IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 OP.No. 24371 of 2001(B) ----------------------------- PETITIONER(S): --------------- K.K. NARAYANAN, UPPER DIVISION CLERK, REVENUE DIVISIONAL OFFICE, KASARGOD AT KANHANGAD, P.O. KANHANGAD. BY ADV. MR.P.V.MOHANAN RESPONDENT(S): ------------------- 1. STATE OF KEARLA REPRESENTED BY THE SECRETARY TO GOVT. OF KERALA, REVENUE (T) DEPARTMENT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF LAND REVENUE, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, KASARAGOD. GOVERNMENT PLEADER MR. T.K. VIPINDAS FOR R1TO3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 24371 of 2001 ORDER ON C.M.P.NO.398771 OF 2001 IN O.P.NO.24371 OF 2001 CLOSED. 18.2.2009. SD/- S. SIRI JAGAN, JUDGE. APPENDIX EXT.P1: COPY OF PROCEEDINGS NO.LR(E)4-19799/96 DTD 22.7.1996 ISSUED BY THE BOARD OF REVENUE (LR) THIRUVANANTHAPURAM. EXT.P2: COPY OF THE PROCEEDING NO.A1.31587/96(1) DTD 14.8.96 ISSUED BY R3. EXT.P3: COPY OF THE PROCEEDINGS NO.A1-407/96 DTD 31.8.96 ISSUED BY THE SPECIAL TAHSILDAR (L.R.) KANHANGAD. EXT.P4: COPY OF THE ORDER NO.GO (MS) 405/96 FIN. DTD 20.5.96 FIN. DTD 20.5.96 ISSUED BY GOVT. EXT.P5: COPY OF PROCEEDINGS NO.A136804/96 DTD 28.9.96 ISSUED BY R3. EXT.P6: COPY OF THE PROCEEDINGS NO.K.DIS -3/96 DTD 24.3.97 ISSUED BY THE SPECIAL TAHSILDAR (L.A.) HOSDURGE. EXT.P7: COPY OF THE LETTER NO.C-5553/97 DTD 6.11.1997 ISSUED BY THE SPECIAL TAHSILDAR. EXT.P8: COPY OF LETTER NO.L.DIS-42470/97/A1/ DTD 17.11.97 ISSUED BY THE DISTRICT COLLECTOR, KASARAGOD. EXT.P9: COPY OF REPRESENTTION DTD 28.11.97 BY THE DISTRICT COLLECTOR BY THE PETITIONER. EXT.P10: COPY OF THE LETTER NO.C-5553/97, DTD 28.11.97 ISSUED BY THE SPECIAL TAHSILDAR (L.A.) HOSDURG, TO THE DISTRICT COLLECTOR, KASARAGOD. EXT.P11: COPY OF PROCEEDINGS NO.A1-46603/97, DTD 18.2.98 ISSUED BY THE DISTRICT COLLECTOR. EXT.P12: COPY OF THE ORDER NO.GO(P) 483/95 (45) DTD 8.8.95 ISSUED BY THE GOVERNMENT., EXT.P13: COPY OF THE PROCEEDINGS NO.B.12406/97, DTD 22.4.98 IS PASSED BY THE REVENUE DIVISIONAL OFFICER, KASARAGOD. EXT.P14: COPY OF THE LETTER NO.A1-46603/97, DTD 10.3.98 ISSUED BY THE DISTRICT COLLECTOR TO THE BOARD OF REVENUE. OP.No. 24371 of 2001 EXT.P15: COPY OF THE LETTER NO.15971/LRG-7/K.DIS DTD 28.8.98 ISSUED BY R2. EXT.P16: COPY OF THE LETTER NO.A1-46603/97 DTD 3.10.98 ISSUED BY THE DISTRICT COLLECTOR. EXT.P17: COPY OF THE LETTER NO.28054/LR(G) 7/93 DTD 10.11.98 OF R2 TO THE GOVERNMENT. EXT.P18; COPY OF THE GOVERNMENT LETTER NO.79714.T3/98/RD DATED 12.4.99 TO R2. EXT.P19; COPY OF THE REPRESNTTION DTD 11.6.99 TO THE GOVT. BY THE PETITIONER. EXT.P20: COPY OF THE LETTER NO.L. DIS 27042/99/A1 DTD 30.7.99 THE R3 TO R2. EXT.P21: COPY OF THE SAID LETTER NO.21602/99/LRG-7/DTD 25.3.2000 OF R2 TO R3. EXT.P22: COPY OF LETTER NO.A1-24772/2000 DTD 30.7.2000 BY R3 TO R2. EXT.P23: COPY OF LETTER NO.LRG7-21602/99 K-DIS DTD 30.1.01 BY R2 TO R3. EXT.P24: COPY OF THE GOVERNMENT LETTER NO.71121/T3/2000 RD DATED 6-1-2000 TO R3. EXT.P25: COPY OF THE REPRESENTATION DTD 7.3.2001 BY THE PETITIONER TO THE GOVT. EXT.P26: COPY OF LETTER NO.LR(G) 7-12769/2001 DTD 10.4.2001 BY R2 TO THE GOVERNMENT. EXT.P27: COPY OF THE LETTER NO.27362/T3/2001/RD DTD 29.6.2001 ISSUED BY THE GOVERNMENT TO R2. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No. 24371 OF 2001 ---------------------------------------- Dated this the 18th day of February, 2009 JUDGMENT The petitioner entered service as L.D. Typist in the Revenue Department on 16.5.1985, pursuant to the advice by the Public Service Commission. He satisfactorily completed probation on 9.6.1987. He was promoted as U.D. Typist with effect from 28.5.1987 by order dated 5.10.1988. The scale of pay of U.D. Typist at that time was Rs.1200-2040. U.D. Typists were entitled to seek category change as U.D. Clerk as per Government Order dated 26.10.1968 on completion of 10 years in every 6th vacancy arising in the cadre of U.D. Clerk. The U.D. Typists are also eligible for ratio promotion as Senior Grade Typist. The petitioner applied for category change as U.D. Clerk by Ext.P1 dated 22.7.1996. By Ext.P2 order dated 22.7.96, the petitioner was posted as U.D. Clerk in an existing vacancy, pursuant to which he joined duty as U.D. Clerk on 5.9.1996. The scale of pay applicable to U.D. Clerk has also Rs.1200-2040. By Ext.P5 order dated, 28.9.1996, the petitioner was given promotion as Senior O.P.NO.24371/2001 2 Grade Typist retrospectively with effect from 1.4.1996 in the scale of pay of Rs.1400-2300. However, the petitioner opted to continue as U.D. Clerk with effect from 5.9.1996. According to the petitioner, on completion of 10 years service as U.D. Typist and U.D. Clerk in the same scale of pay, the petitioner is entitled to 10 years' time bound higher grade promotion in the first promoted post in the U.D. category. According to the petitioner, he is entitled to such higher grade promotion with effect from 28.5.1997 since he became U.D. Typist with effect from 28.5.1987. However, by Ext.P13, his pay in the higher grade was fixed with effect from 25.10.1997, excluding the period from 1.4.1996 to 31.8.1996, during which period he was occupying the higher post of Senior Grade Typist notionally with retrospective effect, apparently based on G.O. (P)No.707/81(373)Fin dated 28.10.1981. By Ext.P12 Government Order, (G.O.(P) No.483/95/(46) Fin dated 8.8.1995) the Government had already cancelled G.O.(P)) No.707/81(373)Fin dated 28.10.1981 and held that the benefit of time bound higher grade will be extended those who are promoted for short spells but reverted to lower posts for want O.P.NO.24371/2001 3 of vacancy and are continuing in the lower posts. It was provided therein that in such cases their service in the higher posts will also be reckoned for computing the prescribed qualifying service in the lower posts provided they are eligible for time bound higher grade promotion as per existing rules relating to time bound higher grade scheme. The petitioner, therefore, raises a claim for higher grade promotion with effect from 28.5.1997 including the period during which he occupied the post of Senior Grade Typist for the period from 1.4.1996 to 21.7.1996 as well. The District Collector entertained a doubt as to whether the petitioner is eligible for the same. By Ext.P14, the District Collector wrote to the Secretary of the Board of Revenue seeking clarification in that regard apparently based on G.O.(P) No.707/81(373)Fin dated 28.10.1981, without reference to Ext.P12 Government Order which cancelled by G.O.(P)No. 707/81(373)Fin dated 28.10.1981. After some correspondence between the District Collector and the Commissioner of Land Revenue, by Ext.P23, the Commissioner informed the District Collector that since the petitioner had enjoyed the pay fixation as per Rule 28A of the O.P.NO.24371/2001 4 KSR twice within 20 years of total service, he is not eligible for any grade promotion on completion of 10 years service in the post of U.D. Typist/U.D. Clerk taken together. Accordingly, the District Collector was directed to cancel the order sanctioning higher grade to the petitioner. The petitioner’s representation in this regard did not meet with success. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i) Issue a Writ of certiorari, or other appropriate Writ, order or direction calling for the records leading to Ext.P18, P23, P24 and P27 and quash them. ii) Issue a declaration that the petitioner is entitled to the Ext.P4 ratio promotion in the senior grade Rs.1400-2300 with effect from 1-4-96 as granted in Ext.P5, and the second higher grade for the U.D.clerk in Rs.1400-2300 in terms of GO(P) 600- 930/93 as sanctioned in Ext.P11 but with effect from 26-5-97, by including the period from 1.4.96 to 31.8.96, with all consequential benefits from 26-5-97. II (a) Issue a Writ of mandamus, or other appropriate writ, order or direction commanding the respondent to grant the second higher grade for the UD clerk in Rs.1440-2300 with effect from 26-5-97 under GO(P)600-930/93 and other related orders with all consequential benefits on and from 26.5.97 by including the period from 1-4-96 to 31-8-96 with consequential benefits on and from 26.5.97, by modifying Ext.P11 sanction with effect from 26-5-97. II (b) Or in the alternative, to issue a direction to the first respondent to cancel Ext.P5 ratio grade as requested in Ext.P25 representation, and to grant the second higher grade in the UD cadre in the scale Rs.1440-2300 with effect from 26-5-97 in terms of GO(P) 600-930/93 with all consequences” O.P.NO.24371/2001 5 2. The contention of the petitioner is that the fixation of pay under Rule 28A of the KSR has nothing to do with the higher grade promotion. Higher grade promotion is granted as per the pay revision orders, which do not refer to Rule 28A at all. As per the pay revision orders, a Government servant was entitled to first higher grade on completion of 10 years of service in the entry post and the second higher grade on completion of either 10 years of service in the first promoted post or a total service of 20 years in the entry post and the first regular promotion post/time bound higher grade together, which ever is earlier. According to the petitioner, although he had in between obtained a promotion for a short spell, that cannot stand in the way of the petitioner getting higher grade promotion, in view of Ext.P12 Government Order. Therefore, the petitioner would contend that he is rightly entitled to time bound higher grade promotion in the post of U.D. Clerk with effect from 28.5.1997 on which date he completed 10 years of service in the U.D. Typist/U.D. clerk cadres put together. 3. A counter affidavit has been filed by the 1st O.P.NO.24371/2001 6 respondent in support of the impugned orders. They reiterate that once the petitioner has enjoyed two fixations under Rule 28A of the KSR, the petitioner has ceased to become eligible for time bound higher grade promotion in the promoted post. 4. I have considered the rival contentions in detail. 5. The petitioner has extracted the rules regarding the higher grade promotion as per the pay revision orders. The relevant clauses provide thus: “(a) The First higher grade on completion of 10 years of service in the entry post, (b) The Second higher grade on completion of either 10 years of service in the first promoted post or a total service of 20 years in the entry post and the first regular promotion post/time bound higher grade together, whichever is earlier”. In Ext.P12, the Government has ordered thus: “In the light of the Judgment of the Hon. High Court in the O.P. cited, government are pleased to order that the benefit of time bound higher grade will also be extended to those who are promoted for short spells but reverted to lower post for want of vacancy and are continuing in the lower post. In such cases their service in the higher post will also be reckoned for computing the prescribed qualifying service in the lower post provided they are eligible for time bound higher grade promotion as per the existing rules relating to time bound higher grade scheme. O.P.NO.24371/2001 7 The Government orders first and second and para 2 (xiii) of Circular third read above are hereby cancelled. But past cases settled on the basis of the above Government Orders will not be re-opened”. Rules regarding the time bound higher grade promotion do not refer to fixation under Rule 28A at all. Apparently Rule 28A fixation referred to by the Commissioner is on the basis of his promotion as Senior Grade Typist, which he had relinquished to come over to the U.D. Clerk cadre. Therefore, 28A fixation cannot be taken into account in view of Ext.P12 order itself. In Ext.P12 order, the Government had held that those who were promoted for a short spell but reverted, do not become disentitled to higher grade promotion on account of that promotion and the period of the temporary promotion would also be counted for the time bound higher grade for the lower posts as well as the higher posts. In fact I myself had occasion to consider the justifiability of excluding such period of temporary promotion for the purpose of granting higher grade in O.P.No.24885/1998, in which I had held thus: “At the outset, I must state that the attitude of the respondents in this case is unjust to say the least. Perhaps for the purpose of seniority and promotion, the petitioners may not be entitled to have their service as Head Constable O.P.NO.24371/2001 8 reckoned. But, it cannot be held that their service at least in the cadre of Police Constable is totally wiped out simply because they opted first for transfer to District Armed Reserve and then to the local police surrendering in the process their benefit as Head Constables. Once all the benefits the petitioners have received in the cadre of Head Constables have been recovered from them, it should be deemed that they have been continuing as Police Constables in Armed Police Battalion, the District Armed Reserve Police and the local police from 1-8-1974 onwards. Therefore, for the purpose of computing their benefits in the cadre of Police Constable, the service put in those organizations as Head Constables cannot be lightly discarded. Consequently, they would also be entitled to all the benefits as Police Constables in the matter of granting higher grades with effect from the date of their appointment in the Armed Police Battalion taking into account their service as Head Constables also. The contention of the learned Government Pleader that Ext.P4 would be applicable only in the case of reversion on account of want of vacancy does not appeal to me. 5. Originally, in Ext.P3 Government Order relating to pay revision for the year 1988, it was held as follows: “(xiii) Those who got promotion for some time and then reverted and are continuing in the entry grade/same grade will be allowed the benefit of grade promotion provided they have at their credit the specified qualifying service excluding the period during which they were holding the higher post on promotion. [G.O.(P) 707/81 (373) Fin. Dated 28.10.1981]. However, the broken period of service in the higher post due to reversion to a lower post, will be reckoned for computing the total qualifying service in the higher post for sanctioning higher grade subject to the restriction laid down in the ruling below rule 33(a) Part-I Kerala Service Rules. In other words, such broken periods can be reckoned for higher grade only if they qualify for normal increments [G.O.(P) 49/83/(481) Fin. Dated O.P.NO.24371/2001 9 20.1.1983.] Some Government servants challenged the injustice behind the said rule and apparently in O.P.No. 5481/1990, this Court directed the Government to rectify the anomaly, which resulted in Ext.P4 order. As such, simply because in peculiar circumstances applicable to the Police Constables coming from the Armed Police Battalion and District Armed Reserve Police, their reversion could not be termed as one for want of vacancy, it is clear that they also stand on the same footing as those who were reverted for want of vacancy and the benefit of Ext.P4 to such category of Police Constables would amount to discrimination, according to me. As such, I am satisfied that the stand taken by the respondents in Exts.P12, P13 and P15 are totally arbitrary and discriminatory”. Of course, here there is no reversion as such. The situation in this case arose because of retrospective promotion. The petitioner opted for category change as U.D. Clerk while he was holding the post of U.D. Typist itself. But after he became U.D. Clerk, he was promoted to the post of Senior Grade Typist retrospectively as a result of which for an interregnum period he became entitled to the benefits of such retrospective promotion. I am of opinion that, that situation also is akin to the situation contemplated by Ext.P12 Government Order and therefore, the benefits of Ext.P12 Government Order cannot be denied to the petitioner. In the above circumstances, I am satisfied that the O.P.NO.24371/2001 10 petitioner is entitled to time bound higher grade in the first promoted post of U.D. Typist/U.D. Clerk taken together on his completing 10 years service in the cadre of U.D. Typist/U.D. Clerk put together on 28.5.1997. It is declared so. The petitioner is entitled to all consequential benefits also. Accordingly orders implementing the above direction shall be passed and arrears disbursed to the petitioner, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. The original petition is disposed of as above. S. SIRI JAGAN, JUDGE Acd O.P.NO.24371/2001 11