IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 12TH MARCH 2008 / 22ND PHALGUNA 1929 WP(C).No. 32840 of 2007(H) PETITIONERS: ---------------- 1. UDAYAN C.K., HCK-5043, DRIVER (HC) - GRADE I, A.R.CAMP, KOTTAYAM. 2. A.M.ANILKUMAR, DRIVER (HCK) - 5307, A.R.CAMP, KOTTAYAM. 3. P.T.MUHAMMED NAJEEB, DRIVER (HCK) - 5437, A.R.CAMP, KOTTAYAM. BY ADV. SRI.S.KRISHNAMOORTHY RESPONDENTS: ----------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY, DEPARTMENT OF FINANCE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. SUPERINTENDENT OF POLICE, DISTRICT POLICE OFFICE, KOTTAYAM. BY GOVERNMENT PLEADER SRI.MANOJKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------- W.P.(C).No.32840 of 2007 H ------------------------- Dated this the 12th day of March, 2008. JUDGMENT The petitioners are police drivers working in the A.R camp at Kottayam. According to them, when they completed 16 years of service, they were granted the second time bound higher grade in the scale of pay of Rs.8390-13275, which is the scale of pay applicable to Assistant Sub Inspectors. The petitioners submit that the Feeder Category for promotion to the post of Drivers/Sub Inspectors in the police department is driver police constable (Police Driver Grade II) and Driver/Head Constable (Police Driver Grade I) and then Driver Sub Inspector. Essentially, the claim made by the petitioners is that on grant of second time bound higher grade, their pay must be fixed in the revised scale of pay applicable i.e. Rs.9190-15510. This has not been accepted by the respondents. Hence this writ petition. 2. It is contended by the petitioners that going by Ext.P2, which is the relevant portion of the Government Order accepting the recommendation of the pay commission, the scale of pay of Driver Sub Inspector is W.P.(C).NO.32840/07 :: 2 :: Rs.5500-9075 (existing) revised to Rs.9190-15510 (revised). Referring to Ext.P8, which is Annexure III to the order of the Government accepting the recommendations of the pay commission, insofar as it relates to the claim for second time bound higher grade promotion, counsel for the petitioners submits that since the petitioners are qualified to be promoted to the post of Driver Sub Inspector, they should have been granted second time bound higher grade in the scale of pay applicable to Driver Sub Inspector. The petitioners contend that if this is granted, the petitioners, who are denied regular promotion, will be adequately compensated. The relevant clause in Ext.P8 (Clause 6 thereof) reads as follows: “6. If there is a regular promotion post in respect of the categories of posts coming under pay scales ranging from Rs.4400- 6680 to Rs.9590-16650 and if such scale of pay is higher than the corresponding time bound higher grade proposed in tables A & B above, then the time bound higher grade for such incumbent will be the scale of pay of such regular promotion post, provided he W.P.(C).NO.32840/07 :: 3 :: is otherwise qualified for such promotion. Even in cases where a particular category of posts in the normal hierarchy of promotion posts is not available in a Department, the scale of pay of the normal promotion post only will be allowed as the higher grade. (Thus, for example in a Department where there is no post of Head Clerk and UD Clerks get promoted as Junior Superintendents, the time bound higher grade for the UD Clerk will still be the scale of Head Clerk). While assigning such higher grade, only qualified hands i.e. those possessing the qualification, including approval of the DPC (where necessary), prescribed for the promotion post will get the scales of pay of regular promotion posts. Unqualified hands will be allowed the next higher scale of pay above that of the scale of pay of the post held at that time, in the standard scales of pay at Annexure 1. The competent authority sanctioning the time bound higher grade should indicate in the order whether the official possesses qualification for promotion (including approval of DPC) and also specify the scale of pay admissible on time bound higher grade.” 3. Counsel for the petitioners submits that even in cases where a particular category of posts in the W.P.(C).NO.32840/07 :: 4 :: normal hierarchy of promotion posts is not available in a Department, the scale of pay of the normal promotion post only will be allowed as the higher grade. It is contended that since Driver Head Constable do not have any avenue of promotion to the post of Assistant Sub Inspector, the higher grade should be granted in the scale of pay applicable to the post of Driver/Sub Inspector. This is the crux of contention of the petitioners. 4. A statement has been filed on behalf of the respondents contending that right from 1980, drivers in the police department have been granted time bound higher grade when they are functioning as Driver/Head Constables only in the scale of pay applicable to the post of Assistant Sub Inspector. Other persons, who were in the normal line of promotion for Head Constables, on regular cadre promotion from the post of Head Constable are promoted only as Assistant Sub Inspectors. It is, therefore, clear that in the absence for promotional avenues for drivers to the post of Assistant Sub W.P.(C).NO.32840/07 :: 5 :: Inspector, they are granted time bound higher grade, but in the scale applicable to the post of Assistant Sub Inspector. Reference in this regard is made to Exts.R1(a) and R1(b). 5. I heard learned counsel for the petitioners Mr.S.Krishnamoorthy amd Mr.Manojkumar, learned Special Government Pleader. 6. Clause (6) extracted above will answer the question. In my view, the illustration given in the case of a department where there is no post of Head Clerk, and promotional avenues for a UDC is only to the post of Junior Superintendent, time bound higher grade will nevertheless be granted only in the scale of pay of Head Clerk applies to the instant case. Applying the same principle to the police department, it is clear that the absence of promotion to the post of Assistant Sub Inspector for drivers in the police department does not mean that the petitioners are not entitled to the scale of pay of an Assistant Sub Inspector. Since time bound higher grade is granted to offset the absence of cadre W.P.(C).NO.32840/07 :: 6 :: promotion, such time bound higher grade will have to be in the scale of the next promotion post even if such post is not available. In my view, any other interpretation will lead to anomaly qua persons, who secure regular cadre promotion when compared to persons who have been granted time bound higher grade. 7. Learned counsel for the petitioners submits that though this is the situation from 1980, nevertheless for a period till 2002, time bound higher grade was granted to Driver/Head Constables in the scale of pay applicable to Sub Inspectors and such alleged irregular grant has also been saved to a limited extent by Government in its Order dated 14.12.2007. He submits that there is hostile discrimination. The effect of Government Order dated 14.12.2007 has been considered by me in another writ petition (W.P.(C) No.37956/07), which has been disposed of separately today. Apparently, certain irregular grant of time bound higher grade to the Drivers in the post of Sub Inspector upto 19.3.1992 has been decided not to be revived. W.P.(C).NO.32840/07 :: 7 :: This could have been for the purpose of avoiding recovery from persons who might have retired from service as in the case of the petitioners in the said writ petition. At any rate, this court cannot issue a writ for perpetuating an illegality. I do not find any reason to interfere with the stand taken by the respondents. Accordingly, I find that the writ petition is bereft of merit and the same is dismissed. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. To Judge