IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 23RD MAY 2008 / 2ND JYAISHTA 1930 WA.No. 170 of 2007() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.22415/2005 Dated 10/10/2006 .................... APPELLANTS: RESPONDENTS 1 TO 3 IN WP(C):NO.22415/2005: ----------------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CIVIL SUPPLIES,GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ACCOUNTANT GENERAL (AUDIT), OFFICE OF THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM. 3. THE TALUK SUPPLY OFFICER, KOTHAMANGALAM TALUK, KOTHAMANGALAM,ERNAKULAM DIST. BY SPL.GOVERNMENT PLEADER(FIN) SRI.N.MANOJKUMAR RESPONDENT: PETITIONER IN WP(C):NO.22415/2005: ------------------------------------------------------------------------------- N.O. JOSE, S/O. OUSEPH, NELLIKKATTIL HOUSE, CHELAD P.O., KOTHAMANGALAM, NOW WORKING AS DRIVER, KOTHAMANGALAM TALUK, SUPPLY OFFICE, KOTHAMANGALAM, ERNAKULAM DISTRICT. BY ADV. SRI.ALEXANDER JOSEPH THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & P.N.Ravindran, JJ. ===================== W.A.No.170 of 2007 ===================== Dated this the 23rd day of May, 2008. JUDGMENT Ravindran,J. The appellants are the respondents in W.P.(C)No.22415 of 2005. The sole respondent is the writ petitioner. The brief facts of the case are as follows: 2. The writ petitioner entered service as Driver Grade II in the Civil Supplies Department on 4.9.1986. By Ext.P1 dated 25.11.1998, the State Government revised the scales of pay of government employees in implementation of the recommendations of the pay revision committee. The revised scales of pay came into force with effect from 1.3.1997. Prior to Ext.P1, Driver Grade II was placed in the scale of pay of Rs.825- 1450 and Driver Grade I was in the scale of pay of Rs.1050- 1660. By Ext.P1 it was revised to Rs.2750-4625 and Rs.3350- 5275 respectively. The revised scale of pay of Driver Grade II sanctioned as per Ext.P1 was again modified as Rs.3050-5230 WA 170/07 -: 2 :- by Ext.P2 order dated 12.7.1999. Ext.P1 pay revision order also contemplates grant of first time bound higher grade promotion on completion of 10 years of service in the entry post, a second higher grade promotion on completion of either 8 years of service in the first promoted post or a total service of 18 years in the entry post and the first regular promotion post/time bound higher grade together, whichever is earlier, a third higher grade promotion on completion of 23 years of total service and a fourth time bound higher grade to Class IV employees on completion of 30 years of service. As per Ext.P1, Driver Grade II in the revised scale of pay of Rs.3050-5230 was entitled to first time bound higher grade promotion on completion of 10 years of service, in the scale of pay of Rs.3350-5275 which is the revised scale of pay of Driver Grade I. 3. As noticed earlier, the revised scale of pay of Rs.2750- 4625 sanctioned to Driver Grade II by Ext.P1 was modified by Ext.P2 as Rs.3050-5230. Paragraph 6 of Ext.P1 reads as follows: WA 170/07 -: 3 :- "PAY SCALES OF NON-CLERICAL TECHNICAL STAFF 6. With a view to improve the Pay Scales of certain Categories of non-clerical technical staff Government have decided to increase their Scales of Pay to the next higher Scale at the entry level. The changes in Scales made accordingly in respect of certain categories are shown against the designations in Annexure-II. Finance Department will define and identify the other eligible designations in this Category non-clerical technical staff. Orders on this will be issued thereafter." Paragraph 5(6) of Ext.P1 reads as follows: "(6) If there is a promotion post in respect of the categories of posts (entry) coming under pay range from Rs.2610-3680 to Rs.5800-9425 and its scale of pay is higher than the time bound higher grade proposed above, then the qualified incumbent will be given the scale of pay of the promotion post in the direct line of promotion as time bound higher grade. While assigning higher grade only qualified hands ie. those possessing the qualification 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 WA 170/07 -: 4 :- that of the scale of pay of the post held at that time, in the standard scales of pay." 4. Paragraph 6 of Ext.P1 extracted above, states that with a view to improve the pay scales of certain categories of non- clerical technical staff, the government have decided to increase their scales of pay to the next higher scale at the entry level. It is further stated that the changes in scales made accordingly in respect of certain categories are shown against the designations in Annexure-II. From Annexure-II in Ext.P1, it is seen that the scale of pay of Driver Grade II was revised from Rs.825-1450 to Rs.2750-4625, while the scale of pay of Driver Grade I was revised from Rs.1050-1660 to Rs.3350-5275. On the terms of paragraph 6, non-clerical technical staff were entitled to an increase in the scale of pay to the next higher scale at the entry level. Therefore, the scale of pay of Driver Grade II was revised from Rs.825-1450 to Rs.2750-4625. Later, by Ext.P2 government order dated 12.7.1999 the scale of pay of Driver Grade II was enhanced from Rs.2750-4625 to Rs.3050-5230, the next higher scale of pay recognised in Ext.P1. 5. Pursuant to Ext.P1 as modified by Ext.P2, the writ WA 170/07 -: 5 :- petitioner was granted first time bound higher grade promotion on completion of 10 years of service. On the premise that the writ petitioner, who was Driver Grade II in the revised scale of pay of Rs.3050-5230 with effect from 1.3.1997 was entitled to the first time bound higher grade promotion in the scale of pay of Rs.4000-6090, the first time bound higher grade promotion was sanctioned to him with effect from 1.3.1997 and his pay as on 1.3.1997 was fixed in the minimum of the scale of pay of Rs.4000-6090. The writ petitioner was also sanctioned periodical increments with effect from 1.12.1997. Ext.P3 is the proceedings issued in that regard by the Taluk Supply Officer, Kothamangalam. 6. The grant of first time bound higher grade promotion to the writ petitioner was objected to by the audit party on the ground that the grant of first time bound higher grade promotion in the scale of pay of Rs.4000-6090 is erroneous and that the writ petitioner was eligible for first time bound higher grade promotion only in the scale of pay of Rs.3350-5275. The fixation of the writ petitioner's pay with effect from 1.3.1997 in the scale of pay of Rs.4000-6090 was held to be incorrect. Pursuant to the WA 170/07 -: 6 :- objections raised by the audit party, the Taluk Supply Officer, Kochi where the writ petitioner was then working, issued Ext.P4 proceedings dated 23.11.2000 refixing the writ petitioner's pay and ordered recovery of the excess salary drawn by him. It was also ordered that from the month of November, 2000 onwards, his salary will be claimed and disbursed in the revised scale of pay of Rs.3350-5275 . 7. The writ petitioner thereupon filed O.P.No.35589 of 2000 challenging Ext.P4 mainly on the ground that he was not heard before Ext.P4 was passed. By Ext.P5 judgment delivered on 8.1.2001, this Court quashed Ext.P4 (which was produced and marked as Ext.P3 therein) and directed the Taluk Supply Officer to pass a fresh order after affording the writ petitioner an opportunity of being heard. The Taluk Supply Officer thereafter passed Ext.P6 order dated 25.10.2004 holding that the writ petitioner is entitled to first time bound higher grade promotion in the scale of pay of Rs.3350-5275 only and not in the scale of pay of Rs.4000-6090. The writ petitioner thereupon filed W.P.(C) No.33788 of 2004 in this Court. By Ext.P7 judgment delivered on 25.11.2004 this Court directed the writ petitioner to submit a WA 170/07 -: 7 :- detailed representation before the State Government and further directed the State Government to consider and pass orders thereon. This Court also directed that till the State Government passes orders on the writ petitioner's representation, the recovery proceedings will be kept in abeyance. The writ petitioner thereafter submitted Ext.P8 representation dated 9.12.2004. By Ext.P9 order passed on 29.6.2005 the State Government rejected the writ petitioner's request and held that he is not entitled to first time bound higher grade promotion in the scale of pay of Rs.4000-6090. The State Government also rejected the writ petitioner's contention that his pay has to be fixed applying paragraph 6 of Ext.P1, in the scale of pay of Rs.3350-5275. 8. The writ petitioner challenged Exts.P6 and P9 in W.P.(C) No.22415 of 2005. By judgment delivered on 10.10.2006, the learned Single Judge allowed the Writ Petition, quashed Exts.P6 and P9 and directed the appellants to fix the pay of the writ petitioner in the scale of pay of Rs.4000-6090. It was held that the petitioner is entitled to draw basic pay in the aforesaid pay scale as the first time bound higher grade and that he is not WA 170/07 -: 8 :- liable to refund any amount as directed in Exts.P6 and P9. The learned Single Judge also ordered that the monetary benefits arising out of the directions contained in the judgment shall be granted to the petitioner within two months on the petitioner producing a copy of the judgment. Aggrieved by the judgment of the learned Single Judge, the respondents in the Writ Petition have preferred this Writ Appeal. 9. We heard Sri.N.Manojkumar, the learned Government Pleader appearing for the appellants and Sri.Alexander Joseph, the learned counsel appearing for the respondent. The learned counsel for the appellants contended that the grant of time bound higher grade is governed by paragraph 5 of Ext.P1 and that paragraph 6 of Ext.P1 relied on by the writ petitioner does not confer on him any rights in that regard. The learned counsel for the appellants submitted that paragraph 6 only justifies the reason for revision of pay ordered in Ext.P1 and that the scales of pay of Driver Grade II and certain other categories of government employees was thus revised by Ext.P2. The learned Government Pleader submitted that the combined effect of Exts.P1 and P2 was that the scale of pay of Driver Grade II stood WA 170/07 -: 9 :- revised from Rs.825-1450 (pre-revised) to Rs.3050-5230 which, on the terms of Ext.P1 is the next higher scale of pay immediately above Rs.2750-4625, in which scale Driver Grade II was initially placed as per Ext.P1. The learned Government Pleader submitted relying on paragraph 5(6) of Ext.P1 that as there is a promotion post of Driver Grade I in the revised scale of pay of Rs.3350-5275, a Driver Grade II, can claim first time bound higher grade promotion only in the scale of pay of Rs.3350-5275 and not in the scale of pay of Rs.4000-6090 as contended by the writ petitioner. The learned Government Pleader submitted with reference to Table 1 in paragraph 5 of Ext.P1 that the scale of pay of Driver Grade II (modified as per Ext.P2) is Rs.3050-5230 coming within the aforesaid range and that as per the table the scale of pay of Driver Grade I which is the promotion post of Driver Grade II is Rs.3350-5275 and that the writ petitioner is entitled to first time bound higher grade promotion only in the said scale of pay. It was submitted that it is only if the scale of pay of the promotion post is higher than the first time bound higher grade proposed in Ext.P1 that the petitioner can claim the scale of pay of the promotion post for the WA 170/07 -: 10 :- first time bound higher grade promotion. It was pointed out that in the case on hand the scale of pay of the promotion post which is Driver Grade I, is only Rs.3350-5275, that it is not higher than the time bound higher grade proposed in Ext.P1 and therefore the writ petitioner is not entitled to time bound higher grade promotion in the scale of pay of Rs.4000-6090 as claimed by him. 10. Per contra, Sri.Alexander Joseph, the learned counsel for the respondent - writ petitioner reiterated his contentions and submitted that paragraph 6 of Ext.P1 is intended to grant additional benefit of higher pay and therefore the scale of pay of Driver Grade II should be reckoned as Rs.3350-5275 and on that basis, the writ petitioner is entitled to first time bound higher grade promotion in the scale of pay of Rs.4000-6090. 11. We have considered the submissions made at the Bar. In our considered opinion, the claim of the writ petitioner is plainly untenable. Paragraph 6 of Ext.P1 no doubt states that with a view to improve the pay scales of certain categories of non-clerical technical staff, the government have decided to increase their scales of pay to the next higher scale at the entry WA 170/07 -: 11 :- level. It is also stated that the changes in the scales made accordingly in respect of certain categories are shown against the designation in Annexure-II. From Annexure-II, it is seen that the scale of pay of Driver Grade II stood revised from Rs.825-1450 to Rs.2750-4625 while that of Driver Grade I stood revised from Rs.1050-1660 to Rs.3350-5275. By Ext.P2, the scale of pay of Driver Grade II was again revised to Rs.3050-5230. Therefore, the claim of the writ petitioner based on paragraph 6 to have his pay fixed in the scale of pay of Rs.3350-5275 (which is the revised scale of pay of Driver Grade I sanctioned as per Ext.P1) is plainly untenable. We are not persuaded to agree with the reasoning of the learned Single Judge that the writ petitioner was entitled to have his pay sanctioned as per Ext.P1 (Rs.2750-4625) enhanced to Rs.3350-5275, the scale of pay of Driver Grade I. The learned Single Judge has in our opinion failed to take note of the modification in the scale of pay of Driver Grade II, made as per Ext.P2 whereby the scale of pay of Driver Grade II was revised from Rs.2750-4625 to Rs.3050-5230. If as held by the learned Single Judge, paragraph 6 of Ext.P1 entitles a Driver Grade II to have the same scale of pay as Driver Grade I WA 170/07 -: 12 :- (Rs.3350-5275) it will lead to an anomalous situation where Driver Grade I and Driver Grade II will be in the same scale of pay. One cannot overlook the fact that Driver Grade I is a promotion post for Driver Grade II. That being the position, the time first bound higher grade promotion can be granted to the writ petitioner only in terms of the provisions contained in paragraph 5 of Ext.P1 and applying the table therein. 12. From paragraph 5 of Ext.P1, it is evident that first time bound higher grade to employees placed in the scale of pay of Rs.3050-5230 can be sanctioned only in the scale of pay of Rs.3350-5275. Persons like the writ petitioner would be entitled on the terms of Ext.P1, to a second time bound higher grade in the scale of pay of Rs.4000-6090 and a third time bound higher grade, if they are eligible, in the scale of pay of Rs.4600-7125. As rightly contended by the learned Government Pleader, it is only if the scale of pay of the promotion post (in the case on hand, Driver Grade I) is higher than the time bound higher grade proposed in paragraph 5 of Ext.P1, that a Driver Grade II will be given the scale of pay of the promotion post in the direct line of promotion, as time bound higher grade. It is crystal clear from WA 170/07 -: 13 :- Ext.P1 that the scale of pay of Driver Grade I is only Rs.3350- 5275. The petitioner has no case and the learned Single Judge has also not held that the scale of pay of Driver Grade I is Rs.4000-6090. Therefore, the writ petitioner cannot, on the terms of Ext.P1, claim or be granted first time bound higher grade promotion in the scale of pay of Rs.4000-6090. On the other hand, the writ petitioner is entitled to first time bound higher grade promotion in the post of Driver Grade II only in the scale of pay of Rs.3350-5275 which is in fact, the scale of pay of the promotion post, namely, Driver Grade I. 13. In the instant case, the scale of pay of the promotion post is not higher than the time bound higher grade proposed in paragraph 5 of Ext.P1 and therefore the claim of the writ petitioner, found in his favour by the learned Single Judge is plainly untenable. In our opinion, the stand taken by the appellants in Exts.P6 and P9 cannot be faulted. Paragraph 6 of Ext.P1 does not confer on the petitioner any right to claim higher pay than what is sanctioned under Ext.P1 as modified by Ext.P2. We accordingly hold that the writ petitioner is not entitled to the benefit of fixation of pay as in Ext.P3. We therefore set aside the WA 170/07 -: 14 :- judgment of the learned Single Judge and dismiss W.P.(C) No.22415 of 2005. 14. After the arguments were concluded, the learned counsel for the writ petitioner submitted that the writ petitioner has not been given the second time bound higher grade promotion on completion of 18 years of service and that his retirement benefits have also not been disbursed. We make it clear that the dismissal of the Writ Petition will not stand in the way of the writ petitioner claiming second time bound higher grade promotion in terms of Ext.P1 or subsequent government orders regarding grant of higher grade, if he is eligible for the same. We also make it clear that such higher grade if not already granted, shall be granted expeditiously and in any case within three months from the date of receipt of a copy of this judgment. We also direct the appellants to take steps to fix and pay the retirement benefits payable to the writ petitioner within the said period. Needless to say, the appellants will be entitled to deduct the excess payments made to the writ petitioner pursuant to the fixation in Ext.P3, from the retirement benefits payable to him or the money payable to him on the grant of WA 170/07 -: 15 :- second time bound higher grade promotion on completion of 18 years of service. The Writ Appeal is allowed as above. No costs. J.B.Koshy, Judge. P.N.Ravindran, Judge. ess 28/5