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Judgment
P.V.Kunhikrishnan, J
This writ petition is filed with following prayers:
i. Call for the records leading to Exts.P2, P3 and P8 and quash them by the issuance of a writ of certiorari or any other appropriate writ, order or direction.
ii. Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondent to restore to the 1st petitioner the 3rd time bound higher grade sanctioned to her as per Ext.P11 with all consequential benefits and to grant the 2nd petitioner the 3rd time bound higher grade on completion of 23 years of service in the scale of pay of Village Industries Officer with all consequential benefits within a time limit to be granted by this Hon'ble Court.
iii. Grant such other reliefs as this Hon'ble Court deems fit and proper in the circumstances of the case including the costs of this Writ Petition (Civil).
(SIC)
First petitioner entered service as Lower Division Typist on 30.05.1984 in the Kerala Khadi and Village Industries Board (for short, Khadi Board). She was appointed by transfer as Lower Division Clerk on 01.12.1987. She became test qualified for further promotions on 09.05.1988. She was promoted to the category of Upper Division Clerk with effect from 10.05.1988. The second time bound higher grade was granted to the 1st petitioner with effect from 10.05.1998 in the scale of pay of Junior Superintendent. As per the Kerala Khadi and Village Industries Board (Classification and Conditions of Recruitment of Staff) Regulations, 2006, U.D.C. is the feeder category for the post of Junior Superintendent. In other words, Junior Superintendent is in effect the direct line of promotion from the post of U.D.C. The 1st petitioner was promoted to the higher post of Junior Superintendent on 20.04.2007. On getting this regular promotion, she did not get the benefit of fixation since she had already got the scale of the post of Junior Superintendent by way of grade promotion. On completion of 23 years of service, she was granted the third time bound higher grade with effect from 30.05.2007, in the light of G.O. (P).145/06/Fin dated 25.03.2006. The third time bound higher grade was in the scale of pay of Village Industries Officer, i.e.. Rs.10790- 18000/-.
The 2nd petitioner entered service on 13.10.1986 as Lower Division Clerk in the Khadi Board. He obtained test qualifications for further promotion on 01.04.1992. He was promoted to the category of U.D.C. on 26.05.1992. He was granted the second time bound higher grade with effect from 16.12.1999 in the scale of pay for the post of Junior Superintendent. He got regular promotion to the post of Junior Superintendent as per order No.KB374/05/E1(A) dated 03.01.2008 of the respondent. He was also not given fixation benefit on regular promotion as he had already got that scale of pay by way of grade promotion.
Ext.P1 is the copy of the relevant extract of Pay Revision Order. Based on Ext.P1, the 1st petitioner was granted third time bound higher grade on completion of 23 years of service with effect from 30.05.2007. On completion of 23 years of service, the 2nd petitioner submitted application for grant of third time bound higher grade. But his request was rejected as per Ext P2 memo No.KB219/2010/E2 dated 06.07.2010. In Ext.P2 it is stated that since the 2nd petitioner got promotion to the category of Junior Superintendent before completing 23 years of service, he is not entitled for third time bound higher grade, the scale of pay of which is same as that of Junior Superintendent. Thereafter as per Ext.P3, the third time bound higher grade granted to the 1st petitioner with effect from 30.05.2007 was also cancelled on the ground that before completion of 23 years of service, she got regular promotion as Junior Superintendent. In Ext.P3 it is also stated that the excess amount drawn by the 1st petitioner will be recovered in lump.
It is contended by the petitioners that Exts.P2 and P3 are illegal and arbitrary. It is also the case of the petitioners that the third time bound higher grade was granted to similarly situated persons like the petitioners as evident by Ext.P4 obtained under the Right to Information Act. Exts.P4(a) to (f) are the enclosures of Ext.P4. Ext.P4 is the office note which lead to the issuance of Ext.P2 and Exts.P4(b) to P4(f) are the orders by which Junior Superintendents like the petitioners were granted the third time bound higher grade on completion of 23 years of service. Based on this, it is contended by the petitioners they are entitled for similar treatment.
It is contended by the petitioners that there is no post of Head Clerk in Khadi Board as seen from the Regulations. In the 1967 Regulations also there was no post of Head Clerk. The 1967 Regulations have been superseded by the Regulations issued in 2006. But two posts of Head Clerk were created in Khadi Board which was never incorporated in the Regulations. Khadi Board requested the Government to upgrade the post of Head Clerk to the post of Junior Superintendent or to down grade or abolish the post. The Government, as per Ext.P5, down graded the two posts of Head Clerk as U.D.C. It is also contended that in the case of one M.M.Raveendran, Khadi Board granted higher grade in the scale of pay of Head Clerk instead of Junior Superintendent. That was challenged in O.P. No.39964/2002 before this Court and this Court quashed that order by which only the scale of pay of Head Clerk was given to the said Raveendran and directed Khadi Board to reconsider the matter. Pursuant to Ext.P6 Khadi Board issued Ext.P7 order by which the above mentioned M.M.Raveendran was granted the scale of pay of the post of Junior Superintendent. It was also stated in Ext.P7 that the second time bound higher grade already sanctioned to the U.D.Cs./First Grade Assistants in Khadi Board would be revised from the post of Head Clerk to the post of Junior Superintendent. In the meanwhile, the Secretary of the Khadi Board raised a doubt before Government as to whether or not it was possible to grant the scale of pay of Junior Superintendent to the U.D.Cs./First Grade Assistants on grade promotion even if the post of Head Clerk is not existing in Khadi Board. The Government, as per Ext.P8, informed the Khadi Board that U.D.C. will not be eligible for next time bound higher grade in the scale of pay of Junior Superintendent even if the post of Head Clerk is not available. Ext.P8 was challenged before this Court by filing W.P.(C). No.25884/2007 and the same was allowed. The appeal filed against the same is also dismissed as per judgment dated 16.06.2014 in Writ Appeal No.593/2013. In the light of Ext.P7, the 1st petitioner's scale of pay was reassigned as Rs.5500-9075/- in place of Rs.4600-7125/- on her getting second higher grade while working in the post of U.D.C. Ext.P9 is the order. Similarly the 2nd petitioner was also granted the scale of pay attached to the post of Junior Superintendent when he was granted time bound higher grade while working in the post of U.D.C, as per Ext.P10 order. Aggrieved by Exts.P2, P3 and P8 orders, this writ petition is filed.
Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents.
The counsel for the petitioners reiterated the contentions raised in the writ petition and submitted that in the light of Clause 9(1) and 9(2) of Ext.P1 Pay Revision Order and also Clause (6) of Ext.P1(a), the impugned orders will not stand. It is also submitted that the same point is considered by a Division Bench of this Court in Writ Appeal No.593/2013 and this Court upheld that contention.
The Standing Counsel appearing for the respondent takes me through the counter affidavit filed on behalf of the respondent. The Standing Counsel submitted that the petitioners were posted as Junior Superintendents even before attaining 23 years of service and hence, they are not eligible for 3rd time bound higher grade promotion and hence, the Board issued Exts.P2 and P3. Exts.P2 and P3 are supported by a reason and there is nothing to interfere with the same is the contention.
This Court considered the contentions of the petitioner and the Standing Counsel appearing for the respondent. It will be better to extract Clauses 1(iii) & (6) of Annexure-3 of Ext.P1 which deals about the scheme for time bound higher grade promotion.
“(1) (iii) The third higher grade on completion of 23 years of total service in the entry post, the first regular promotion post/time bound higher grade and the 2nd regular promotion post/time bound higher grade, taken together.”
“(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, provided is otherwise qualified for such promotion....................”
As per Clause 9(1) of Ext.P1, the existing span of 10, 18 and 23 years for allowing grade promotion was modified as 8, 16 and 23 years of service. Similarly, Clause 6 of Ext.P1(a) is also important, and the same is extracted hereunder:
“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 that of the scale of pay of the post held at that time in the standard scales of pay.”
In the light of Ext.P1, the 1st petitioner was granted 3rd time bound higher grade on completion of 23 years of service with effect from 30.5.2007. On completion of 23 years of service, the 2nd petitioner was also requested for 3rd time bound higher grade on completion of 23 years. Clause 1(iii) of Annexure-3 to Ext.P1 states that for the 3rd higher grade on completion of 23 years of total service in the entry posts, the first regular promotion posts/time bound higher grade and the 2nd regular promotion course/time bound higher grade will be taken together. Similarly, Clause 6 of Annexure 3 to Ext.P1 state that if there is a regular promotion post in respect of the categories of post coming under pay scales ranging from 4400-6680 to 9590-16650 and if such scale of pay is higher than the corresponding time bound higher grade proposed in Tables A and B, 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 promotion. Similarly, clause 6 of Ext.P1(a) says that if there is a promotion post in respect of categories of post (entry) coming under pay range from 2610-3680 to 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, that is those possessing the qualification prescribed for the promotion will get the scales of pay of regular promotion post. 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 standard scales of pay. In the light of the above specific clause, this Court is of the considered opinion that Exts.P2 and P3 will not stand. Moreover, Ext.P8 is already set aside by this Court as per judgment dated 19.11.2012 in W.P.(C.) No. 25884/2007. The appeal filed against the judgment in W.P.(C.) No. 25884/2007 was also dismissed as per judgment dated 16.6.2014 in W.A. No. 593/2013. It will be better to extract the relevant portion of the judgment in W.A.No. 593/2013.
“3. The contention raised by the learned Government Pleader is mainly relying on Ext.R2(b) Government order dated 19.12.1980, which according to him, clarified that even if the post of Head Clerk is not available between the post of Upper Division Clerks and Junior Superintendents, while giving the benefit of time bound higher grade to the employees in the category of Upper Division Clerks, they will be given higher grade only the scale as applicable to the post of Head Clerks. The learned Government Pleader contended that this Government order still remains in force and that therefore the clarification issued by the Government as per Ext.P4 is consistent with Ext.R2(b) and that hence the claim of the respondents for time bound higher grade in the scale of pay to the post of Junior Superintendent is untenable.
However, a reading of Ext.R2(b) Government order dated 19.12.1980 shows that this was issued in the particular context of the claim for time bound higher grade that was implemented by the Government with effect from 1.7.1979 to all non-gazetted officers on completion of 13 years of service in the entry grade. Neither in the subsequent pay revision order issued by the Government on 16.9.1985 nor in the pay revision order dated 25.11.1998 is there any reference or reliance on Ext.R2(b) and on the other hand, the indication that we get from these Government orders is that these were issued in revision of the previous Government orders.
Further, if the provisions of the pay revision order dated 25.11.1998 relied on by the respondents are referred to, it can be seen that in cases where there is a promotion post in the direct line of promotion and the time bound higher grade provided is less than the scale of pay prescribed for the promotion post, the Government employees who are eligible for the time bound higher grade are entitled to scale of pay as applicable to the promotion post, provided they are qualified for the higher post. In such circumstances and in the absence of anything to show that Ext.R2(b) still governs the fixation under the Government order dated 25.11.1998, we do not find any illegality in the view taken by the learned Single Judge upholding the claim of the respondents. The Writ Appeal fails and therefore stands dismissed.”
The above judgment of the Division Bench was followed by another learned Single Judge in the judgment dated 19.11.2014 in W.P.(C.) No. 15201/2012. Therefore, according to me, the findings in Exts.P2 and P3 will not stand. The same is to be set aside. The respondent will pass fresh orders in tune with the observations in this judgment.
Therefore, this writ petition is allowed in the following manner:
1) Exts.P2 and P3 are set aside.
2) There will be a direction commanding respondent to restore to the 1st petitioner the 3rd time bound higher grade sanctioned to her as per Ext.P11 with all consequential benefits and to grant the 2nd petitioner the 3rd time bound higher grade on completion of 23 years of service in the scale of pay of Village Industries Officer with all consequential benefits.
3) The consequential order as directed above shall be passed as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment.