IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 27TH JANUARY 2009 / 7TH MAGHA 1930 WP(C).No. 1317 of 2009(F) PETITIONER: ANILKUMAR P.R.S/O.RAMAN NAIR, PRACKEL PUTHENPURA, ELENGAVAM, VARAPETTY P.O. KOTHAMANGALAM (PEON, NSS HIGHER SECONDARY SCHOOL VARAPETTY, KOTHAMANGALAM) BY ADV. SRI.S.SUBHASH CHAND RESPONDENTS: 1. STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, KOTHAMANGALAM. 4. THE GENERAL MANAGER & INSPECTOR, NSS SCHOOLS, PERUNNAI P.O. CHANGANASSERY. SENIOR GOVERNMENT PLEADER SRI.A.J.VARGHESE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 1317 OF 2009 F ------------------------------------------------------ Dated this the 27th January, 2009 JUDGMENT The petitioner is working as Peon in N.S.S.Higher Secondary School, Varapetty, Kothamangalam. He was appointed as Full Time Menial in the School on 28.6.1994. The appointment of the petitioner as Full Time Menial was approved by Ext.P1 order. It is stated that a regular vacancy of Peon arose in the School and the petitioner was promoted and appointed as Peon with effect from 18.1.2000 onwards, as per Ext.P2 order of appointment, which was approved by the District Educational Officer. 2. The petitioner claims that he is entitled to get one advance increment as per paragraph 47 of the 1996-97 Pay Revision. It is stated that the scale of pay of the post of Full Time Menial and that of the Peon is identical. The claim for advance increment was rejected by the District Educational Officer as per Ext.P3 order. As per Ext.P4 order dated 29.10.2002, the Director of Public Instruction dismissed the appeal filed by the petitioner against Ext.P3 order. It is submitted that the petitioner has filed a Revision Petition dated 30.9.2004 to the Government (Ext.P5 (a)), which was forwarded through proper channel, as evidenced by W.P.(C) NO. 1317 OF 2009 :: 2 :: Ext.P5. Finding no response to Ext.P5(a) Revision, the petitioner submitted Ext.P10 representation dated 22.12.2008 to the Principal Secretary to the Government, General Education Department. In Ext.P10, reference is made to the orders passed by the District Educational Officer and the Director of Public Instruction and also about the Revision filed by the petitioner on 30.9.2004 to the Government. 3. The reason for rejection of the claim for increment is that the post of Full Time Menial is not a feeder category to the post of Peon and that appointment of a Full Time Menial as Peon does not involve a promotion. Such a view taken in Ext.P3 and Ext.P4 is contrary to the decision in P.Sasikumar v. State of Kerala and others (2008 (4) KLT 35 = 2008 (4) KHC 32). The petitioner has produced a copy of the said judgment as Ext.P6 along with the Writ Petition. 4. Learned counsel for the petitioner submits that in view of the decision in 2008 (4) KLT 35, the Revision filed by the petitioner is liable to be allowed. 5. The reliefs prayed for in the Writ Petition are the following: “(i) To issue a writ in the nature of mandamus or any other appropriate writ or order directing respondent Nos.1 to 3 to sanction and grant advance increment W.P.(C) NO. 1317 OF 2009 :: 3 :: legally due to the petitioner on his appointment/ promotion from the post of full time menial to the post of Peon as per Ext.P2 order under paragraph 47 of the pay revision order vide GO(P) No.3000/98/ Fin dated 25/11/1998 within such time as this Hon'ble Court may deem fit and proper in the interest of justice; (ii) To issue a writ in the nature of certiorari or any other appropriate writ or order quashing Ext.P3 & P4 orders passed by respondent No.3 & 2 respectively; (iii) To issue a declaration that the petitioner is entitled to one advance increment on his appointment as peon as per as per Ext.P2 order from the feeder category post of full time menial under paragraph 47 of 1996- 97 pay revision order in the light of the provisions contained in Rule 1 Chapter XXIVA KER and Exts.P6, P7 and P9 judgments passed by this Hon'ble Court; (iv) To issue a writ in the nature of mandamus or any other appropriate writ or order directing respondent No.1 consider and pass final orders on Exts.P5(A) and P10 petitions submitted by the petitioner with notice and opportunity of hearing to the petitioner, within such time as this Hon'ble Court may deem fit and proper in the interest of justice; and (v) To mould and grant such other reliefs, as this Hon'ble Court shall deem just and proper in the interest of justice, including costs.” 6. Learned counsel for the petitioner submits that for the present, the Writ Petition can be disposed of with a direction to the first respondent to dispose of Ext.P5(a) Revision and P10 representation expeditiously, leaving open the right of the petitioner to put forward the other contentions at the appropriate stage. Learned Government Pleader submitted that there is no evidence to indicate that Ext.P5(a) Revision was submitted to W.P.(C) NO. 1317 OF 2009 :: 4 :: the first respondent and that the petitioner has to produce acceptable evidence to show that Ext.P5(a) Revision was filed. Learned counsel for the petitioner pointed out that Ext.P5 covering letter would indicate that the Revision was forwarded by the Principal to the District Educational Officer. Ext.P5 shows the number of the communication as well. In Ext.P10 representation, the petitioner has referred to Ext.P5(a) Revision filed by him and has produced the same as Annexure 5(a). Learned counsel for the petitioner submitted that even if Ext.P5(a) Revision is not found in the office of the first respondent, in view of the legal position as stated in 2008 (4) KLT 35, it is only just and proper to grant the relief to the petitioner, the petitioner being a person in the last grade service. In the facts and circumstances of the case, the Writ Petition is disposed of as follows: a) The first respondent shall consider and dispose of Ext.P10 representation in accordance with law and if Ext.P5(a) Revision is received by the first respondent, that Revision shall also be disposed of, as expeditiously as possible and, at any rate, within a period of three months from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioner. W.P.(C) NO. 1317 OF 2009 :: 5 :: b) If Ext.P5(a) Revision is not seen received, in the peculiar facts and circumstances of the case, Ext.P10 shall be treated as a Revision filed by the petitioner before the first respondent and the same shall be disposed of as indicated above. c) The petitioner shall produce a copy of the Writ Petition and certified copy of the judgment before the first respondent without delay. (K.T.SANKARAN) Judge ahz/