IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 19TH NOVEMBER 2009 / 28TH KARTHIKA 1931 OP.No. 2618 of 2001(J) ---------------------- PETITIONER(S): ----------------------- 1. P.V.SURENDRAN, POLICE PHOTOGRAPHER, DISTRICT POLICE OFFICE, KANNUR. 2. K.PRABHAKARAN PILLAI, POLICE PHOTOGRAPHER, DISTRICT POLICE OFFICE, ALLEPPEY. BY ADV. SRI.P.C.SASIDHARAN RESPONDENT(S): ------------------------- 1. THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS, TRIVANDRUM. 3. THE SUPERINTENDENT OF POLICE, KANNUR. 4. THE SUPERINTENDENT OF POLICE, ALLEPPEY. BY GOVERNMENT PLEADER SMT. NO. SUDHA DEVI. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 19/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 2618 of 2001(J) APPENDIX PETITIONERS'EXHIBITS: EXT.P1 - TRUE COPY OF THE REVISED ORDER FOR GRANT OF HIGHER GRADE TO THE EMPLOYEES, AMENDING G.O.(P) NO. 600/99/FIN DATED 25.9.1993. EXT.P2 - TRUE COPY OF THE ORDER G.O.(P) NO. 930/93(2) FIN. DATED 8.12.1993 IN MODIFICATION OF EXT.P1. EXT.P3 - TRUE COPY OF THE ORDER NO.B2-27886/95/NR DT. 28.1.96 OF THE DEPUTY INSPECTOR GENERAL OF POLICE, KANNUR. EXT.P4 - TRUE COPY OF THE ORDER D.O. NO. 78/96-C DATED 15.2.1996. EXT.P5 - TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE DEPUTY INSPECTOR GENERAL OF POLICE, NORTHERN RANGE, KANNUR DATED 24.7.1997. EXT.P6 - TRUE COPY OF THE COMMUNICATION DT. 16.6.1998 ADDRESSED TO THE DIRECTOR GENERAL OF POLICE. EXT.P7 - TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE COMMISSIONER AND SECRETARY TO GOVT. FINANCE DEPARTMENT DATED 11.1.1999. EXT.P8 - TRUE COPY OF THE COMMUNICATION DT. 9.11.1998 OF THE SUPDT. OF POLICE ALLEPPEY. EXT.P9 - TRUE COPY OF THE ORDER DATED 24.2.1998 OF THE 4TH RESPONDENT. EXT.P10 - TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND PETITIONER BEFORE THE 1ST RESPONDENT ON 31.5.1999. EXT.P11 - TRUE COPY OF THE LETTER NO.78/PB/99 DT. 16.3.1999 ISSUED BY THE CHIEF PHOTOGRAPHER TO THE INSPECTOR GENERAL OF POLICE, TRIVANDRUM. EXT.P12 - TRUE COPY OF THE ORDER DATED 5.7.2000 FROM THE ADDL. CHIEF SECRATRY TO GOVT. HOME(H) DEPARTMENT, KERALA TRIVANDRUM TO THE DIRECTOR GENERAL OF POLICE, TRIVANDRUM. EXT.P13 - TRUE COPY OF THE ORDER PROMOTING SRI. CHANDRAN NAIR, AS CHIEF PHOTOGRAPHER DATED 7.6.2000. EXT.P14 - TRUE COPY OF THE ORDER G.O.(Rt) NO. 1179/2003/HOME DATED 19.6.2003. EXT.P15 - TRUE COPY OF THE ORDER G.O.(Rt) NO. 1930/2004/HOME DATED 31.8.2004. EXT.P16 - TRUE COPY OF THE ORDER G.O.(Rt) NO. 2200/2004/HOME DATED 7.10.2004. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... O.P. No. 2618 of 2001 ................................................. Dated this the 19th day of November, 2009 J U D G M E N T Petitioners are photographers in the police department of the Government of Kerala. They entered service on 12.8.1995 and 19.8.1995 respectively. The Government, by Ext.P1 pay revision order, sanctioned higher grade to Government employees on completion of a certain number of years of service. As per the same, after completing ten years of service in the entry post a Government servant is entitled to the first higher grade. Higher grade scales of pay are prescribed in Table II of the Pay Revision Order. But it was specified therein that if there is a promotion post in respect of the entry post coming under pay range from Rs.775-1065 to 1640-2900 and its scale of pay is higher than the time bound grade proposed in Table II, then the incumbent will be given the scale of pay of the promotion post, in the direct line of promotion, as time bound higher grade, provided the incumbent possesses the qualifications prescribed for the promotion post. 2. No promotion post is prescribed for photographers. But O.P. No. 2618 of 2001 -2- they can aspire for appointment by transfer as chief photographers. The post of photographer is in the Subordinate service whereas the post of chief photographer is in the State service. Therefore although the only category from which appointment by transfer as chief photographer is to be made as per special rules framed by the Government by G.O.(P) No. 209/92/Home dated 5.12.1992, is that of photographer, since the post of chief photographer is in the state service, appointment can be made only by transfer. As such the post of chief photographer is not considered as a promotion post for photographers. The photographers have no further avenues of promotion beyond chief photographer also. According to the petitioners, in the department, consistently, the senior-most photographers have been appointed as chief photographers, although appointment is by transfer. Petitioners have produced certain orders of appointment by transfer of photographers as chief photographers also. Petitioners therefore contend that the post of chief photographer is essentially a promotion post for photographers and method of appointment of the chief photographers had to be fixed as transfer only because the post O.P. No. 2618 of 2001 -3- of chief photographer is in the State service whereas the post of photographer is in the subordinate service. In such circumstances, according to the petitioners, petitioners are also eligible for higher grade on completion of ten years of service in the scale of pay applicable to chief photographer. Therefore the petitioners submitted a representation to the Government seeking higher grade in the scale of pay applicable to chief photographer. The same has been rejected by Exts.P6 and P12. Petitioners are challenging Exts.P6 and P12 seeking the following reliefs: “(i) to issue a writ of certiorari quashing Ext.P6 and P12; (ii) to issue a writ, order or direction directing the respondents to fix the scale of pay of the petitioners granting higher grade in the scale of pay of Rs.2060- 3200 on completion of 10 years in terms of clause (vii) 3 (2) (ii) and 3(2)(vii) and the Government orders dated 25.9.93 (P1) and 8.12.1993 (P2) and consequential benefits thereon;” 3. With the help of a counter affidavit filed, the learned Government Pleader supports the impugned orders. According to her, “by-transfer” appointment is not automatic promotion, insofar as “by-transfer” appointments in state service are by selection. It is also submitted that the post of chief photographer O.P. No. 2618 of 2001 -4- is not in the direct line of promotion for photographers. 4. I have considered the rival contentions in detail. 5. I am of opinion that in the facts and circumstances of the case, the contentions of the petitioner cannot be easily brushed aside. If the contention of the Government is accepted then the petitioner have absolutely no avenue of promotion whatsoever. A government servant should have something to aspire for in his service. Here it is an admitted fact that only photographers are considered for “by-transfer” appointment to the post of chief photographer. The contention of the petitioner that in practice also the senior most photographers are appointed as chief photographers is not seen disputed. As such essentially the post of chief photographer is a promotion post for photographers although method of appointment to the post of chief photographer is described as “by-transfer” in the said rules, by virtue of the fact that the post of chief photographer is in the state service whereas the post of photographer is in the subordinate service. The Government has in fact in similar circumstances, issued Government orders in respect of teachers who also have no regular promotion post as such by issuing O.P. No. 2618 of 2001 -5- G.O.(P) 380/94/(13)/Fin. dated 9.6.1994. In the same, in respect of teachers, for issuing that order, the Government has given the following justification: “(a) The higher grades of teachers are time bound and they are more or less regular promotion posts as no other promotion posts other than Headmaster post exist in their case. Considering this, Government Order that, in modification of the provisions in para 9 of the G.O. read as 3rd paper above, teachers -both P.D. and Graduate Teachers (HSA) will be permitted to opt the time bound grade fell due/granted first on or after 1.3.1992 cancelling the option already exercised in respect of the post held immediately prior to 1.3.1992. Excess salary drawn consequent on fixation of pay in the revised scale of the lower time bound grade post, on the basis of the option already exercised, should be re-funded in lump before accepting such re-options. In all these cases of re- options the guidelines issued in Circular No.46/90/Fin. dated 22.6.1990 should be followed.” 6. Although the case of teachers is not exactly identical to that of photographers the reasoning given by the Government in the said Government Order for giving relaxed conditions for grant of higher grades would squarely apply to the case of the photographers, or perhaps more than the teachers, in so far as for photographers, there absolutely no avenues of promotion whatsoever. Therefore, I am of opinion that this is a very fit case for considering the post of chief photographer as a promotion post for photographers for the purpose of grant of higher grade. O.P. No. 2618 of 2001 -6- Therefore, I am satisfied that the petitioners are entitled to higher grade on completion of ten years of service in the scale of pay applicable to chief photographers. Accordingly there would be a direction to the respondents to grant the petitioners higher grade on completion of ten years of service in the scale of pay applicable to chief photographers. Orders in this regard shall be issued and arrears of monetary benefits disbursed to the petitioners, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. sd/- S. SIRI JAGAN, JUDGE rhs //True copy // PA to Judge