High Court Kerala High Court

R.Ajaya Kumar vs State Of Kerala on 26 February, 2009

Kerala High Court
R.Ajaya Kumar vs State Of Kerala on 26 February, 2009
       

  

  

 
 
  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.
             ======================
                    O.P. No. 9075 of 2002
             ======================
         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.