IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 9075 of 2002(E)
1. R.AJAYA KUMAR,AGED 39 YEARS,]
... Petitioner
Vs
1. STATE OF KERALA,REPRESENTED BY
... Respondent
2. DIRECTOR,DEPARTMENT OF INDUSTRIES AND
For Petitioner :SRI.S.RAJASEKHARAN NAIR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :26/02/2009
O R D E R
P.R.RAMACHANDRA MENON, J.
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O.P. No. 9075 of 2002
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Dated, this the 26th day of February, 2009
J U D G M E N T
The prayer of the petitioner is for a direction to
grant time bound higher grade promotion with effect from
1-5-2001 and also to reckon the period of training as well as
the service as a police constable rendered prior to his
selection and appointment as L.D.Typist in the Technical
Education Department, followed by the inter-departmental
transfer to Industries Department.
2. The petitioner joined service as a Police Constable
on 1-5-1991 and continued till 16-12-1995. Thereafter, on
participating in the selection process conducted by the PSC,
he got selected and appointed as L.D.Typist in the Technical
Education Department, where he joined on 19-12-1995.
After working till 20-6-1996, the petitioner obtained an
inter-departmental transfer to be posted in the Industries
Department, where he joined with effect from the very next
day i.e., 21-6-1996. The contention of the petitioner is that
O.P. No. 9075/2002 -:2:-
he had completed 10 years of service as on 30-4-2001
inclusive of the service rendered as Police Constable and he
is entitled to the benefit of time bound higher grade, which
claim, however, was rejected by the Department as borne
by Exhibit P1.
3. The respondents have filed a counter affidavit
asserting that the idea and understanding of the petitioner
as to the eligibility for obtaining the time bound higher
grade is wrong and misconceived. It is stated that the G.O.
(P) No.705/81(372)/Fin. dated 28-10-1981 sought to be
relied on by the petitioner has no relevance in his case, as
the terms and conditions regulating the time bound higher
grade were modified/revised from time to time and that the
modified scheme as on the relevant date is the scheme
contained in the Government Circular No.54/92(138)/Fin.
dated 6-11-1992 and also as per the norms fixed by the G.O.
(P) No.3000/98/Fin. dated 25-11-1998. The revised scheme
came into force with effect from 1-11-1989, according to
O.P. No. 9075/2002 -:3:-
which, the first time bound higher grade promotion on
completion of 10 years service can be given only by
reckoning the service in the entry post.
4. Referring to the above Circular and the
Government Order dated 25-11-1988, the learned
Government Pleader points out that the term ‘entry post’ is
defined in the above Circular and the Government Order as:
“the post to which an employee is initially appointed in
Government service by direct recruitment by the competent
authority.” The learned Government Pleader adds that
appointment by transfer will also be treated as equivalent to
direct recruitment. In the case of the petitioner, his entry
cadre is L.D.Typist/Clerk in Technical Education
Department, though he was transferred subsequently to the
Industries Department by way of Inter-Departmental
transfer and as such, he commenced his service in the post
of L.D.Typist/Clerk in the entry cadre only with effect from
19-12-1995. This shows that the petitioner does not have
O.P. No. 9075/2002 -:4:-
the requisite qualifying service so as to obtain the benefit of
the time bound higher grade promotion as contended by
him.
5. It is very much relevant to note that the concept
of time bound higher grade was brought about so as to
alleviate the grievances of the employees who were being
stagnated in the post. In the case of the petitioner, he was
originally appointed as police constable and admittedly, he
came out from the said service on his own volition, in
pursuit of better employment, which was secured by him by
participating in a fresh selection process conducted by the
PSC in respect of the post of L.D.Typist and it was
accordingly that he got appointment as L.D.Typist in the
Technical Education Department, where he joined on
19.12.1995. There was no question of being stagnated in
the post of Police Constable and as such, the benefits of the
time bound higher grade contemplated under the scheme
and the relevant circulars/Government orders cannot be
O.P. No. 9075/2002 -:5:-
extended to the petitioner, treating the post of Police
Constable as the ‘entry post’ of the petitioner.
6. Above all, it is also pertinent to note that the
claim of the petitioner for treating his pre-service training
and the service rendered as Police Constable for the
purpose of granting time bound higher grade was referred
to the Government and that the Government vide letter
No.27383/A2/2000 dated 7-12-2000 had clarified that it
could not be considered for the said purpose at all. The
decision in this regard has been duly conveyed vide Exhibit
P1 letter dated 22-12-2000 by the second respondent, also
marking a copy to the petitioner as well. The fact remains
neither the order passed by the Government in this regard
nor Exhibit P1 has been subjected to challenge by the
petitioner in the present writ petition.
7. Yet another contention putforth by the petitioner
is that the respondents have granted the benefit of time
O.P. No. 9075/2002 -:6:-
bound higher grade to a similarly situated person by name
Sri.V.Vasanthasenan as borne by Exhibit P4. The contention
of the respondents is that granting of the said benefit to the
aforesaid person might be a mistake and that it would be
dealt with in appropriate manner as and when it is taken up
to be considered. In any way of the matter, it has to be
borne in mind that a writ mandamus is a positive
concept/remedy available on establishing infringement of
the vested rights of the petitioner or on failure of the duties
cast upon the respondents. It cannot be sought for and
issued just for the reason that similar benefit has been
(wrongly) given to some other person. The law in this
regard is very clear in view of the decision rendered by the
Apex Court in CHANDIGARH ADMINISTRATION AND
ANOTHER v. JAGJIT SINGH AND ANOTHER [AIR 1995
SC 705] and GURSHARAN SINGH v. NEW DELHI
MUNICIPAL COMMITTEE [1996 (2) SCC 459].
O.P. No. 9075/2002 -:7:-
In the above circumstances, this Court doesn’t
find any ground for interference and accordingly the writ
petition is dismissed. No costs.
Sd/-
P.R.RAMACHANDRA MENON,
JUDGE.
skr
// True copy //
P.A. to Judge.