IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 5418 of 2010(B)
1. N.V.SEBASTIAN, IST GRADE DRAFTSMAN,
... Petitioner
2. JAYARAJAN, IST GRADE DRAFTSMAN,
3. SARALAKUMARI A., IST GRADE DRAFTSMAN,
4. ANVER T., IST GRADE DRAFTSMAN,
5. P.S.PREMAKUMARI AMMA,
6. GRACY J., IST GRADE DRAFTSMAN,
Vs
1. STATE OF KERALA,
... Respondent
2. THE PRINCIPAL SECRETARY,
3. THE CHIEF ENGINEER,
4. THE CHIEF ENGINEER,
For Petitioner :DR.K.P.SATHEESAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :07/06/2010
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO.5418 OF 2010 (B)
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Dated this the 7th day of June, 2010
J U D G M E N T
Petitioners 1 to 5 in this writ petition are First Grade
Draftsman in the Public Works Department and the 6th petitioner is
working in LSGD on deployment. Consequent on the implementation
of the 8th pay revision commission report, the petitioners were given
time bound higher grade fixation in the scale of pay as applicable to
the promotion post of Assistant Engineer. Subsequently, that was
cancelled by the authorities taking the view that the provisions
contained in the table to the pay fixation order provided that 20% of
the posts will be placed in the higher grade of Rs.9190-15510/-. It
is challenging the cancellation of the time bound higher grades in
the scale of pay as applicable to Assistant Engineer, namely
Rs.11070-18450/-, and for quashing the orders fixing the pay in
the higher grade of Rs.9190-15510/-, this writ petition is filed.
2. It is now brought to my notice that this very issue came
up for consideration before this Court in WP(C) No.23518/08, where
the learned Single Judge of this Court by judgment dated
WPC.No.5418 /2010
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15/06/2009 upheld the claim of the petitioners. Against that
judgment, the State and the Chief Engineer, Irrigation &
Administration filed W.A.No.1965/2009. By judgment dated
05/04/2010, a Division Bench of this Court upheld the claim in the
following terms:-
4. The next point canvassed by the learned Government
Pleader is that the learned Single Judge has directed to
grant the respondent Higher Grade in the scale of pay
applicable to the post of Assistant Engineer in the Irrigation
Department. We think, the said claim is supported by
Paragraph 6 of Annexure III to the aforementioned Pay
Revision Order, which reads as follows :-
“If there is a regular promotion post in respect of
the categories of posts coming under pay scales
ranging from Rs.4400-6680 to Rs.9590-16650 and
if such scale of pay is higher than the
corresponding time bound higher grade proposed
in Tables A & B above, then the time bound higher
grade for such incumbent will be the scale of pay of
such regular promotion post, provided he is
otherwise qualified for such promotion. Even in
cases where a particular category of posts in the
normal hierarchy of promotion posts is not
available
in a Department, the scale of pay of the normal
promotion post only will be allowed as the higher
grade. (Thus, for example, in a Department where
there is no post of Head Clerk and UD Clerks get
promoted as Junior Superintendents, the time
bound higher grade for the UD Clerk will still be the
scale of Head Clerk). While assigning such higher
grade, only qualified hands i.e. those possessing
the qualification, including approval of the
DPC (where necessary), 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 standardWPC.No.5418 /2010
:3 :scales of pay at Annexure 1. The competent
authority sanctioning the time bound higher grade
should indicate in the order whether the official
possesses qualification for promotion (including
approval of DPC) and also specify the scale of pay
admissible on time bound higher grade.” (Emphasis
supplied)
As per the Special Rules, it is common ground that the
promotion post of Draftsman Grade I is, Assistant Engineer.
If that be so, the claim of the respondent for grant of
Higher Grade in the scale of pay attached to the post of
Assistant Engineer is valid and the same has been rightly
granted by the learned Judge. The appellants do not have a
case that the respondent is not qualified or otherwise
ineligible. But, the learned Senior Government Pleader,
who appeared for the appellants pointed out that though
the respondent was granted Higher Grade in the scale of
pay applicable to the post of Assistant Engineer, later, it
was revised and the scale of pay was reduced to that of
Draftsman Grade I (Higher Grade). The respondent has
chosen, not to challenge those proceedings, it is
submitted. We think, it is a technical contention. When the
respondent is clearly eligible for the benefits granted by
the learned Single Judge, we find no reason to interfere
with the same, on such a technical contention raised by
the learned Government Pleader. Accordingly, the Writ
Appeal fails and it is, accordingly, dismissed.”
3. Therefore, having regard to the law thus laid down by
the Division Bench, the case of the petitioners is fully covered by
this judgment and the cancellation of the time bound higher grades
given to the petitioners in the scale of pay of Assistant Engineer is
liable to be interfered with.
4. However the learned Government Pleader contended that
the effect of the clause in the pay revision order providing that 20%
WPC.No.5418 /2010
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of the post will be placed in the higher grade of Rs.9190-15510 and
the consequent anomaly in giving fixation directly in the scale of
pay as applicable to Assistant Engineer was not considered by the
Division Bench.
5. In my view, this contention lacks merit for the reason
that pay revision order only provides for placement in the higher
grade. On the other hand, paragraph 6 of Annexure III of the pay
revision shows that if there is a post in the higher grade and a
regular promotion post available, fixation has to be given in the
scale of pay as applicable to the regular promotion post.
Admittedly, fixation has been given in the scale of pay of Assistant
Engineer, the next regular promotion post available in the cadre.
Therefore, the contention now raised by the learned Government
Pleader can have no impact on the conclusion arrived at by the
Division Bench.
In the result, the impugned orders of cancellation of time
bound higher grade given to the petitioners are set aside and it is
directed that the petitioners shall be continued to be given higher
grade in the scale of pay of Assistant Engineer, PWD / Irrigation
WPC.No.5418 /2010
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Department as the case may be. Consequential benefits shall be
disbursed as expeditiously as possible, at any rate, within three
months of production of a copy of this judgment.
The writ petition is accordingly allowed.
(ANTONY DOMINIC)
JUDGE
vi/