IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 19TH FEBRUARY 2008 / 30TH MAGHA 1929 WP(C).No. 6560 of 2005(E) ------------------------- PETITIONER: ------------------ N.K.MOIDEEN, (HELPER) CODE NO.3329 SHOP MANAGER-IN-CHARGE, KERALA STATE CIVIL SUPPLIES CORPORATION, MAVELI STORE ULLANAM PALANTHINKAL TIRUR UNIT, MALAPPURAM. BY ADV. SRI.R.RAJASEKHARAN PILLAI SMT.SABINA JAYAN SRI.M.S.NISHAD RESPONDENTS: ----------------------- 1. THE KERALA STATE CIVIL SUPPLIES CORPORATION MAVELI BHAVAN, GANDHI NAGAR, KOCHI REPRESENTED BY CHAIRMAN & MANAGING DIRECTOR 2. THE REGIONAL MANAGER, KERALA STATE CIVIL SUPPLIES CORPORATION, PALAKKAD. BY ADV. SRI.JOY GEORGE SRI.V.J.MATHEW, SC CIVIL SUPPLIES CORPN SRI.MILLU DANDAPANI,SC FOR SUPPLYCO THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON19/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC. 6560/2005. APPENDIX PETITIONER'S EXTS: EXT. P1 : TRUE COPY OF THE JUDGMENT DATED 3.8.2004 IN W.P.(C) 26870 OF 2003 OF THIS HON'BLE COURT. EXT. P2 : TRUE COPY OF THE PROCEEDINGS NO.D6.3620/04 (2) DATED 17.6.04 OF THE 1ST RESPONDENT. EXT. P3 : TRUE COPY OF THE FIXATION STATEMENT ISSUED BY THE 2ND RESPONDENTDATED 17.6.2004. EXT. P4 : TRUE COPY OF THE COMMUNICATION DATED 17.1.2005 FROM THE 1ST RESPONDENT TO THE PETITIONER. RESPONDENTS' EXTS: EXT. R1(a) : PHOTO COPY OF THE ORDER NO. A1 1812/84 DATED 25.6.1984 ISSUED BY R.M. PALAKKAD. EXT. R1(b) : PHOTO COPY OF PROCEEDINGS NO. D6.8110/99 DATED 4.3.1983. EXT. R1(c) : PAY FIXATION STATEMENT AFTER GIVING HIGHER GRADE TO THE PETITIONER. K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No.6560 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of February, 2008 JUDGMENT Petitioner has approached this court with the following prayers: “I. Issue a writ of certiorari or other appropriate writ, order or direction quashing the rider provided in Ext.P2 to the effect that “But the benefit of re-fixation under Rule 28A Part I KSR will not be admissible” be quashed as arbitrary, illegal, unconstitutional and opposed to the very principle of grade promotion. II. Issue a writ of mandamus or other appropriate writ commanding the 2nd respondent to re-fix the petitioner's pay in the first higher grade and then at the appropriate stage in the time scale in the second higher grade. III. Issue a writ of mandamus or other appropriate writ, order or direction commanding the respondents to disburse the arrears of pay and allowance consequent on such fixation. IV. Issue a writ of certiorari or other appropriate writ, order or direction quashing Ext.P4 as incorrect, illegal and it amounts to abject abdication of supervisory jurisdiction of the first respondent.” 2. Heard learned counsel for the petitioner Sri. R.Rajasekharan Pillai and Smt. Sumathi Dandapani, learned Senior Counsel for the respondents. WPC. 6560/2005. 2 3. Case of the petitioner in brief is as follows: Petitioner was a helper in the first respondent Company. He was engaged on daily wages from 26.9.1983. According to him, he was regularised with effect from 1.1.1984. Therefore he contends that he should have given first higher grade with effect from 26.9.1993. It is further stated inter alia that the petitioner filed representation feeling aggrievd by the rejection of the request for salary and other benefits with effect from 1.1.1984 to 31.5.1989. Petitioner filed writ petition, that came to be dismissed as withdrawn with liberty to approach the court again. According to the petitioner he is entitled to reckon his continuous service with effect from 26.9.1983 and the first higher grade ought to have been sanctioned with effect from 26.9.1993. It is stated that the petitioner's pay in the pre-revised scale on completion of ten years ought to have been fixed in the scale of 550-800 and the consequential revisional scales should have been worked out and the pay as on 26.9.1993 would have been calculated at the lower time scale and then fixed in the first higher grade as on 26.9.1993, and it is only on the basis of such fixation the second higher grade ought to have been calculated and therefore the fixation statement is illegal. Ext.P2 evidences sanctioning of the second higher grade. But therein it is stated WPC. 6560/2005. 3 that the benefit of re-fixation under Rule 28A of Part I KSR will not be applicable. Ext.P3 is the fixation statement issued fixing his pay at Rs.3520/- with effect from 1.9.2003. 4. In the counter affidavit filed on behalf of the respondents it is inter alia stated as follows: By Ext.R1(b) dated 4.3.2003 on ascertaining the correct position from the Regional Manager, Palakkad that the continuous service of the petitioner started from 26.6.1984, the regularisation given to the petitioner with effect from 1.1.1984 has been revised as 1.6.1989 since the sanctioned post of Helper after 1.1.1984 was available only with effect from 1.6.1989. Originally the service of the petitioner was regularised with effect from 1.1.1984 thinking that the petitioner was entitled to regularisation with effect from 1.1.1984 on the basis that his continuous service commenced from 26.9.1983. It is also stated that it was decided to reckon the non-regular service of continuous nature prior to the date of regularisation for calculating the qualifying service for higher grade and was sanctioned with effect from 26.9.1993 on the basis that his continuous service commenced from 26.9.1983. It is further stated that the benefit of refixation under Rule 28A of Part I KSR is not applicable to grade promotion. Pay fixation statement consequent to the sanctioning of 1st and WPC. 6560/2005. 4 2nd higher grade to the petitioner is produced as Ext.R1(c). It is also stated that the second higher grade has been sanctioned to the petitioner vide Ext.P2. 5. Learned counsel for the petitioner would contend that petitioner was entitled to regularisation with effect from 1.1.1984 and therefore the first higher grade should have been fixed by giving due credit to the increment the petitioner would have earned. 6. As far as the challenge to Ext.P2 is concerned, I would think that there is no merit in the challenge. Petitioner has been granted the fixation under Rule 28A. What is denied to him is re-fixation under Rule 28A. It is stated that the benefit of Rule 28A is not available in the case of grade promotion. Learned counsel for the petitioner is unable to convince me as to how the stand of the respondents is in any way illegal. Accordingly, I uphold Ext.P2. 7. The further prayer in the writ petition is based on the assumption that petitioner is entitled to regularisation with effect from 1.1.1984. Originally the petitioner was granted regularisation with effect from 1.1.1984. It is on the assumption that the the continuous service of the petitioner commenced from 26.9.1983. Later on as it was discovered that the continuous service of the petitioner started from 26.6.1984, the date of WPC. 6560/2005. 5 regularisation had been revised as 1.6.1989. It was by Ext.R1(b) that the petitioner was found to be entitled to regularisation as Helper with effect from 1989. Going by the averments in the counter affidavit, it is clear that the petitioner is not entitled to the second relief. Relief Nos. 3 and 4 are consequential to the second relief. In such circumstances, the writ petition is found to be without merit and it is dismissed. (K.M. JOSEPH, JUDGE) sb