IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 17TH MARCH 2011 / 26TH PHALGUNA 1932 WP(C).No. 25122 of 2007(N) -------------------------- PETITIONER(S): --------------- 1. K.GANGADHARAN, AGRICULTURAL ASSISTANT SENIOR GRADE, KRISHI BHAVAN, TRIKARIPUR, P.O.TRIKARIPUR, KASARAGOD DIST. 2. P.M.MOHANAN, AGRICULTURAL ASSISTANT SENIOR GRADE, KRISHI BHAVAN, BELLUR, P.O.KINNINGAR, KASARAGOD DIST. 3. V.M.RAJAN, AGRICULTURAL ASSISTANT SENIOR GRADE, KRISHI BHAVAN, MADHUR P.O.MADHUR, KASARAGOD DIST. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF AGRICULTURE, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF AGRICULTURE, THIRUVANANTHAPURAM. GOVT. PLEADER SHRI.ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 25122/07. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE CIRCULAR DTD.24.5.05. P2. COPY OF THE LETTER DTD.2.9.06. P3. COPY OF THE PETITION DTD.20.20.06 BY P1. P4. -DO- P2. P5. -DO- P3. P6. COPY OF THE JUDGMENT IN W.P.(C).No. 30405/06. P7. COPY OF THE LETTER DTD.7.5.07 TO P1. P8. COPY OF THE LETTER DTD.7.5.07 TO P2. P9. COPY OF THE LETTER DTD.7.5.07 TO P3. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 25122 of 2007 ================== Dated this the 17th day of March, 2011 J U D G M E N T The petitioners are Agricultural Assistants (Senior Grade). In accordance with the pay revision order of 2006, the petitioners were sanctioned 23 year time bound higher grade promotion. But by Exts.P7 to P9 orders, the petitioners were informed that the petitioners are not entitled to 23 year time bound higher grade in the scale of pay applicable to the next promotion post, since, for being eligible for the same, the petitioners should have passed the obligatory departmental test and the approval of the Departmental Promotion Committee was also necessary. It is challenging those orders, the petitioners have filed this writ petition. 2. According to the petitioners, at the time when they became eligible for 23 year time bound higher grade, they had crossed 50 years of age and, therefore, by virtue of Rule 13B of KS&SSR, they were exempted from acquiring the test qualification for declaration of probation, promotion etc. They would further contend that insofar as the time bound higher grade promotion is not a promotion by selection, but only by virtue of the completion of required number of years of service, the question of approval of the Departmental Promotion Committee does not arise at all. 3. The learned Government Pleader, on the other hand, would w.p.c.25122/07 2 contend that insofar as the pay revision orders prescribe that in order to become eligible for 23 year higher grade in the scale of pay applicable to the next promotion post, the petitioners should have acquired all the qualifications prescribed for the next higher promotion post and since the petitioners did not possess the same on completion of 23 years, the petitioners are not entitled to time bound higher grade in the scale of pay applicable to the next promotion post. He would further submit that since the grant of 23 year time bound higher grade in the scale of pay applicable to the next promotion post pre-supposes the qualification for such regular promotion, the condition regarding approval of the Departmental Promotion Committee is also applicable. It is contended by the counsel for the petitioners that since the petitioners had crossed 50 years of age, that question does not arise and the pay revision order does not contemplate consideration by the Departmental Promotion Committee for the purpose of time bound higher grade. The petitioners also contend that for time bound higher grade, test qualification is not compulsory as in the case of regular promotion. 4. I have considered the rival contentions in detail. 5. Rules for grant of time bound higher grade promotion are contained in Annexure 3 to G.O(P).No.145/2006/Fin dated 25.3.2006. As per the same, time bound higher grades are to be granted in the w.p.c.25122/07 3 scales of pay provided in the tables A and B corresponding to the scale of pay of the entry post. But in case where there is a regular promotion post available to the employees concerned, a special provision is made in clause 6 to Annexure 3, which reads as follows: “6. If there is a regular promotion post in respect of the categories of posts coming under pay scales ranging from Rs. 4400- 6680 to Rs. 9590-16650 and if such scale of pay is higher than the corresponding time bound higher grade proposed in Tables A & B above, then the time bound higher grade for such incumbent will be the scale of pay of such regular promotion post, provided he is otherwise qualified for such promotion. Even in cases where a particular category of posts in the normal hierarchy of promotion posts is not available in a Department, the scale of pay of the normal promotion post only will be allowed as the higher grade. (Thus, for example, in a Department where there is no post of Head Clerk and U.D. Clerks get promoted as Junior Superintendents, the time bound higher grade for the U.D. Clerk will still be the scale of Head Clerk). While assigning such higher grade, only qualified hands, ie. those possessing the qualification, including approval of the D.P.C. (where necessary), prescribed for the promotion post will get the scales of pay of regular promotion posts. Unqualified hands will be allowed the next higher scale of pay above that of the scale of pay of the post held at that time, in the standard scales of pay at Annexure 1. The Competent Authority sanctioning the time bound higher grade should indicate in the order whether the official possesses qualification for promotion (including approval of D.P.C) and also specify the scale of pay admissible on time bound higher grade.” (underlining supplied) Going by the same, for becoming eligible for time bound higher grade in the scale of pay applicable to the next higher promotion post in contradistinction to the intermediary scale of pay prescribed in tables A & B, the conditions prescribed in clause 6 of Annexure 3 have to be strictly complied with. Two conditions have to be satisfied. First is that there should be a promotion post available for the particular Government servant for such promotion in the department. Secondly, w.p.c.25122/07 4 the incumbent should possess all the qualifications for such promotion including approval by the Departmental Promotion Committee. Here admittedly on completion of 23 years of service, the petitioners had not passed the obligatory departmental test. Therefore, on that date, they were not eligible to be considered for regular promotion at all. As such, they are not even eligible to be considered by the Departmental Promotion Committee. Despite completion of 23 years of service, the petitioners had not become eligible to be considered for the next promotion post. Therefore, they were eligible for only the intermediary scale of pay provided in tables A and B corresponding to the scale of pay of the entry post. The counsel for the petitioners would vehemently argue that the question of approval by the Departmental Promotion Committee does not arise insofar as time bound higher grade is a benefit granted to a Government servant on completion of a definite number of years of service and not on the basis of selection for promotion. Therefore, the question of considering whether the incumbent would have been approved by the Departmental Promotion Committee for such promotion does not arise at all is his contention. In this case, that question does not arise at all, because when the petitioners completed 23 years of service, they had not passed the obligatory test qualification. At that time, they were also not eligible for the exemption prescribed in Rule 13B of the KS&SSR, because, for w.p.c.25122/07 5 becoming eligible for exemption under Rule 13B, they should not only have completed 50 years of age but they should also have completed 25 years of service. Here the petitioners were being considered for time bound higher grade promotion on completion of 23 years. That means they had not completed 25 years of service. Therefore, at that point of time, the question of applying Rule 13B does not arise at all. Even otherwise, when the pay revision order specifically stipulates that for becoming eligible for time bound higher grade in th scale of pay applicable to the next higher grade promotion post, the incumbent should be possessing all the qualifications prescribed for such promotion including approval by the Departmental Promotion Committee (where necessary) unless the petitioners are cleared by the Departmental Promotion Committee, they are not entitled to that benefit. As I have already stated, in this case, the question of considering the same does not arise since at the time when they considered for 23 year higher grade, they were not eligible for exemption under Rule 13B and, therefore, the question of them being considered by the Departmental Promotion Committee also did not arise. It is not as if in such circumstances, they would not be eligible for time bound higher grade at all. The only difference is that in such cases, the petitioners would be eligible for grade promotion in the intermediary scale of pay provided in tables A & B corresponding to w.p.c.25122/07 6 their scale of pay in the entry post. 6. Of course, the petitioners would contend that as soon as they became eligible for exemption under Rule 13B, their scale of pay should have been revised in the scale pay applicable to the next promotion post after being considered by the Departmental Promotion Committee. I am unable to countenance that contention also. Immediately on completion of 23 years of service, the petitioners would be considered for 23 year higher grade promotion in the scale of pay applicable as per Tables A & B in Annexure 3. At that time, the petitioners were not eligible for 23 year higher grade in the scale of pay applicable to the next promotion post since they were not even eligible for consideration to promotion to the next higher grade. As such, the question of revising the scale of pay already granted as 23 year higher grade as applicable to the next higher promotion post on the petitioners completing 25 years of service on becoming eligible for exemption under Rule 13B does not arise since the pay revision order does not provide for the same. If the contention of the petitioners is accepted, then it would lead to very anomalous results also, since such an interpretation would be applicable not only to those who claim Rule 13B benefit, but also to others who acquire qualification subsequent to the grant of higher grade also. Insofar as the pay revision order does not provide for the same, I do not think that the petitioners can claim w.p.c.25122/07 7 the same. Time bound higher grade is not a right. It is only a concession granted by the Government, which has to be availed of in accordance with the conditions prescribed for such grant. When the pay revision order does not provide for revision of time bound higher grade after the original grant, when the petitioners become eligible for promotion to the next higher grade the question of such revision does not arise at all. Therefore, I am satisfied that the petitioners are eligible for the 23 year time bound higher grade not in the scale of pay applicable to the next promotion post, but only in the intermediary scale of pay provided in the tables of Annexure 3 corresponding to their scale of pay in the entry post. There is no dispute that as per the impugned orders, that has already been given and only the difference has been ordered to be recovered from the petitioners. In the above circumstances, I do not find any merit in the writ petition and accordingly, the same is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge