IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 24TH SEPTEMBER 2009 / 2ND ASWINA 1931 WP(C).No. 7404 of 2006(F) ------------------------------------- PETITIONER(S): ---------------------- J. SASIDHARAN, AGED 56 YEARS, S/O.JANARDHANAN, CHITHIRA, KATTAYIKONAM.P.O, THIRUVANANTHAPURAM. BY ADV. MR.T.RAJASEKHARAN NAIR RESPONDENT(S): ------------------------ 1. THE STATE OF KERALA, REP. BY ITS SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, SURVEY AND LAND RECORDS, THIRUVANANTHAPURAM. 3. THE SPECIAL TAHSILDAR, LAND ACQUISITION OFFICE, AIR PORT, THIRUVANANTHAPURAM. R1 TO R3 BY SR.GOVERNMENT PLEADER MR.P. NANDAKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/09/2009, ALONG WITH WPC NO. 590 OF 2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 7404/2006-F APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PROCEEDINGS DATED 05/07/2000 ISSUED BY THE 3RD RESPONDENT. EXT.P2: COPY OF THE JUDGMENT DATED 18/07/2005 IN O.P. NO. 2315/2002 PASSED BY THIS HONOURABLE COURT. EXT.P3: COPY OF THE REPRESENTATION DATED 19/12/2005 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P4: COPY OF THE PROCEEDINGS DATED 15/04/2005 ISSUED BY THE 3RD RESPONDENT. EXT.P5: COPY OF THE PROCEEDINGS DATED 03/02/2006 ISSUED BY THE 3RD RESPONDENT. EXT.P6: COPY OF THE PROCEEDINGS DATED 19/10/2005 ISSUED BY THE ACCOUNTANT GENERAL. EXT.P7: COPY OF THE PROCEEDINGS DATED 26/10/2005 ISSUED BY THE ACCOUNTANT GENERAL TO THE 2ND RESPONDENT. EXT.P8: COPY OF THE JUDGMENT DATED 01/02/2006 IN O.P. NO. 22782/2002 & OTHER CONNECTED CASES PASSED BY THIS HONOURABLE COURT. EXT.P9: COPY OF THE COMMUNICATION DATED 20/08/2007 ISSUED BY THE 3RD RESPONDENT ALONG WITH A COMMUNICATION DATED 10/02/2006 ISSUED BY THE GOVERNMENT, RECEIVED BY THE PETITIONER. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. V.GIRI, J. ---------------------------------------- W.P.(C).Nos.7404/06, 16190/06, 16214/06, 16830/06, 20733/06, 23202/06, 29496/06, 29526/06, 2449/07,3976/07, 10712/07, 12034/07, 14777/07, 15000/07, 23555/07, 37811/07, 1107/08, 3362/08, 13010/08, 17307/08, 17324/08, 18343/08, 24557/08, 36664/08, 37911/08, 590/09 & 744 of 2009 ---------------------------------------- Dated this the 24rd day of September, 2009. JUDGMENT Common issues have been raised in these writ petitions filed by pensioners from the Survey and Land Records Department of the Government. They challenge orders issued by the Director of Survey and Land Records or in certain cases by the officers subordinate thereto, refixing the pay that they were found eligible on grant of the third time bound higher grade promotion that was granted to them, while they were in service and consequently revising their pension. 2. Counter affidavits have been filed on behalf of the respondents and common issues have been argued as well. Therefore, these cases are W.P.(C).No.7404 of 2006 & Con.Cases :: 2 :: being disposed of by this common judgment. I will refer to W.P.(C)No.590/09 and the pleadings in W.P. (C)No.744/09 as also that in W.P.(C)No.20733/06 in the first instance. Where a reference to certain facts peculiar to any writ petition is necessary, that shall also be stated. W.P.(C)No.590/09 3. The petitioner entered service as Second Grade Draftsman. He was granted first time bound higher grade on 15.4.1982 and was promoted as First Grade Draftsman on 11.6.1984. He was granted Second time bound higher grade on completion of 18 years of service, in the scale of pay of Head Draftsman on Rs.1330-2555. In the meanwhile, by a communication Ext.P1, the Finance Department had apparently clarified that Draftsman Grade I (Higher Grade) on a time scale of Rs.1330-2555, who is not qualified for promotion to the post of Technical Assistant, can nevertheless be allowed the next W.P.(C).No.7404 of 2006 & Con.Cases :: 3 :: Higher Grade in the time scale of Rs.1370-2640, on completion of 25 years of service. It was noticed that the scale of pay of Rs.1370-2640 was a scale of pay applicable to a Technical Assistant. 4. The scale of pay of 1st Grade Draftsman (Higher Grade) was revised to Rs.1640-2900, consequent upon a general pay revision order. The petitioner was sanctioned third time bound higher grade with effect from 16.4.1994 and the scale of pay was fixed at Rs.2000-3200, which was the revised scale of pay applicable to the post of Technical Assistant, which was the promotion post of Head Draftsman. The scale of pay of Rs.2000-3200 was revised to Rs.6500-10500, consequent upon the general pay revision order issued in the year 1998 (with effect from 1.3.1997) and the petitioner's pay was fixed at Rs.7,950/-. The petitioner was regularly promoted as Head Draftsman with effect from 5.9.1997. But this did not entail any change of pay. W.P.(C).No.7404 of 2006 & Con.Cases :: 4 :: The petitioner retired from service on 31.1.1998 and the Accountant General, as per Ext.P2 sanctioned his pensionary benefits. The pensionary benefits were revised with effect from 29.7.1997 and monthly pension sanctioned was revised to Rs.3,970/-. This continued to be so. While so, consequent upon the pay revision of 2004 Government ordered revision of the pay with effect from 1.7.2004. The Government also revised the pensionary benefits of Government employees, with the monetary benefits to be given effect to from 1.4.2005. The principle of one rank one pension was adopted and the scale of pay of Rs.6500- 10500 was revised to Rs.10790-18000. By Ext.P4 dated 21.8.2008 the monthly pension of the petitioner was refixed at Rs.6635/- and this pension was drawn by him. But, by Ext.P5 order, the 3rd respondent revised and fixed the pay of the petitioner with effect from 16.4.1994. Instead of fixing the pay in the scale of pay of Rs.2000-3200, it was fixed in the lower scale W.P.(C).No.7404 of 2006 & Con.Cases :: 5 :: of pay of Rs.1760-3050. Consequent downward revision was effected in the scale of pay with effect from 1.3.1997 and thereafter from 16.4.1994. The last pay of the petitioner which he was drawing at the time of retirement was also revised. It was further communicated that monthly benefits, which have been drawn up to 7.3.2002 need not be recovered and the excess drawn after 7.3.2002 shall be recovered. Ext.P5 and P6 have been challenged in this writ petition. 5. On merits, similar contentions have been raised in the other writ petitions. In all these cases, the petitioners were granted third time bound higher grade on completion of 25 years of service, while they were serving as Head Draftsman or Surveyor Grade I and on sanctioning of third time bound higher grade, their pay was fixed in the time scale then applicable to the post of Technical Assistant, which, as stated above, is comprised in the State service and was also W.P.(C).No.7404 of 2006 & Con.Cases :: 6 :: a promotion post to that of either Head Surveyor or Draftsman Grade I. 6. The orders revising the pay and pension in the case of the petitioners in some of these cases viz., W.P.(C)Nos.20733/06, 23202/06, 29496/06, 29526/06, 10712/07, 23555/07, 1107/08, 3362/08, 13010/08, 24557/08 (except W.P.(C)Nos.15000/07, 36664/08, 17307/08, 7404/06, 17324/08, 37911/08, 37811/07, 16214/06, 16190/06, 590/09, 744/09, 2449/07, 3976/07, 14777/07, 18343/08, 12034/07 & 16830/06) were challenged before this court on several grounds. The Department had revised the Higher Grade sanctioned and consequently, the pension that was found admissible in the case of those petitioners, essentially on the ground that the persons concerned who were granted third time bound higher grade, while occupying the post of Head Draftsman or Surveyor Grade I, were not qualified to be promoted to the post of Technical Assistant/Superintendent. The W.P.(C).No.7404 of 2006 & Con.Cases :: 7 :: Department would contend that as per the pay revision order, which provided for third time bound higher grade as also the orders which were prevailing then, which had continued to be the same thereafter, on sanction of a third time bound higher grade, the incumbent would be entitled to be fitted in the scale of pay applicable to the promotion post of Technical Assistant only if he is otherwise qualified for the said post. In the cases which was then considered, as also in the cases which are now being considered, none of the petitioners were otherwise qualified to be promoted to the post of Technical Assistant at the time when they were sanctioned third time bound higher grade. 7. By a judgment dated 1.2.2006 in O.P.No.23006/06 and connected cases, this court referred to the contentions, but found that the petitioners therein had not been given any notice of the proposal to cancel the third time bound higher W.P.(C).No.7404 of 2006 & Con.Cases :: 8 :: grade and fixation of scale of pay applicable to the Technical Assistant. The orders revising the sanction of third time bound higher grade in the scale of pay applicable to Technical Assistants impugned in those cases were set aside on the ground of absence of notice, but making it clear that it will be open to the respondents to issue notice to the individual petitioners, consider their objections and pass appropriate orders. Reference may be made to the documents produced along with W.P.(C)No.20733/06 at this juncture since the petitioners therein were petitioners in writ petitions that were considered and disposed of by judgment dated 1.2.2006. 8. Pursuant to the aforementioned judgment, they were issued a notice (produced along with I.A.No.12184/06 dated 27.3.2006) wherein pursuant to Ext.P2 judgment they were called for a hearing. They submitted Ext.P4, inter alia, pointing out that they have retired from service on different dates in 2000 W.P.(C).No.7404 of 2006 & Con.Cases :: 9 :: and 2001 and that their basic pay was Rs.8,350/- in the scale of pay of Rs.6500-10550; that the pensionary benefits were fixed consequently; that the scale of pay was refixed and pensionary benefits were fixed without notice; that the incumbent had attained the scale of pay by service seniority and salary revision and not by appointment by transfer to the State services; that the incumbent had continued in the Survey and Land Records till retirement. It was, therefore, requested that the re-fixation of the scale of pay and consequent fixation of the pension may be cancelled and the original fixation may be restored. 9. These contentions were considered by the Director of Survey and Land Records, the Head of the Department, who rejected the same, as per Ext.P5, which is in the form of a communication to the Accountant General. The relevant portion of Ext.P5(c) reads as follows: “The main contention raised by the petitioner is that he had retired years W.P.(C).No.7404 of 2006 & Con.Cases :: 10 :: back and therefore, their pension need not be revised. But had neither given any valid explanation nor any concrete views as to why their pay/pension should not be revised in accordance with their eligibility. As per the pay revision orders issued by the Government it has been made clear that only qualified incumbent will be given the scale of pay of promotion post in the direct line of promotion as time bound higher grade and the unqualified hands will be allowed the next standard higher scale of pay above that of the scale of pay of the post held at that time. Thus as per Rule 37-A Part I KSR Government decision No.I the order of promotion or appointment of a Government servant should be cancelled as soon as it is brought to the notice of the appointing authority that such a promotion has resulted from a factual error and the Government servant concerned should immediately on such cancellation be brought to the position which he would have held but for the incorrect order of promotion or appointment. The pensioner has also as per Rule 117 A KSR Part III agreed and has given a W.P.(C).No.7404 of 2006 & Con.Cases :: 11 :: signed declaration in his/her pension book agreeing for the recovery of excess pension/DCRG/family pension if the pensionary benefits sanctioned initially is found to be in excess later on. In order to maintain a uniform procedure in regulating the pay/pension in accordance with law and their eligibility all the records and reports including the judgments read above were examined in detail. The department had already re-fixed the pay/pensions of numerous similarly placed persons in the unqualified scale of pay. So also the pay of the incumbents in service has also been re-fixed in accordance with the circular and Government directions read as above. In the above circumstances, the petitioner is not eligible to get the pay/pension in the qualified scale. Therefore, I do not find any reason to exempt the petitioner from revision of their pay/pension as prayed for. As such the request of the petitioner do not merit any consideration in view of the Hon'ble Court directions and Government order and hence declined. This proceedings order is in full compliance of the W.P.(C).No.7404 of 2006 & Con.Cases :: 12 :: directions of the Hon'ble High Court in the judgment dated 1.2.06 in W.P.(C) No.23066/02.” It is Ext.P5 that has been challenged in the writ petition. 10. Similar orders have been challenged in the other writ petitions. 11. In some of the writ petitions viz., W.P.(C) Nos.15000/07, 36664/08, 17307/08, 7404/06, 17324/08, 37911/08, 37811/07, 16214/06, 16190/06, 590/09, 744/09, 2449/07, 3976/07, 14777/07, 18343/08, 12034/07 & 16830/06, the last pay of the petitioners have been refixed and pension has also been revised in consonance with the stand taken by the Government that a Head Draftsman or a Surveyor Grade I was not entitled to be fitted in the scale of pay applicable to a Technical Assistant, on being sanctioned a third time bound higher grade, unless they were qualified for being regularly promoted to the post of Technical Assistant. In the aforementioned W.P.(C).No.7404 of 2006 & Con.Cases :: 13 :: writ petitions, an additional contention has been taken up that the orders of re-fixation of pay and consequent revision of the pension are violative of the principles of natural justice, since prior notice had not been given to the petitioners therein. 12. All these writ petitions have been heard together, since they involve common contentions. The question of violation of the principles of natural justice will also be considered, at the appropriate stage. But, I think, it is appropriate to consider the contentions urged by the petitioners in W.P.(C)No.20733/06 and similarly situated petitioners, as regards the merits of the stand now taken by the Director of Survey and Land Records that third time bound higher grade to the Head Draftsman/Surveyor Grade I cannot be granted in the scale of pay applicable to the Technical Assistant unless the incumbent was also qualified for the said post. W.P.(C).No.7404 of 2006 & Con.Cases :: 14 :: 13. Counter affidavits have been filed in all these writ petitions and in certain cases, reply affidavits have been filed. 14. I heard Mr.N.Dharmadan, Senior Counsel, Mr.N.Sugathan, Mrs.I.Sheela Devi, Mr.Rajasekharan Nair, learned counsel for the petitioners in all these writ petitions and Mr.P.Nandakumar, learned Senior Government Pleader. 15. The time bound higher grade promotion scheme has always been regulated by executive orders issued by the Government and modifications have come either in the course of the pay revision orders or otherwise. Though an earlier view had been expressed that the third time bound higher grade may be granted to a Draftsman Grade I and pay may be fixed in the scale of pay applicable to a Technical Assistant on Rs.1540-2645, which was the scale of pay applicable to the said post in the year 1990, even if he W.P.(C).No.7404 of 2006 & Con.Cases :: 15 :: was not qualified for the post of Technical Assistant, as evidenced by Ext.P6 in W.P.(C)No.20733/06 one will have to go by the rules relating to sanction of time bound higher grade as was available in the year 1992, since it is not disputed that it is after the said date, the present petitioners were granted third time bound higher grade. This is available from G.O.(P) No.930/2003 dated 8.12.1993 which was consequent upon the general pay revision issued vide G.O.(P) No.600/93 dated 25.9.1993. Clause 3(b) of G.O.(P) No.930/03 dated 8.12.1993 specifically provided that the orders issued in para 8 and 9 of G.O.(P)No.600/93 dated 25.9.1993 would stand cancelled and the following revised orders are issued. “(a) Ratio/Percentage based higher grades: All the existing ratio/percentage based higher grades will continue.” 16. Clause 3(b) dealt with time bound higher grade promotion Scheme. Clause 3(b)(vii) of G.O.(P) W.P.(C).No.7404 of 2006 & Con.Cases :: 16 :: No.930/03 is relevant in this context and is extracted hereunder: “(vii) If there is a promotion post in respect of the categories of posts (entry) coming under pay range from Rs.775-1065 to 1640-2900 and its scale of pay is higher than the time bound grade proposed above, then the qualified incumbent will be given the scale of pay of the promotion post in the direct line of promotion as time bound higher grade. While assigning higher grades, only qualified hands i.e., those possessing the qualifications prescribed for the promotion post, will get the scale 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.” 17. The post of Head Draftsman/Surveyor Grade I was indisputably coming within the aforementioned scale of pay. There was a promotion post to the aforementioned post and the scale of pay of the promotion post viz., Technical Assistant was W.P.(C).No.7404 of 2006 & Con.Cases :: 17 :: higher than the time bound higher grade proposed under the said order viz., the pay revision order. But such time bound higher grade was to be granted to the qualified incumbent, who was to be given the scale of pay of the promotion post in the direct line of promotion. It was further made clear that, only those possessing the qualifications prescribed for the promotion post will be allowed the higher scale of pay applicable to the regular promotion post. Unqualified hands were also entitled to get a time bound higher grade, but in those cases, they were to be allowed the next higher scale of pay above that of the scale of pay of that post held at the time. 18. What had happened in all these cases was that the incumbent had been granted third time bound higher grade on completion of 25 years of service. This, they were entitled to, but they were granted the third time bound higher grade and fitted in the scale of pay then applicable to the post of a W.P.(C).No.7404 of 2006 & Con.Cases :: 18 :: Technical Assistant, brought into force as prescribed as per the 1993 pay revision order. Thereafter, their scales of pay were revised from time to time and by passage of time, by way of promotions as well. Going by the rules relating to sanction of third time bound higher grade mentioned above and which was prevailing, at that point of time, only those persons, who were entitled to be promoted to the post of Technical Assistant in terms of the Special Rules of the State Service were entitled to be assigned the Higher Grade and in the scale of pay applicable to the promotion post of Technical Assistant. 19. This fact, apparently, came to light only when a batch of writ petitions were filed by persons belonging to the concerned subordinate service, Survey and Land Records Subordinate Service claiming that since they have crossed the age of 50, they were entitled to exemption in terms of Rule 13B of Part II of the Rules and therefore, should be W.P.(C).No.7404 of 2006 & Con.Cases :: 19 :: considered for regular cadre promotion to the post of Technical Assistant/Superintendent, even if they were not qualified in that regard for the said post. Essentially, this contention was rested on account of the fact that what were prescribed as test qualifications in the Kerala State and Subordinate Services Rules for the post of Head Surveyor was also prescribed as qualifications for the post of Technical Assistant in the Special Rules for the State Service. 20. A Division Bench in Sarojini Amma v. State of Kerala {2002(3) KLT 573) considered the scope of Rule 13B of the K.S.S.R, and held that the exemption under the said rule would be available to an incumbent only with regard to departmental tests, which are mentioned in such Special Rules and would not be available in the case of qualifications, which are prescribed for the post in the Special Rules. Though Head Surveyor's Selective Test (Travancore) or Theodolite Survey Test and Mapping Test (Cochin) W.P.(C).No.7404 of 2006 & Con.Cases :: 20 :: or Head Surveyor's and Sub Assistant's Test (Madras) and Account Test (Lower) or Account Test for Executive Officers were prescribed as departmental tests for the post, the acquisition of which, was necessary for promotion to the post of Head Surveyor, the same were found to be necessary qualifications to be possessed by a person for appointment to the post of Technical Assistant, which in terms of Rule 2(a) of the Special Rules for the State Service could be only effected either by transfer from Head Draftsman or Head Surveyor in the first instance. The Division Bench consequently held that Rule 13B will not come to the aid of those persons, who are not in possession of the above qualifications for claiming a right to be considered for appointment to the post of Technical Assistant in terms of the Special Rules. 21. It seems that the Division Bench judgment was thereafter taken note of by the Government and consequently the principles were W.P.(C).No.7404 of 2006 & Con.Cases :: 21 :: made applicable to the sanctioning of the third time bound higher grade in the case of the petitioners as well. It was found that though by virtue of completion of 25 years of service, the incumbent became entitled to third time bound higher grade, he could not have been granted the same in the scale of pay applicable to a Technical Assistant, unless he was qualified for the post in terms of the Special Rules. The rationale seemed to be that even if the Division Bench had construed only Rule 13B of Part II of K.S.S.R., which was applicable in the case of cadre promotion, the ratio should apply in the case of time bound higher grade as well. 22. It cannot be disputed that the petitioners, as such, were not qualified for being promoted to the post of Technical Assistant, but they were granted third time bound higher grade. If that be so, they ought not to have been granted third time bound higher grade in the scale of pay applicable to a W.P.(C).No.7404 of 2006 & Con.Cases :: 22 :: Technical Assistant, but should have been granted the same in the scale of pay immediately higher to the time scale that was applicable to the post of Head Surveyor/Draftsman Grade I, as the case may be. This should have been done in terms of Clause 3(b)(vii) of G.O.(P)No.903/93 that was referred to earlier. Since the sanctioning of the third time bound higher grade and fixation of the scale consequent thereupon in the scale of pay applicable to Technical Assistant was erroneous, the same was liable to be revised and this, in turn, entailed a revision of the pension that was granted to the petitioners in these cases. I am of the view that the stand taken by the Director, as evidenced by Ext.P5 that unqualified incumbents, who were not in possession of the qualifications prescribed for the post of Technical Assistant were not entitled to be granted third time bound higher grade in the scale of pay applicable to a Technical Assistant, is sustainable and is in consonance with the provisions W.P.(C).No.7404 of 2006 & Con.Cases :: 23 :: relating to the sanctioning of time bound higher grade applicable. 23. Mr.Dharmadan, learned Senior Counsel for the petitioners and Mr.Sugathan as also the other learned counsel, submitted that the re-fixation of pay and the consequent re-fixation of pension in the present case have taken place several years after the sanctioning of the third time bound higher grade and several years after the incumbents themselves have retired from service. It is contended that in such cases, the Supreme Court and this court had repeatedly held