IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 5TH APRIL 2010 / 15TH CHAITHRA 1932 WA.No. 1965 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.23518/2008 Dated 15/06/2009 .................... APPELLANT(S): RESPONDENTS ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, IRRIGATION AND ADMINISTRATION, THIRUVANANTHAPURAM. BY GOVT.PLEADER SRI.BENNY GERVASIS RESPONDENT(S): PETITIONER ------------------------- M.HAMZAKOYA, FIRST GRADE DRAFTSMAN, (DEPLOYMENT TO L.S.G.D), NILAMBUR BLOCK PANCHAYATH, NILAMBUR, MALAPPURAM DISTRICT. ADV. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.MATHEW SUNNY THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------------- W.A. No.1965 of 2009 ---------------------------------------------- Dated 5th April, 2010. J U D G M E N T Balakrishnan Nair, J. The respondents in the Writ Petition are the appellants. The respondent herein was the writ petitioner. 2. The brief facts of the case are the following : The respondent joined the Department of Irrigation, as Draftsman Grade I, on 5.10.1996, pursuant to the advice of the Public Service Commission dated 30.8.1996. As per the Pay Revision Order issued on 25.11.1998, based on the 7th Pay Commission report, the employees like the respondent were entitled to get Higher Grades, on completion of 10 years' service, 18 years' service and 23 years' service, as provided therein. Going by the said Government Order, he would have got the first Higher Grade on 5.10.2006. While so, the Government issued Pay Revision Order dated 25.3.2006, based on the report of the 8th Pay Commission. The salary of the employees were revised notionally, with effect from 1.7.2004, as per that order. But, the actual arrears were payable only from 1.4.2005. As per the said Government Order, the employees like the respondent were WA NO.1965/09 2 entitled to get higher grades, on completion of 8 years, 16 years and 23 years of service respectively. With the issuance of that Government Order, the respondent was eligible to get Higher Grade, with effect from 1.3.2006, as he has already completed 8 years' service on 5.10.2004. Normally, he will come over to the revised scale of pay on 1.7.2004 and get the Higher Grade on 1.3.2006. But, the respondent claimed the benefit of Paragraph 7 (2) of Annexure 2 of the Pay Revision Order dated 25.3.2006. The said Paragraph reads as follows :- “(2) However, an employee promoted to a higher scale (whether by regular promotion, ratio promotion or under the time bound higher grade scheme) on or after 1.7.2004 but before the date of this Government Order will have the option to continue in the pre- revised scale of the lower post till the date of such promotion and then first avail promotion to the pre-revised scale of the higher post and thereafter avail the benefit of this pay revision on the same date as such promotion. This option will be available only for the first promotion after 1.7.2004. This benefit of option will be restricted to the employees who were promoted on or after 1.7.2004 but before the date of this order.” Though the respondent was to come over to the revised scale of pay on 1.7.2004, by virtue of the above quoted Paragraph, he can postpone it to 1.3.2006 and on the very same day, he can claim WA NO.1965/09 3 grade promotion also. Claiming the benefit of the above-quoted paragraph, the respondent filed Ext.P1 representation before the second respondent. But, the same was rejected by the said officer, by Ext.P2. Therefore, the Writ Petition was filed, challenging Ext.P2 and also seeking consequential reliefs. The respondent founded his claim on Para 7(2) of Annexure 2 of the Pay Revision Order, which we have already quoted above. 3. But, the appellants contended that the benefit of the above Paragraph will be available only to those persons who were eligible for Higher Grade, on completion of 10 years' service, between 1.7.2004 and 25.3.2006. But, the learned Judge overruled the said contention and according to us, it was rightly done. If the respondent was entitled to get first Higher Grade in the pre-revised scale before 25.3.2006, he need not fall back on Paragraph 7(2). So, Paragraph 7(2) is entitled for the benefit of the persons like the respondent. Otherwise, the said clause will become meaningless. 4. The next point canvassed by the learned Government Pleader is that the learned Single Judge has directed WA NO.1965/09 4 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 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 WA NO.1965/09 5 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 WA NO.1965/09 6 by the learned Government Pleader. Accordingly, the Writ Appeal fails and it is, accordingly, dismissed. K.BALAKRISHNAN NAIR, JUDGE. P.N.RAVINDRAN, JUDGE. tgs K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------------- W.A. No.1965 of 2009 ---------------------------------------------- J U D G M E N T Dated 5th April, 2010.