IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 WP(C).No. 30838 of 2007(U) ------------------------------------- PETITIONER: -------------------- O.KARUNAKARAN, SENIOR CLERK, PALLIKUNNU SERVICE CO-OPERATIVE BANK LTD., HEAD OFFICE, CHALAD,KANNUR DISTRICT. BY ADV. MR.P.M.PAREETH RESPONDENTS: ----------------------- 1. JOINT REGISTRAR OF CO-OPERATIVE SOCITIES. 2. PALLIKUNNU SERVICE CO-OPERATIVE BANK LTD REPRESENTED BY ITS SECRETARY, HEAD OFFICE, CHALAD, KANNUR - 670 014. 3. SMT. K.P. MADHURI, SENIOR CLERK, PALLIKUNNU SERVICE CO-OPERATIVE BANK LTD., HEAD OFFICE, CHALAD, KANNUR DISTRICT. BY GOVERNMENT PLEADER SMT. SUNITHA SUKUMAR ADVS. MR.T.P.PANKAJAKSHAN FOR R2 MR.V.G.ARUN FOR R3 MR.T.R.HARIKUMAR FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 30838 of 2007(U) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE PHOTOCOPY OF THE ORDER NO. C.R.P.(1) 7395/06/LDIS DATED 9.2.07. EXT.P2 - TRUE PHOTOCOPY OF THE G.OS(MS) NO. 7/96 DATED 25.1.1996. EXT.P3 - TRUE PHOTOCOPY OF THE CATEGORY RULES IN RESPECT OF THE BANK DATED 29.11.2002 AS APPROVED BY THE FIRST RESPONDENT VIDE ENDORSEMENT DATED 24.3.2003. EXT.P4 - TRUE PHOTOCOPY OF THE ORDER DATED 29.3.2003 APPOINTING THE PETITIONER AS JUNIOR CLERK. EXT.P5 - TRUE PHOTOCOPY OF THE LETTER DATED 24.9.1990 ISSUED BY THE REGISTRAR OF CO-OPEARATIVE SOCEITES. EXT.P6 - TRUE PHOTOCOPY OF THE LETTER DATED 20.10.06 ISSUED BY THE FIRST RESPONDENT TO THE SECOND RESPONDENT. EXT.P7 - TRUE PHOTOCOPY OF THE REPRESENTATION DATED 13.11.2006 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P8 - TRUE PHOTOCOPY OF THE LETTER DATED 12.6.2007 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER. RESPONDENTS'EXHIBITS: EXT.R3(a) - COPY OF THE RESOLUTION DATED 24.12.2003. EXT.R3(b) - COPY OF THE SENIORITY LIST EXT.R3(c) - COPY OF THE JUDGMENT IN WP(C) NO. 181 OF 2004 DATED 4.11.2004. EXT.R3(d) - COPY OF THE RESOLUTION DATED 6.2.2004. EXT.R3(e) - COPY OF THE COMPLAINT PETITION. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... W.P(C) No. 30838 of 2007 ................................................. Dated this the 22th day of July, 2009 J U D G M E N T The petitioner joined the service of the 2nd respondent Co-operative Bank on 18.8.1988 as a peon. On completion of 10 years on 18.8.1998, he was given the first higher grade in the revised scale of pay of Rs.2600-4425/-. Accordingly, his pay was fixed as follows: 01.09.2000 - Rs.4125/- 01.09.2001 - Rs.4125/- 01.09.2002 - Rs. 4325/- Thereafter, on 29.3.2003, the petitioner was appointed by transfer to the post of Junior Clerk on 29.3.2003 in the scale of pay of Rs.3215-5925/-. Pursuant thereto his pay was fixed as follows: 29.03.2003- 4550/- 01.03.2004 - 4675/- 01.03.2005 - 4800/- 2. On 18.6.2005, the petitioner was promoted as senior W.P(C) No. 30838 of 2007 -2- clerk in the scale of pay of Rs.3555-6600/-. Accordingly, his pay in the post of senior clerk was fixed as Rs.8460/- on 18.6.2005. Subsequently, scale of pay of senior clerk was revised to Rs.5770-12340/- In that scale of pay his pay was fixed as Rs.8700 as on 1.6.2006. Thereafter the 3rd respondent filed a complaint before the 1st respondent to the effect that as a result of the fixation of pay of the petitioner in the post of Junior Clerk the petitioner, though junior to the 3rd respondent, is drawing more pay than the 3rd respondent. Based on the said complaint, Ext.P6 order was issued to the petitioner whereby the petitioners pay was refixed as Rs.4325/- as on 29.3.2003 instead of Rs.4550/-. Against Ext.P6, the petitioner filed Ext.P7 representation. However, the same was rejected by Ext.P1 holding that the petitioners pay was rightly fixed as on 29.3.2003 as Rs.4325/-, which is in accordance with paragraph VII(ii) of Ext.P2 Government Order. Accordingly by Ext.P8 the petitioner was directed to refund the excess amount of Rs.51837/- drawn by him. The petitioner is challenging Exts.P1, P6, P8 in this writ petition. 3. According to the petitioner, the 1st respondent has misread Ext.P2 Government Order. Paragraph VIII(2) of Ext.P2 W.P(C) No. 30838 of 2007 -3- applies only when a person who got first higher grade is promoted to the first regular promotion post, which is not the case of the petitioner. According to him, the post of junior clerk is not the regular promotion post of peon. Appointment of peon as Junior Clerk is appointment by transfer and not by promotion. The petitioner further points out that this has been made abundantly clear by the Registrar of Co-operative Societies in Ext.P5 whereby the Registrar has clearly clarified that the appointment of sub staff as junior clerk is not a promotion and is only an appointment by transfer and therefore, when sub staffs have been appointed as junior clerk they are not entitled to relaxation in educational qualifications in accordance with rules 185(2) of the Kerala Co-operative Societies Rules. The petitioner therefore seeks the following reliefs: “1) A writ of certiorari or other appropriate writ, direction or order calling for the records leading to Exts.P1, P6 and P8 and quash the same as against the petitioner. 2) A declaration to the effect that the petitioner is entitled to the pay of Rs.4550 in the scale of junior clerk viz. 3215-5925 as on 29.3.03 on transfer appointment to that post and that Ext.P2 government order which deals with promotion to the cadre post of employees who were actually enjoying the same scale after getting higher grade is not applicable to the petitioner and the same cannot be pressed into service to reduce the pay of the petitioner in the post of junior clerk.” W.P(C) No. 30838 of 2007 -4- 4. No counter affidavits have been filed by the 1st and 2nd respondents. The 3rd respondent has filed a counter affidavit in which her contention is that her complaint was regarding stepping up her pay on par with that of the petitioner, who is junior to her in the category of junior clerk. However, the learned Government pleader supports the impugned orders. 5. I have considered the rival contentions in detail. 6. I am also satisfied that paragraph VIII(2) of Ext.P2 Government Order applies only when a person who has enjoyed higher grade is promoted to the next higher post of regular promotion. This is because when a promotion post is available for a person who becomes entitled to higher grade, that person is so entitled to the higher grade in the scale of pay applicable to the next promotion post. In other words, the scale of pay of the regular promotion post and the higher grade promotion are the same. That is why in Ext.P2 such a rule has been incorporated. Here it is not all like that. Here, the petitioner became entitled to the first higher grade after 10 years of service only in the scale of pay of Rs.2600-4425. The Post of junior clerk carries scale of pay of Rs.3215-5925, which is not the same as higher grade scale of pay given to the petitioner. Further this has been W.P(C) No. 30838 of 2007 -5- made abundantly clear in Ext.P5 order by the Registrar holding that the appointment of sub staff as junior clerk cannot be considered as a promotion and that the same is only an appointment by transfer. That being so the action of the respondents 1 and 2 in refusing fixation of pay of the petitioner in the scale of pay applicable to junior clerk and subsequently is clearly unsustainable. Accordingly, I quash Exts.P1, P6 and P8. It is declared that the original fixation of pay of the petitioner is perfectly in order, and that he is not liable to refund any amount as excess pay drawn. 7. If the 3rd respondent has a complaint that although the petitioner is junior to the 3rd respondent in the category of junior clerk or equivalent and he is drawing higher pay, the remedy available to the 3rd respondent is to seek stepping up of pay on par with that of the petitioner, if she is so entitled to. The 3rd respondent would be free to seek such benefits in accordance with law. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE rhs