IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933 WP(C).No. 21476 of 2007(F) -------------------------- PETITIONER(S): --------------- KANAKA T.K., CURATOR PATHOLOGY DEPARTMENT, MEDICAL COLLEGE, ALAPPUZHA. BY ADV. SRI.C.HARIKUMAR SRI.VIZZY GEORGE KOKKAT SRI.ARAVINDA KUMAR BABU T.K. RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH & FAMILY DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. 3. LEELA K.I., CURATOR, MEDICAL COLLEGE, THRISSUR. GOVERNMENT PLEADER SRI. V. MANU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 21476/2007. ------------------------------------------------------------------ EXT.P1 TRUE COPY OF APPOINTMENT ORDER DT. 5.10.1985. EXT.P2 TRUE COPY OF CIRCULAR DT. 27.10.1987. EXT.P3 TRUE COPY OF PROMOTION ORDER DT. 5.2.1988 OF THE PETITIONER. EXT.P4 TRUE COPY OF PROMOTION ORDER DT. 17.8.1988 OF R3. EXT.P5 TRUE COPY OF PAY REVISION ORDER DT. 1.11.1989. EXT.P6 TRUE COPY OF ORDER DT. 22.7.1995 BY R2. EXT.P7 TRUE COPY OF COMMUNICATION DT. 15.4.1996 BY R2. EXT.P8 TRUE COPY OF REPRESENTATION DT. 3.8.1998 BY THE PETITIONER. EXT.P9 TRUE COPY OF REJECTION ORDER BY R2 DT. 24.8.2005. EXT.P10 TRUE COPY OF ORDER DT. 6.1.2001 SANCTIONING SECOND TIME BOUND HIGHER GRADE TO R3 FROM 1.11.1998. EXT.P11 TRUE COPY OF REPRESENTATION DT. 4.10.2005 BY THE PETITIONER. EXT.P12 TRUE COPY OF REJECTION ORDER BY R2 DT. 16.4.2007. EXT.P13 TRUE COPY OF REPRESENTATION DT. 26.4.2007 BY THE PETITIONER. EXT.P14 TRUE COPY OF ORDER DT. 21.5.2007 SANCTIONING THIRD TIME BOUND HIGHER GRADE TO R3 FROM 24.10.2006. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 21476 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 29th day of March, 2011. J U D G M E N T The petitioner entered the service in the Department of Medical Education as a Lab Technician Grade II on 5.10.1985. At that time, Lab Technicians Grade II could aspire for promotion either to the post of Museum Curator or the post of Curator both of which carry the same scale of pay depending on the occurrence of vacancy when the turn for promotion comes for each Lab Technician Grade II. The petitioner was promoted as Museum Curator by Ext. P3 order dated 25.2.1988. Subsequently, on account of pay revision, the scale of pay of Curator became slightly higher than that of Museum Curator. As a consequence, juniors of the petitioner in the post of Lab Technician Grade II, who got promoted as Curator happened to get higher scale of pay than the petitioner. Against this anomaly, the petitioner approached this Court by filing O.P.No. 2779/1994. During the pendency of the said original petition, by Ext. P6 order dated 22.7.1995, the petitioner was posted as Curator. Since the anomaly was so rectified, the petitioner withdrew the original petition. Subsequently, the petitioner claimed higher grade on completion of 18 years in the post of Lab Technician Grade II and promotion post put together. That was rejected by Ext. P9 on the ground that since the petitioner got two promotions, the petitioner is not eligible for 18 year higher grade and that he is entitled to only the 23 year higher grade. The same was confirmed by Ext. P10 order. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i) Issue a declaration to the effect that the petitioner is entitled to the revised scale of pay of Rs. 1050-1830 from 1.3.1992 or W.P(C) No. 21476 of 2007 -: 2 :- date of option to 1400-2300. ii) Issue a writ of mandamus or any other appropriate writ or direction directing the 2nd respondent to sanction the time bound higher to the petitioner with effect from 1998. iii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 2nd respondent to extend the benefit of Ext. P6 order retrospectively and grant her all consequential benefits, including arrears of pay and her time bound higher grade in the pay of scale Rs. 1640-2900 from 2.5.1998. iv) Issue a writ of certiorari or any other appropriate writ order or direction to call for the records leading to Ext 8 and P10 and quash the same.” According to the petitioner, the petitioner got only one promotion, ie. from the post of Lab Technician Grade II to the post of Museum Curator. But he was only posted as Curator to rectify the anomaly, which arose because of pay revision order for which the scale of pay of Curator became slightly higher than the post of Museum Curator in the form of his junior drawing higher scale of pay than him. Therefore, according to him, he received only one promotion and he is entitled to 18 year higher grade in accordance with rules for grant of higher grades. 2. A counter affidavit has been filed by the 2nd respondent taking the stand that the petitioner did get two promotions, one from the post of Lab Technician Grade II to that of Museum Curator and the second as Curator. Therefore, according to the respondents , the petitioner is not eligible for the 18 year higher grade. 3. I have considered the rival contentions in detail. 4. Unfortunately for me, neither the petitioner nor the respondents have chosen to prove their cases by producing the W.P(C) No. 21476 of 2007 -: 3 :- special rules and the methods of appointment to the posts of Museum Curator and Curator. But, the respondents could not satisfy me that the post of Curator is a promotion post for Museum Curator. Admittedly, at the time when the petitioner was promoted as Museum Curator, the posts of Museum Curator and Curator carried the same scale of pay and both were promotion posts for persons in the feeder category of Lab Technician Grade II. It is after the petitioner was promoted to the post of Museum Curator, the scales of pay of Museum Curator and Curator became different. Naturally, on such discriminatory revision of scales of pay, the juniors of the petitioner in the post of Lab Technician Grade II, who were promoted as Curator happened to get higher scale of pay than the petitioner. It is to rectify that anomaly that the petitioner was posted as Curator. It is pertinent to note here that by Ext. P6 order, the petitioner was not promoted to the post of Curator but he was only posted as Curator. The respondents have no case that the post of Curator is a promotion post for persons in the post of Museum Curator. In fact, if the petitioner is denied the 18 year higher grade, another anomaly would arise in the same way as the earlier anomaly had occurred. That is, a Lab Technician Grade II who was promoted as Curator would get the 18 year higher grade because he got only one promotion. If that person is junior to the petitioner, then the junior of the petitioner would get 18 year higher grade and the petitioner would be denied the very same benefit. I do not think that such an anomaly can be permitted. Here, the petitioner was not promoted to the post of Curator. Only to avoid an anomaly, the petitioner was given a posting as Curator. That cannot be W.P(C) No. 21476 of 2007 -: 4 :- regarded as a promotion at all. If that be so, the petitioner got only one promotion and not two promotions. Consequently, the petitioner became eligible for the 18 year higher grade on completion of 18 years' of service in the entry post and the first promotion post put together. The petitioner cannot be denied that benefit. Accordingly, the impugned orders are quashed. The respondents are directed to pass fresh orders granting the petitioner 18 year higher grade with effect from the date when he completed 18 years' of service in the entry post and the promotion post of Museum Curator/ Curator put together and disburse the monetary benefits arising therefrom to the petitioner as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. Sd/- S. Siri Jagan, Judge. Tds/