IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE T.R. RAMACHANDRAN NAIR FRIDAY, THE 23RD DAY OF DECEMBER 2011/2ND POUSHA 1933 WPC.No. 1523 of 2011 (M) ==================== PETITIONERS:- 1. GOPAKUMAR J.K., INSTRUCTOR GRADE-II (HG), DEPARTMENT OF CIVIL ENGINEERING, N.S.S.COLLEGE OF ENGINEERIN, PALAKKAD. 2. WAHEEDA WAHAB, INSTRUCTOR GRADE-II (HG), DEPARTMENT OF CIVIL ENGINEERING, T.K.M. COLLEGE OF ENGINEERING, KOLLA. PIN - 691 005. BY ADVS. SRI. S.P. ARAVINDAKSHAN PILLAY SMT. N. SANTHA SRI. PETER JOSE CHRISTO SRI. S.A. ANAND RESPONDENTS:- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. PIN - 695 001. 2. THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURA, PIN - 695 001. 3. JOINT DIRECTOR, REGIONAL DIRECTORATE OF TECHNICAL EDUCATION, KOZHIKODE, PIN - 673 001. BY GOVERNMENT PLEADER SMT. NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SP WPC.No. 1523 of 2011 (M) APPENDIX PETITIONERS' EXHIBITS:- 1. EXT. P1 - COPY OF THE ORDER NO:A3/3200/2004/RDTEC DATED 24/01/2004 OF THE 3RD RESPONDENT. 2. EXT. P2 - COPY OF THE ORDER NO: DP2/29348/2005 DATED 03/02/2006 OF THE 2ND RESPONDENT. 3. EXT. P3 - COPY OF THE G.O.(P) NO:3000/98/FIN. DATED 25/11/1998. 4. EXT. P4 - COPY OF THE JUDGMENT DATED 06/02/2008 OF THE HON'BLE HIGH COURT OF KERALA IN OP. NO: 32509/2001. 5. EXT. P5 - COPY OF THE JUDGMENT DATED 30/07/2009 IN W.A. NO: 1312/2008 OF THE HON'BLE HIGH COURT OF KERALA. 6. EXT. P6 - COPY OF THE G.O.(RT) NO: 1705/10/H.EDN. DATED 28/08/2010. 7. EXT. P7 - COPY OF THE LETTER NO:L1/8/2003/L. DIS. DATED 23/04/2003 OF THE 2ND RESPONDENT. 8. EXT. P8 - COPY OF THE GOVERNMENT LETTER NO:24430/J2/97/H.EDN. DATED 01/08/1998. 9. EXT. P9 - COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT ON 20/09/2010. 10. EXT. P10 - COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT ON 22/11/2010. 11. EXT. P11 - COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT ON 01/01/2011. 12. EXT. P12 - COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER. 13. EXT. P13 - COPY OF HE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER. 14. EXT. P14 - COPY OF THE JUDGMENT IN WP(C) NO: 3019/2011-B OF THE HONOURABLE HIGH COURT OF KERALA. RESPONDENTS' EXHIBITS:- NIL //TRUE COPY// P.A TO JUDGE. SP T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 1523 of 2011-M - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of December, 2011. JUDGMENT The petitioners seek to sustain the higher grade granted to them originally but was sought to be cancelled by the Government later. The facts of the case show that the petitioners entered service as Instructors Grade II in the Department of Civil Engineering in the respective Engineering Colleges (aided). The said post is the feeder category for promotion to the post of Instructor Grade I. But the post of Instructor Grade I has not been sanctioned in the Department of Civil Engineering in the respective Colleges wherein the petitioners are working and that is available in the other departments of the concerned Colleges. The qualification for the post of Instructor Grade I is a Degree in Engineering, both in Government Engineering Colleges and Aided Engineering Colleges. The petitioners possess B.Tech. degree and thus are qualified for appointment to the post of Instructor Grade I. Accordingly, they were granted higher grade on 24.1.2004 and 3.2.2006 respectively as per Exts.P1 and P2 orders on completion of ten years of service. Ext.P3 is the pay revision order dated 25.11.1998 which entitles the petitioners for the WPC.1523/2011 2 grant of higher grade. 2. The challenge is against Ext.P6, whereby the Government took the view that the grant of time bound higher grade is irregular in the absence of sanction of post in the concerned department. 3. Heard learned counsel for the petitioners and learned Government Pleader. 4. Learned counsel for the petitioners submitted that this Court considered a similar issue in Ext.P4 judgment which was upheld by the Division Bench in Ext.P5. Therein, the petitioner was an Instructor Grade II (Civil Engineering) in M.A. College of Engineering, Kothamangalam. This Court took the view that absence of the post of Instructor Grade I in the College will not take away the right of the petitioner. The Division Bench, after upholding the judgment of the learned Single Judge, gave liberty to the Government to correct the mistake, if any, untrammelled by the observations in Ext.P4 judgment. Thereafter, a hearing was conducted and the first petitioner also attended the same. 5. In the counter affidavit filed by the first respondent, the contention raised is that in the Kerala Technical Education Service Special Rules issued as per G.O.(P) No.261/89/H.Edn. dated 19.12.1989 the Instructor Grade II is not a feeder category of Instructor Grade I and the method of appointment prescribed for the post of Instructor Grade I is “By WPC.1523/2011 3 transfer appointment of Kerala Subordinate Service” and thus it is not a promotion post. Accordingly, it is contended that higher grade of 10 years' service granted to them is not in order. 6. Learned counsel for the petitioners invited my attention to a later judgment of this Court (rendered by me) in W.P.(C) No.3019/2011 which is produced as Ext.P14. Therein, the same question was addressed in respect of a similarly placed Instructor Grade II in the College wherein the first petitioner is working. 7. First I will consider the plea that the post of Instructor Grade I has to be filled up by transfer. Evidently, the said contention is not open to the first respondent, in the light of the finding in para 4 of Ext.P5 judgment. Therein, it was explained thus: “In every College, where there is a post of Instructor Grade-I, which is the promotion post of Instructor Grade II, undisputed the incumbent working as Instructor Grade II is entitled to get the scale of pay of the post of Instructor Grade-I, as First Higher Grade. Though the respondents have a case that the method of appointment to the post of Instructor Grade-I is by transfer, the same does not make any difference, as far as the grant of Higher Grade is concerned.” Therefore, merely because the appointment is by transfer, the Bench was of the view that it will not make any difference. Hence, the said contention falls to the ground. The next one is regarding the applicability of Technical WPC.1523/2011 4 Education Service and Special Rules. Obviously, the colleges wherein the petitioners are working are aided colleges and not under the Government sector. This Court noticed in Ext.P14 judgment that the post of Instructor Grade I is provided under the relevant University regulations and the post has been sanctioned to the College in question by Ext.P4 order produced therein. Accordingly, it was held that the contention of the respondents that it is the Special Rules for Kerala Technical Education Service that will apply, cannot be accepted. It was held that the University regulations will govern the matter which provides filling up of the post of Instructor Grade I by promotion from the category of Grade II Instructor. Therefore, all the issues are covered in favour of the petitioners, by these judgments. 8. In that view of the matter, the writ petition is allowed. Ext.P6 is quashed. There will be a declaration that the petitioners will be entitled for the benefits in terms of Exts.P1 and P2 and the subsequent revisions based on them. Appropriate benefits will be sanctioned and disbursed to them within a period of two months from the date of receipt of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) kav/