IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 OP.No. 1386 of 2002(M) ---------------------- PETITIONER(S): --------------- V.T.THOMAS, S/O. THOMAS, AGED 50 YEARS, RESIDING NEAR RAILWAY STATION, KANHANGAD, HOSDURG VILLAGE AND TALUK, KASARAGOD DISTRICT. BY ADV. SRI.KODOTH SREEDHARAN RESPONDENT(S): --------------- 1. JOINT EXCISE COMMIISSIIONER, COMMISSIONARATE OF EXCISE, THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, PUBLIC OFFICE, THIRUVANANTHAPURAM. 3. THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-1. GOVERNMENT PLEADER SSMT. N. SUDHA DEVI THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 02/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 1386/2002. --------------------------------------------------------------- EXT.P1 TRUE COPY OF PROCEEDINGS DT. 9-8-1986. EXT.P2 PROCEEDINGS DT. 11-8-1986. EXT.P3 DO. DT. 5-10-1999. EXT.P4 DO. DT. 31-8-1999. EXT.P5 DO. DT. 2-11-2001. EXT.P6 DO. DT 2-11-2001. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 1386 of 2002 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 2nd November, 2009. J U D G M E N T The petitioner entered service as a Preventive Officer in the Excise Department of the Government of Kerala on 22-9-1975. On 28-7-1984, the petitioner was promoted as Excise Inspector. On 5-11-1985, that promotion was cancelled and the petitioner was reverted as Preventive Officer. At that time, a new post of Assistant Excise Inspector was incorporated in the Special Rules and the petitioner was promoted as Assistant Excise Inspector on 20-11-1985. That promotion was also cancelled on 4-1-1986 and the petitioner was again reverted as Preventive Officer. Subsequently, by Ext. P1 order dated 9-8-1986, the petitioner was promoted as Excise Inspector. By Ext. P3 order dated 5-10-1999, the petitioner was given 10 year Higher Grade in the post of Excise Inspector. However, by Ext. P5 order dated 2-11-2001, the Higher Grade granted to the petitioner was cancelled on the ground that since as per Order No. KS1-6429/90/K. Dis dated 18-9-1992, the petitioner was given two fixations under Rule 28A of part I of K.S.R in the posts of Assistant Excise Inspector and Excise Inspector, the petitioner is not entitled to 10 year Higher Grade as per the Pay Revision Order. 2. The petitioner raises two contentions. The first is that a similarly placed Excise Inspector by name Sri. G. Sivarajan was given the Higher Grade as per Ext. P4 order and therefore the withdrawal of Higher Grade given to the petitioner is discriminatory. The second is that Ext. P5 order cancelling the Higher Grade granted to the petitioner was issued without affording an opportunity of being heard to the petitioner. By an identical order, on the same day by Ext. P6, the petitioner was given 23 year Higher Grade. The petitioner challenges that also on the ground that Sri. G. Sivarajan mentioned in Ext. P4 was given 23 year Higher Grade in the scale of pay of O.P.. No. 1386/2002 -: 2 :- Rs. 7200-11400, whereas the petitioner was granted 23 year Higher Grade in the scale of pay of Rs. 6500-10550, which is also discriminatory. 3. I have heard the learned Government Pleader also. 4. On a consideration of the rival arguments, I find several discrepancies in the orders impugned. In paragraph 2 of Ext. P1 order, it is stated thus: “Accordingly, all unqualified Excise Inspectors provisionally promoted prior to or after 14-5-1982 are to be reverted. While ordering promotions and reversions, the position which existed as on 14-5-1984 (i.e expiry date of exemption period) is alone taken into consideration. The posts of Asst. Excise Inspector were filled up in 11/85 on the issuance of Special Rules prescribing mode of appointment and qualifications for the post of Asst. Excise Inspector. Therefore, reversion of unqualified Excise Inspectors and promotion of qualified Preventive officers are ordered without taking into consideration the post of Asst. Excise Inspector and Preventive officer.” Going by that paragraph, the petitioner was directly given promotion as Excise Inspector bypassing the post of Assistant Excise Inspector only because that promotion had to be considered, considering the position which existed as on 14-5-1984, on which date there was no post of Assistant Excise Inspector prevailing in the Special Rules. Therefore, the petitioner was not entitled to the fixation of pay in the post of Assistant Excise Inspector. He was entitled to only one fixation under Rule 28A of Part I of K.S.R in the post of Excise Inspector. But, from Ext. P5, it is seen that on 18-9-1992, the petitioner was granted two fixations of pay under Rule 28A in the post of Assistant Excise Inspector and in the post of Excise Inspector. In view of Ext. P1 order, the same is clearly unwarranted. If that be so, the petitioner is entitled to only one fixation under Rule 28A when he was promoted as Excise Inspector by Ext. P1 order. If that be so, the O.P.. No. 1386/2002 -: 3 :- cancellation of his 10 year Higher Grade by Ext. P5 order would not be sustainable. If Sri. Sivarajan and the petitioner are identically situated, then the petitioner is also entitled to 23 year Higher Grade in the scale of pay of Rs. 7200-11400, whereas the petitioner was granted 23 year Higher Grade in the scale of pay of Rs. 6500-10550. Therefore, clearly, the entire fixation of pay of the petitioner both in the 10 year Higher Grade and 23 year Higher Grade requires re- consideration at the hands of the 1st respondent. It is all the more so since Ext. P5 order cancelling the petitioner's 10 year Higher Grade had not been issued after hearing the petitioner. Accordingly, Exts.P 5 and P6 orders are quashed and the 1st respondent is directed to re-consider the entire issue regarding grant of 10 year Higher Grade and 23 year Higher Grade to the petitioner afresh in the light of the observations made hereinabove. The same shall be done as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioner. The original petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/