IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 WP(C).No. 17130 of 2006(S) -------------------------- OA.421/2004 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER(S): --------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF SHIPPING, ROAD TRANSPORT & HIGHWAYS, NEW DELHI. 2. THE DIRECTOR GENERAL, DEPARTMENT OF LIGHTHOUSES & LIGHTSHIPS, DEEP BHAVAN, A-13, SECTOR 24, NOIDA, GAUTAMBUDH NAGAR, TULSI MARG, UTTAR PRADESH. 3. THE DIRECTOR (REGIONAL), DEPARTMENT OF LIGHTHOUSES & LIGHTSHIPS, MINISTRY OF SHIPPING, ROAD TRANSPORT & HIGHWAYS, DEEP BHAVAN, GANDHI NAGAR, KADAVANTHARA P.O., KOCHI -682 020. BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR SRI.P.NPANKAJAKSHAN PILLAI RESPONDENT(S): --------------- A.K.SOMANATHAN, AGED 58 YEARS, S/O. K.KUMARAN, ASSISTANT ENGINEER (M), DEPARTMENT OF LIGHT HOUSE & LIGHTSHIPS (MINISTRY OF SHIPPING, ROAD TRANSPORT & HIGHWAYS) DEEP BHAVAN, GANDHI NAGAR, KOCHI-20 (RESIDING AT ARACKAPARAMBIL, CHEMMANATHUKARA, VAIKKOM P.O., KOTTAYAM DISTRICT). ADV. SRI.T.C.GOVINDA SWAMY SMT.K.C.SARALA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXTS: EXT.P1 TRUE COPY OF O.A. NO.421/2004. EXT.P2 TRUE COPY OF REPLY STATEMENT DT.9,.8.2004. EXT.P3 TRUE COPY OF THE REJOINDER DT.10.9.2004. EXT.P4 TRUE COPY OF ADDITIONAL REPLY STATEMENT. EXT.P5 TRUE COPY OF REPLY STATEMENT FILED BY THE PETITIONERS. EXT.P6 TRUE COPY OF THE ORDER OF THE TRIBUNAL DT.29.11.2005. EXT.P7 TRUE COPY OF THE O.M. DT.18,.7.2001 ISSUED BY THE GOVT. OF INDIA, DEPARTMENT OF PERSONNEL & TRAINING. EXT.P8 TRUE COPY OF NOTE DATED 9.5.2001 ISSUED BY THE DEPARTMENT OF PERSONNEL & TRAINING. EXT.P9 TRUE COPY OF O.M. NO. 35034/97-ESTT(D) DT.9.8.99 ISSUED BY THE DEPARTMENT OF PERSONNEL & TRAINING. EXT.10 TRUE COPY OF O.M. NO. 35014/1/2003-ESTT (D) DT.29.6.2004 ISSUED BY THE DO. DO. EXT.P11 TRUE COPY OF THE GAZETTE NOTIFICATION NO.330 DT.9.8.1990. /TRUE COPY/ K. BALAKRISHNAN NAIR & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C).No. 17130 of 2006 S - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of March, 2009 JUDGMENT Balakrishnan Nair, J. The respondents in O.A. No. 421 of 2004 are the petitioners. The applicant in that Original Application is the respondent. 2. The brief facts of the case are the following. The respondent/applicant joined service under the writ petitioners as Technician on 8.3.1973. With effect from 1.1.1996, recommendations of the Vth Pay Commission were implemented. Prior to that, the scale of pay of Technician (General) was Rs. 1,400 - 2,300/- The Pay Commission recommended two replacement scales for the said pre-revised scale of pay. It was suggested that 30% of the incumbents in the post of Technician (General) will be granted the replacement W.P.(C).No. 17130 of 2006 2 scale of Rs.5,500 - 9,000/- and the remaining 70% shall be given the scale of pay of Rs.4,500 - 7,000/- The applicant, being a senior hand, was included in the 30% eligible for the higher scale of pay of Rs.5,500 - 9,000/- His pay was fixed as per Rule 7 of the Central Pay Revision Rules, 1997. Later, the Government introduced ACP scheme with effect from 9.8.1999, providing that an employee, who did not get any promotion for 12 years, will be granted a higher grade. An employee, who completed 24 years without any promotion will be granted the second higher grade also. Since the applicant did not get any promotion during his career, he claimed both the upgradation from 1999, as he has completed 24 years of service in 1997 itself. But the competent authority took the stand that the placement of the petitioner in the scale of pay of Rs.5,500 - 9,000/- with effect from 1.1.1996 should be taken as a promotion and therefore, he is entitled to get the second upgradation only. The said dispute led to the filing of the aforementioned Original Petition. 3. The respondent/applicant contended that his placement in the scale of pay of Rs.5,500 - 9,000/- cannot be treated as a promotion. W.P.(C).No. 17130 of 2006 3 It was a placement in a replacement scale ordered by the Pay Commission. His pay was not fixed as provided in FR No.22 (1)(a)(1), as it was not a promotion. He also pointed out that, as mentioned earlier, the pay was fixed only under Rule 7 of the Central Pay Revision Rules, 1997. 4. The writ petitioners resisted the application contending that the respondent got one promotion on 1.1.1996 and therefore, he is entitled to get only the second upgradation available on completion of 24 years. They have granted the same to the respondent during the pendency of the Original Petition. 5. The Tribunal, considering the rival submissions, upheld the point canvassed by the applicant and allowed the Original Application. The writ petitioners, aggrieved by the order of the Central Administrative Tribunal, a copy of which is produced as Ext.P6, have filed this writ petition. 6. The very same point canvassed unsuccessfully before the Tribunal has been canvassed before us by the learned counsel for the writ petitioners. But, we are in full agreement with the view taken by W.P.(C).No. 17130 of 2006 4 the Tribunal. If the placement of the respondent in the scale of pay of Rs.5,500 - 9,000/- with effect from 1.1.1997 was a promotion, his pay would have been fixed under FR 22 (1)(a)(1). But the same was fixed under Rule 7 of the Pay Revision Rules. The same would show that his placement in the above scale was only a grant of replacement scale and not a promotion. If that be so, the applicant is entitled to get two upgradations. That has been rightly granted by the Tribunal. 7. There is a dispute regarding the promotion post available to the applicant, at the time of introduction of ACP scheme on 9.8.1999. We order that the competent authority shall give him two upgradations as held above, for which he is eligible, in the scale of pay of promotion posts under the Recruitment Rules in force on 9.8.1999. In other words, it shall be ascertained what is the first promotion post of Technician (General) and what would be the next promotion from the first promoted post. His claim for the first and second upgradation shall be considered and allowed with effect from 9.8.1999, in accordance with the Recruitment Rules in force. W.P.(C).No. 17130 of 2006 5 8. This Writ Petition is disposed of as above. (K. BALAKRISHNAN NAIR) Judge (M.L. JOSEPH FRANCIS) Judge tm