IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 25TH MAY 2010 / 4TH JYAISHTA 1932 WP(C).No. 36227 of 2008(K) --------------------------------------- PETITIONER: ------------------- T.PAVITHRAN, RETD.SECOND GRADE DRAFTSMAN, P.W.D. ROADS SUB DIVISION, KASARAGOD, (RESIDING AT THAYYIL HOUSE, ONDANPARAMBA, KANNUR-2). BY ADVS. DR.K.P.SATHEESAN, SRI.K.K.GOPINATHAN NAIR, SRI.M.R.JAYAPRASAD, SRI.P.MOHANDAS (ERNAKULAM). RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, P.W.D. ADMINISTRATON, THIRUVANANTHAPURAM. 3. THE ACCOUNTANT GENERAL (A&E) KERALA, THIRUVANANTHAPURAM. R1 TO R3 BY SPL.GOVERNMENT PLEADER SRI. N. MANOJ KUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/05/2010,ALONG WITH W.P.(C). NO. 18565 OF 2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.36227/2008-K: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO. EB4 (A) 65025/97 DTD. 07/07/2003 ISSUED BY THE R.2. EXT.P.2: COPY OF THE ORDER NO. EB4 (A)-14898/06 DTD. 26/10/2007 ISSUED BY THE R.2. EXT.P.3: COPY OF THE ORDER NO. EB4(A)-5181/08 DTD. 24/03/2008 ISSUED BY THE R.2. EXT.P.4: COPY OF THE VERIFICATION REPORT GIVEN BY THE R.3. DTD. 28/07/2008. EXT.P.5: COPY OF THE LETTER P13/4/APPN. NO. 29113 DTD. OCTOBER, 2008 GIVEN BY THE R.3. TO THE SUB TREASURY OFFICER, KANNUR. EXT.P.6: COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE R.3. DTD. 04/11/2008. RESPONDENTS' EXHIBIT: EXT.R2.A: COPY OF THE CIRCULAR NO. 19929/PRC-A1/08/FIN. DTD. 08/05/08 ISSUED BY GOVERNMENT. //TRUE COPY// P.A. TO JUDGE. Prv. ANTONY DOMINIC, J. ------------------------- W.P.(C.) Nos.36227 (K) of 2008, 18565 (M), 19777 (N), 29662 (C), 29705 (G), 34759 (L) & 35249 (A) of 2009 --------------------------------- Dated, this the 25th day of May, 2010 J U D G M E N T The petitioners in these writ petitions are First Grade, Second Grade and Third Grade Overseers and Assistant Engineers in the PWD and Irrigation Departments. Consequent on the implementation of the 8th pay revision commission report, the petitioners were given time bound higher grade fixation in the scale of pay as applicable to the promotion post of Assistant Engineer. Subsequently, that was cancelled by the authorities taking the view that the provisions contained in the table to the pay fixation order provided that 20% of the posts will be placed in the higher grade of Rs.9190-15510/-. It is challenging the cancellation of the time bound higher grades in the scale of pay as applicable to Assistant Engineer, namely Rs.11070-18450/-, and for quashing the orders fixing the pay in the higher grade of Rs.9190-15510/-, these writ petitions are filed. WP(C) Nos.36227/2008 & connected cases -2- 2. It is now brought to my notice that this very issue came up for consideration before this Court in WP(C) No.23518/08, where the learned Single Judge of this Court by judgment dated 15/06/2009 upheld the claim of the petitioners. Against that judgment, the State and the Chief Engineer, Irrigation & Administration filed W.A.No.1965/2009. By judgment dated 05/04/2010, a Division Bench of this Court upheld the claim in the following terms:- 4. The next point canvassed by the learned Government Pleader is that the learned Single Judge has directed to grant the respondent Higher Grade in the scale of pay applicable to the post of Assistant Engineer in the Irrigation Department. We think, the said claim is supported by Paragraph 6 of Annexure III to the aforementioned Pay Revision Order, which reads as follows :- “If there is a regular promotion post in respect of the categories of posts coming under pay scales ranging from Rs.4400-6680 to Rs.9590-16650 and if such scale of pay is higher than the corresponding time bound higher grade proposed in Tables A & B above, then the time bound higher grade for such incumbent will be the scale of pay of such regular promotion post, provided he is otherwise qualified for such promotion. Even in cases where a particular category of posts in the normal hierarchy of promotion posts is not available in a Department, the scale of pay of the normal promotion post only will be allowed as the higher grade. (Thus, for example, in a Department where there is no post of Head Clerk and UD Clerks get promoted as Junior Superintendents, the time bound higher grade for the UD Clerk will still be the scale of Head Clerk). While assigning such higher grade, only qualified hands i.e. those possessing WP(C) Nos.36227/2008 & connected cases -3- the qualification, including approval of the DPC (where necessary), prescribed for the promotion post will get the scales of pay of regular promotion posts. Unqualified hands will be allowed the next higher scale of pay above that of the scale of pay of the post held at that time, in the standard scales of pay at Annexure 1. The competent authority sanctioning the time bound higher grade should indicate in the order whether the official possesses qualification for promotion (including approval of DPC) and also specify the scale of pay admissible on time bound higher grade.” (Emphasis supplied) As per the Special Rules, it is common ground that the promotion post of Draftsman Grade I is, Assistant Engineer. If that be so, the claim of the respondent for grant of Higher Grade in the scale of pay attached to the post of Assistant Engineer is valid and the same has been rightly granted by the learned Judge. The appellants do not have a case that the respondent is not qualified or otherwise ineligible. But, the learned Senior Government Pleader, who appeared for the appellants pointed out that though the respondent was granted Higher Grade in the scale of pay applicable to the post of Assistant Engineer, later, it was revised and the scale of pay was reduced to that of Draftsman Grade I (Higher Grade). The respondent has chosen, not to challenge those proceedings, it is submitted. We think, it is a technical contention. When the respondent is clearly eligible for the benefits granted by the learned Single Judge, we find no reason to interfere with the same, on such a technical contention raised by the learned Government Pleader. Accordingly, the Writ Appeal fails and it is, accordingly, dismissed.” 3. Therefore, having regard to the law thus laid down by the Division Bench, the case of the petitioners is fully covered by this judgment and the cancellation of the time bound higher grades given to the petitioners in the scale of pay of Assistant Engineer is liable to be interfered with. WP(C) Nos.36227/2008 & connected cases -4- 4. However the learned Government Pleader contended that the effect of the clause in the pay revision order providing that 20% of the post will be placed in the higher grade of Rs.9190-15510 and the consequent anomaly in giving fixation directly in the scale of pay as applicable to Assistant Engineer was not considered by the Division Bench. 5. In my view, this contention lacks merit for the reason that pay revision order only provides for placement in the higher grade. On the other hand, paragraph 6 of Annexure III of the pay revision shows that if there is a post in the higher grade and a regular promotion post available, fixation has to be given in the scale of pay as applicable to the regular promotion post. Admittedly, fixation has been given in the scale of pay of Assistant Engineer, the next regular promotion post available in the cadre. Therefore, the contention now raised by the learned Government Pleader can have no impact on the conclusion arrived at by the Division Bench. In the result, the impugned orders of cancellation of time bound higher grade given to the petitioners are set aside and it is WP(C) Nos.36227/2008 & connected cases -5- directed that the petitioners shall be continued to be given higher grade in the scale of pay of Assistant Engineer, PWD / Irrigation Department as the case may be. Consequential benefits shall be disbursed as expeditiously as possible, at any rate, within three months of production of a copy of this judgment. These writ petitions are accordingly allowed. (ANTONY DOMINIC, JUDGE) jg