IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 WP(C).No. 9582 of 2007(N) ------------------------- PETITIONER(S): --------------- 1. P.K.CHANDRA MOHAN, RETIRED P.C.K. 1565, PALLIKKUNNEL HOUSE, PUTHENANGADI, THIRUNAKKARA P.O., KOTTAYAM. 2. K.J.JAYADAS, RETIRED A.S.I., VALLAPPURAYIL HOUSE, PARIPPU P.O., KOTTAYAM. BY ADV. SRI.K.G.ANIL BABU RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SMT.SMITHA SUKUMAR FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/06/2009, ALONG WITH WPC NO. 9950 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE GOVT. ORDER DTD.16.10.2000. P2. COPY OF THE JUDGMENT IN O.P.NO.5939/02 DTD.16.12.04. P3. COPY OF THE JUDGMENT IN W.P.(C). No. 6445/05 DTD.24.2.05. P4. COPY OF THE REPRESENTATION TO R1 DTD.21.4.05. P5. COPY OF THE GOVERNMENT ORDER DTD.29.10.05. P6. COPY OF THE GOVT. LETTER DTD.28.3.01. P7. COPY OF THE GOVT. ORDER DTD.29.11.06. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).Nos.9582 & 9950 of 2007 ================== Dated this the 22nd day of June, 2009 J U D G M E N T The petitioners in these two writ petitions are retired Police Constables and Assistant Sub Inspectors in the Police Department of the Government of Kerala. All of them completed 23 years of service prior to 1.3.1997. By G.O(P).No.3000/98/Fin. dated 25.11.1998, the Government revised the pay scales of all its employees. In the same, the modified rules regarding grant of higher grade were also stipulated. Grant of higher grades was applicable with effect from 1.3.1997. Therefore, the employees who had completed 23 years prior to 1.3.1997 would become eligible for 3rd higher grade only with effect from 1.3.1997. It is not disputed before me that all the petitioners are eligible for 3rd higher grade in the scale of pay applicable to Sub Inspectors. Accordingly, the petitioners were granted 3rd higher grade with effect from 1.3.1997 and their pay was fixed accordingly with effect from that date. In the 1997 pay revision order the scale of pay of Sub Inspectors was Rs.4600-8000. Subsequent to the pay revision order the same was changed as Rs.5000-8150. Still later, by Ext.P1 order, the Government assigned the scale of Rs.5500-9075 to the post of Sub Inspectors with effect from the date of that order, viz, 16.10.2000. The petitioners in these writ petitions raise a grievance regarding fixation of pay in the scale of Rs.5500-9075 with effect from w.p.c.9582/07 & cc 2 16.10.2000. According to them, since Ext.P1 is an amendment to the pay revision order itself, as is clear from the last sentence in Ext.P1, the fixation of pay should also be in accordance with the pay revision order itself. Instead, the pay of the petitioners has been fixed by invoking Rule 30 of Part I of Kerala Service Rules, particularly Government Decision No.1 thereof. The increment date of the petitioners has also been postponed by one year from 16.10.2000. The petitioners would submit that both are incorrect. According to them, Rule 30 is applicable only when the petitioners are holding the post of Sub Inspectors which they are not. Secondly, Rule 31 prescribes the eligibility for increment. The petitioners are entitled to increment on their due dates of increment. There is no rule in the Kerala Service Rules authorising the respondents to postpone the increment date of the petitioners by one year simply because Ext.P1 order has been passed assigning a new scale of pay to the post of Sub Inspector. The petitioners approached this Court twice and ultimately, by virtue of the direction of this Court, the impugned order [Ext.P7 in W.P.(C).No.9582 and Ext.P4 in W.P.(C).No.9950] has been passed, rejecting the contentions of the petitioners. It is under the above circumstances, the petitioners have filed these writ petitions seeking the following reliefs: W.P.(C).No.9582/2007: “i. issue a writ of certiorari or any other appropriate writ, order or direction calling for the papers leading upto Exhibit P7 and quash the same; w.p.c.9582/07 & cc 3 ii. declare that the petitioners and [sic] included in Exhibit P3 is entitled to get their basic pay fixed at Rs.6275/- as on 16.10.2000 in the pay scale of Rs.5500-9075 and future increase in the pay scales according to the due dates of increment calculated on the length of service as time bound 3rd higher grade on the basis of Exhibit P1; iii. issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to re-fix the basic pay of the petitioners and others in Exhibit P3 in the scale of Rs.5500-9075 at Rs.6275/- as on 16.10.2000 as time bound 3rd higher grade with proportionate revision calculated on the basis of the due dates of increment with retrospective effect from 16.10.2000 and disburse the monetary benefits as expeditiously as possible at any rate within a time limit to be fixed by this Hon'ble Court.” W.P.(C).No. 9950/2007: “i. issue a writ of certiorari or any other appropriate writ, order or direction calling for the papers leading upto Exhibit P4 and quash the same. ii. declare that the petitioner and others included in Exhibit P3 are entitled to get their basic pay fixed at Rs.6275/-as on 16.10.2000 in the pay scale of Rs.5500-9075 and future increase in the pay scales according to the due dates of increment calculated on the length of service as time bound 3rd higher grade on the basis of Exhibit P1: iii. issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to re-fix the basis pay of the petitioner and others in Exhibit P3 in the scale of Rs.5500-9075 at Rs.6275/- as on 16.10.2000 as time bound 3rd higher grade with proportionate revision calculated on the basis of the due dates of increment with retrospective effect from 16.10.2000 and disburse the monetary benefits as expeditiously as possible at any rate within a time limit to be fixed by this Hon'ble Court.” 2. Counter affidavits have been filed in both writ petitions supporting the impugned orders. 3. I have considered the rival contentions in detail. 4. I am not satisfied that the petitioners are entitled to have their pay in the new scale of pay of Rs.5500-9075 fixed in accordance w.p.c.9582/07 & cc 4 with the pay revision order since that fixation has already been made. Perhaps, if the change of scale of pay was made applicable with effect from the date of coming into force of the pay revision order, the petitioners' contention could have been accepted. But here, the new scale of pay is effective from 16.10.2000 only. In fact in between once the scale of pay had been changed to Rs.5000-8150 when also the petitioners' pay had been refixed. Therefore, for the fixation of pay with effect from 16.10.2000 we cannot go back to the pay revision order. The last sentence in Ext.P1 order therefore is of no consequence at all for the purpose of fixation of pay. The petitioners' higher grade on attaining 23 years has been granted with effect from 1.3.1997 and with effect from that date the petitioners' pay in the scale of pay applicable to the Sub Inspector of Police has been duly fixed in accordance with the Rules prescribed in the pay revision order. On change of scale of pay, subsequently, the petitioners cannot seek fixation of pay in accordance with the pay revision order itself. If on change of scale of pay, pay of the petitioners cannot be fixed as per the pay revision order, then for fixation of he petitioners' pay some rule in the KSR has to be applied. Rule 28A of Part I of KSR is not applicable in so far as it applies to promotion to a substantive vacancy. Here the petitioners have not been promoted to a substantive vacancy. Then the only other rule available in the KSR is Rule 30 of Part I KSR, w.p.c.9582/07 & cc 5 which reads thus; “30. The holder of a post, the pay of which is changed, shall be treated as if he were transferred to a new post on the new pay; provided that he may at his option retain his old pay until the date on which he has earned his next or any subsequent increment in the old scale, or until he vacates his post or ceases to draw pay in that timescale. The option once exercised is final. xxx xxx xxx xxx GOVERNMENT DECISION The following principles will be followed for fixation of pay when the scale of pay of a post held on a provisional basis is revised:- (i) If the pay drawn in the previous scale is less than the minimum of the revised scale, then the pay in the revised scale may be fixed at the minimum. (ii) If the pay drawn in the previous scale is stage in the revised scale, the pay in the revised scale may be fixed at that stage. (iii) If the pay drawn in the previous scale is not a stage, then the pay in the revised scale may be fixed at the next lower stage, the difference being treated as personal pay to be absorbed in future increase in pay. 2. The above principles will also be adopted for regulating the pay of an officer holding a post on a provisional basis when appointed to a higher or a lower post provisionally, except in cases of reversion. 3. Past cases settled otherwise, will not be reopened. (G.O.(P). 297/66/Fin., dated 5.7.1966).” Of course, the petitioners raise a contention that they are not holding the post of Sub Inspector. But I find that the Government Decision under Rule 30 prescribes the mode of fixation of pay in respect of a post held on a provisional basis. I am of opinion that in the case of higher grade promotions at least for the purpose of fixation of pay, it can be said that the person is holding the post in the higher grade on a provisional basis until they can be promoted regularly to that post, w.p.c.9582/07 & cc 6 when a substantive vacancy arises. Otherwise it would lead to anomalous results. In that view, I am of opinion that Rule 30 is the rule correctly applicable to fixation of pay of the petitioners on the scale of pay is changed. Therefore, I do not find any infirmity in the respondents fixing the petitioners' pay in accordance with Rule 30 of Part I of KSR. 5. However, the Government Pleader could not bring to my attention any provision, whereby the petitioners' date of increment could be postponed by an year, simply because the scale of pay is changed. There is no rule whereby the increment date can be postponed for payment of increment in the revised scale of pay. The increment date remains the same. The only change is in the rate of increment ie., the rate of increment would be as per the rate in the higher scale of pay. Therefore, to that extent, Ext.P7 in W.P.(C). No.9582/2007 and Ext.P4 in W.P.(C).No.9950/2007 are incorrect. Accordingly, to that extent they are quashed. The petitioners' pay shall be refixed granting increments subsequent to 16.10.2000 on their due dates of increment and arrears shall be paid as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.9582/07 & cc 7