IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 22ND NOVEMBER 2011 / 1ST AGRAHAYANA 1933 WP(C).No. 22117 of 2009(H) ------------------------------------ PETITIONER: ------------------ K.KAMALAKSHAN, ENGINEERING INSTRUCTOR, TECHNICAL HIGH SCHOOL, P.O.NADUVIL, KANNUR DISTRICT. BY ADV. SRI.P.M.PAREETH RESPONDENT(S): ----------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVT, HIGHER EDUCATION DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. R1 AND R2 BY GOVERNMENT PLEADERS SRI DILIP MOHAN AND P.M. MANOJ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/05/2010, THE COURT ON 22.11.2011 DELIVERED THE FOLLOWING: SKV WP(C).No. 22117 of 2009(H) ------------------------------------------ APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE REPRESENTATION DATED 01.08.2004 P2: COPY OF JUDGMENT DATED 09.09.2004 IN W.P. (C)NO.26404/2004 P3: COPY OF THE LETTER DATED 25.01.2005 ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT P4: COPY OF THE PROCEEDINGS NO.EB 4/30268/2004 DATED 01.06.2005 ISSUED BY THE 2ND RESPONDENT. P5: COPY OF THE GOVERNMENT CLARIFICATION NO.24208/PRU-1/96/FIN DATED 24.06.1966 P6: COPY OF THE PROCEEDINGS DATED 06.07.2007 ISSUED BY THE 2ND RESPONDENT P7: COPY OF THE LETTER DATED 21.04.2009 ISSUED BY THE FIRST RESPONDENT TO THE SECOND RESPONDENT. P7(A): COPY OF THE GOVERNMENT LETTER DATED 26.11.2008. P8: COPY OF THE RELEVANT PORTION OF ANNEXURE 3 TO GO(P) NO.14/2006/FIN DATED 25.03.2006 RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ PA TO JUDGE SKV C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.22117 OF 2009 -------------------------------------------- Dated this the 22nd day of November, 2011 JUDGMENT This Writ Petition has been filed mainly challenging Exts.P7 and P7 (a) and seeking for a declaration to the effect that the petitioner is entitled to the second higher grade in the higher time scale of Rs.7200-11400/- (pre-revised) with effect from 29.10.2004 on completion of 16 years of service in the post of Workshop Instructor on the basis of Exts.P3 and P4 orders which have become final. The further prayer is for issuance of a writ of mandamus commanding the second respondent to re-fix the pay of the petitioner in the scale of Rs. 7200-11400/- with effect from 29.10.2004 and to pay the arrears of pay to the petitioner within a time frame. 2. Facts, in succinct, relevant for the purpose of disposal of this case are as follows:- The petitioner was working as Engineering Instructor in Technical High School, Naduvil in Kannur District. He entered in service as Workshop Attender on 1.7.1983. He was, then, promoted to the cadre of Skilled Assistant with effect from July 1987 and was appointed by transfer as Workshop Instructor with effect from 29.10.1988. Contending that in W.P.(C) NO.22117 of 2009 2 terms of the relevant government orders and circulars, appointment by transfer has to be treated as direct recruitment for the purpose of granting the benefit of higher grade and that the post of Workshop Instructor has to be treated as his entry post, he submitted Ext.P1 representation dated 1.8.2004 before the first respondent requesting to grant higher grade in the scale of pay Rs.6675-10550/-. Feeling aggrieved by the delay in the matter of its consideration, he approached this Court by filing W.P.(C).No.26404 of 2004 and the same was disposed of by Ext.P2 judgment with a direction to the first respondent to consider and pass orders on the said representation. Subsequent to Ext.P2 judgment, the first respondent, vide Ext.P3, directed the second respondent to comply with the said judgment and to grant 10 years Higher Grade to the petitioners in the said writ petition. Later, the second respondent issued Ext.P4 proceedings dated 1.6.2005 granting the first higher grade in the scale of pay of Rs.5500- 9075/- to the petitioner on completion of 10 years of service in the post of Workshop Instructor, with effect from 29.10.1998. Though the petitioner was not having the qualification of Diploma in Mechanical Engineering at the time of his entry in service, he acquired the same subsequently. It was thereafter that he was appointed as Workshop Instructor on 29.10.1988. The contention of the petitioner is that since he obtained Diploma in W.P.(C) NO.22117 of 2009 3 Mechanical Engineering with first class, he was qualified to be promoted to the post of Assistant Lecturer as the prescribed qualification for the said post was Diploma in Engineering with not less than 60% marks. The next promotion post in the regular line is Workshop Foreman. The post of Assistant Lecturer and Workshop Foreman were equated categories and were carrying the same scale of pay. However, the scale of pay of Assistant Lecturer alone was revised with effect from 1.3.1992 to Rs.2060- 3200/-. Later, the question whether Workshop Instructors and equated categories who have put in 10 years of service are entitled to the scale of Assistant Lecturer was referred to the Government and thereupon, the position was clarified as per Ext.P5 to the effect that those who are qualified to be appointed as Assistant Lecturers are entitled to the Assistant Lecturer's scale. Subsequently, several qualified Demonstrators and Workshop Instructors were granted the Assistant Lecturer's scale of Rs.2060-3200, in fact, in its revised scale viz., Rs.6675-10550 on completion of 10 years of service in their respective cadre. The scale of pay of Rs.2060-3200 was revised to Rs.6675-10550 in the 1998 pay revision with effect from 1.3.1997. In fact, the petitioner had submitted Ext.P1 representation in the said circumstances seeking for extension of similar benefits. However, the scale of pay of Assistant Lecturer was W.P.(C) NO.22117 of 2009 4 denied to the petitioner. That made the petitioner to approach this Court by filing W.P.(C).No.20871 of 2005. Pursuant to the judgment dated 22.11.2006 in the said Writ Petition, the second respondent issued Ext.P6 order dated 6.6.2007 granting the revised scale of pay of Rs.6675-10550 to the petitioner with effect from 29.10.1998. In the meanwhile, as per G.O (P)No.145/2006/Fin. dated 25.3.2006, Government have revised the pay and allowances of Government servants with effect from 1.7.2004. Annexure 3 to the said order contained the scheme for time bound higher promotion viz., for granting of first higher grade on completion of 8 years of service and second higher grade on completion of 16 years of service. The contention of the petitioner is that he was entitled to second higher grade on completion of 16 years in the post of workshop Instructor ie. as on 29.10.2004. The said request of the petitioner was rejected by the second respondent as per Ext.P7 citing Ext.P7(a) letter dated 26.11.2008 of the Government. It is in the said circumstances that this Writ Petition has been filed challenging Ext.P7 and P7(a) with the above mentioned prayers. 3. A counter affidavit has been filed in this Writ Petition on behalf of the second respondent. It is stated therein that the petitioner entered in the service as Workshop Attender on 1.7.83 and was subsequently promoted as Skilled Assistant Grade-II. The said posts were W.P.(C) NO.22117 of 2009 5 subsequently re-designated respectively as Tradesman and Trade Inspector Grade-II. Since the petitioner possessed Diploma in Mechanical Engineering, he was promoted as Workshop Instructor in Mechanical Engineering on 29.10.1988 and, later, higher grade on completion of 10 years service in the post of Workshop Instructor was granted with effect from 29.10.1998 in compliance with Ext.P2 judgment, it is stated therein. Further it is stated therein that as the petitioner had obtained two promotions and one higher grade, he is inelligible to get another higher grade as per the existing rules. In the said circumstances that as per Ext.P7, his request for second higher grade with effect from 29.10.2004 was rejected. In the counter affidavit, it is also stated that the contention of the petitioner that his appointment to the post of workshop Instructor was by appointment by transfer is incorrect. According to the respondents, the petitioner was initially promoted as Skilled Assistant Grade-II and thereafter, promoted as Workshop Instructor and therefore, it is contended that the post of Workshop Instructor cannot be considered as his entry post. A scanning of the contentions in the counter affidavit would reveal that the respondents would admit the fact that Government have clarified the position regarding the eligibility of Workshop Instructors to the scale of pay of Assistant Lecturer and held that they are entitled to the same as W.P.(C) NO.22117 of 2009 6 time bound higher grade as per Ext.P5 letter dated 24.6.1996. True that Workshop Instructors qualified to be appointed as Assistant Lecturers alone are entitled to the said benefit. There is no dispute regarding the qualifications and, as such, the eligibility of the petitioner in that regard. The contention of the respondents is that the petitioner was actually promoted to the post of Workshop Instructor. The post of Assistant Lecturer was abolished by the Government with effect from 21.12.1998. The contentions in paragraphs 5 and 6 of the counter affidavit would reveal that as per Ext.P5 letter dated 24.6.1996, the Government have clarified the position that qualified Workshop Instructors viz., those who are qualified to be promoted as Assistant Lecturer are entitled to the scale of pay of Assistant Lecturer as time bound higher grade and that the post of Assistant Lecturer was abolished only with effect from 21.12.1998. Obviously, there is no dispute regarding the fact that the petitioner became eligible for 10 years time bound higher grade on 29.10.1998. The learned counsel for the petitioner relies on a Division Bench decision of this court in the common judgment in W.A.Nos. 678 & 708 of 2009 to contend that the entitlement of the petitioner to the first and second higher grades, as claimed as per Ext.P1, cannot be disputed and, as such, rejected by the respondents. Admittedly, in view of Ext.P5 letter dated 24.6.1996 of the W.P.(C) NO.22117 of 2009 7 Government, the eligible Workshop Instructors were entitled to get the scale of pay of Assistant Lecturer as their first time bound higher grade scale. The scale of pay of Assistant Lecturer was Rs.6675-10550 pursuant to the pay revision in the year 1998, with effect from 1.3.1997. The post of Assistant Lecturer was abolished only with effect from 21.12.1998 and the petitioner became eligible for 10 years service higher grade on 21.10.1998, as admitted by the respondents in paragraph 6 of the counter affidavit. It was in the said circumstances and taking note of the fact that the eligibility of the petitioner for first higher grade fell due prior to the abolition of the post of Assistant Lecturer that he was directed to be given the first higher grade in the scale of pay Rs.6675-10550/-. Admittedly, in compliance with the directions of this Court in the judgment dated 22.11.2006 in W.P.(C). No.20871 of 2005, the second respondent issued Ext.P6 granting scale of pay of Rs.6675-10550/- to the petitioner with effect from 29.10.2008. 4. Now, I will deal with the claim of the petitioner to treat the post of workshop Instructor as his entry cadre and to grant him the second higher grade on completion of 16 years of service in the said cadre. Admittedly, the petitioner was appointed as Workshop Instructor on 29.10.1998. Evidently, he was granted the first higher grade on W.P.(C) NO.22117 of 2009 8 completion of 10 years of service as Workshop Instructor with effect from 29.10.1988 as per Ext.P6. It is thus obvious that the respondents had treated the post of Workshop Instructor as the entry cadre of the petitioner and as otherwise they would not have granted him the scale of pay of Rs.6675-10550/- which is the scale of pay of Assistant Lecturer, as per Ext.P6. Having treated the post of Workshop Instructor as his entry post for the purpose of granting 10 years higher grade viz., first higher grade, the respondents cannot be heard to contend otherwise while considering the question of granting of 16 years higher grade viz., the second higher grade, it is submitted. In other words, the contention of the petitioner is that he is entitled to the second higher grade on completion of 16 years of service as Workshop Instructor reckoning it from 29.10.1988. In fact, it is to buttress the said contention that the petitioner relied on the Division Bench decision of this Court in W.A.No.678 of 2009 and connected matter. Relying on the said decision, it is also contended that the respondents can only treat the post of Workshop Instructor as the entry cadre for the purpose of granting higher grades and they are estopped from contending otherwise. I have carefully considered the judgment in W.A.No. 678 of 2009. The service particulars of the concerned employee in the said Writ Petition viz., one Sri.K.A Vijayan is akin to the service particulars W.P.(C) NO.22117 of 2009 9 of the petitioner. As already noticed hereinbefore, the petitioner commenced his service as Workshop Attender on 1.7.1983 and was later promoted to the post of Skilled Assistant with effect from July 1987. In the case of the concerned employee in W.A.No.678 of 2009 viz., Sri.K.A Vijayan, he joined the service as Workshop Attender on 21.12.1983 and was promoted as Skilled Assistant Grade-II on 30.9.1985 and he was appointed as Workshop Instructor on 12.10.1988. In the case of the petitioner herein, he was appointed as Workshop Instructor with effect from 29.10.1988. The contention of the petitioner is that he was appointed by transfer as Workshop Attender where as the contention of the respondents is that he was promoted to the said post. A perusal of the Division Bench judgment in W.A.No.678 of 2009 and connected matter would reveal that the issue whether the appointment to the post of Workshop Instructor is an appointment by transfer or by way of promotion was not actually decided thereunder. Evidently as per the judgment in W.P. (C).No. 11480 of 2008 dated 24.9.2008 that led to the filing of W.A.No.678 of 2009, learned single judge of this Court issued only a direction to the competent authority to consider the claim of the petitioner therein for getting second higher grade on completion of 18 years of service in the post of Workshop Instructor. Taking note of the fact that the W.P.(C) NO.22117 of 2009 10 learned single judge has not decided the issue with respect to the claim of the second higher grade to the petitioner therein viz., Sri.K.A.Vijayan, the Division Bench as per judgment dated 23.12.2009 in W.A.No.678 of 2009 and connected matters declined to interfere with that direction also. Evidently, it was so declined on the ground that the learned single judge only directed for a consideration of the claim in accordance with law. It is thus obvious that the claim of the petitioner is for second higher grade viz., scale of pay of Rs.7200-11400 (pre-revised) on completion of 16 years with effect from 29.10.1994 in the post of Workshop Instructor based on Exts.P3 and P4 orders. In view of Annexure-3 to the G.O.(P). No.145/2006/Fin. dated 25.3.2006, now, the second higher grade sanctionable on completion of 16 years of service, it is contended. Any way, the claim is for second higher grade in relation to the post of Workshop Instructor. The very decision of the Division bench in W.A.No. 678 of 2009 and connected matter, relied on by the petitioner, would reveal that in the case of similarly situated persons, no decision was actually taken by the Division Bench regarding the claim for second higher grade on completion of the required number of service in the post of workshop Attender Instructor, as claimed by the petitioner. The direction of the learned single judge to consider the said claim of the said petitioner in W.P.(C) NO.22117 of 2009 11 accordance with law by the competent authority was not interfered with by the Division Bench. Therefore, the petitioner cannot contend that he is entitled to the said benefit of second higher grade on completion of 16 years of service in the post of Workshop Instructor relying on the decision in W.A.No.678 of 2009 and connected matter. There is nothing on record to show that pursuant to the direction in W.P.(C).No.11480 of 2008 dated 24.9.2008 and in W.A.No.678 of 2009, the said Sri.K.A. Vijayan was granted second higher grade. True that this court directed for a consideration of that claim by the competent authority. In the absence of anything to show that the said Sri.K.A.Vijayan was granted the second higher grade, the petitioner cannot seek for a positive direction to the respondents to grant second higher grade on completion of 16 years of service in the post of Workshop Instructor in the scale of pay of Rs.7200- 11400 with effect from 29.10.2004 relying on the said decision. However, considering the fact that in the case of similarly situated person, namely Sri.K.A Vijayan, this court directed for a consideration of his claim for second higher grade on completion of 18 years of service in the post of Workshop Instructor, this Writ Petition is disposed of with a direction to the first respondent to consider the claim of the petitioner for second higher grade in the scale of pay Rs.7200-11400 (pre-revised) on W.P.(C) NO.22117 of 2009 12 completion of the required service in the post of Workshop Instructor. The respondents shall also look into that fact as to the required number of years of service for getting second higher grade i.e., whether it is 18 years or 16 years. To enable the first respondent to consider the said claim of the petitioner on merits, Ext.P7 is set aside. It is made clear that this Court has not made any observation with respect to the entitlement of the petitioner for second higher grade on completion of 16 years of service in the post of Workshop Attender in the scale of pay Rs.7200-11400. While taking a decision on the aforesaid claim of the petitioner, the first respondent shall also look into the case of the said Sri.K.A.Vijayan who was the concerned employee in W.A.No.678 of 2009. The decision on the said issue shall be taken expeditiously, at any rate, within a period of two months from the date of receipt of a copy of this judgment. In case of favourable decision thereon, the respondents shall take appropriate steps for re-fixation of the pay and pension of the petitioner and for its disbursement expeditiously. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.22117 of 2009 13 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 W.P.(C) NO.22117 of 2009 14