IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 1ST DECEMBER 2009 / 10TH AGRAHAYANA 1931 WP(C).No. 4651 of 2008(D) -------------------------------------- PETITIONER(S): ------------------------ M.M.VARKEY,LIBRARIAN GRADE IV, AL-AMEEN COLLEGE, EDATHALA,ERNAKULAM DIST. BY ADV. MR.ELVIN PETER P.J. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARAIT,THIRUVANANTHAPURAM. 3. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 4. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM. 5. THE MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, KOTTAYAM. 6. THE PRINCIPAL, AL-AMEEN COLLEGE, EDATHALA, ERNAKULAM DIST. R1 TO R4 BY GOVERNMENT PLEADER MR.N.MANOJKUMAR R5 BY ADV. MR. T.A. SHAJI, SC, M.G.UNIVERSITY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.4651/2008 D APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER G.O. DTD. 23/03/1971 ISSUED BY THE GOVT. P2: COPY OF THE ORDER G.O. DTD. 31/03/1971 ISSUEDBYTHEGOVT. P3: COPY OF B.A.DEGREE CERTIFICATE OF THE PETITIONER. P4: COPY OF THE CERTIFICATE OF DEGREE IN LIBRARY SCIENCE. P5: COPY OF THE ORDER DTD. 5/09/97 ALONG WITH THE STATEMENT OF PAY FIXATION ISSUED BY THE 4TH RESPONDENT. P6: COPY OF THE KERALA COMMON POOL LIBRARY SUBORDINATE SERVICE RULES, ISSUED AS PER NOTIFICATION, G.O. DTD. 26/08/2003. P7: COPY OF THE OBJECTION RAISED BY THE ACCOUNTANT GENERAL. P8: COPY OF THE REPLY SUBMITTED BY THE PRINCIPAL, AL-AMEEN COLLEGE. P9: COPY OF THE COMMUNICATION DTD. 18/07/2002 ISSUED BY THE ACCOUNTANT GENERAL. P10: COPY OF THE ORDER DTD. 24/05/2007 ISSUED BY THE 4TH RESPONDENT. P11: COPY OF THE COMMUNICATION DTD. 10/09/2007 ISSUED BY THE 3RD RESPONDENT. P12: COPY OF THE ORDER DTD. 11/01/2008 ISSUED BY THE 3RD RESPONDENT. P13: COPY OF THE ORDER G.O. DTD. 19TH JUNE, 2007 ISSUED BY THE GOVT. P14: COPY OF THE ORDER, G.O.DTD.25/11/98 ISSUED BY THE GOVERNMENT. P15: COPY OF THE ORDER DTD. 2/03/2005 ISSUED BY THE MANAGER ALONG WITH THE PAY FIXATION STATEMENT. Kss ..2/- .2. WPC.NO.4651/2008 D P16: COPY OF THE RELEVANT PAGES OF THE ORDER DTD. 25/03/2006 ISSUED BY THE GOVERNMENT. P17: COPY OF THE ORDER DTD. 30/08/2005 ISSUED BY THE PRINCIPAL OF GOVT.COLLEGE, MANIMALAKKUNNU. P18: COPY OF THE COMMUNICATION DTD.2/2/2008 SENT BY THE 4TH RESPONDENT TO THE 6TH RESPONDENT. P19: COPY OF THE JUDGMENT DTD. 6/02/2008 IN O.P.NO.32509/2001 OF THIS HON'BLE COURT. P20: COPY OF THE JUDGMENT DTD. 30/07/2009 IN W.A.NO.1312/2008 OF THIS HON'BLE COURT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.4651 OF 2008 --------------------------------------- Dated this the 1st day of December, 2009. J U D G M E N T The petitioner, who is working as Librarian Grade-IV in the Al-Ameen College, is aggrieved by the denial of the second Higher Grade on completion of 16 years of service with effect from 01.07.2004. The main prayer in the writ petition is to quash Exhibits P10 and P12 orders. 2. Learned counsel for the petitioner submitted that in an identical case, this Court as per Exhibit P19 judgment recognised the rights of persons like the petitioner and therefore, the same yardstick can be applied in the case of the petitioner. Exhibit P20 is the judgment rendered in Writ Appeal No.1312/2008 from Exhibit P19 judgment. 3. Learned Government Pleader submitted that the observations of the Division Bench in paragraph 5 of the judgment in the Writ Appeal will have to be made applicable to the petitioner. In Exhibit P19 judgment, the relevant question W.P.(C) No.4651/2008 2 was considered in paragraph 6. It was held thus in paragraph 6: “.....The issue revolves on the question of application of the last sentence in Clause (viii) quoted above, ie as to whether when there is no promotion post of Gr.I in the petitioner’s College he can aspire for the higher grade in the scale of pay applicable to Instructor Gr.I. I am of opinion that the petitioner can. The pay revision order has been issued not with each College in contemplation. The same is issued for the entire service as per the special rules. It is not disputed before me that University Statutes applicable to the employees of private Engineering Colleges contains a post of Instructor Grade I which is a promotion post for Instructor Gr.II. Of course the M.A. Engineering College does not have the post of Instructor Gr.I as per the staff pattern fixed for the College. According to me that fact does not take away the right of the petitioner to get the higher scale of pay applicable to Instructor Gr.I as higher grade, simply because the College does not have a Gr.I post. According to me, the words ‘in cases where there are no promotion posts’ is applicable only to cases where there are no posts to which a particular employee can be promoted at all. It is quite possible that the M.A. College of Engineering may get a Gr.I post in future, if the conditions for the same are satisfied. Therefore the interpretation as above would be the W.P.(C) No.4651/2008 3 more correct interpretation in the facts and circumstances of the case. Further a different interpretation would result in discrimination since in other Colleges and in other departments of MA College itself where there is a post of Gr.I Instructor sanctioned, similarly situated Instructors Gr.II would be getting higher scale of pay than the petitioner. As such, the petitioner has become entitled to 10 years' higher grade in the scale of pay applicable to Instructors Gr.I in accordance with the 1985 pay revision and corresponding revised scale of pay in accordance with subsequent pay revisions.....” 4. In the light of the above dictum, the plea raised by the petitioner herein is liable to be accepted. In paragraph 5 of Exhibit P20 judgment in Writ Appeal, it was held that the view taken by the learned Single Judge is not illegal or otherwise unsupportable in law warranting interference by the Appellate Bench. The Bench issued a further clarification in paragraph 5 as follows: “.....But, if the grant of Higher Grade in other Colleges was only isolated incidents and the Government proposes to correct the same also in tune with the view canvassed by the Government in this appeal, they may do so, after affording an opportunity of being heard to the affected persons. W.P.(C) No.4651/2008 4 If such a decision is proposed to be taken, the judgment of the learned Single Judge will not stand in the way of the Government doing that....”. Therefore, this writ petition is allowed. Exhibits P10 and P12 are quashed. There will be a direction to grant the benefit of Higher Grade namely, second Higher Grade to the petitioner on completion of 16 years of service in the scale of pay of Librarian Grade-II with effect from 01.07.2004. Appropriate orders shall be passed within a period of three months from the date of receipt of a copy of this judgment. The same will be subject to paragraph 5 of Exhibit P20 judgment of the Division Bench. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp