IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 OP.No. 26401 of 2001(R) ---------------------------- PETITIONER: -------------- K.I. VARGHESE, RETIRED DRAFTSMAN OF M.A. COLLEGE OF ENGINEERING, KOLLIEALIL HOUSE, ANGADI, KOTHAMANGALAM. BY MR.KRB.KAIMAL, SENIOR ADVOCATE MR.BENOY K.KADAVAN, ADVOCATE. MR.JOY C. PAUL, ADVOCATE. RESPONDENTS: ------------------ 1. STATE OF KERALA, REP.BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF TECHNICAL EDUCATION, DIRECTORATE OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. 3. PRINCIPAL, M.A. COLLEGE OF ENGINEERING, KOTHAMANGALAM. BY MR. A.J. VARGHESE, SR. GOVERNMENT PLEADER. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 17/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 26401 of 2001(R) Order on C.M.P.No.42901/2001 in OP.No. 26401/2001 Dismissed. 17.05.2010 Sd/- T.R. RAMACHANDRAN NAIR, JUDGE. A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF G.O.Rt.1076/87/H.Edn. dtd. 27.5.87 ISSUED BY THE GOVT. EXT. P2 : COPY OF COMMUNICATION No.DP3/776/87 DTD. 19.11.88 FROM JOINT DIRECTOR OF TECHNICAL EDUCATION, KOTHAMANGALAM TO DIRECTOR OF TECHNICAL EDUCATION. EXT. P3 : COPY OF COMMUNICATION No.DP2/38601/88 DTD. 23.12.88 OF THE DIRECTOR OF TECHNICAL EDUCATION. EXT. P4 : COPY OF G.O.RT.1132/91/H.EDN. DTD. 27.8.91 ISSUED BY GOVT. EXT. P5 : COPY OF REPRESENTATION DTD. 1.12.92 SUBMITTED BY PETITIONER BEFORE THE GOVT. EXT. P5(a) : COPY OF REPRESENTATION DTD. 11.8.97 SUBMITTED BY PETITIONER BEFORE DIRECTOR OF TECH EDUCATION. EXT. P5(b) : COPY OF REPRESENTATION DTD. 17.3.98 SUBMITTED BY PETITIONER BEFORE THE GOVT. EXT. P5(c) : COPY OF REPRESENTATION DTD. 2.12.98 SUBMITTED BY PETITIONER BEFORE THE GOVT. EXT. P6 : COPY OF COMMUNICATION No.22231/J3/99/H.EDN. DTD. 1.6.01 ISSUED BY GOVT. TO THE PETITIONER. EXT. P7 : COPY OF COMPARATIVE STATEMENT OF SCALE OF PAY. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- O.P.No.26401 OF 2001 --------------------------------------- Dated this the 17th day of May, 2010. J U D G M E N T The petitioner herein is a retired Draftsman of the M.A. College of Engineering, Kothamangalam. This original petition is filed aggrieved by the denial of benefits of Higher Grade, as per Exhibit P6 communication issued by the Government. The reason stated in Exhibit P6, to deny the benefits, is that promotion post is absent and therefore, the petitioner is not eligible to get Higher Grade and he is eligible only to get Higher Grade in the next higher scale/scale admissible as per the table attached to Pay Revision Orders. 2. Heard the learned Senior Counsel for the petitioner Sri.K.R.B.Kaimal and the learned Government Pleader Sri.A.J.Varghese. It is submitted by the learned counsel for the petitioner that the very same issue has been considered by a learned Single Judge of this Court in O.P.No.32509/2001 which was upheld in Writ Appeal No.1312/2008 and therefore, the O.P. No.26401/2001 2 petitioner is entitled to succeed in the writ petition. The necessary facts for the disposal of the original petition are the following: 3. The petitioner joined the College as Second Grade Draftsman in the Mechanical wing on 17.08.1965. He was appointed in the scale of pay of Rs.40-120. The post of Draftsman Grade-II was there in Government Engineering Colleges, Polytechnics and Junior Technical Schools. They were also being paid the scale of pay of Rs.80-180 at the relevant time. The scale of pay of Draftsman Grade-II in other private Engineering Colleges except M.A. College of Engineering, Kothamangalam was Rs.80-180. The petitioner has averred that there was wide disparity in the scale of pay granted to the petitioner when compared to the scale of pay of similar post in Government institutions as detailed in paragraph 2 of the writ petition. It is stated that the Government by order dated 27.05.1987, Exhibit P1, removed this disparity with effect from 01.07.1983. 4. At the time when Exhibit P1 order was issued, the scale O.P. No.26401/2001 3 of pay of Draftsman in the private Engineering Colleges at Kothamangalam was Rs.700-1140 whereas the scale of pay of the very same post in other Engineering Colleges (Government and private) and in Polytechnics and Junior Technical Schools was Rs.825-1430. The petitioner who joined in 1965 was granted the first higher grade of 13 years service with effect from 01.07.1979 in the scale of pay of Rs.825-1430. But, as per Exhibit P1, the scale of pay of Draftsman Grade-II in M.A. College of Engineering was also revised to Rs.825-1430. 5. The petitioner had been filing representations in the matter and his request was recommended by the Joint Director of Technical Education, Kothamangalam as per Exhibit P2. By Exhibit P3, the Director of Technical Education recommended to pay the petitioner the scale of pay of Rs.1050-2000 and by Exhibit P4, the Government ordered to revise the scale of pay of the petitioner as Rs.850-1560 with effect from 16.09.1985. According to the petitioner, the scale of pay so granted was not the scale of pay of the post of first higher grade available in other establishments/Colleges. The scale of pay of Draftsman Grade-I O.P. No.26401/2001 4 was Rs.1050-2000. But, this scale was denied to the petitioner on the ground that there is no promotion post in the College wherein he is working. It is submitted that this amounts to great disparity. In the pay revisions of 1992 and 1998 also, the petitioner was granted only the corresponding revised scale of pay at a lower rate. It is pointed out that in the 1998 pay revision, the petitioner's scale of pay was Rs.6500-10550. Pointing out this grievance, the petitioner filed several representations before the Government and finally, the Government reconsidered his claim and rejected the same as per Exhibit P6. 6. Learned Senior Counsel for the petitioner submitted that the petitioner is qualified for promotion as Draftsman Grade-I. Merely because the said post was absent in the College wherein the petitioner is working, he cannot be discriminated. The said aspect in respect of an identically placed employee of the very same College was considered in O.P.No.32509/2001. 7. The stand taken in the counter affidavit of the 2nd respondent, going by paragraph 4, is that the promotion post O.P. No.26401/2001 5 of Draftsman Grade-I in Mechanical Engineering Department does not exist in Mar Athanasius College of Engineering, Kothamangalam and hence the petitioner is not eligible for the scale of pay applicable to the promotion post while granting of 1st Higher Grade on completion of 13 years of service. The said stand is repeated in paragraph 6 of the counter affidavit therein it is stated that in the absence of promotion posts, the petitioner is eligible only to get Higher Grade in the next Higher scale/scale admissible as per the pay revision orders. This aspect is covered by the judgment in O.P.No.32509/2001. For easy reference, I am extracting the relevant findings in paragraph 6 of the judgment. “.........The issue revolves on the question of application of the last sentence in Clause (viii) quoted above, ie as to whether when there is no promotion post of Gr.I in the petitioner’s College he can aspire for the higher grade in the scale of pay applicable to Instructor Gr.I. I am of opinion that the petitioner can. The pay revision order has been issued not with each College in contemplation. The same is issued for the entire service as per the special rules. It is not disputed before me that University Statutes applicable to the employees of private Engineering O.P. No.26401/2001 6 Colleges contains a post of Instructor Grade I which is a promotion post for Instructor Gr.II. Of course the M.A. Engineering College does not have the post of Instructor Gr.I as per the staff pattern fixed for the College. According to me that fact does not take away the right of the petitioner to get the higher scale of pay applicable to Instructor Gr.I as higher grade, simply because the College does not have a Gr.I post. According to me, the words ‘in cases where there are no promotion posts’ is applicable only to cases where there are no posts to which a particular employee can be promoted at all. It is quite possible that the M.A. College of Engineering may get a Gr.I post in future, if the conditions for the same are satisfied. Therefore the interpretation as above would be the more correct interpretation in the facts and circumstances of the case. Further a different interpretation would result in discrimination since in other Colleges and in other departments of MA College itself where there is a post of Gr.I Instructor sanctioned, similarly situated Instructors Gr.II would be getting higher scale of pay than the petitioner. As such, the petitioner has become entitled to 10 years' higher grade in the scale of pay applicable to Instructors Gr.I in accordance with the 1985 pay revision and corresponding revised scale of pay in accordance with subsequent pay revisions......” O.P. No.26401/2001 7 8. The Writ Appeal filed by the respondents therein was dismissed by judgment dated 30.07.2009 in W.A.No.1312/2008. In paragraph 5, the Division Bench also after adverting to the contentions held thus: “Going by the aforementioned facts, two views are definitely possible in this case. The learned Single Judge has took the view, which was found to be followed in the case of other private Engineering Colleges, where there was no post of Instructor Grade-I. So, we feel that the view taken by the learned Single Judge is not illegal or otherwise unsupportable in law warranting interference by the Appellate Bench.......” 9. The very same question arises here and therefore, the view taken by the Division Bench in the above Writ Appeal squarely applies to the facts of this case. Therefore, the petitioner is entitled to succeed in the original petition. Merely because the promotion post was not there in the College that cannot be taken as a ground to deny the benefits to the petitioner. Therefore, this original petition is allowed. Exhibit P6 is quashed. There will be a direction to refix the scale of pay of the O.P. No.26401/2001 8 petitioner after granting the eligible Higher Grade in the post of Draftsman Grade-I. Due benefits will be fixed accordingly and the amount shall be disbursed within a period of four months from the date of receipt of a copy of this judgment. Since the petitioner has already retired from service, refixation of pay will automatically result in refixation of pension and other benefits. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp