IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 OP.No. 14502 of 2000(B) ----------------------- PETITIONER(S): --------------- 1. P.K.SATHEESAN, PC 5177, ERATTUPETTA POLICE STATION, ERATTUPETTA, KOTTAYAM DIST. 2. K.K. SASI, PC 5072, PALAI POLICE STATION, PALAI, KOTTAYAM DIST. 3. MATHEW. K.V., PC 4929, MANIMALA POLICE STATION, MANIMALA, KOTTAYAM DIST. 4. P.K. SOMAN, PC 5195, MUNDAKAYAM POLICE STATION, MUNDAKAYAM, KOTTAYAM DIST. 5. MATHEW M.M, PC 5088, MANIMALA POLICE STATION, MANIMALA, KOTTAYAM DISTRICT. BY ADV. SRI.JOSHI N.THOMAS RESPONDENT(S): -------------------- 1. STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS, VAZHUTHAKADU, THIRUVANANTHAPURAM. 3. SUPERINTENDENT OF POLICE, DIST. POLICE HEAD QUARTERS, KOTTAYAM. OP.No. 14502 of 2000 4. SULAIMAN, PC 4679, MANIMALA POLICE STATION, MANIMALA, KOTTAYAM DIST. 5. BABU, PC 5426, ERUMELI POLICE STATION, ERUMELI, KOTTAYAM DISTRICT. GOVERNMENT PLEADER SMT, K,R, DEEPA THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 30 /09 /2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 14502 of 2000 ORDER ON C.M.P.NO.23443 OF 2000 IN O.P.NO.14502 OF 2000 DISMISSED 30.9.2008 SD/ S. SIRI JAGAN, JUDGE. EXT.P1: COPY OF EXTRACT (PAGE 1, 2, 3, 4, 5 & 18) OF THE ORDER NO.3000/98/FIN. DATED TRIVANDRUM 25.11.1998, ISSUED BY R1. EXT.P2: COPY OF THE STATEMENT OF FIXATION OF PAY IN THE REVISED SCALE IN R/O THE 1ST PETITIONER COUNTER SIGNED BY R3. EXT.P3: COPY OF G.O.(MS) NO.234/99/HOME DATED TRIVANDRUM 24.11.1999. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No.14502 OF 2000 ---------------------------------------- Dated this the 30th day of September, 2008 JUDGMENT The petitioners joined service of the Government of Kerala as Constables in the Kerala Armed Police Battalion. Later on, they opted for transfer to the District Armed Reserve Police and still later on to the local police. By Ext.P1 order, the Government brought in pay revision to the employees of the Government of Kerala, whereby higher grades were given to the employees on completion of 10 years, 18 years and 23 years respectively, in the same post. There were two types of grade promotion. One was to the scale of pay to the next promotion post. This grade promotion was made expressly available only to those persons, who were possessing the qualifications prescribed for appointment or promotion to the higher post. Those who do not have the qualifications prescribed for the higher post, an intermediate scale of pay was granted as higher grade. The petitioners in this original petition did not obtain the required qualification for promotion to the next promotion post of Head O.P.No.14502/2000 2 Constable except the 5th petitioner. They now, in this original petition, seek higher grade in the scale of pay applicable to the post of Head Constable without obtaining the necessary qualification for promotion. By Ext.P3, the Government clarified that if the incumbent obtained the qualification for promotion to next higher post in the Armed Force Battalion or District Armed Force or local police, the employees would be entitled to the higher grade in the scale of pay applicable to the next promotion post. According to the petitioners, the insistence on passing the obligatory test for promotion is discriminatory in so far as at the time when they opted for transfer it was the ambition of any constable, who joins the Armed Force Battalion, to come over to the District Armed Police and then to the local police. According to them, at that time, even if they obtained necessary qualifications for promotion in the Armed Police Battalion, it would be of no use since the same would not be counted in the District Armed Reserve Police because for promotion in the District Armed Reserve Police they had to pass an obligatory test again. The same situation was there on transfer to the local police also. Therefore, by retrospectively giving effect to Ext.P3 making O.P.No.14502/2000 3 passing of obligatory promotion test in any of the three departments sufficient for obtaining higher grade is discriminatory. The petitioners, therefore, seek the following reliefs: (i) issue a writ of certiorari or appropriate writ order or direction quashing Exhibit-P3 to the extent of stipulating the condition that the incumbent passes at least one of the tests prescribed in the B/AR/General Executives for the grant of 10 years time bound higher grade; (ii) issue a writ of certiorari or appropriate writ, order or direction quashing Ext.P3 to the extent stipulating that “those who do not pass the test shall be entitled to get the next higher scale of standard scale of pay of Rs.3350-5230”. Since the same is conflicting with exhibit.P1 Order; (iii) issue a writ of mandamus or appropriate writ order or direction directing the 1 st respondent to grant time bound higher grade to the petitioners as envisaged in the law. (iv) issue a writ of mandamus or appropriate order or direction commanding the 3 rd respondent to fix the Higher Grade Pay in r/o the petitioners”. 2. The learned Government Pleader with the support of the counter affidavit filed by the 1st respondent submits that there is no discrimination whatsoever. She points out that Ext.P1 Government Order, whereby the higher grades were granted, specifically stipulated that the higher grade in the O.P.No.14502/2000 4 scale of pay applicable to the next promotion post would be given only if the incumbent possesses the qualifications prescribed for the promotion post. Ext.P3 is actually a concession given to the Constables to the effect that if they possess the obligatory test qualification for promotion in any of the three departments, they would be eligible for the higher grade in the scale of pay applicable to the promotion post. Therefore the Government Pleader opposes the prayers in the original petition. 3. I have considered the rival contentions in detail. After considering the rival arguments, I am inclined to agree with the learned Government Pleader. When Ext.P1 Government Order, possession of qualification for the promotion post compulsory for becoming eligible for higher grade in the scale of pay applicable to the next promotion post, qualification for such promotion is mandatory. Simply because the Government gives a concession by Ext.P3 to the effect that as far as the Constables are concerned, they need pass the obligatory test for promotion in any of the three departments does not operate as discriminatory. On the other hand, it is a concession granted to the Constables, who opted O.P.No.14502/2000 5 to be transferred first to the District Armed Reserve Police and to the local police. In spite of Ext.P3, the basic requirement of qualification for the next higher promotion post for becoming eligible for higher grade in the scale of pay applicable to the promotion post remains as it is. If such qualification is not acquired, higher grade would be in a lesser scale of pay. Therefore, I do not find any merit in the allegation of discrimination raised by the petitioners. On the other hand, I find that by Ext.P3, a concession has been conferred on people like the petitioners, which was not otherwise available to them. In the above circumstances, I do not find any merit in this original petition and accordingly, the same is dismissed. S. SIRI JAGAN, JUDGE Acd O.P.No.14502/2000 6