IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 OP.No. 98 of 2003(J) -------------------- PETITIONER(S): --------------- T.P. PRADEEP, EXCISE INSPECTOR, BALUSSERRY, KOZHIKODE DISTRICT. BY ADV. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.N.V.AJAYAKUMAR SRI.K.K.RAJEEV SRI.S.VIBHEESHANAN RESPONDENT(S): --------------- 1. THE JOINT EXCISE COMMISSIONER, TRIVANDRUM. 2. THE ASSISTANT EXCISE COMMISSIONER, KOZHIKODE. GOVERNMENT PLEADER MR. ARAVINDA KUMAR BABU FOR R1&2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 28/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. ----------------------------------------------- O.P. No. 98 of 2003 ------------------------------ Dated, this the 28th day of October, 2009 J U D G M E N T The challenge is against Ext.P5 order whereby the benefit of Time Bound Higher Grade for 10 years of service as Excise Inspector is stated as payable only with effect from 15.08.1996 (which according to the petitioner ought to have been given with effect from 18.04.1994) and also against Ext.P7 order, whereby the benefit already stated as given to the petitioner is taken away, while considering the eligibility to have the benefit of Higher Grade on completion of 23 years of service. 2. With regard to the sequence of events, the petitioner joined the service as Preventive Officer on 22.09.1975 and later, as per Ext.P1 dated 18.04.1984, he was promoted as Excise Inspector. However, in the course of steps to maintain the ratio between the direct recruits and the promotees, the petitioner had to be reverted from the post of Excise Inspector as ordered in Ext.P2 order dated 04.01.1986. But in the mean while, the post of 'Assistant Excise Inspector' was created with effect from 10.10.1985 and as such, when the petitioner was ordered to be reverted to the said post, which was above the post of Preventive Officer and carried a higher scale than the entry cadre. Accordingly, the salary of the petitioner was fixed in the scale attached to the said post. OP No. 98 of 2003 - 2- 3. The reversion of the petitioner was challenged by filing O.P. 5733/1986, which was considered by this Court along with other connected cases, leading to Ext.P3 judgment, whereby the impugned order was set aside and the entire issues regarding the reversion, promotion, transfers, posting etc. in respect of the post of Excise Inspector were directed to be reconsidered and the regular promotion was ordered to be made in the light of the observations and declarations contained in the said judgment. 4. Pursuant to Ext.P3 verdict, the matter was re considered by the respondents and Ext.P4 order was passed on 09.08.1986, whereby the petitioner was promoted as Excise Inspector and he joined as an Excise Inspector on 16.08.1986. On completion of 10 years of service, the application preferred for Higher Grade benefit was forwarded by the departmental authorities, which was acted upon and the benefit of Higher Grade was given vide Ext.P5 order with effect from 15.08.1996, i.e., on completing 10 years of service in the said cadre, after joining on 16.08.1986. The petitioner preferred Ext.P6 representation stating that he is entitled to get the benefit of Higher Grade with effect from 18.04.1994, as the original promotion vide Ext.P1 was on 18.04.1984. The case of the petitioner is that on filing Ext.P6 representation, Ext.P7 order has been passed, even cancelling the benefit already given vide Ext.P5, holding that the petitioner is not entitled to get the benefit of OP No. 98 of 2003 - 3- Higher Grade granted earlier and that he would be entitled to get the benefit of Higher Grade in respect of '23 years' of service sought for, only from 01.11.1998, which hence is subjected to challenge in the Writ Petition. 5. Dr. K.P. Satheesan, learned counsel appearing for the petitioner submits that the course pursued by the concerned respondent while passing Ext.P7, even denying the benefit already conferred vide Ext.P5, is totally against the provisions of law and all the the known principles of natural justice. The learned Government Pleader, on the other hand, submits with reference to the contents of the counter affidavit, that the earlier provisional promotion given to the petitioner in 1984 was not of any significance; particularly since the petitioner had to be reverted for accommodating other eligible candidates for maintaining the ratio, as per Ext.P2. Later, pursuant to Ext.P3 judgment, the matter was reconsidered and Ext.P4 was passed giving promotion to the petitioner as stipulated therein. The petitioner admittedly having joined the regular post of Excise Inspector only with effect from 16.08.1986, the benefit of Higher Grade can be granted only after completion of 10 years of service, i.e., with effect from 15.08.1996 as rightly ordered in Ext.P5; submits, the learned Government Pleader. 6. However, coming to Ext.P7, it is to be noted that the benefit stated as payable to the petitioner vide Ext.P5 has also been taken OP No. 98 of 2003 - 4- away, stating that the petitioner has already been given two promotions and one Higher Grade and that the benefit of fixation under Rule 28 (A) Part I KSR has been provided to the petitioner when the pay was fixed in the post of Assistant Excise Inspector (to which the petitioner was reverted pursuant to Ext.P2). Referring to the dictum laid down by the Division Bench of this Court in State of Kerala Vs. Saiful Islam [2006 (1) KLT 619], the learned Government Pleader asserts that the benefit of Rule 28(A) can be given only once and the petitioner, having been extended the said benefit while fixation was given in the post of Assistant Excise Inspector, it is no more open to him to claim the said benefit any further. The learned Government Pleader also points out that Ext.P7 order has been passed in a different circumstance and not in response to Ext.P6 representation. 7. With regard to the claim put forth by the petitioner as to the eligibility to have the benefit of Higher Grade with effect from 18.04.1994, reckoning the promotion as Excise Inspector on the basis of Ext.P1 provisional promotion given to him vide Ext.P1 in 1984, it is true that the reversion ordered by Ext.P2 was set aside by this Court as per Ext.P3 judgment, directing the entire promotions, transfers and such other incidental aspects to the post of Excise Inspector were directed to be re considered in the light of observations and directions contained therein. It is also an undisputed fact that, pursuant to the said OP No. 98 of 2003 - 5- judgment, Ext.P4 order was passed on 09.08.1986 promoting the petitioner as Excise Inspector and accordingly, he joined duty in the regular post on 16.08.1986. Admittedly, Ext.P4 order has not been subjected to challenge and this being the position, the petitioner completed the service of 10 years in the post of Excise Inspector only on 15.08.1996, so as to make him eligible to get the benefit of Higher Grade on completion of 10 years in the said post, which accordingly was rightly ordered vide Ext.P5. This being the position, the prayer of the petitioner to have granted the said benefit with effect from 18.04.1994 is only wrong and misconceived. 8. Ext.P6 representation was preferred by the petitioner seeking for the benefit of Higher Grade to be given with effect from 18.04.1994 and the said representation is dated 16.07.1999. Obviously, the representation referred to in Ext.P7 order is not Ext.P6 representation, but the representation dated '21.07.1999' copy of which is not produced in the present proceedings and as such, this Court is not in a position to ascertain or evaluate the contents of the said representation and the consequences resulted by passing Ext.P7 order. It also remains to be a fact that while passing Ext.P7 order, the petitioner was never given an opportunity of hearing. It is stated in the second paragraph of Ext.P7, that the benefit already granted to the petitioner vide Ext.P5 has been cancelled, holding that he is not eligible OP No. 98 of 2003 - 6- for the same. In view of the said admitted fact, such an order could have been passed by the first respondent only after affording an opportunity of hearing to the petitioner, so as to have him enabled to substantiate the factual and legal position on the subject. Learned Government Pleader, referring to the counter affidavit, also fairly conceded that the petitioner was not given any opportunity of hearing before passing Ext.P7, taking away the benefits already given vide Ext.P5. 9. In the above circumstances, Ext.P7 is set aside and the first respondent is directed to re consider the representation dated 21.07.1999 preferred by the petitioner as referred to in Ext.P7, in accordance with law, after giving an opportunity of hearing, as expeditiously as possible, at any rate within three months from the date of receipt of a copy of this judgment. The O.P. is disposed of accordingly. P. R. RAMACHANDRA MENON JUDGE dnc