IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 10TH FEBRUARY 2010 / 21ST MAGHA 1931 WA.No. 1676 of 2009() --------------------- AGAINST THE JUDGEMENT IN OP.24371/2001 Dated 18/02/2009 .................... APPELLANT(S)/RESPONDENTS: -------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA, REVENUE (T) DEPARTMENT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF LAND REVENUE, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, KASARAGOD. BY SPL.GOVERNMENT PLEADER SRI.N.MANOJ KUMAR RESPONDENT(S): --------------- K.K.NARAYANAN, UPPER DIVISION CLERK, REVENUE DIVISIONAL OFFICE, KASARAGOD AT KANHANGAD, P.O.KANHANGAD. BY ADV.SRI.P.V.MOHANAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------- W.A.No.1676 of 2009 ---------------------------------------- Dated 10th February, 2010 JUDGMENT Balakrishnan Nair, J. The respondents in the Writ Petition are the appellants. The respondent herein was the writ petitioner. The brief facts of the case are as follows. The respondent joined the Revenue Department in Kasaragod District as L.D.Typist on 16.5.1985. He was promoted as U.D.Typist with effect from 28.5.1987. He obtained change of category as U.D. Clerk and joined that post on 5.9.1996. The scale of pay of U.D.Typist and U.D.Clerk was Rs.1200-2040. While so, the Government issued an order providing for grade promotion to Typists in the ratio 1:1:2:2 between Selection Grade Typist, Senior Grade Typist, Upper Division Typist and Lower Division Typist. The said order was to take effect from 1.4.1996. As per that ratio, as on 1.4.1996, the respondent was working as U.D.Typist and therefore, he was given grade promotion as Senior Grade Typist for the period from 1.4.1996 to 31.8.1996. In fact, all along he continued as U.D.Typist at the relevant period. But, this ratio promotion was given notionally and with effect from 1.9.1996, he was treated as reverted to the scale of pay of U.D.Clerk. But, his pay was protected. W.A.No.1676/2009 2 2. In the light of the pay revision order issued in 1993, with effect from 1.3.1992, he was entitled to get grade promotion. He claimed grade promotion on completion of 10 years' service in the cadre of U.D.Typist/U.D.Clerk, that is with effect from 28.5.1997. The prayer for grade promotion was granted with effect from 25.10.1997, on completion of 10 years' service, excluding the period he notionally worked as Senior Grade Typist. He repeatedly represented the matter and finally when the matter reached the Government, the Government by Ext.P18 order took the objection that the petitioner is ineligible for grant of higher grade as he obtained two levels of promotion and Rule 28A fixation twice. Confronted with that position and on his representations against Ext.P18 being unsuccessful, he filed Ext.P25 representation to cancel the ratio promotion given to him as Senior Grade Typist. The said representation was rejected by Ext.P27. Challenging Ext.P27 and another adverse order, this writ petition was filed. 3. The appellants/respondents resisted the prayers in the writ petition by filing a counter affidavit. They stuck to the stand that since the respondent/writ petitioner has obtained two levels of promotion, he cannot claim grade promotion also. This submission was made mainly relying on paragraph 4 (i) of G.O.(P)No.930/9(2)/ Fin. dated 8.12.1993. The relevant portion of the said paragraph W.A.No.1676/2009 3 reads as follows: “4.(i) The term `entry post' shall be defined as the post to which an employee is initially appointed in Government service by direct recruitment by the Competent Authority. Appointments by transfer will also be treated as equivalent to direct recruitment for allowing the benefit of higher grade. The time bound grade/grades admissible will be determined with reference to this initial entry post only. 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.” Those who got regular promotion or appointment to higher post, within the period specified for each time bound higher grade, will not be granted further time bound higher grade during that period. But, the learned Single Judge overruled the said contentions, allowed the writ petition and ordered to grant higher grade with effect from 28.5.1997. Feeling aggrieved by the said direction, this Writ Appeal is preferred by the appellants. 4. We heard the learned counsel on both sides. The learned Government Pleader brought to our notice the above quoted provision of G.O.(P)No.930/93/(2)/Fin. dated 8.12.1993 and also took us through Clause (xii) of paragraph 4 of the aforementioned order. Those who relinquished or relinquish regular promotions will not be given time bound higher grades, as at present. It is pointed out that the respondent was promoted as U.D.Typist and thereafter as Senior Grade Typist. So, he is ineligible for further grade promotion. If he W.A.No.1676/2009 4 relinquishes the promotion, then also he is ineligible for grade promotion. In any view of the matter, the orders issued by the Government impugned in the writ petition are sustainable. The learned counsel for the respondent supported the judgment of the learned Single Judge and submitted that no interference was called for having regard to the facts of this case. 5. It is not in dispute that if the respondent continued in the grade of U.D.Typist/U.D.Clerk for 10 years, he would have got grade promotion. The same is being denied for the reason that he got ratio promotion as Senior Grade Typist. A person who normally earns promotion, cannot claim grade promotion also, over and above what he got by way of regular promotion. So, there is substance in the claim of the appellants that since the respondent was already promoted as U.D.Typist/U.D.Clerk and thereafter as Senior Grade Typist, he is not eligible for further grade promotion. But, we think, his application (Ext.P25) should be allowed. He is entitled to relinquish the promotion benefits under Rule 38 of Part II of the Kerala State and Subordinate Services Rules. The contention that a person who declined to accept promotion is ineligible for grade promotion has no application to the facts of this case. If the respondent is promoted as Head Clerk or Village Officer or Revenue Inspector and he refused to accept that promotion, then he may not be justified in claiming W.A.No.1676/2009 5 grade promotion. In this case, the respondent/writ petitioner does not have any plan to go in the line of promotion available to Typists. He is claiming vertical promotion from the post of U.D.Clerk only. In view of the above special facts of this case, we order that the representation of the respondent/writ petitioner to relinquish the promotion, he got under Ext.P5, to the post of Senior Grade Typist, shall be allowed. Any benefits he got from that promotion shall also be withdrawn. Thereafter, he would be treated as having continued in the grade of U.D.Typist/U.D.Clerk from 28.5.1987 and he can be granted grade promotion, on completion of 10 years service, from that date, that is with effect from 28.5.1997. The competent authority among the appellants is directed to pass fresh orders in the matter, in the light of the directions in this judgment, within three months from the date of receipt/production of a copy of this judgment. Writ Appeal is disposed of as above. K.BALAKRISHNAN NAIR Judge P.N.RAVINDRAN Judge TKS