IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 WP(C).No. 22339 of 2006(H) -------------------------------------- PETITIONER(S): ---------------------- K.V.JHOHANNAN, S/O.THE LATE PAILY VARKEY, AGED 60 YEARS, ASSISTANT PROJECT ENGINEER (RETD.), O/O.THE PROJECT ENGINEER, THE KERALA LAND DEVELOPMENT CORPORATION LTD., KAYAMKULAM, RESIDING AT KOORAPPILLIL HOUSE, KAKKOOR.P.O., KUTHATTUKULAM-686 662. BY ADV. SRI.O.V.RADHAKRISHNAN (SR.) SMT.K.RADHAMANI AMMA SRI.ANTONY MUKKATH SRI.K.V.JOY SRI.K.RAMACHANDRAN (THYKOODAM) RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE KERALA LAND DEVELOPMENT CORPORATION LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, TC 224/594, THYCAUD.P.O., THIRUVANANTHAPURAM-14. GOVERNMENT PLEADER SRI.P.NANDAKUMAR FOR R1 ADV. SRI.P.N.MOHANAN FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 22339/2006-H APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE GO(P)NO.3000/98/FIN. DATED 25/11/1998 OF THE 1ST RESPONDENT. EXT.P2: COPY OF THE GO(MS)NO.60/2005/AD DATED 02/04/2005 OF THE 1ST RESPONDENT. EXT.P3: COPY OF THE LETTER NO.KLDC/AD2/19/2002-(B)/05 DATED 26/04/2005 OF THE 2ND RESPONDENT. EXT.P4: COPY OF THE OPTION OF THE PETITIONER DATED 03/05/2005. EXT.P5: COPY OF THE REPRESENTATION DATED 03/05/2005 OF THE PETITIONER TO THE 2ND RESPONDENT. EXT.P6: COPY OF THE REMINDER LETTER DATED 24/05/2006 OF THE PETITIONER. EXT.P7: COPY OF THE LETTER NO.KLDC/AD1/PER129/01 DATED 15/06/2006 OF THE 2ND RESPONDENT. EXT.P8: COPY OF THE LETTER NO.32585/PU3/05/AD DATED 01/06/2006 OF THE 1ST RESPONDENT. EXT.P9: COPY OF THE GO(P)NO.483/95/(46)/FIN. DATED 08/08/1995 OF THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R2(a): COPY OF THE G.O.(P)NO.483/95(46) FIN. DATED 03/08/1995. EXT.R2(b): COPY OF THE REQUEST OF THE PETITIONER DATED 02/12/92. //TRUE COPY// P.S. TO JUDGE Rs/ P.N.Ravindran, J. ===================== W.P(C).No.22339 of 2006 ===================== Dated this the 6th day of November, 2008. JUDGMENT The petitioner is a former employee of the Kerala Land Development Corporation Limited, hereinafter referred to as the “Corporation” for short. He retired from service on 31.7.2001 on attaining the age of superannuation while he was working as Assistant Project Engineer. The dispute in this Writ Petition relates to his entitlement for the grant of the third higher grade promotion on completion of 23 years of service in terms of G.O.(P) No.3000/98/Fin dated 25.11.1998, a copy of which is produced and marked as Ext.P1. 2. The petitioner entered service as Overseer Grade III on 23.7.1975. He was promoted as Overseer Grade II on 8.4.1981. He was later promoted as Overseer Grade I on 19.3.1988. In the meanwhile G.O. (P) No.3000/98/Fin dated 25.11.1998 was issued revising the scales of pay of Government employees, staff of Educational Institutions, Local Bodies, etc. with effect from 1.3.1997. The revision of pay effected as per Ext.P1 was implemented in the Corporation with effect from 1.7.1998. One of the stipulations in Ext.P1Government order is that employees who remain in their entry post in the scales of pay ranging from Rs.2610- 3680 to Rs.4600-7125 will be granted three higher grades on completion of the period of qualifying service in their posts. As per the stipulations WP(C) 22339/06 -: 2 :- in Ext.P1 Government order, the third higher grade is to be granted on completion of 23 years of total service in the entry post and the regular promotion post/time bound higher grade together. The term entry post is defined in paragraph 5(11) of Ext.P1 which reads as follows: “(11) The term 'entry post' shall be defined as the post to which an employee is initially appointed in Government Service by direct recruitment by the competent authority. Appointments by transfer will also be treated as equivalent to direct recruitment for allowing the benefit of higher grade. However, promotion to a post in the direct line of promotion in a Department to be made on the basis of select list prepared by the Departmental Promotion Committee, even if it is appointment by transfer from subordinate service to State Service cannot be treated as direct recruitment for allowing the benefit of time bound higher grade. The time bound higher grade admissible will be determined with reference to the initial entry post only. Those who get regular promotion or appointment to higher posts within the period specified for each time bound higher grade will not be granted further time bound higher grade during that period.” (Emphasis supplied) 3. A reading of the aforesaid paragraph indicates that those who get regular promotion or appointment to higher posts within the period specified for each time bound higher grade will not be granted further time bound higher grades during that period. In other words, if an employee gets regular promotion after the second time bound higher grade on completion of 18 years, he will not be entitled to the third time WP(C) 22339/06 -: 3 :- bound higher grade on completion of 23 years of service. 4. Before Ext.P1 Government order was issued, the petitioner was temporarily promoted as Assistant Project Engineer on 27.2.1996 against a vacancy earmarked to be filled by direct recruitment. When the direct recruitee was advised, the petitioner was reverted as Overseer Grade I with effect from 18.11.1988. The petitioner was thereafter regularly promoted as Assistant Project Engineer on 2.6.2000. Thereafter, he retired from service on 31.7.2001 on attaining the age of superannuation. It was after the petitioner retired from service that Ext.P1 Government order was implemented in the Corporation with effect from 1.7.1998. He thereupon moved the authorities claiming the third time bound higher grade promotion on completion of 23 years of total service. The Corporation considered the request of the petitioner and by Ext.P7 letter dated 15.6.2006 informed him that as he was promoted before completion of 23 years of service to the higher post of Assistant Project Engineer, he is not eligible for the grant of third time bound higher grade on completion of 23 years of service. Reference was also made to Ext.P8 letter dated 1.6.2006 therein. In this Writ Petition, the petitioner challenges Exts.P7 and P8 and seeks a writ in the nature of mandamus commanding the respondents to grant him third time bound higher grade promotion in the scale of pay of Rs.6675-10550 with effect from 1.11.1988 and to disburse the monetary benefits thereof. WP(C) 22339/06 -: 4 :- 5. The second respondent has filed a statement contending that as the petitioner was provisionally promoted as Assistant Project Engineer with effect from 27.2.1996 in a vacancy earmarked for direct recruits, though he was later reverted with effect from 18.11.1988, he is not eligible for grant of third time bound higher grade on completion of 23 years of service. 6. I have heard Sri. O.V. Radhakrishnan, the learned Senior Advocate appearing for the petitioner and Sri.P.Nandakumar, the learned Government Pleader appearing for the first respondent and Sri.P.N.Mohanan, the learned standing counsel appearing for the Corporation. The pleadings disclose that the petitioner was only temporarily promoted as Assistant Project Engineer on 27.2.1996. It is not in dispute that the promotion was not on a regular basis. It is further admitted that the provisional promotion was to a vacancy reserved to be filled up by direct recruitment. It is also conceded that when the direct recruit was appointed, for want of vacancy the petitioner was reverted to the lower post of Overseer Grade I. It is also not disputed that the petitioner was regularly promoted as Assistant Project Engineer only on 2.6.2000. In these circumstances, the short question is whether on the terms of paragraph 5(11) of Ext.P1 Government order, the petitioner is entitled to third time bound higher grade. 7. The respondents dispute the entitlement of the petitioner for the grant of third time bound higher grade on the ground that after he WP(C) 22339/06 -: 5 :- completed 18 years of service and before completing 23 years of service, he was promoted though on a provisional basis. In my opinion, paragraph 5(11) of Ext.P1 prohibits grant of third time bound higher grade only to employees who got regular promotion within the period of 23 years. In the instant case, the employer does not dispute that the petitioner was only provisionally promoted on 27.2.1996. It is also not disputed that he was reverted because the promotion itself was provisional and against a vacancy earmarked for direct recruits. The petitioner was therefore not regularly promoted after he completed 18 years of service. The petitioner was regularly promoted only long thereafter on 2.6.2000. Such being the situation, the stand taken by the respondents in Exts.P7 and P.8 is not tenable. Further the Government have in Ext.P9 Government order dated 8.8.1995 issued in implementation of the directions issued by this Court in O.P.No.5481 of 1990 ordered that the benefit of time bound higher grade will be extended also to those employees who are promoted for short spells but reverted to the lower post for want of vacancy and are continuing in the lower post. Ext.P9 Government order also is referred to in Exts.P7 and P8 which are impugned in this Writ Petition. In my opinion, Ext.P9 Government order does not advance the case of the respondents. On the other hand, it comes to the aid of the petitioner when it states that the benefit of time bound higher grade will be extended to those who are promoted for short spells but reverted to the lower post for want of WP(C) 22339/06 -: 6 :- vacancy and are continuing in the lower post. Such being the situation, Ext.P9 also cannot be held out against the petitioner to deny him, third time bound higher grade on completion of 23 years of service. 8. In the result, the Writ Petition is allowed, Exts.P7 and P8 are quashed and the respondents are directed to grant the petitioner the third time bound higher grade promotion with effect from 1.11.1998 on completion of 23 years of service in the scale of pay of Rs.6675-10550 in terms of G.O.(P) No.3000/98/Fin dated 25.11.1998. Orders sanctioning the third time bound higher grade on completion of 23 years shall be passed within one month from the date on which the petitioner produces a certified copy of this judgment. Disbursement of the monetary benefits shall be made within a period of two months thereafter. Consequential orders regarding revision of pension shall also be passed and arrears paid within a total period of four months from the date of receipt of a copy of this judgment. P.N.Ravindran, Judge. ess 7/11