respondent. But by Ext.P11, the same was rejected on the ground that neither the petitioner nor the office in which he had worked, had taken any steps for granting the 3rd and 4th time bound higher grade promotion. The stand taken in Ext.P11 for rejecting his representation is that retrospective grade promotion is not admissible. 4. The petitioner contends that he is entitled for the benefits given in Exts.P1 and P2 which are further clarified by Ext.P3. It is further pointed out that non-sanctioning of the 3rd and 4th time bound higher grades is not due to any fault on the part of the petitioner. The WPC 8433/08 4 clarification was issued only after his retirement. 5. In the counter affidavit, it is reiterated that time bound higher grade is granted on the basis of option submitted by the incumbents. But the petitioner did not move for granting time bound higher grade either by himself or through the court where he was working. 6. Learned counsel for the petitioner submitted, by placing reliance upon successive Government Orders that the entitlement for the higher grades are specified by the Government from time to time in the pay revision orders and as the petitioner had completed the required number of years to obtain such grade promotion, merely for non- submission of the option prior to his date of retirement, that benefit cannot be denied. It is pointed out that clarification by way of Ext.P3 was issued only on 5.11.2005 with regard to the applicability of Exts.P1 and P2 to the Process Server/Deffedar/Court Keeper of Judicial Department by the Government. Therefore, it cannot be said that the petitioner who retired from service in 1999, had made any mistake in not submitting the option at that point of time. It is also pointed out that by Ext.P6 dated 26.8.2006 the Government informed the Registrar WPC 8433/08 5 of the High Court (Subordinate Judiciary) that the Process server/Deffedar/Court Keeper of the Judicial Department are entitled to monetary benefits of Ext.P1 with effect from 1.4.1995. 7. The Government have issued consolidated orders regarding time bound higher grade scheme as per Circular No.46/2008/Fin. Dated 8.8.2008. Para 8 shows that the benefit of fixation of pay as per Rule 28A of Part I K.S.R. without refixation of pay shall be allowed for the purpose of fixation of pay in the time bound higher grade promotion post. Para 11 is important for the purpose of this case which is extracted below: “Those who are eligible for the time bound higher grade on completion of the specified qualifying service shall be given right of option to elect any date subsequent to the date on which they complete the qualifying service fixed for that higher grade vide G.O.(P) No.81/80(159)/Fin. Dated 22.1.1980. The option shall be exercised within three months from the date of issue of order granting grade promotion (G.O.(P)367/96/(87)/Fin. Dated 19.4.96). The option for time bound higher grade promotion shall not be allowed beyond the date of next increment in the lower scale w.e.f. 1.3.2006 (para 47 of G.O.(P)145/2006/Fin. Dated 25.3.2006). Options once exercised for time bound higher WPC 8433/08 6 grade promotion shall be final. NO re-option will be granted for grade promotions. If no option is exercised by the incumbent within the period prescribed for exercising option, it will be presumed that such persons have opted the time bound higher grade promotions from the due date of time bound higher grade itself and Appointing Authorities/Heads of Departments shall issue orders accordingly. (G.O.(Ms) 608/83/(530)/Fin. Dated 27.9.1983 and Circular NO.55/90/(47).Fin. Dated 2.07.90). Options & declaration to be submitted by the employees concerned duly signed by him/her will be in the format prescribed below:” The first part of the said para obliges the employees to submit option for time bound higher grade. In the latter part, it has been clarified that if no option is exercised by the incumbent within the period prescribed for exercising option, it will be presumed that such persons have opted the time bound higher grade promotion from the due date of time bound higher grade itself and Appointing Authorities/Heads of Departments shall issue orders accordingly. Reference is made to G.O. (Ms) 608/83(530)Fin. Dated 27.9.1983 and Circular No.55/90/(47)Fin. Dated 20.7.1990. 8. In the light of the above clause, it is clear that absence of WPC 8433/08 7 submission of option should not result in denial of time bound higher grade benefits to the employees concerned. The Appointing Authorities/Heads of Department have to issue orders by presuming that such persons have opted the time bound higher grade promotion from the due date of time bound higher grade promotion. 9. In that view of the matter, the stand taken in Ext.P11 herein cannot be said to be correct. As far as the petitioner is concerned, it would have been presumed that he submitted option at the relevant point of time for the 3rd and 4th time bound higher grade benefits. Hence, it is not a case where any request for retrospective grade promotion is required. The petitioner is thus entitled for the benefit of the 3rd and 4th time bound higher grade promotions. 10. Apart from that, herein, the clarifications Exts.P3 and P6 whereby Ext.P1 was, made applicable in respect of Process Server/Deffedar/Court Keeper of Judicial Department, were issued only after his retirement. The effect of the clarification is that at the relevant point of time, Exts.P1 and P2 were applicable to the petitioner. On the date of issuance of Exts.P1 and P2, he was in service. In that view of WPC 8433/08 8 the matter also, the claim of the petitioner cannot be denied. 11. Therefore, Exts.P8 and P11 are quashed. It is declared that the petitioner is entitled to the monetary benefits of Exts.P1 and P2 from 1.4.1995. Appropriate orders sanctioning the monetary benefits pursuant to Exts.P1 and P2 with effect from 1.4.1995, will be issued within a period of two months from the date of receipt of a copy of this judgment. The due benefits will be disbursed to the petitioner within a further period of three months thereafter. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/