IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 WA.No. 1242 of 2007() AGAINST THE JUDGMENT IN WPC.10764/2000 Dated 06/06/2006 APPELLANTS: RESPONDENTS IN O.P 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM. 3. COMMISSIONER OF POLICE, THIRUVANANTHAPURAM CITY, THIRUVANANTHAPURAM. 4. COMMANDANT, SAP, THIRUVANANTHAPURAM. BY SENIOR GOVT. PLEADER SRI.BENNY GERVASIS RESPONDENTS: PETITIONERS IN THE O.P 1. V.G.VENU, T.NO.9401, HQ COY, OFFICE OF THE COMMISSIONER OF POLICE AR CAMP, THIRUVANANTHAPURAM CITY RESIDING AT KOCHUVILA VEEDU, KARIMOM EDAGRAMOM, THIRUVANANTHAPURAM-2. 2. J. JOHN ROSE, T.NO.9320 HQ COY -DO- -DO- RESIDING AT KRIPALAYAM, KARAMANCODE, MAPPUKADA, MALAYINKIL POST, THIRUVANANTHAPURAM. 3. JAYAJEEVARAJAN, T.NO.9319 HQ COY -DO-D0- RESIDING AT J.B.NILAYAM MYLOTTUKONAM, KOOVALASSERY POST, MARANALLUR, PONGUMOODU. 4. SUDARSANAN, B/HCT 6953 HQ COY -DO- -DO- RESIDING AT VILANKARATHALA MEKKUMKARA, PUTHEN VEEDU, MANNADIKONAM,OORUTTAMBALAM P.O THIRUVANANTHAPURAM BY ADV. SRI.K.L.NARASIMHAN FOR R1 SRI. KRISHNA PRASAD THIS WRIT APPEAL HAVING BEEN FINALLY HEARD 10/07/2009 ALONG WITH WA NO.29 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NOS. 1242 OF 2007 & 29 OF 2008 --------------------------------------------- Dated this the 10th day of July, 2009 JUDGMENT Balakrishnan Nair, J. W.A.No.1242 of 2007. The respondents in the Original Petition are the appellants. The respondents herein were the petitioners. The brief facts of the case are the following: 2. Respondents 1,2 and 4 were appointed as Bugler Police Constables and respondent No.3 was a Drummer Police Constable. They have no promotion post. On completion of seven years of service, they were granted the first Higher Grade in the scale of pay of Head Constable. On completion of 15 years of service, they were granted second Higher Grade in the scale of pay of Sub Inspector, as per Exts.P4 and P5. Later, it was realised that they were eligible to get second Higher Grade only in the scale of pay of Assistant Sub Inspector of Police and steps were taken to review Exts.P4 and P5 orders. In the above back ground, the Original Petition was filed challenging Exts.P6 and P7. Ext.P6 is a communication W.A.NO.1242/07 & 29/08 2 on behalf of the Director General of Police stating that Ext.P7 is not applicable to Bugler Police Constables and Drummer Police Constables. Ext.P7 is a communication issued by the Government to the effect that Band Head Constables are eligible to get second Higher Grade in the scale of pay applicable to Sub Inspector of Police. Based on Exts.P6 and P7, review of the second Higher Grade granted to the petitioners was undertaken. 3. The appellants submitted that they filed a counter affidavit in the Original Petition, though copy of the same is not seen in the paper book. The learned Single Judge, after hearing both sides, found that since the Band Police Constables are given the second Higher Grade in the scale of pay of Sub Inspectors, Bugler Police Constables are also eligible for the same and allowed the Original Petition. Aggrieved by the said direction of the learned Single Judge, this appeal is filed. 4. We heard the learned Government Pleader for the appellants and also the learned counsel for the respondents herein. As per the pay revision Government Order and other related orders governing the grant of Higher Grade, the incumbents who are qualified for promotion, but do not get promotion after completion of certain number of years, are granted the W.A.NO.1242/07 & 29/08 3 scale of pay of the promotion post. If the incumbent is not qualified, then he will be given the next higher scale of pay in the standard scales of pay prescribed by the Pay Revision Order. The same is applicable to incumbents for whom there is no promotion post at all. Therefore, the respondents herein are eligible for the next higher scale of pay in the standard scales of pay, in the absence of a promotion post to them. In the case of the respondents, the next higher scale in the standard scale of pay was Rs.4500-7000/-. It was the scale of pay applicable to Assistant Sub Inspectors. But, they were wrongly granted the second Higher Grade in the scale of pay of Rs.5000-8150/-, which is the scale of pay applicable to Sub Inspectors. When the said mistake was noticed, action was taken to recover the excess amount. We find nothing illegal or irrational with the action taken by the appellants in this regard. But, the learned counsel for the respondents would point out that the respondents are similarly placed persons like Band Police Constables who got second Higher Grade in the scale of pay applicable to Sub Inspector of Police. So, this is a clear case of discrimination and the learned Single Judge granted the relief finding this discrimination, it is submitted. But, we notice that for a Band Police Constable, the first promotion post is that of Band Head Constable and the second promotion post is that of Band Sub Inspector of Police. There is no post like Band Assistant Sub Inspector of Police. So, in accordance with W.A.NO.1242/07 & 29/08 4 the Government Order governing Grade Promotion, Band Police Constables were granted the scale of pay of Sub Inspector as second Higher Grade. The Bugler Police Constables do not have any promotion post. Therefore, it cannot be said that they are similarly placed persons. If the contention of the respondents is accepted, then all the persons without promotion post will have to be granted Higher Grade as applicable to comparable categories who have promotional avenues.. These are matters for the Government to decide and not this Court, while judicially reviewing the orders of the appellants in trying to rectify the illegality committed by them. 5. In the result, the appeal succeeds and it is allowed. The judgment of the leaned Single Judge is reversed and the Original Petition is dismissed. W.A. No. 29 of 2008. In view of the judgment in W.A. No.1242 of 2007, this Writ Appeal is also allowed. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A.NO.1242/07 & 29/08 5 K.BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.A. NOS.1242/2007& 29/2008 JUDGMENT 10th July, 2009 W.A.NO.1242/07 & 29/08 6