IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN SATURDAY, THE 30TH JANUARY 2010 / 10TH MAGHA 1931 WA.No. 1557 of 2008() ------------------------------- AGAINST THE JUDGEMENT/ORDER IN OP.5269/2000 Dated 23/08/2007 .................... APPELLANT(S): RESPONDENTS ------------------------- 1. GOVERNMENT OF KERALA, BY ITS PRINCIPAL SECRETARY, PUBLIC WORKS(A)DEPARTMENT, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, ADMINISTRATION, PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER MR.BENNY GERVACIS RESPONDENT(S): PETITIONER ------------------------- K.V.SOMAN, S/O KUNJAN, EXECUTIVE ENGINEER, ELECTRICAL(RETIRED), PWD, RESIDING AT PRASANTHIL, THEVALLY P.O., KOLLAM. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30/01/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss K. BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ------------------------------ W.A. No.1557 OF 2008 ------------------------------ Dated this, the 30th day of January, 2010 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellants were the respondents in the Writ Petition. The respondent herein was the writ petitioner. 2. The brief facts of the case are the following: The respondent/writ petitioner joined PWD as Lineman. In due course he was promoted as 2nd Grade Overseer, 1st Grade Overseer and later, as Assistant Engineer, which is a gazetted post and the appointment to that post is by transfer from the post of 1st Grade Overseer and also by direct recruitment. Still later, he was promoted as Assistant Executive Engineer on 3.6.1971 and retired from service on 30.4.1989. The legal conundrum, that is, thrown up for decision is whether he is entitled to get higher grade in the post of Assistant Executive Engineer, which is equivalent to W.A. No.1557/2008 - 2 - the scale of pay of Executive Engineer. The petitioner places reliance on the G.O.(P)515/85/Fin dated 16.9.1985, which introduced improvements to the scheme for time bound higher grade promotion for the Government servants working in scales of pay ranging from 550-800 to Rs.1150-2270. They shall be given first higher grade on completion of 10 years and a second higher grade on completion of 10 years in the first higher grade or a total service of 20 years in the two grades taken together, whichever is earlier. The relevant portion of the said Government Order reads as follows: ********* ********* ********* ********* ********* ********* “(c) Time-bound grade Promotion: 10. After reviewing the existing scheme of time bound/non cadre promotion the Commission has made a number of recommendations for liberalisation. Government accept the recommendations and order as follows:- (i) Employees in the revised scales of pay ranging from 550-800 to Rs.1150- 2270 will be allowed promotion to higher grade on completion of 10 years of service and a second higher grade after W.A. No.1557/2008 - 3 - either 10 years of service in the first higher grade or a total service of 20 years in the two grades together, whichever is earlier.” 3. Originally, the higher grade was introduced for the benefit of non-gazetted officers as per G.O.(Ms)439/79/GAD. dated 1.8.1979. Later, the said benefit was extended to the Gazetted Officers as per G.O.(P)901/79/(116)/Fin. dated 3.10.1979. The stipulation to be satisfied for claiming higher grade was that they should be in the entry grade for 13 years without promotion. Entry grade was clarified as the grade to which the incumbent is initially appointed by direct recruitment. But, later the said view was modified by the Government by issuing G.O.(P) 554/84(597)/Fin. dated 27.9.1984 stating that appointments by transfer will also be treated as equivalent to direct recruitment for allowing the benefit of higher grade. Since the respondent/writ petitioner did not stagnate in the post of Assistant Engineer, to which he reached by transfer, according to the appellants, he is not entitled to get the benefit of the aforementioned orders issued in 1979 as clarified by the Government Order dated 27.9.1984. W.A. No.1557/2008 - 4 - 4. The respondent/writ petitioner is entitled to get the benefit of the Government Order dated 16.9.1985, if only, he satisfy that he was in the scale of pay mentioned therein and also should satisfy the other stipulations therein. But, the appellant claimed the benefit of G.O.(P) No.373/86/(59)/ Fin. dated 23.5.1986. According to him, as per that Government Order, if the entry cadre is within the aforementioned pay range, he is entitled to get the first and second higher grades, eventhough those grades are in pay scales above Rs.1150-2270. The respondent/petitioner also relied on G.O.(P)97/88/(192)/Fin. dated 8.2.1988, wherein employees eventhough obtained two levels of promotion are given the benefit of higher grade stipulated in the Government Order dated 16.9.1985. But, the Government proceeded on the footing that since the petitioner during his tenure received four promotions, he is not entitled to get higher grade. Such a view has been taken without reference to any of the orders governing grant of higher grade and the conditions therein, it is submitted. W.A. No.1557/2008 - 5 - 5. We find that in none of the Government Orders governing higher grades, there is a positive stipulation that a person who obtained appointment by transfer to a post and thereafter one promotion is not entitled to get higher grade even if he is stagnating in the last promoted post for seventeen years. In this case, the petitioner obtained two promotions; one appointment by transfer and thereafter, another promotion. So, we feel that the matter requires reconsideration by the Government, after affording an opportunity of being heard to the petitioner. The learned Single Judge took the view that the promotions earlier got will not stand in the way of the respondent claiming promotion. But, the learned Judge has failed to examine whether he is covered by the basic stipulations concerning grant of higher grade. Therefore, the judgment of the learned Single Judge cannot be sustained. Accordingly it is liable to be modified. We sustain the quashing of Ext.P4 Government Order for the reason that it does not take into account the various relevant matters, concerning the grant of higher grade claimed by the respondent. W.A. No.1557/2008 - 6 - 6. In the result, the matter is remitted to the Government to take a fresh decision on the claim of the respondent/writ petitioner for grant of higher grade, in accordance with law, after affording an opportunity of being heard to him, within a period of four months from the date of receipt of a copy of this judgment. It is made clear that we have not expressed any opinion on the merits of the claim of the appellant. The Writ Appeal is disposed of as above. (K. BALAKRISHNAN NAIR, JUDGE) (P.N.RAVINDRAN, JUDGE) ps