IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 10TH FEBRUARY 2011 / 21ST MAGHA 1932 WP(C).No. 6290 of 2008(W) ------------------------- PETITIONER(S): --------------- C.DAMODARAN, CHERASSERY HOUSE, MANAKADAVU, PANTHEERAN KAVU P.O., OLAVANNA VILLAGE, KOZHIKODE, NOW RESIDING AT CHERASSERY HOUSE, POIKKATTUSSERY, CHENGAMANADU PO, ALUVA-683 578. BY ADV. SRI.K.A.JALEEL RESPONDENT(S): --------------- 1. THE SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR, DIRECTORATE OF PORTS, THIRUVANANTHAPURAM-10. 3. THE PORT OFFICER, PORT OFFICE, CALICUT-32. GOVERNMENT PLEADER SMT.SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 6290/2008 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE MEMO DTD.30.11.82. P2. COPY OF THE ORDER DTD.27.3.92 BY R2. P3. COPY OF THE PETITION DTD.25.7.97 TO R1. P4. COPY OF THE ORDER DTD.1.12.97 BY R1. P5. COPY OF THE ORDER DTD.9.2.88 BY R2. P6. COPY OF THE JUDGMENT IN O.P.No. 4507/1998 OF THIS COURT. P7. COPY OF THE JUDGMENT IN W.A.NO.1225/05 OF THIS COURT. P8. COPY OF THE ORDER DTD.18.9.06 BY R3. P9. COPY OF THE REPLY DTD.18.1.07. P10. COPY OF THE ORDER DTD.19.9.07 BY R1. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 6290 of 2008 ================== Dated this the 10th day of February, 2011 J U D G M E N T The petitioner entered service of the Department of Ports of the Government of Kerala as a Seaman in the office of the 3rd respondent on 12.4.1971. On 1.12.1982, he was appointed as an Assistant Crane Driver by recruitment by transfer in the same office in a higher scale of pay. He continued as an Assistant Crane Driver till his retirement on 30.6.1996. The petitioner was sanctioned 20 years' higher grade with effect from 1.7.1991 considering his total service as Seaman and Assistant Crane Driver. The petitioner claimed 25 years' higher grade also accordingly. The same was declined to the petitioner on the ground that the service as a Seaman cannot be considered for higher grade since the appointment as Assistant Crane Driver was by transfer and not by promotion. The petitioner filed O.P.No.19901/1997 before this Court and obtained an order to consider the petitioner's representation. That representation was rejected by Ext.P4 order. Subsequently, on 9.2.1998, by Ext.P5 order, 20 years' higher grade sanctioned was also cancelled. Aggrieved by Exts.P4 and P5 orders, the petitioner filed O.P.No. 4507/1998 and a learned Single Judge of this Court, by Ext.P6 judgment, allowed the prayers of the petitioner. Against Ext.P6, the State filed W.A.No.1225/2005, in which, by Ext.P7 judgment, Ext.P6 judgment was set aside and the petitioner was w.p.c.6290/08 2 directed to approach the 1st respondent for appropriate reliefs in accordance with the observations in the judgment. Pursuant thereto, the petitioner filed a representation before the 1st respondent and, after considering the same, the 1st respondent passed Ext.P8 order, whereby the retirement benefits of the petitioner were revised notionally treating him as continuing in the post of Seaman and granting the petitioner 20 years' and 25 years' grade on that basis. The petitioner filed this writ petition aggrieved by the said order on the ground that the petitioner should have been given 25 years' higher grade as applicable to Assistant Crane Driver and should have been granted retirement benefits also with arrears of salary as well on that basis. The petitioner seeks the following reliefs; “i. Call for the records leading to exhibits P8, P9 and P10 and issue a writ of certiorari or any other appropriate writ, order or direction, quashing the same; ii. issue a writ of mandamus or any other appropriate writ, order or direction, directing the 1st respondent to sanction the benefit of higher grade by refixing the pay from time to time and disburse the arrears with retrospective effect, to the petitioner forthwith.' 2. The learned Government Pleader, with the help of the counter affidavit filed on behalf of the 1st respondent, disputes the claims of the petitioner. According to him, the issue is finally settled by Ext.P7 judgment, wherein the Division Bench has categorically held that the petitioner cannot claim time bound higher grade promotion reckoning the service in another scale of pay. It is further submitted w.p.c.6290/08 3 that Ext.P8 order was passed in terms of the order of the Government dated 20.3.2006, which is referred to in Ext.P8 order. He has also favoured me with a copy of that order. 3. I have considered the rival contentions in detail. 4. Ext.P7 judgment reads thus: “Writ appeal is at the instance of the respondents is directed against the judgment dated 2.3.2005 in O.P.No. 4507/98. The issue pertains to the claim for time bound higher grade. It is seen that the appointment by transfer from seaman to the post of Assistant Crane Driver in 1982, though lucrative at that time, ultimately turned out to be prejudicial to the writ petitioner. In the subsequent pay revision, the post of seaman had a higher scale of pay than that of the Assistant Crane Driver. So much so, when the petitioner retired in 1996, the post of Assistant Crane Driver had a scale of pay 800-1300 whereas the scale of pay of seaman was 825-1450. The compeers and juniors, who continued in the post of seaman, if retired along with the petitioner would be drawing higher pay and pension and naturally higher persionary benefits too. We find that there is reason for grievance to the writ petitioner. But that grievance cannot be set right by permitting the petitioner to avail a time bound higher grade promotion, reckoning the service in another scale of pay. The learned counsel for the petitioner, inviting reference to the Government Order, G.O(P) No.622/03/Fin. dated, 26th November, 2003 submits that the Government is aware of this anomaly and has ordered as follows: “It is further clarified that 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.” 2. Learned Special Government Pleader, however, submits that the post of Assistant Crane Driver is not in the direct line of promotion from the post of Seaman and hence the Government order will not apply. The learned Special government Pleader may be right. But on principle, it is fairly clear that Government wanted to set right the glaring injustice in the case of erstwhile juniors/compeers drawing a higher pay than a person who went for career advancement by obtaining by obtaining appointment by transfer to another service which service, at the relevant time was attractive in terms of scale of pay. Thus, the case of the petitioner deserves to be looked into by the Government, setting right this anomaly resulting in serious prejudice and injustice to the petitioner. w.p.c.6290/08 4 In the above circumstances, we allow this writ appeal set aside the judgment of the learned single judge, making it clear that in case the petitioner approaches the 1st respondent within a period of one month from today, the matter shall be considered by the 1st respondent and appropriate action shall be taken thereon, in accordance with law and justice for redressing the grievance of the petitioner in the light of the observations contained in this judgment, within another four months.' That shows that the Division Bench has categorically held that the grievance of the petitioner cannot be set right by permitting the petitioner to avail of a time bound higher grade promotion reckoning the service in another scale of pay, meaning thereby that the petitioner cannot claim 25 years' time bound higher grade as applicable to Assistant Crane Driver. That judgment has become final and I am also bound by that judgment, whether it is right or wrong. According to me, in view of that inter-parte decision, the Government has done the next better thing to help the petitioner by granting him retirement benefits after notionally considering him as having continued as a Seaman in order to enable the Government to grant the petitioner 25 years' higher grade also. According to me, the impugned order is the only order the Government could have passed in view of Ext.P7 judgment and it is actually in favour of the petitioner. In view of the above findings, 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 w.p.c.6290/08 5