IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34287 of 2008(F)
1. B.M.ALI, SOCIAL WORKER, BLOOD BANK,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY THE SECRETARY
... Respondent
2. DIRECTOR OF MEDICAL EDUCATION
3. IRISHIKESHAN P.S.,
For Petitioner :SRI.PIRAPPANCODE V.S.SUDHIR
For Respondent :SRI.P.S.KRISHNA PILLAI
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :30/11/2009
O R D E R
T.R. Ramachandran Nair, J.
- - - - - - - - - - - - - - - - - - - - - - - -
W.P.(C) No.34287 of 2008-F
- - - - -- - - - - - - - - - - - - - - - - - - - -
Dated this the 30th day of November, 2009.
JUDGMENT
The petitioner is mainly aggrieved by Exts.P6 and P8 orders. As per
Ext.P3, he was directed to be promoted with effect from 24.4.1998 reverting
the third respondent. The said order was modified as per Ext.P6, whereby it
was clarified that the petitioner is notionally promoted as Social Worker
with effect from 24.4.1998 without any back arrears, cancelling Ext.P3. By
Ext.P8 he is informed that the claim for grant of 8 years higher grade in the
category of social worker with effect from 24.4.2006 cannot be considered,
since his notional promotion as Social Worker for the period from
24.4.1998 to 1.10.2004 will not be reckoned as qualifying service for time
bound higher grade.
2. Learned counsel for the petitioner submitted that in the light of the
decision of this Court in Ibrahim v. Commissioner & Secretary to
Government (2003 (1) KLT 534), Ext.P8 order cannot be sustained.
Therefore, even though Ext.P6 order cannot be supported, he is confining
his argument on the validity of Ext.P8.
3. The petitioner started his career as Driver in the Govt. Medical
wpc 34287/2008 2
College, Calicut. He possesses the qualifications of B.Com., B.A. and M.A.
Degrees in Sociology obtained from the Calicut University. The petitioner
was claiming for promotion to the post of Social Worker when a vacancy
arose in the Medical Education Service on 28.2.1995. He had to approach
this Court by filing O.P.No.4748/1999 and this Court by judgment dated
21.7.2005 directed the petitioner to file a representation in the matter.
Pursuant to the same, Ext.P3 order was passed. It is pointed out that the
petitioner is senior to the third respondent and the denial of promotion was
absolutely wrong also. By Ext.P4, he was asked whether he has got any
objection to the proposal whereby the third respondent was sought to be
accommodated in one of the vacancies and the petitioner can be
accommodated as Social Worker in the department of Blood Bank. The
petitioner’s willingness as directed above, was forwarded by him as per
Ext.P5 with retrospective effect from 24.4.1998. Later, by Ext.P6, he was
granted notional promotion.
4. The question is whether the period from 24.4.1998 to 1.10.2004
could be reckoned as qualifying service for time bound higher grade. In
Ibrahim’s case (2003 (1) KLT 534) it was held by this Court in similar
circumstances that when a person obtained the promotion based on the
direction issued by this Court, the period of notional service could be
wpc 34287/2008 3
reckoned for the purpose of granting higher grade. It was held thus in
para 1:
“Stagnation in a scale for ten years is the basis for granting higher
grade. Though the petitioner was granted only notional benefits, it
has to be seen that he was in the scale in the said period of ten years.
Whether a person who was in actual discharge of duties attached to a
post is not a consideration relevant in the matter of granting higher
grade. Having been denied promotion and the promotion having
been restored pursuant to the directions issued by this Court, it is
only in the interest of justice that the petitioner is granted at least the
higher grade taking the period of notional service as service for the
purpose of granting higher grade.”
5. The petitioner was denied promotion initially and only by Ext.P3
order, he could get promotion. In that view of the matter, by denying the
benefit of higher grade without counting the period from 24.4.1998 to
1.10.2004, he will loose back arrears as well as the benefit of higher grade.
In the light of the dictum laid down by this Court in Ibrahim’s case (2003
(1) KLT 534) the said position cannot be accepted.
6. Therefore, Ext.P8 is quashed. It is declared that the petitioner is
entitled for grant of higher grade reckoning the period from 24.4.1998 to
1.10.2004. Going by Ext.P13, a notification has been issued inviting
applications for the post of Social Scientist. Therein, there is a Note
wpc 34287/2008 4
indicating that when there are more than one employee in the Medical
Education Service willing for promotion to the post of Social Scientist, the
person in the higher scale will be preferred. In the light of the direction
issued by this Court to grant higher grade, the claim of the petitioner also
will be considered along with others, if any. Appropriate orders with
regard to the higher grade benefits will be passed within a period of two
months from the date of receipt of a copy of this judgment.
The writ petition is allowed as above. No costs.
(T.R. Ramachandran Nair, Judge.)
kav/