IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 2ND MARCH 2009 / 11TH PHALGUNA 1930 WA.No. 374 of 2006() -------------------- AGAINST THE JUDGEMENT/ORDER IN OP.31982/1999 Dated 28/09/2005 .................... APPELLANT(S): RESPONDENTS. -------------------------- 1. THE DISTRICT EDUCATIONAL OFFICER, KOTTAYAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM. 3. THE SECRETARY, EDUCATIONAL DEPARTMENT, SECRETARIAT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 4. THE STATE OF KERALA, REP. BY THE PRINCIPAL SECRETARY, FINANCE, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER, SRI.NOBLE MATHEW RESPONDENT/PETITIONER: --------------- A.M.GOPALAKRISHNAN NAIR, LAKSHMI SADANAM, VATTUKULAM P.O. KADAPPUR, KOTTAYAM. ADV.SRI.P.R.PADMANABHAN NAIR. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ------------------------------- W.A. No.374 OF 2006 -------------------------------- Dated this the 2nd day of March, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The respondents in O.P.No.31982/1999 are the appellants. The respondent was the writ petitioner. The brief facts of the case are the following: 2. The writ petitioner, who was a Principal in a Government Higher Secondary School, attained the age of fifty five years on 28.1.1999, By virtue of Rule 60(a) of Part 1 of the K.S.R, his date of retirement was 31.1.1999. But, in view of Rule 60(c) of Part I of the K.S.R., he was entitled to continue in service up to 31.3.1999. While so, the petitioner completed 27 years of service on 1.2.2009. Teachers like the writ petitioner, who completed 27 years of service, are eligible to get a higher grade. The petitioner was not granted that higher grade for the reason that it fell due during the extended period of service, which he got on the strength of Rule 60(c) of Part I K.S.R. He represented claiming grade promotion. His representations were not considered by the Government. So, the writ petition was filed seeking appropriate reliefs. The learned Single Judge WA.No.374/2006. 2 allowed the writ petition relying on Exts.P7 and P8 judgments and also the judgment in writ appeal No.692/1999. Reliance was placed on the decision of the Supreme Court in State of Kerala v. Neelakantan Nair [2005(3)KLT 717]. The learned Judge took the view that though those decisions do not deal with the case of promotion, still the principles in those decisions will apply and therefore, allowed the writ petition. The official respondents, aggrieved by the said direction, has filed this appeal. 3. The learned Government pleader submitted that the point raised by the petitioner/respondent is covered against him, in view of the statement of law made by the Apex court in paragraph 18 of the decision in Neelakantan Nair's case. The learned counsel for the petitioner, on the other hand, submitted that Rule 60(c) only says ineligibility for promotion. The same does not deal with grade promotion. By grade promotion, the incumbent continues to discharge the functions of the cadre post held by him, but he is given a higher scale of pay. So, it cannot be treated as promotion. So, the petitioner is entitled to get grade promotion, which fell due after 31.1.1999 but before 31.3.1999, it is submitted. WA.No.374/2006. 3 4. The point raised by the appellants is covered in their favour by the recent decision of the Division Bench of this Court in W.A.No.1432/2005 and connected case. If the claim of the learned counsel for the appellant that the bar under Rule 60(c) will apply only to regular promotion and not to grade promotion is accepted, persons whose turn arose for regular promotion will be denied the same, but, a person whose turn arose for grade promotion will get it. We think that such an anomalous situation cannot be created by accepting the interpretation advanced by the learned counsel for the appellant. In view of the above position and the aforementioned recent Division Bench judgment of this Court, the appeal is allowed. The judgment of the learned Single Judge is reversed and the Original Petition is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) ps