IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 OP.No. 9075 of 2002(E) --------------------------------- PETITIONER(S): ------------------------ R.AJAYA KUMAR,AGED 39 YEARS,] S/O.RAGHAVAN PILLAI,"THEJAS",THEKKADU P.O., VADASSERIKONAM,VARKALA. BY ADV. MR.S.RAJASEKHARAN NAIR RESPONDENT(S): ------------------------- 1. STATE OF KERALA,REPRESENTED BY SECRETARY,DEPARTMENT OF INDUSTRIES AND COMMERCE. 2. DIRECTOR,DEPARTMENT OF INDUSTRIES AND COMMERCE,VIKAS BHAVAN,THIRUVANANTHAPURAM. GOVERNMENT PLEADER MR.V.TEK CHAND THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 26/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO16175/2002 IN OP. NO.9075/2002 Dismissed 26/02/2009 SD/- P.R.RAMACHANDRA MENON, JUDGE APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE LETTER NO.EC3-17455/2000 DT. 22.12.2000. P2:- COPY OF THE REPRESENTATION ON 3.5.2001. P3:- COPY OF THE LETTER NO.EC3/19367/2001(1) DT. 30.5.2001. P4:- COPY OF THE EC 3-10845/99 DT. 8.6.99. /TRUE COPY/ P.A. TO JUDGE tss P.R.RAMACHANDRA MENON, J. ====================== O.P. No. 9075 of 2002 ====================== Dated, this the 26th day of February, 2009 J U D G M E N T The prayer of the petitioner is for a direction to grant time bound higher grade promotion with effect from 1-5-2001 and also to reckon the period of training as well as the service as a police constable rendered prior to his selection and appointment as L.D.Typist in the Technical Education Department, followed by the inter-departmental transfer to Industries Department. 2. The petitioner joined service as a Police Constable on 1-5-1991 and continued till 16-12-1995. Thereafter, on participating in the selection process conducted by the PSC, he got selected and appointed as L.D.Typist in the Technical Education Department, where he joined on 19-12-1995. After working till 20-6-1996, the petitioner obtained an inter-departmental transfer to be posted in the Industries Department, where he joined with effect from the very next day i.e., 21-6-1996. The contention of the petitioner is that O.P. No. 9075/2002 -:2:- he had completed 10 years of service as on 30-4-2001 inclusive of the service rendered as Police Constable and he is entitled to the benefit of time bound higher grade, which claim, however, was rejected by the Department as borne by Exhibit P1. 3. The respondents have filed a counter affidavit asserting that the idea and understanding of the petitioner as to the eligibility for obtaining the time bound higher grade is wrong and misconceived. It is stated that the G.O. (P) No.705/81(372)/Fin. dated 28-10-1981 sought to be relied on by the petitioner has no relevance in his case, as the terms and conditions regulating the time bound higher grade were modified/revised from time to time and that the modified scheme as on the relevant date is the scheme contained in the Government Circular No.54/92(138)/Fin. dated 6-11-1992 and also as per the norms fixed by the G.O. (P) No.3000/98/Fin. dated 25-11-1998. The revised scheme came into force with effect from 1-11-1989, according to O.P. No. 9075/2002 -:3:- which, the first time bound higher grade promotion on completion of 10 years service can be given only by reckoning the service in the entry post. 4. Referring to the above Circular and the Government Order dated 25-11-1988, the learned Government Pleader points out that the term 'entry post' is defined in the above Circular and the Government Order as: “the post to which an employee is initially appointed in Government service by direct recruitment by the competent authority.” The learned Government Pleader adds that appointment by transfer will also be treated as equivalent to direct recruitment. In the case of the petitioner, his entry cadre is L.D.Typist/Clerk in Technical Education Department, though he was transferred subsequently to the Industries Department by way of Inter-Departmental transfer and as such, he commenced his service in the post of L.D.Typist/Clerk in the entry cadre only with effect from 19-12-1995. This shows that the petitioner does not have O.P. No. 9075/2002 -:4:- the requisite qualifying service so as to obtain the benefit of the time bound higher grade promotion as contended by him. 5. It is very much relevant to note that the concept of time bound higher grade was brought about so as to alleviate the grievances of the employees who were being stagnated in the post. In the case of the petitioner, he was originally appointed as police constable and admittedly, he came out from the said service on his own volition, in pursuit of better employment, which was secured by him by participating in a fresh selection process conducted by the PSC in respect of the post of L.D.Typist and it was accordingly that he got appointment as L.D.Typist in the Technical Education Department, where he joined on 19.12.1995. There was no question of being stagnated in the post of Police Constable and as such, the benefits of the time bound higher grade contemplated under the scheme and the relevant circulars/Government orders cannot be O.P. No. 9075/2002 -:5:- extended to the petitioner, treating the post of Police Constable as the 'entry post' of the petitioner. 6. Above all, it is also pertinent to note that the claim of the petitioner for treating his pre-service training and the service rendered as Police Constable for the purpose of granting time bound higher grade was referred to the Government and that the Government vide letter No.27383/A2/2000 dated 7-12-2000 had clarified that it could not be considered for the said purpose at all. The decision in this regard has been duly conveyed vide Exhibit P1 letter dated 22-12-2000 by the second respondent, also marking a copy to the petitioner as well. The fact remains neither the order passed by the Government in this regard nor Exhibit P1 has been subjected to challenge by the petitioner in the present writ petition. 7. Yet another contention putforth by the petitioner is that the respondents have granted the benefit of time O.P. No. 9075/2002 -:6:- bound higher grade to a similarly situated person by name Sri.V.Vasanthasenan as borne by Exhibit P4. The contention of the respondents is that granting of the said benefit to the aforesaid person might be a mistake and that it would be dealt with in appropriate manner as and when it is taken up to be considered. In any way of the matter, it has to be borne in mind that a writ mandamus is a positive concept/remedy available on establishing infringement of the vested rights of the petitioner or on failure of the duties cast upon the respondents. It cannot be sought for and issued just for the reason that similar benefit has been (wrongly) given to some other person. The law in this regard is very clear in view of the decision rendered by the Apex Court in CHANDIGARH ADMINISTRATION AND ANOTHER v. JAGJIT SINGH AND ANOTHER [AIR 1995 SC 705] and GURSHARAN SINGH v. NEW DELHI MUNICIPAL COMMITTEE [1996 (2) SCC 459]. O.P. No. 9075/2002 -:7:- In the above circumstances, this Court doesn't find any ground for interference and accordingly the writ petition is dismissed. No costs. Sd/- P.R.RAMACHANDRA MENON, JUDGE. skr // True copy // P.A. to Judge.