K.C.Sebastian vs State Of Kerala

P.B.Suresh Kumar, J

The appellant in the writ appeal is the review petitioner. Parties are referred to in this order, as they appear in the writ appeal.

The writ appeal was one preferred against the judgment dated 8.7.2016 in W.P.(C) No.22749 of 2014. The appellant was the petitioner in the writ petition.

The appellant who was a Lower Division Typist (L.D.Typist) in St.Joseph's College, Devagiri was granted a time bound higher grade on 28.02.1997 on completion of 10 years service and another time bound higher grade on 28.02.2005 on completion of 18 years service. He was granted a third time bound higher grade on 28.02.2010 on completion of 23 years of service. The second time bound higher grade was granted to the appellant in the scale Rs.14,620 – 25,280 and the third time bound higher grade in the scale, Rs.16,180 – 29,180. On 13.08.2014, in terms of Ext.P10 communication, the third respondent has informed the Principal of the college that the appellant was entitled to the second time bound higher grade only in the scale of Rs.13,900 – 24,040 and the third time bound higher grade only in the scale of Rs.14,620 - 25,280, and the grant of the said higher grades in the scales Rs.14,620 - 25,280 and Rs.16,180 – 29,180 to the appellant were irregular. Ext.P10 was under challenge in the writ petition.

A counter affidavit was filed on behalf of the third respondent stating, among others, that it is in the light of clause (6) of the Pay Revision Order namely, G.O.(P) No.145/06/Fin. dated 25.03.2006 that the second time bound higher grade was assigned to the appellant in the scale of pay applicable to Selection Grade Typist and the third time bound higher grade in the scale of pay applicable to Fair Copy Superintendent; that it was clarified by the Government vide letter No.12796/D3/13/H.Edn. dated 16.07.2013 that the said provision would apply only to institutions where the posts of Selection Grade Typist and Fair Copy Superintendent exist; that since the said posts do not exist in St.Joseph's College where the appellant was working, he is not entitled to the time bound higher grades in the scales of pay applicable to Selection Grade Typist and Fair Copy Superintendent. It is stated in the counter affidavit that the appellant is entitled to second and third time bound higher grades only in the scale Rs.13,900 – 24,040 and Rs.14,620 – 25,280. The learned Single Judge accepted the said stand of the third respondent and dismissed the writ petition.

Clause (6) of G.O.(P) No.145/06/Fin. dated 25.03.2006 provides that if there is a regular promotion post and if the scale of pay of such post is higher than the corresponding time bound higher grade proposed, 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. The appellant does not dispute the fact that the regular promotion posts, the scales of which have been given to him as second and third time bound higher grades, do not exist in the institution. Nevertheless, the appellant challenged the decision of the learned Single Judge in appeal on the ground that the Government Order referred to above cannot be understood as providing that regular promotion posts should exist in the institution for the purpose of granting higher grades to incumbents like him.

The Division Bench which dealt with the appeal, after referring to clause (6) of the Government Order, found that the benefit of the order can be claimed only if there exists regular promotion posts in the institution. Consequently, the writ appeal was dismissed. Although the appellant thereupon preferred an application seeking review of the judgment in the writ appeal, the said review petition was also dismissed. The appellant challenged the decisions before the Apex Court in S.L.P.Nos.18962-18965 of 2017 and the said Special Leave Petitions were disposed of granting liberty to the appellant to seek review of the judgment in the writ appeal. The above review petition is filed in the light of the said order of the Apex Court.

Heard the learned counsel for the review petitioner as also the learned Government Pleader.

The order of the Apex court in S.L.P.Nos.18962-18965 of 2017 dated 06.05.2022 reads thus:

“Learned counsel for the petitioner submits that during the pendency of these special leave petitions, the High Court has decided the issue raised in the present proceedings as articulated in paragraph 4 of the impugned judgment, in favour of the petitioner whilst disposing of Writ Petition (C) No.26717/2013 decided on 05.07.2021.

The petitioner has also relied on the other earlier decisions of the High Court in support of his submission. As those decisions have not been adverted in the impugned judgment, we permit the petitioner to avail of remedy of review petition before the High Court. That be filed within three weeks from today.

All contentions available to both sides in the said proceedings are left open.

In the event, the decision in the review petition is adverse to the petitioner, it will be open to the petitioner to challenge the same as well as the impugned judgment afresh by way of special leave petition.

The special leave petitions are disposed of accordingly.

Pending applications, if any, stand disposed of.”

As explicit from the extracted order, the matter was remitted to this court for fresh consideration in the light of the judgment of this court dated 05.07.2021 in W.P.(C) No.26717 of 2013 as also a few earlier decisions of this court. On a query from the court, the learned counsel for the review petitioner submitted that the earlier decisions of this court referred to in the order of the Apex Court are the judgments in O.P.No.32509 of 2001, W.A.No.1312 of 2008 preferred against the judgment in O.P.No.32509 of 2001 and the judgment in W.P.(C) No.4651 of 2008.

The judgment in W.P.(C) No.26717 of 2013 was one rendered based on the decisions of this court in O.P.No.32509 of 2001 and W.A.No.1312 of 2008, wherein, a clause identical to clause (6) in the Government Order dated 25.03.2006 was interpreted in favour of the petitioner therein. We have set aside the judgment in W.P.(C) No.26717 of 2013 as per the judgment dated 17.6.3022 in W.A.No.263 of 2022 on facts, without going into the question relating to the interpretation of the said clause.

The judgment in W.P.(C) No.4651 of 2008 was rendered following the judgment in O.P.No.32509 of 2001 as affirmed in W.A.No.1312 of 2008. As such, the short question is whether the judgment in the present writ appeal can be said to be one vitiated by any error apparent on the face of the record in the light of the judgment of this Court in O.P.No.32509 of 2001 as affirmed in W.A.No.1312 of 2008.

The judgment in O.P.No.32509 of 2001 relates to the interpretation of a clause in the earlier pay revision order. The relevant clause reads thus:

“(viii) The higher grade to be sanctioned for a category in the normal course will be the scale of pay of the next promotion post in the direct line of promotion subject to the requirement of qualification. In the case of persons not possessing the requisite academic qualification for promotion to such promotion post, an appropriate scale of pay will be fixed as higher grade by Government. For the purpose of fixing the higher grade for a category, the question whether the promotion post for it is filled up wholly or only partly by promotion will be immaterial. In cases where there are no promotion posts, appropriate higher grade will be fixed by Government”

(underline supplied)

Interpreting the aforesaid clause, this Court took the view that a similarly placed incumbent is entitled to a time bound higher grade in the pay scale applicable to his regular promotion post, even if such a regular promotion post does not exist in the institution. The relevant portion of the judgment in O.P.No.32509 of 2001 reads thus:

“The issue revolves on the question of application of the last sentence in Clause (viii) quoted above, ie as to whether when there is no promotion post of Gr.I in the petitioner's College he can aspire for the higher grade in the scale of pay applicable to Instructor Gr.I. I am of opinion that the petitioner can. The pay revision order has been issued not with each College in contemplation. The same is issued for the entire service as per the special rules. It is not disputed before me that University Statutes applicable to the employees of private Engineering Colleges contains a post of Instructor Grade I which is a promotion post for Instructor Gr.II. Of course, the M.A. Engineering College does not have the post of Instructor Gr.I as per the staff pattern fixed for the College. According to me that fact does not take away the right of the petitioner to get the higher scale of pay applicable to Instructor Gr.I as higher grade, simply because the College does not have a Gr.I post. According to me, the words in cases where there are no promotion posts' is applicable only to cases where there are no posts to which a particular employee can be promoted at all. It is quite possible that the M.A.College of Engineering may get a Gr.I post in future, if the conditions for the same are satisfied. Therefore the interpretation as above would be the more correct interpretation in the facts and circumstances of the case. Further a different interpretation would result in discrimination since in other Colleges and in other departments of MA College itself where there is a post of Gr.I Instructor sanctioned, similarly situated Instructors Gr.II would be getting higher scale of pay than the petitioner.”

As evident from the extracted portion of the judgment, the learned Judge came to the aforesaid conclusion on the premise that the University Statutes applicable to the private engineering college involved in that case contain a regular promotion post for the incumbent involved; that the possibility of the college being sanctioned a promotion post in future cannot be ruled out; that merely for the reason that a promotion post is not sanctioned at present, the incumbent cannot be denied the benefit of the clause and that the benefit of the clause can be denied only in cases where there are no posts to which the incumbent could be promoted at all.

Clause (6) of G.O.(P) No.145/06/Fin. dated 25.06.2006 which was interpreted by this court in the case on hand reads thus:

“6. 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, provide he is otherwise qualified for such promotion.”

As noted, the clause in the Pay Revision Order interpreted by this court in O.P.No.32509 of 2001 and the clause in the Pay Revision Order interpreted by this court in the case on hand are not identical, although similar. Be that as it may, in O.P.No.32509 of 2001, the University Statutes provides for a regular promotion post in engineering colleges, the pay of which was claimed by the petitioner therein as his time bound higher grade, whereas, the University First Statutes applicable to the case on hand does not provide for any regular higher post to the post held by the appellant. In other words, the case on hand is one where there is no post to which the petitioner could be promoted at all. The only post of Typist provided in private Arts and Science colleges in terms of the First Statutes is the post of the Lower Division Typist. Therefore, according to us, the judgment in O.P.No.32509 of 2001 cannot have any application to the facts of the case on hand. That apart, the appellate court has not affirmed the judgment in O.P.No.32509 of 2001. Instead, the appellate court refrained from interfering with the decision since the decision taken in O.P.No.32509 of 2001 was followed in other cases as well, observing that if the Government proposes to recall the benefits of the judgment in tune with the view canvassed by them in the appeal, they are free to do so and that if such a decision is proposed to be taken, the judgment of the learned Single Judge will not stand in the way of the Government doing that. The relevant portion of the judgment in the writ appeal reads thus:

“4. We heard learned counsel on both sides. In every College, where there is a post of Instructor Grade – I, which is the promotion post of Instructor Grade-II, undisputedly the incumbent working as Instructor Grade-II is entitled to get the scale of pay of the post of Instructor Grade-I as First Higher Grade. Though the respondents have a case that the method of appointment to the post of Instructor Grade-I is by transfer, the same does not make any difference, as far as the grant of Higher Grade is concerned. But, in the case of the petitioner's College, there is no post of Instructor Grade-I. In such circumstances, whether the 1st respondent /petitioner is entitled to get the scale of pay of Instructor Grade-I or the next Higher Grade scale in the standard scales of pay is the point to be decided in the Writ Petition.

Going by the aforementioned facts, two views are definitely possible in this case. The learned Single Judge has took the view, which was found to be followed in the case of other private Engineering Colleges, where there was no post of Instructor Grade-I. So, we feel that the view taken by the learned Single Judge is not illegal or otherwise unsupportable in law warranting interference by the Appellate Bench. But, if the grant of Higher Grade in other Colleges was only isolated incidents and the Government proposes to correct the same also in tune with the view canvassed by the Government, in this appeal, they may do so, after affording an opportunity of being heard to the affected persons. If such a decision is proposed to be taken, the judgment of the learned Single Judge will not stand in the way of the Government doing that. As long as the present situation continues, we find no reason to interfere with the directions issued by the learned Single Judge.

Accordingly, this Writ Appeal is dismissed subject to the above observation.”

In the light of the discussion aforesaid, we do not find any merit in the review petition and the same is, accordingly, dismissed.