High Court Kerala High Court

State Of Kerala vs N.O. Jose on 23 May, 2008

Kerala High Court
State Of Kerala vs N.O. Jose on 23 May, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 170 of 2007()


1. STATE OF KERALA,
                      ...  Petitioner
2. THE ACCOUNTANT GENERAL (AUDIT),
3. THE TALUK SUPPLY OFFICER,

                        Vs



1. N.O. JOSE, S/O. OUSEPH,
                       ...       Respondent

                For Petitioner  :GOVERNMENT PLEADER

                For Respondent  :SRI.ALEXANDER JOSEPH

The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice P.N.RAVINDRAN

 Dated :23/05/2008

 O R D E R
                J.B.Koshy & P.N.Ravindran, JJ.
               =====================
                       W.A.No.170 of 2007
               =====================

            Dated this the 23rd day of May, 2008.

                           JUDGMENT

Ravindran,J.

The appellants are the respondents in W.P.(C)No.22415 of

2005. The sole respondent is the writ petitioner. The brief facts

of the case are as follows:

2. The writ petitioner entered service as Driver Grade II in

the Civil Supplies Department on 4.9.1986. By Ext.P1 dated

25.11.1998, the State Government revised the scales of pay of

government employees in implementation of the

recommendations of the pay revision committee. The revised

scales of pay came into force with effect from 1.3.1997. Prior to

Ext.P1, Driver Grade II was placed in the scale of pay of Rs.825-

1450 and Driver Grade I was in the scale of pay of Rs.1050-

1660. By Ext.P1 it was revised to Rs.2750-4625 and Rs.3350-

5275 respectively. The revised scale of pay of Driver Grade II

sanctioned as per Ext.P1 was again modified as Rs.3050-5230

WA 170/07 -: 2 :-

by Ext.P2 order dated 12.7.1999. Ext.P1 pay revision order also

contemplates grant of first time bound higher grade promotion on

completion of 10 years of service in the entry post, a second

higher grade promotion on completion of either 8 years of service

in the first promoted post or a total service of 18 years in the

entry post and the first regular promotion post/time bound higher

grade together, whichever is earlier, a third higher grade

promotion on completion of 23 years of total service and a fourth

time bound higher grade to Class IV employees on completion of

30 years of service. As per Ext.P1, Driver Grade II in the revised

scale of pay of Rs.3050-5230 was entitled to first time bound

higher grade promotion on completion of 10 years of service, in

the scale of pay of Rs.3350-5275 which is the revised scale of

pay of Driver Grade I.

3. As noticed earlier, the revised scale of pay of Rs.2750-

4625 sanctioned to Driver Grade II by Ext.P1 was modified by

Ext.P2 as Rs.3050-5230. Paragraph 6 of Ext.P1 reads as follows:

WA 170/07 -: 3 :-

“PAY SCALES OF NON-CLERICAL TECHNICAL

STAFF

6. With a view to improve the Pay Scales of

certain Categories of non-clerical technical staff

Government have decided to increase their Scales of

Pay to the next higher Scale at the entry level. The

changes in Scales made accordingly in respect of

certain categories are shown against the designations

in Annexure-II. Finance Department will define and

identify the other eligible designations in this

Category non-clerical technical staff. Orders on this

will be issued thereafter.”

Paragraph 5(6) of Ext.P1 reads as follows:

“(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

WA 170/07 -: 4 :-

that of the scale of pay of the post held at that time,

in the standard scales of pay.”

4. Paragraph 6 of Ext.P1 extracted above, states that with a

view to improve the pay scales of certain categories of non-

clerical technical staff, the government have decided to increase

their scales of pay to the next higher scale at the entry level. It

is further stated that the changes in scales made accordingly in

respect of certain categories are shown against the designations

in Annexure-II. From Annexure-II in Ext.P1, it is seen that the

scale of pay of Driver Grade II was revised from Rs.825-1450 to

Rs.2750-4625, while the scale of pay of Driver Grade I was

revised from Rs.1050-1660 to Rs.3350-5275. On the terms of

paragraph 6, non-clerical technical staff were entitled to an

increase in the scale of pay to the next higher scale at the entry

level. Therefore, the scale of pay of Driver Grade II was revised

from Rs.825-1450 to Rs.2750-4625. Later, by Ext.P2 government

order dated 12.7.1999 the scale of pay of Driver Grade II was

enhanced from Rs.2750-4625 to Rs.3050-5230, the next higher

scale of pay recognised in Ext.P1.

5. Pursuant to Ext.P1 as modified by Ext.P2, the writ

WA 170/07 -: 5 :-

petitioner was granted first time bound higher grade promotion

on completion of 10 years of service. On the premise that the

writ petitioner, who was Driver Grade II in the revised scale of

pay of Rs.3050-5230 with effect from 1.3.1997 was entitled to

the first time bound higher grade promotion in the scale of pay of

Rs.4000-6090, the first time bound higher grade promotion was

sanctioned to him with effect from 1.3.1997 and his pay as on

1.3.1997 was fixed in the minimum of the scale of pay of

Rs.4000-6090. The writ petitioner was also sanctioned periodical

increments with effect from 1.12.1997. Ext.P3 is the proceedings

issued in that regard by the Taluk Supply Officer,

Kothamangalam.

6. The grant of first time bound higher grade promotion to

the writ petitioner was objected to by the audit party on the

ground that the grant of first time bound higher grade promotion

in the scale of pay of Rs.4000-6090 is erroneous and that the

writ petitioner was eligible for first time bound higher grade

promotion only in the scale of pay of Rs.3350-5275. The fixation

of the writ petitioner’s pay with effect from 1.3.1997 in the scale

of pay of Rs.4000-6090 was held to be incorrect. Pursuant to the

WA 170/07 -: 6 :-

objections raised by the audit party, the Taluk Supply Officer,

Kochi where the writ petitioner was then working, issued Ext.P4

proceedings dated 23.11.2000 refixing the writ petitioner’s pay

and ordered recovery of the excess salary drawn by him. It was

also ordered that from the month of November, 2000 onwards,

his salary will be claimed and disbursed in the revised scale of

pay of Rs.3350-5275 .

7. The writ petitioner thereupon filed O.P.No.35589 of 2000

challenging Ext.P4 mainly on the ground that he was not heard

before Ext.P4 was passed. By Ext.P5 judgment delivered on

8.1.2001, this Court quashed Ext.P4 (which was produced and

marked as Ext.P3 therein) and directed the Taluk Supply Officer

to pass a fresh order after affording the writ petitioner an

opportunity of being heard. The Taluk Supply Officer thereafter

passed Ext.P6 order dated 25.10.2004 holding that the writ

petitioner is entitled to first time bound higher grade promotion

in the scale of pay of Rs.3350-5275 only and not in the scale of

pay of Rs.4000-6090. The writ petitioner thereupon filed W.P.(C)

No.33788 of 2004 in this Court. By Ext.P7 judgment delivered on

25.11.2004 this Court directed the writ petitioner to submit a

WA 170/07 -: 7 :-

detailed representation before the State Government and further

directed the State Government to consider and pass orders

thereon. This Court also directed that till the State Government

passes orders on the writ petitioner’s representation, the

recovery proceedings will be kept in abeyance. The writ

petitioner thereafter submitted Ext.P8 representation dated

9.12.2004. By Ext.P9 order passed on 29.6.2005 the State

Government rejected the writ petitioner’s request and held that

he is not entitled to first time bound higher grade promotion in

the scale of pay of Rs.4000-6090. The State Government also

rejected the writ petitioner’s contention that his pay has to be

fixed applying paragraph 6 of Ext.P1, in the scale of pay of

Rs.3350-5275.

8. The writ petitioner challenged Exts.P6 and P9 in W.P.(C)

No.22415 of 2005. By judgment delivered on 10.10.2006, the

learned Single Judge allowed the Writ Petition, quashed Exts.P6

and P9 and directed the appellants to fix the pay of the writ

petitioner in the scale of pay of Rs.4000-6090. It was held that

the petitioner is entitled to draw basic pay in the aforesaid pay

scale as the first time bound higher grade and that he is not

WA 170/07 -: 8 :-

liable to refund any amount as directed in Exts.P6 and P9. The

learned Single Judge also ordered that the monetary benefits

arising out of the directions contained in the judgment shall be

granted to the petitioner within two months on the petitioner

producing a copy of the judgment. Aggrieved by the judgment of

the learned Single Judge, the respondents in the Writ Petition

have preferred this Writ Appeal.

9. We heard Sri.N.Manojkumar, the learned Government

Pleader appearing for the appellants and Sri.Alexander Joseph,

the learned counsel appearing for the respondent. The learned

counsel for the appellants contended that the grant of time bound

higher grade is governed by paragraph 5 of Ext.P1 and that

paragraph 6 of Ext.P1 relied on by the writ petitioner does not

confer on him any rights in that regard. The learned counsel for

the appellants submitted that paragraph 6 only justifies the

reason for revision of pay ordered in Ext.P1 and that the scales of

pay of Driver Grade II and certain other categories of

government employees was thus revised by Ext.P2. The learned

Government Pleader submitted that the combined effect of

Exts.P1 and P2 was that the scale of pay of Driver Grade II stood

WA 170/07 -: 9 :-

revised from Rs.825-1450 (pre-revised) to Rs.3050-5230 which,

on the terms of Ext.P1 is the next higher scale of pay

immediately above Rs.2750-4625, in which scale Driver Grade II

was initially placed as per Ext.P1. The learned Government

Pleader submitted relying on paragraph 5(6) of Ext.P1 that as

there is a promotion post of Driver Grade I in the revised scale of

pay of Rs.3350-5275, a Driver Grade II, can claim first time

bound higher grade promotion only in the scale of pay of

Rs.3350-5275 and not in the scale of pay of Rs.4000-6090 as

contended by the writ petitioner. The learned Government

Pleader submitted with reference to Table 1 in paragraph 5 of

Ext.P1 that the scale of pay of Driver Grade II (modified as per

Ext.P2) is Rs.3050-5230 coming within the aforesaid range and

that as per the table the scale of pay of Driver Grade I which is

the promotion post of Driver Grade II is Rs.3350-5275 and that

the writ petitioner is entitled to first time bound higher grade

promotion only in the said scale of pay. It was submitted that it

is only if the scale of pay of the promotion post is higher than the

first time bound higher grade proposed in Ext.P1 that the

petitioner can claim the scale of pay of the promotion post for the

WA 170/07 -: 10 :-

first time bound higher grade promotion. It was pointed out that

in the case on hand the scale of pay of the promotion post which

is Driver Grade I, is only Rs.3350-5275, that it is not higher than

the time bound higher grade proposed in Ext.P1 and therefore

the writ petitioner is not entitled to time bound higher grade

promotion in the scale of pay of Rs.4000-6090 as claimed by

him.

10. Per contra, Sri.Alexander Joseph, the learned counsel

for the respondent – writ petitioner reiterated his contentions and

submitted that paragraph 6 of Ext.P1 is intended to grant

additional benefit of higher pay and therefore the scale of pay of

Driver Grade II should be reckoned as Rs.3350-5275 and on that

basis, the writ petitioner is entitled to first time bound higher

grade promotion in the scale of pay of Rs.4000-6090.

11. We have considered the submissions made at the Bar.

In our considered opinion, the claim of the writ petitioner is

plainly untenable. Paragraph 6 of Ext.P1 no doubt states that

with a view to improve the pay scales of certain categories of

non-clerical technical staff, the government have decided to

increase their scales of pay to the next higher scale at the entry

WA 170/07 -: 11 :-

level. It is also stated that the changes in the scales made

accordingly in respect of certain categories are shown against the

designation in Annexure-II. From Annexure-II, it is seen that the

scale of pay of Driver Grade II stood revised from Rs.825-1450 to

Rs.2750-4625 while that of Driver Grade I stood revised from

Rs.1050-1660 to Rs.3350-5275. By Ext.P2, the scale of pay of

Driver Grade II was again revised to Rs.3050-5230. Therefore,

the claim of the writ petitioner based on paragraph 6 to have his

pay fixed in the scale of pay of Rs.3350-5275 (which is the

revised scale of pay of Driver Grade I sanctioned as per Ext.P1) is

plainly untenable. We are not persuaded to agree with the

reasoning of the learned Single Judge that the writ petitioner was

entitled to have his pay sanctioned as per Ext.P1 (Rs.2750-4625)

enhanced to Rs.3350-5275, the scale of pay of Driver Grade I.

The learned Single Judge has in our opinion failed to take note of

the modification in the scale of pay of Driver Grade II, made as

per Ext.P2 whereby the scale of pay of Driver Grade II was

revised from Rs.2750-4625 to Rs.3050-5230. If as held by the

learned Single Judge, paragraph 6 of Ext.P1 entitles a Driver

Grade II to have the same scale of pay as Driver Grade I

WA 170/07 -: 12 :-

(Rs.3350-5275) it will lead to an anomalous situation where

Driver Grade I and Driver Grade II will be in the same scale of

pay. One cannot overlook the fact that Driver Grade I is a

promotion post for Driver Grade II. That being the position, the

time first bound higher grade promotion can be granted to the

writ petitioner only in terms of the provisions contained in

paragraph 5 of Ext.P1 and applying the table therein.

12. From paragraph 5 of Ext.P1, it is evident that first time

bound higher grade to employees placed in the scale of pay of

Rs.3050-5230 can be sanctioned only in the scale of pay of

Rs.3350-5275. Persons like the writ petitioner would be entitled

on the terms of Ext.P1, to a second time bound higher grade in

the scale of pay of Rs.4000-6090 and a third time bound higher

grade, if they are eligible, in the scale of pay of Rs.4600-7125. As

rightly contended by the learned Government Pleader, it is only if

the scale of pay of the promotion post (in the case on hand,

Driver Grade I) is higher than the time bound higher grade

proposed in paragraph 5 of Ext.P1, that a Driver Grade II will be

given the scale of pay of the promotion post in the direct line of

promotion, as time bound higher grade. It is crystal clear from

WA 170/07 -: 13 :-

Ext.P1 that the scale of pay of Driver Grade I is only Rs.3350-

5275. The petitioner has no case and the learned Single Judge

has also not held that the scale of pay of Driver Grade I is

Rs.4000-6090. Therefore, the writ petitioner cannot, on the

terms of Ext.P1, claim or be granted first time bound higher

grade promotion in the scale of pay of Rs.4000-6090. On the

other hand, the writ petitioner is entitled to first time bound

higher grade promotion in the post of Driver Grade II only in the

scale of pay of Rs.3350-5275 which is in fact, the scale of pay of

the promotion post, namely, Driver Grade I.

13. In the instant case, the scale of pay of the promotion

post is not higher than the time bound higher grade proposed in

paragraph 5 of Ext.P1 and therefore the claim of the writ

petitioner, found in his favour by the learned Single Judge is

plainly untenable. In our opinion, the stand taken by the

appellants in Exts.P6 and P9 cannot be faulted. Paragraph 6 of

Ext.P1 does not confer on the petitioner any right to claim higher

pay than what is sanctioned under Ext.P1 as modified by Ext.P2.

We accordingly hold that the writ petitioner is not entitled to the

benefit of fixation of pay as in Ext.P3. We therefore set aside the

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judgment of the learned Single Judge and dismiss W.P.(C)

No.22415 of 2005.

14. After the arguments were concluded, the learned

counsel for the writ petitioner submitted that the writ petitioner

has not been given the second time bound higher grade

promotion on completion of 18 years of service and that his

retirement benefits have also not been disbursed. We make it

clear that the dismissal of the Writ Petition will not stand in the

way of the writ petitioner claiming second time bound higher

grade promotion in terms of Ext.P1 or subsequent government

orders regarding grant of higher grade, if he is eligible for the

same. We also make it clear that such higher grade if not

already granted, shall be granted expeditiously and in any case

within three months from the date of receipt of a copy of this

judgment. We also direct the appellants to take steps to fix and

pay the retirement benefits payable to the writ petitioner within

the said period. Needless to say, the appellants will be entitled

to deduct the excess payments made to the writ petitioner

pursuant to the fixation in Ext.P3, from the retirement benefits

payable to him or the money payable to him on the grant of

WA 170/07 -: 15 :-

second time bound higher grade promotion on completion of 18

years of service.

The Writ Appeal is allowed as above. No costs.

J.B.Koshy,
Judge.

P.N.Ravindran,
Judge.

ess 28/5