IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 7TH SEPTEMBER 2010 / 16TH BHADRA 1932 WP(C).No. 3265 of 2007(L) ------------------------- PETITIONER(S): --------------- SMT. E.R.RAJAMMA, AGED 55 YEARS, W/O. SRI. SOUNDARAN S., ELANJIMAMPALLATH HOUSE, NIRANAM P.O., KADAPRAM, (EX-DRAFTSMAN GRADE II, KERALA WATER AUTHORITY, WATER WORKS SUB DIVISION, KALOOR, ERNAKULAM.) BY ADV. SRI.M.R.GOPALAKRISHNAN NAIR SRI.B.SOMADASAN SRI.K.KRISHNANKUTTY NAYAR RESPONDENT(S): --------------- 1. THE KERALA WATER AUTHORITY, REPRESENTED BY THE MANAGING DIRECTOR, JALA BHAVAN, THIRUVANANTHAPURAM. 2. THE ASSISTANT EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, WATER WORKS SUB DIVISION, KALOOR, ERNAKULAM. ADV. SRI.J.KRISHNA KUMAR, SC, KWA FOR R1 GOVT. PLEADER SHRI.P.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/09/2010, ALONG WITH WPC NO. 28870 OF 2008 & WPC NO. 33213 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). No. 3265/07. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE AUDIT ENQUIRY. P2. COPY OF THE LETTER DTD.30.11.05 OF R1. P3. COPY OF THE ORDER DTD.28.7.06 BY R2. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).Nos.3265/2007, 28870/2008 & 33213/2008 ================== Dated this the 7th day of September, 2010 J U D G M E N T In these three writ petitions, the petitioners are employees of the Kerala Water Authority. All of them are draftsmen/overseers. They claim higher grade in the scale of pay applicable to the next higher promotion post. According to them, all of them possess educational qualifications prescribed for promotion to the next promotion post and therefore, they are entitled to next time bound higher grade in the scale of pay applicable to next higher promotion post. That benefit has been denied to them on the ground that although they possess the educational qualifications, they do not possess the experience qualification prescribed in the special rules for such promotion. According to them, for getting higher grades in the scale of pay applicable to the next higher promotion post, it is not necessary that they should possess all the qualifications prescribed in the special rules for such promotion, but the academic qualification would be sufficient. In support of their contention, they rely on the provisions relating to time bound grade promotions in G.O(P).No.515/85/Fin. dated 16.9.1985. According to them, by virtue of sub clause (viii) of clause 10 of the said pay revision order, in the case of persons not possessing w.p.c.3265/07 etc. 2 requisite academic qualification for promotion to such promotion post, an appropriate scale of pay will be fixed as higher grade by Government, which would conversely go to show that if the employees possess the academic qualification for the promotion post, they are entitled to next time bound higher grade in the scale of pay applicable to such promotion post. 2. The learned Government Pleader, on the other hand, contends that the claim of the petitioners has to be considered on the basis of pay revision orders in force as on the date of their becoming eligible for higher grade promotion and not on the basis of the pay revision order in 1985. According to the learned Government Pleader, as per pay revision order now stands, only those qualified hands possessing all the qualifications prescribed for the promotion post will get the scale of pay of regular promotion posts as time bound higher grade and unqualified hands will be allowed the time bound higher grade in the scale of pay provided in the table prescribed in the pay revision order. 3. In answer to the said contention, the petitioners rely on clause (13) of G.O(P).No.3000/98/Fin. dated 25.11.1998, which provides that all other existing general terms and conditions of ratio/time bound higher grade promotions will continue, as a result of which, the condition in the pay revision order dated 16.9.1985 to the w.p.c.3265/07 etc. 3 effect that for getting higher grade promotion in the scale of pay applicable to the next promotion post, only the prescribed academic qualification is necessary. 4. I have considered the rival contentions in detail. 5. Ext.P1 [in W.P.(C).No.28870/2008] is the extract from the pay revision order dated 16.9.1985. Sub clauses 7 and 8 of Clause 10 read thus: “(vii) While assigning higher grade, only qualified hands, i.e. those possessing the qualifications prescribed for the promotion post will get the scale of pay of regular promotion post. Unqualified hands will get an appropriate lesser scale of pay to be fixed by Government on the merits of each case. (viii) The higher grade to be sanctioned for a category in the normal course will be the scale of pay of the next promotion post in the direct line of promotion subject to the requirement of qualification. In the case of persons not possessing the requisite academic qualification for promotion to such promotion post, an appropriate scale of pay will be fixed as higher grade by Government. For the purpose of fixing the higher grade for a category, the question whether the promotion post for it is filled up wholly or only partly by promotion will be immaterial. In cases where there are no promotion posts, appropriate higher grade will be fixed by Government.” From the same, it is seen that there is an apparent conflict between sub clauses (vii) and (viii). In sub clause (vii) it is prescribed that only those possessing the qualifications prescribed for the next promotion post, the scale of pay applicable to the regular promotion post would be available as time bound higher grade. In sub clause (viii) it is provided that in the case of persons not possessing academic qualifications for promotion to such promotion post an appropriate w.p.c.3265/07 etc. 4 scale of pay will be fixed as higher grade by the Government. As such, these two sub clauses do not go together. In G.O(P).No.3000/98/Fin. dated 25.11.1998, clause (6) corresponds to clause (vi) in Ext.P1, which reads thus: “(6) If there is a promotion post in respect of the categories of posts (entry) coming under pay range from Rs.2610-3680 to Rs.5800- 9425 and its scale of pay is higher than the time bound higher grade proposed above, then the qualified incumbent will be given the scale of pay of the promotion post in the direct line of promotion as time bound higher grade. While assigning higher grade only qualified hands ie. those possessing the qualification prescribed for the promotion post will get the scales of pay of regular promotion posts. Unqualified hands, will be allowed the next higher scale of pay above that of the scale of pay of the post held at that time, in the standard scales of pay. If the scale of pay of the promotion post is lower than the time bound higher grade proposed in the Table, the time-bound higher grade specified above will be given by reckoning the total service in both the lower post and promotion post together. In such cases the fixation under Rule 28A Part I KSR for the 10 year grade will be based on the basic pay of the lower post.” 6. In 1998 pay revision order, there is no clause corresponding to sub clause (viii). But the learned counsel for the petitioners relies on clause (13), which reads thus: “(13) All other existing general terms and conditions of ratio grade/time bound higher grade promotions will continue subject to the modifications by Government from time to time.” I am of opinion that reliance on clause (13) is misplaced. That clause applies subject to modifications by Government from time to time. The Government has consciously omitted clause (viii) in Ext.P1 in subsequent Government orders, which is a modification contemplated in Clause 13. That would go to show that time bound higher grades in w.p.c.3265/07 etc. 5 the scale of pay applicable to next higher grade promotion post would be available only to those employees who hold all the qualifications prescribed for the promotion post. Those who do not satisfy all the qualifications prescribed for the next higher promotion post a separate scale of pay has been prescribed as time bound higher grade scale of pay, which only would be available to them. In view of my above findings, there is no merit in these writ petitions and accordingly, the same are dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.3265/07 etc. 6 The learned Government Pleader, on the other hand, contends that the claim of the petitioners has to be considered on the basis of pay revision orders in force as on the date of their becoming eligible for higher grade promotion and not on the basis of the pay revision order in 1985. According to the learned Government Pleader, as the pay revision order now stands, only the qualified hands those possessing qualifications prescribed for the promotion post will get the scale of pay of regular promotion/time bound higher grades mentioend baove unqualified will be allowed in the ===== In answer to the said contention, the petitioner rely on clause 13 w.p.c.3265/07 etc. 7 of G.O(P).No.3000/98/Fin. Dated 25.11.1998, which provide that all other existing general terms and conditions of ratio/time bound higher grade promotions will continue, as a result of which, the conditin in the pay revision orer dated 16.9.1985 to the effect that for getting hgiehr grade promotion in the scale of pay applicable to the next promotion pst, only the prescribed academic qualification is necessary. I have considered the rival contentions in detail. Ext.P1 [in W.P.(C).No.28870/2008] is the extract from the pay revision order dated 16.9.1985. Sub clauses 7 and 8 of Clause 10 read thus: “(vii) While assigning higher grade, only qualified hands, i.e. those possessing the qualifications prescribed for the promotion post will get the scale of pay of regular promotion post. Unqualified hands will get an appropriate lesser scale of pay to be fixed by Government on the merits of each case. (viii) The higher grade to be sanctioned for a category in the normal course will be the scale of pay of the next promotion post in the direct line of promotion subject to the requirement of qualification. In the case of persons not possessing the requisite academic qualification for promotion to such promotion post, an appropriate scale of pay will be fixed as higher grade by Government. For the purpose of fixing the higher grade for a category, the question whether the promotion post for it is filled up wholly or only partly by promotion will be immaterial. In cases where there are no promotion posts, appropriate higher grade will be fixed by Government.” From the same, it is seen that there ia an apparent conflict between subclauses 7 and 8. In clause 7 it is prescribed that only those possessing the qualification prescribed for promotion post the regular promotion post would be available as higher agarde, in clause (viii) it is w.p.c.3265/07 etc. 8 provided that in the case of persons not possessing academic qualifications for promton to such promotion post an appropriate sclae of pay will be fixed as hgiher grade by the Government\. As such these two sub clasues do not go together. In G.O(P).No.3000/98/Fin. Dated 25.11.1998 clause 6 corresponds clause (vi) in Ext.P1. “(6) If there is a promotion post in respect of the categories of posts (entry) coming under pay range from Rs.2610-3680 to Rs.5800-9425 and its scale of pay is higher than the time bound higher grade proposed above, then the qualified incumbent will be given the scale of pay of the promotion post in the direct line of promotion as time bound higher grade. While assigning higher grade only qualified hands ie. those possessing the qualification prescribed for the promotion post will get the scales of pay of regular promotion posts. Unqualified hands, will be allowed the next higher scale of pay above that of the scale of pay of the post held at that time, in the standard scales of pay. If the scale of pay of the promotion post is lower than the time bound higher grade proposed in the Table, the time-bound higher grade specified above will be given by reckoning the total service in both the lower post and promotion post together. In such cases the fixation under Rule 28A Part I KSR for the 10 year grade will be based on the basic pay of the lower post.” In 1998 pay revisin order, there is no corresponding clasue correspnding to sub clasue (viii). But the learned counsel for the petitioners relies on clause (13), which reads thus: “(13) All other existing general terms and conditions of ratio grade/time bound higher grade promotions will continue subject to the modifications by Government from time to time.” I am of opinion that reliance on clasue (13) is misplaced. That clasue applys subject to modification issued by Government from time to time. Government has consciously omitted clasue (viii) in Ext.P1 in subsequent Government orders. That would go to show that higher w.p.c.3265/07 etc. 9 grades in the scale of pay applicable to next higher grade promotion post would be available only to those employees who hold the qualifications prescribed for the promotion post. Those who do not satisfy the qualification prescribed for the next higher promotio post a separte scale of pay, which only would be available to them. In view of my above findings, there is no merit in these writ petitions and accordingly, the same are dismissed.