IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 29TH SEPTEMBER 2008 / 7TH ASWINA 1930 WA.No.2342 of 2007 (E) ----------------------------- AGAINST THE JUDGMENT IN WPC.25627/2004 Dated 05/03/2007 .................... APPELLANTS: RESPONDENTS: ----------------------------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, TECHNICAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.BENNY GERVACIS RESPONDENT: PETITIONER: --------------------------------- K.C. MATHEW, DEMONSTRATOR IN ELECTRICAL ENGINEERING, GOVERNMENT MODEL HIGHER SECONDARY SCHOOL FOR BOYS, THRISSUR. ADV. SRI.M.R.GOPALAKRISHNAN NAIR FOR R1 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29/09/2008 ALONG WITH CON. CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. B. KOSHY & K. P. BALACHANDRAN, JJ. ------------------------------------------------ W. A. Nos.2342, 2505 of 2007, 692, 1304 and 1382 of 2008 ------------------------------------------------ Dated this the 29th day of September, 2008 JUDGMENT Koshy, J All these appeals are filed by the State. Respondents/writ petitioners were appointed as Workshop Attender. They were promoted from that post to Skilled Assistant Grade-II. On acquiring qualification, they were promoted as Demonstrator/Workshop Instructor. According to them, their posting as Demonstrator/ Workshop Instructor is not by promotion but by transfer and therefore, on completion of ten years of service they are entitled to get the benefit of first grade promotion. They also relied on the judgment of this Court in O.P. No.13985/1998 wherein the learned Single Judge only held that appointment by transfer will be treated as equivalent to direct recruitment W. A. No.2342/07 & con. cases -2- for allowing the benefit of higher grade and the time bound grades admissible will be determined with reference to initial entry post. The learned Single Judge also directed the Government to consider the petitioners' entitlement to grant higher grade. Some of the employees similarly placed were given the above benefit. But the respondents/ petitioners' claim was rejected by the Government on the ground that their posting as Demonstrator/Workshop Instructor was not by way of transfer but by way of promotion. Respondents/Petitioners approached this Court. The learned Single Judge in the impugned judgment directed the petitioners also to be given the benefit on the assumption that they were posted in the post of Demonstrator on acquiring qualification by transfer and not by promotion. W. A. No.2342/07 & con. cases -3- 2. The contentions of the appellant/State is that respondents/petitioners were actually promoted and they were not appointed by way of transfer. Originally, post of Demonstrator/ Workshop Instructor was only on the basis of direct recruitment. But to encourage departmental staff to acquire higher qualification, Government vide G.O.(MS)No. 661/65/Edn. Dated 13/12/1965 (Annexure-A1 in W.A.2342/07) decided to fill the post by transfer and promotion. Clause-2 of the above order reads as follows:- “The method of the appointment prescribed in the G.O.'s read above for the above mentioned posts is only direct recruitment. Government consider that to encourage departmental staff to acquire higher qualifications and also to keep them contented 'transfer' and 'promotion' may also be prescribed as alternative methods of appointment to the posts. Accordingly, Government are pleads to revise in consultation with the P.S.C the method of appointment for the following posts are prescribed in the G.O.'s read as 1st and 2nd above.” W. A. No.2342/07 & con. cases -4- 3. Thereafter categories of Skilled Assistant Grade-I and Draftsman were allowed to be appointed to the post of Demonstrator by transfer, but with regard to persons like petitioners, in clause-ii of the above Annexure-A1 Government Order, it is stated as follows:- “In the absence of candidates under item (1) above promotion from the categories of S.As Grade-II on Rs.40-120 in Engineering Colleges, Polytechnics and J.T. School and S.As (Survey) on Rs.40-120 in Women's Polytechnics.” (emphasis supplied) 4. Therefore, petitioners' who were Skilled Assistant Grade-II were actually promoted and not appointed by transfer. Their salary scale as Skilled Assistant Grade-II (before pay revision) was Rs.40-120. On becoming Demonstrators they would get salary in the scale of pay of Rs.80-180. However, considering the contentions, we have asked the Government Pleader to produce posting orders. W. A. No.2342/07 & con. cases -5- Annexure-A2 is one of the posting orders wherein the words used are “they were temporarily promoted as Workshop Instructor/ Demonstrator in Electrical Engineering on Rs.1050-1830 under Rule 31(a)(i) of General Rules in K.S.S.Rs, 1958”. The relevant appointment orders produced by the respondents/ writ petitioners in the concerned writ petitions also show that all of them were promoted. The stagnation benefit is applicable only to avoid stagnation. Here, the petitioners got one promotion after their initial appointment as Workshop Attender. Thereafter, this is the second promotion from Skilled Assistant Grade-II to Demonstrator. They are not entitled to first grade promotion as contended by them. Petitioners relied on Government Order No.G.O.(P) No.3000/98/Fin Dated 25/11/1998 (Ext.P4 in W.A.2342/07). Clause (11) of the above Government Order W. A. No.2342/07 & con. cases -6- reads as follows:- “the term 'entry post' shall be defined as the post to which an employee is initially appointed in Government Service by direct recruitment by the competent authority. Appointments by transfer will also be treated as equivalent to direct recruitment for allowing the benefit of higher grade. However, promotion to a post in the direct line of promotion in a Department to be made on the basis of select list prepared by the Departmental Promotion Committee, even if it is appointment by transfer from subordinate service to State Service cannot be treated as direct recruitment for allowing the benefit of time bound higher grade. The time bound higher grade admissible will be determined with reference to the initial entry post only. Those who get regular promotion or appointment to higher posts within the period specified for each time bound higher grade will not be granted further time bound higher grade during that period.” (emphasis supplied) 5. But that also shows very clearly that Time Bound Higher Grade is admissible with reference to the initial entry post only. Since the respondents'/petitioners' postings as Demonstrators is not by transfer, but by promotion, respondents/petitioners are not entitled to get the benefit of grade promotion treating Demonstrator's post as initial entry post. Even if some candidates were wrongly W. A. No.2342/07 & con. cases -7- given the above benefit, respondents/ petitioners cannot claim the same. 6. In the above circumstances, we set aside the impugned judgment and uphold Ext.P4 (in W.A.2342/07) and similar orders. These Writ Appeals are thus, allowed. J. B. KOSHY JUDGE K.P.BALACHANDRAN, JUDGE kns/-