IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 30TH MARCH 2011 / 9TH CHAITHRA 1933 WP(C).No. 37623 of 2008(R) -------------------------- PETITIONER(S): --------------- K.BABU S/O. KESAVAN, AGED 50 YEARS, KARUNA BHAVAN AYATHIL P.O., KOLLAM. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY LEGAL DEPARTMENT, GOVERNMENT SECRETARRIAT THIRUVANANTHAPURAM. 2. SECRETARY HOME (C) DEPARTMENT,GOVERNMENT SECRETARRIAT THIRUVANANTHAPURAM. 3. HIGH COURT OF KERALA ERNAKULAM, REPRESENTED BY ITS REGISTRAR SUBORAINATE JUDICIARY. ADV. SRI.O.V.RADHAKRISHNAN, SENIOR ADVOCATE FOR R3 SMT.K.RADHAMANI AMMA FOR R3 SRI.ANTONY MUKKATH FOR R3 GOVERNMENT PLEADER SMT. SMITHA SUKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/03/2011, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C. NO. 37623/2008. -------------------------------------------------------------------- EXT.P1 TRUE COPY OF APPLICATION DT. 25.10.2006. EXT.P2 COMMUNICATION DT. 10.10.2008 ISSUED BY R2. EXT.P3 COMMUNICATION DT. 2.12.1996. EXT.P4 TRUE COPY OF ORDER DT. 31.7.2006. EXT.P5 TRUE COPY OF CIRCULAR NO. 46/2008/FIN. EXT.P6 TRUE COPY OF ORDER DT. 31.7.2003. EXT.P7 TRUE COPY OF ORDER DT. 25.8.2003. EXT.P8 TRUE COPY OF ORDER DT.3.9.2003. EXT.P9 TRUE COPY OF ORDER DT. 29.10.2004 ISSUED BY R3. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 37623 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 30th day of March, 2011. J U D G M E N T The petitioner was appointed as Confidential Assistant Grade II in the Judicial Department on 15.6.1998 at Ottappalam. Subsequently in 2003, on his request, he was favoured with an inter-district transfer to Kollam as Confidential Assistant Grade II. While working so, the petitioner was retrospectivelypromoted as Confidential Assistant Grade I at Ottappalam in the year 1999. But, on account of the inter-district transfer, he had to be the junior-most Confidential Assistant Grade II at Kollam, he continued to be Confidential Assistant Grade II continuing to draw salary in the scale of pay applicable to Confidential Assistant Grade II from the date when he joined at Kolam. But, it appears that pursuant to the promotion order, the petitioner had received arrears of salary in the scale of pay applicable to Confidential Assistant Grade I for the period from the date of retrospective promotion to the date of inter-district transfer to Kollam. After putting in the required number of years in the post of Confidential Assistant Grade II in Ottappalam and Kollam taken together, the petitioner requested for first time bound higher grade, which was denied to him by Ext. P2 order stating that the petitioner's reversion to the post of Confidential Assistant Grade II had not been due to want of vacancy and therefore the petitioner is not entitled to count his period of service as Confidential Assistant Grade I for the purpose of granting time bound higher grade. The petitioner is challenging the same. 2. The 3rd respondent-High Court of Kerala has filed a counter affidavit supporting Ext. P2 order. 3. I have considered the rival contentions in detail. W.P(C) No. 37623 of 2008 -: 2 :- 4. If matters were as it should have been in the normal course of service, what the High Court contends would have been correct. But the facts here are not that simple. It is a little bit complicated. The petitioner never worked as Confidential Assistant Grade I at any time. The petitioner was given inter- district transfer from Palakkad to Kollam while he was still working as Confidential Assistant Grade II. It is only after the petitioner joined Kollam by inter-district transfer, that too, as Confidential Assistant Grade II only the retrospective promotion was granted to him and he was given arrears of pay. As such, there was no reversion at any time. It is not as if the petitioner got promotion at Palakkad as Confidential Assistant Grade II and got transferred to Kollam as Confidential Assistant Grade II in the process reverting him also. In view of the peculiar facts and circumstances of the case, I am of opinion that the normal rules should not be applied to the petitioner provided the petitioner is prepared to pay back the arrears of salary received by him consequent to his promotion as Confidential Assistant Grade I from 1.2.1999 to 3.9.2003. The petitioner would contend that as per Order No. AI/56/07 dated 31.1.2007, the petitioner has already been directed to repay the excess amount drawn by him in the post of Confidential Assistant Grade II. In the above circumstances, Ext. P2 is quashed. If the petitioner refunds the amount of Rs. 73,472/- within two weeks, then the period of his service he has put in at Palakkad also shall be counted for the purpose of grant of higher grade. But, if the petitioner does not refund the said amount, the period of service W.P(C) No. 37623 of 2008 -: 3 :- from 1.2.1999 to 3.9.2003 shall be excluded for the purpose of grant of time bound higher grades. If the petitioner refunds the amount as directed above, appropriate orders regarding grant of higher grade to the petitioner taking into account the service put in by him in Palakkad and Kollam together shall be passed and arrears paid to him within a period of one month therefrom. If the petitioner does not refund the amount, the petitioner will not be entitled to the benefit of this judgment. The writ petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/