IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 18TH AUGUST 2010 / 27TH SRAVANA 1932 WP(C).No. 26637 of 2006(U) -------------------------- PETITIONER(S): --------------- K. AMBIKESAN, EXCISE GUARD, EXCISE RANGE OFFICE, ALAPPUZHA. BY ADV. SRI.S.EASWARAN SRI.SHINU J.PILLAI RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, EXCISE DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 3. THE ASSISTANT EXCISE COMMISSIONER, ALAPPUZHA. BY SPL.GOVT.PLEADER (FINANCE) SRI.N.MANOJ KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON ON 18/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C)No.26637/2006 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. COPY OF ORDER DATED 1.8.2006 ISSUED BY THE 3RD RESPONDENT. EXT.P2. COPY OF CIRCULAR DATED 3.9.2000 ISSUED BY THE 2ND RESPONDENT. EXT.P3. COPY OF OFFICE ORDER NO.A3-260/04 DATED 3.2.2004 ISSUED BY THE 3RD RESPONDENT. EXT.P4. COPY OF G.O(P)NO.300/2004/(146)/FIN. DATED 26TH JUNE, 2004 ISSUED BY THE 1ST RESPONDENT. EXT.P5. COPY OF REPRESENTATION DATED 11.9.2006 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P6. COPY OF G.O(MS)775/80/(245)/FIN. DATED 21ST OCTOBER 1980 ISSUED BY THE 1ST RESPONDENT. EXT.P7. COPY OF G.O(P)NO.705/81/(372)/FIN. DATED 28TH OCTOBER, 1981, ISSUED BY THE 1ST RESPONDENT. EXT.P8. COPY OF CIRCULAR NO.54/92/(138)/FIN. DATED 6TH NOVEMBER, 1992 ISSUED BY THE 1ST RESPONDENT. / TRUE COPY / P.S.TO JUDGE P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).No.26637 of 2006 ----------------------------------------- Dated this the 18th day of August, 2010 JUDGMENT The petitioner entered service as Excise Guard on 16.3.2002. He had earlier served as Police Constable with effect from 17.10.1993. It was while working as Police Constable that he was selected and appointed as Excise Guard. After completing ten years of service computed with reference to the date of entry in service as Police Constable the petitioner moved the third respondent claiming first time bound higher grade promotion. The said request was rejected by Ext.P1 letter dated 1.8.2006. Reliance was placed on Ext.P2 circular dated 3.9.2000 to deny first time bound higher grade promotion to the petitioner reckoning his service as Police Constable also. This writ petition was thereupon filed challenging Ext.P1 order and P2 circular. Relying on Ext.P3 order dated 3.2.2004 it is contended that a person similarly situated within the jurisdiction of the third respondent was granted first time bound higher grade promotion reckoning his service as Police Constable and therefore the petitioner has been discriminated against. Reliance is placed on Ext.P4 government order to contend that persons appointed in other departments by direct recruitment are W.P(C).No.26637 of 2006 -:2:- entitled to reckon their past service for the purpose of grant of time bound higher grade. 2. The petitioner initially entered service as Police Constable on 17.10.1993. He entered service as Excise Guard only on 16.3.2002. Even going by the date of entry in service as Police Constable, the petitioner completed ten years of service as stipulated in G.O(P) No.3000/98/Fin. dated 25.11.1998 for the grant of first time bound higher grade promotion only on 17.10.2004. The grant of time bound higher grade with effect from 1.7.2004 is governed by the provisions contained in G.O(P)No.145/2006/Fin. dated 25.3.2006. Rule 16 of Annexure 3 to the aforesaid government order, which deals with time bound higher grade promotion, reads as follows:- “16. The term 'entry post' shall be defined as the post to which an employee is initially appointed in Government service by direct recruitent by the competent authority. Appointments made by PSC by transfer from other categories will also be treated as equivalent to direct recruitment for allowing the benefit of higher grade. However, promotion to a post in the direct line of promotion in a Department to be made on the basis of select list prepared by the Departmental Promotion Committee, even if it is appointment by transfer from Subordinate Service to State Service cannot be treated as direct recruitment for allowing the benefit of time bound higher grade. The time bound W.P(C).No.26637 of 2006 -:3:- higher grade admissible will be determined with reference to the initial entry post in the present Department only. Service in posts having same scale will not be treated as qualifying service. Similarly, in the case of employees who get inter departmental transfer, their service in the present Department alone will be reckoned as qualifying service. Those who get regular promotion or appointment to higher posts within the period specified for each time bound higher grade will not be granted further time bound higher grade during that period.” (emphasis supplied) 3. Under the terms of the aforesaid government order first time bound higher grade is to be granted on completion of 8 years of service in the entry post. The term entry post has been defined in rule 16 quoted above. It is also stated that time bound higher grade admissible will be determined with reference to the initial entry post in the present department only. The petitioner can claim time bound higher grade promotion only in accordance with the stipulations in that regard in the government order granting time bound higher grade promotions. The petitioner does not challenge the terms and stipulations in G.O(P)No.145/2006/Fin. dated 25.3.2006. Therefore, on the terms of the said government order, the claim made by the petitioner cannot be sustained. 4. The learned Government Pleader brings to my notice that a W.P(C).No.26637 of 2006 -:4:- similar issue was considered by a Division Bench of this Court in W.A.Nos.1510 and 1530 of 2006 wherein similar claims raised by Excise Guards who were initially appointed as Police Constables were declined. I have perused a copy of the said judgment. The Division Bench of this Court has in the aforesaid judgment held, relying on the decision of this Court in George Varghese v. State of Kerala, 2006 (3) KLT 852, that the service put in by Excise Guards while they were working as Police Constables in the Police Department cannot be reckoned for time bound higher grade after their entry in service in the Excise Department. In the light of the authoritative pronouncements of this Court and the stipulations in rule 16 quoted above, the petitioner cannot seek or be granted the relief prayed for. The writ petition fails and is accordingly dismissed. However, it is clarified that the dismissal of the writ petition will not stand in the way of the petitioner from claiming time bound higher grade promotion in terms of G.O(P) No.145/2006/Fin. dated 25.3.2006. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P(C).No.26637 of 2006 ---------------------------- JUDGMENT 18th August, 2010