IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 22ND JANUARY 2008 / 2ND MAGHA 1929 OP.No. 16166 of 2000(Y) -------------------------------- PETITIONER: ------------------ S. KANAKARAJ, CLERICAL ATTENDER, SALEX TAX APPELLATE TRIBUNAL, C.P. G.P. LANE, SASTHAMANGALAM, THIRUVANANTHAPURAM-10. BY ADV. SRI.V.P.SUKUMAR SRI.BOBBY JOHN RESPONDENTS: ---------------------- 1. THE SALES TAX APPELLATE TRIBUNAL, C.P. G.P. LANE, SASTHAMANGALAM, THIRUVANANTHAPURAM-10, REP. BY SECRETARY. 2. THE PRINCIPAL SECRETARY TO GOVT., FINANCE (PRCC) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE STATE OF KERALA, REP. BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. M.P.SREEKRISHNAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 22/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP NO. 26466/2000 IN OP NO. 16166/2000. DISMISSED 22/01/2008. SD/- K.M.JOSEPH, JUDGE. APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE ORDER DT. 7/12/96 BY THE SECRETARY BOARD OF RVENUE (TAXES), THIRUVANANTHAPURAM. EXT.P2. COPY OF THE STATEMENT OF FIXATION OF PAY IN THE REVISED SCALE PASSED BY THE R1 IN GO (P) NO. 3000/98/FIN DATED 25/11/98. EXT.P3. COPY OF THE REPRESENTATION DT. 17/2/99 SUBMITTED BY THE PETITIONER BEFORE THE R2. EXT.P4. COPY OF THE LETTER DATED 13/09/99 SENT BY THE R1 TO THE R2. EXT.P5. COPY OF THE LETTER DT. 15/12/99 SENT BY THE R2 TO THE R1. EXT.P6. COPY OF THE REPRESENTATION DT. 26/12/99 SUBMITTED BY THE PETITIONER BEFORE THE R2. EXT.P7. COPY OF THE LETTER DT. 18/2/00 RECEIVED BY THE PETITIONER FROM THE R2. EXT.P8. COPY OF THE ORDER GO P NO. 220/2000/56/FIN DT. 25/1/2000. RESPONDENT'S EXHIBITS NIL. True copy tga K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - O.P. No.16166 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of January, 2008 JUDGMENT Petitioner has approached this court seeking to quash Exts.P5 and P7 letters, to declare that he is entitled to furnish option in the cadre of peon as on 1.3.1997 despite his promotion as Clerical Assistant on 7.12.1996. He seeks a declaration that part of G.O.(P) No. 3000/98/Fin dated 25.11.1998 in so far as it discriminates persons promoted before 1.3.1997 is discriminatory and hence unconstitutional. He seeks a direction to accept his option to come over to the revised scale ordered by the Government Order dated 25.11.1998 in the scale of pay of peon as on 1.3.1997 and to re-fix the pay in the cadre of Clerical Attender accordingly. 2. Case of the petitioner in brief is as follows: Petitioner was promoted as Clerical Assistant vide Ext.P1 dated 7.12.1996. He joined duty on 18.12.1996. Government revised pay as per Government Order dated 25.11.1998. The employee was allowed to exercise option in respect of existing scale, and pursuant to his option Ext.P2 statement of fixation of pay was issued, as per which the first respondent revised the scale of pay of the petitioner with effect from 1.3.1997 and fixed his pay at Rs.2845/- with effect from 1.3.1997. O.P.16166/2000. 2 Thereafter, it came to the petitioner's notice that his pay in the cadre of Clerical Attender would have been fixed at Rs.2910/- with effect from 1.3.1997, if he had submitted his option to remain in the scale of pay of Peon till 1.3.1997 and then switched over to the scale of pay of the promotion post in the revised scale with effect from that date. Thereupon he submitted Ext.P3 representation. Ext.P4 is the recommendation in favour of the petitioner, wherein it is stated that he may be permitted to exercise option to the immediate lower post of Peon by relaxing Rule 16 of the Government Order dated 25.11.1998. By Ext.P5 order, it was rejected. Ext.P5 reads as follows: “I am to invite your attention to the letter cited and to inform you that the option can only be made in the post which the incumbent is holding on 1.3.1997 or in the promotion post/Higher Grade he is getting in between 1.3.1997 and 25.11.1998. The option cannot be given to the post the incumbent holding prior to this period. Hence the request of Sri. S. Kanakaraj, Clerical Attender cannot be considered to.” Petitioner again submitted representation repeating the same request vide Ext.P6 before the second respondent. That came to be rejected by Ext.P7. Ext.P8 is the order dated 25.1.2000. Petitioner has produced the same to show that if any of his juniors, who was drawing equal pay in the scale of O.P.16166/2000. 3 Peon was promoted on or after 1.3.1997 as Clerical Attender, his pay would have been fixed in the post of Clerical Attender in the revised scale at Rs.2910/-. 3. I heard learned counsel for the petitioner Sri. V.P.Sukumar and the learned Government Pleader. 4. Learned counsel for the petitioner would submit that the matter is covered by Clause 7 of Order dated 25.11.1998. It reads as follows: “All appointments and promotions made on or after 1.3.1997 shall be deemed to have made int he revised scale of pay. However, if an employee wishes to opt the revised scale of pay of his promoted post ie., the next immediate promotion post assumed on or after 1.3.1997 he will be permitted to opt the revised scale of the promotion post with effect from the date of promotion and his pay in the revised scale fixed on the basis of the pay he drew in the pre-revision scale of the promoted post on that date. This benefit will be restricted to the employees who were promoted between 1.3.1997 and to the date of issue of this order. Employees who were promoted on or after 1.3.1997 cannot be allowed to exercise option of the feeder post beyond the date of such promotion.” O.P.16166/2000. 4 He would submit that a perusal of the last portion of the Clause makes it clear that the restriction against an employee exercising re-option in respect of the lower post is limited to persons who are promoted after 1.3.1997. He would submit that on the same interpretation in the same clause as it existed earlier, this view has been taken. In other words, the petitioner having been promoted vide Ext.P1 earlier to 1.3.1997 he is not subject to the restriction that employee cannot opt in respect of the lower post of Peon as sought for by him, he contends. 5. It is admitted that no juniors of the petitioner were promoted after 1.3.1997. A perusal of the clause which learned counsel for the petitioner pressed before me would show that the clause as such is inapplicable unless the person is promoted after 1.3.1997. The last portion of the clause in my view is only engrafts a restriction on a person who is promoted after 1.3.1997 from claiming option in respect of the lower post. That does not however mean that what is denied to such a person is granted to a person who is promoted prior to 1.3.1997. In other words, in the admitted factual position as petitioner was promoted prior to 1.3.1997, in the absence of a provision in the Government Order enabling him to exercise his option in respect of the lower post, he has no legal right to claim option of his choice in respect of the lower post of Peon from which O.P.16166/2000. 5 he was promoted in 1996, that is prior to 1.3.1997. It is not in dispute that there is no express provision in the Government Order enabling the employees promoted earlier than 1.3.1997 to exercise option in respect of a lower post. In this view of the matter, I find that Ext.P5 is only to be supported. No ground is made out either to interfere with Exts.P5 and P7. The Original Petition fails and it is dismissed. (K.M. JOSEPH, JUDGE) sb O.P.16166/2000. 6 K.M. JOSEPH, J. -------------------------------- O.P. No. 16166 of 2000 -------------------------------- JUDGMENT 22.1.2008.