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.
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W.A.No.170 of 2007
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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:
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“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
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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
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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
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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
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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
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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