Kerala High Court
Rajan C. vs State Of Kerala on 2 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 2ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942
WA.NO.1459 OF 2020
AGAINST THE JUDGMENT DATED 28.1.2020 IN WP(C).NO.14933/2016 OF
THE HIGH COURT OF KERALA
APPELLANT/PETITIONER:
RAJAN C., AGED 62 YEARS,
S/O.CHELLAPPAN, TELEPHONE OPERATOR (RETIRED),
LEGISLATIVE SECRETARIAT, VIKAS BHAVAN P.O.,
THIRUVANANTHAPURAM - 695 033,
RESIDING AT 222-B, KUTHIRAKKAD LANE,
VATTIYURKAVU P.O., THIRUVANANTHAPURAM- 695 013.
BY ADV. SMT.M.R.JAYALATHA
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA,
REP BY SECRETARY TO GOVERNMENT,
LEGISLATURE SECRETARIAT,
THIRUVANANTHAPURAM - 695033.
2 PRINCIPAL SECRETARY, DEPARTMENT OF FINANCE,
LEGISLATURE SECRETARIAT,
THIRUVANANTHAPURAM - 695 033.
3 DIRECTOR OF HEALTH SERVICES,
THIRUVANANTHAPURAM - 695 001.
4 ADDITIONAL SECRETARY, LEGISLATURE SECRETARIAT,
THIRUVANANTHAPURAM - 695 033.
5 THE ACCOUNTANT GENERAL (A & E), AUDIT, KERALA,
THIRUVANANTHAPURAM - 695 033.
SRI.ANTONY MUKKATH, SENIOR GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
02.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ALEXANDER THOMAS & T.R.RAVI, JJ.
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W.A. No. 1459 of 2020
(arising out of the impugned judgment dated 28.1.2020 in
WP(C) No. 14933 of 2016)
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Dated this the 2nd day of February, 2021
JUDGMENT
The afore captioned appeal has been filed as an intra court
appeal under Sec.5(i) of the Kerala High Court Act, 1958, so as to
impugn the judgment dated 28.1.2020 rendered by the learned Single
Judge of this Court in WP(C) No.14933/2016 filed by the appellant
herein.
2. Heard Smt.M.R.Jayalatha, learned counsel appearing
for the appellant/writ petitioner and Sri.Antony Mukkath, learned
Senior Government Pleader appearing for the respondents in the
W.A./respondents in the WP(C).
3. The petitioner who was working as Telephone Operator
prior to his retirement is essentially challenging the impugned Ext.P-12
G.O.(Rt) No. 9367/2015 dated 27.10.2015 whereby the competent
authority of the State Government in the Finance Department has
rejected the plea of the appellant/writ petitioner for the grant of
4th Time Bound Higher Grade in terms of Ext.P-8/Ext.R-1(a) norms on
the ground that he would have completed the minimum 27 years of
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service in the entry level post of Telephone Operator only much
after his retirement from service on 30.11.2013. In the instant
case, the appellant was appointed to the post of Telephone
Operator by the method of 'By Transfer' with effect from 6.4.1990,
and therefore it is the case of the respondents that he would have
completed 27 years therefrom only on 6.4.2017, and that this is
long after his retirement from service on 30.11.2013, and hence he
is not eligible or entitled for securing the claim for grant of
4th Higher Grade on completion of 27 years service from the entry
level post, which according to the respondents in the case of
appellant is the post of Telephone Operator.
4. A brief resume to some of the crucial and relevant
aspects may be necessary. The appellant has commenced his
service as Gardener, which is the last grade service (Class IV) of the
Legislature Secretariat, on 1.10.1982 and thereafter he was
appointed to the next higher category of Duplicator Operator on
20.10.1986, which is a Class III post coming under the subordinate
service. Thereafter, the petitioner has been promoted as Clerical
Assistant on 1.1.1987. It appears that the due to want of vacancy,
the appellant was reverted to Duplicator Operator on 13.1.1989.
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On account of alleged serious dereliction of duty, he was
transferred to the legislators' hostel with effect from 29.1.1990,
and in the absence of an identical post in the said institution
(legislators' hostel) he was posted as Gardener, which in effect
resulted as a demotion. The petitioner challenged the same and in
view of the verdict rendered by this Court in his favour, he has
been treated as having continued in the post of Clerical Assistant
from 13.1.1989 to 5.4.1990. Thereafter, he was on unauthorized
absence from 6.4.1990 to 14.5.1992, which was later regularized by
treating it as leave without allowances on production of medical
certificate. Thereafter, the appellant was appointed by the method
of 'By Transfer' to the post of Telephone Operator with effect from
6.4.1990 with entitlement of monetary benefits from 14.5.1992,
the date on which he actually assumed charged as Telephone
Operator. His claim for pay and allowances for the period from
6.4.1990 to 13.5.1992 was rejected by this Court in the judgment
dated 13.10.2015 in WP(C).No.29975/2012 filed by him, and that
he was not entitled for any monetary benefits for the said period.
5. However, it appears that based on the opinion of the
Law Department, the Legislature Secretariat had ordered to reckon
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the period of notional promotion from 6.4.1990 to 13.5.1992, for
the purpose of Time Bound Higher Grade. It is common ground
that he has been awarded 1 st Higher Grade, 2nd Higher Grade and
3rd Higher Grade on completion of 10 years, 16 years and 22 years
respectively, reckoned from the post of Telephone Operator with
effect from 6.4.1990 on the due dates viz, 6.4.2000, 6.4.2006 and
6.4.2012 respectively. Thereafter, it appears that the appellant
has retired from service on 30.11.2013 on attainment of
superannuation. The competent authority of the respondent
State Government in the Finance Department has issued
Exts.P-8 & P-10 G.O.(P) No.85/11/Fin dated 26.2.2012 in the
matter of pay revision norms and the allied aspects relating to pay
fixation and grant of Time Bound Higher Grades to the incumbents
concerned. The norms in Ext.P-8 are adumbrated not only in
Ext.P-10, but more particularly in Ext.R-1(a) produced in pages
7 to 11 of the counter affidavit dated 30.6.2016 filed by the
1st respondent State of Kerala.
6. It appears that, for the first time, the competent
authority of the respondent State Government in the Finance
Department, has introduced a fourth higher grade on completion
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of 27 years service from the entry level post, and the same is made
effective only from 1.2.2011, as can be seen from Clause 6 of
Ext.P-8/Ext.R-1(a).
7. The contention of the appellant is that, the said
27 years period is to be reckoned from the entry level post as
envisaged in Clause 14 of the Scheme appended to Ext.R-1(a), and
that in the instant case, the said entry level post, as far as the
appellant's claim for 4th Higher Grade is concerned, should be
reckoned as Gardener and not as Telephone Operator. That, the
petitioner has commenced his service as Gardener on 1.10.1982
and counting therefrom, he has completed 27 years of service on
1.10.2009 and that therefore he is entitled for the grant of benefit
of 4th Higher Grade in terms of Ext.P-8/Ext.P-10/Ext.R-1(a) norms
with effect from 1.10.2009. The said claim of the petitioner was
directed to be considered by the competent authority concerned as
per Ext.P-11 judgment dated 7.8.2015 in WP(C) No. 9156/2013
filed by the appellant herein. The competent authority of the
respondent State Government in the Finance Department, has
considered the said contention of the petitioner and has issued
Ext.P-12 G.O.(Rt) No. 9367/2015 dated 27.10.2015 rejecting the
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plea of the petitioner on the ground that the entry level post of the
appellant for the purpose of 1st Higher Grade, 2nd Higher Grade and
3rd Higher Grade have been reckoned only as Telephone Operator
with effect from 6.4.1990, and not as Gardener, and that even
going by the definition of entry level post as understood in
Clause 14 of the Scheme appended to Ext.R-1(a) norms, the entry
level post in the appellant's case could be considered only as
Telephone Operator and not as Gardener, and that as the appellant
would have completed 27 years of service in the post of Telephone
Operator only on 6.4.2017, and as he has already retired from
service on 30.11.2013, there is no question of the appellant getting
the benefit of fourth higher grade.
8. Further, certain other submissions are also made by the
respondents to justify the rejection as per Ext.P-12 based on
certain other provisions of Ext.R-1(a), more particularly Clause 17
of the Scheme appended to Ext.R-1(a) norms. In the instant case,
it has been found by the learned Single Judge as per the impugned
judgment that, all throughout the appellant has been considered
for the benefit of 1st Higher Grade, 2nd Higher Grade and 3rd Higher
Grade only by treating that his entry level post is Telephone
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Operator and the said period has been reckoned from 6.4.1990
onwards, and that he has been given said benefits for the first three
higher grades. Further that, if the plea of the appellant is accepted,
then he should be given 4th Higher Grade with effect from
1.10.2009, whereas the fourth higher grade has been introduced
for the first time only as per Ext.P-8/Ext.R-1(a) G.O.(P)
No.85/11/Fin dated 26.2.2012 and that too it has been made
effective only from 1.2.2011.
9. Further that, admittedly, the appellant has been
granted 3rd Higher Grade only from 6.4.2012 and if the claim of the
appellant for fourth higher grade is considered, then he should be
given fourth higher grade either from 1.10.2009 or from 1.2.2011
and both these dates would be even anterior to the date on which
he has secured the 3rd Higher Grade on 6.4.2012.
10. After hearing both sides, we find that the learned Single
Judge has meticulously and with all precision considered the
various nuances and subtle aspects of the matter flowing out from
Exts.P-8, P-9, P-10 & R-1(a) and the Scheme appended thereto,
and the leaned Single Judge cannot be faulted in any manner for
having arrived at the impugned conclusions therein.
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11. Clause 17 of the Scheme appended to Ext.R-1(a) reads
as follows:
"The employees in the scales of pay of Rs.8730-13540 and
Rs.8960-14260 alone with the eligible for reckoning their service in the
last grade for allowing 22 years higher grade. This benefit will not be
allowed to employees in the posts having the revised scale of
Rs.9190-15780 and above."
12. Clause 14 of the Scheme appended to Ext.R-1(a) defines
entry level post as follows:
"The term 'entry post' shall be defined as the post to which an
employee is initially appointed in Government service by direct
recruitment by the competent authority. Appointments made by PSC
by transfer from other categories will also be treated as equivalent to
direct recruitment for allowing the benefit of higher grade. However,
promotion to a post in the direct line of promotion in a Department to
be made on the basis of select list prepared by the Departmental
Promotion Committee, cannot be treated as direct recruitment for
allowing the benefit of time bound higher grade. The time bound
higher grade admissible will be determined with reference to the initial
entry post in the present department only. Service in different posts
having same scale will not be treated as qualifying service. Similarly
in the case of employees who get inter departmental transfer
(interdepartmental transferees), their prior service in the same post in
the former department may also be reckoned as qualifying service for
time bound higher grade. Those who get regular promotion or
appointment to higher posts within the period specified for each time
bound higher grade may not be granted further time bound higher
grade during that period."
13. A reading of Clause 17 of the Scheme appended to
Ext.R-1(a) would make it clear that the competent authority of the
respondent State Government in the Finance Department has
specifically mandated and stipulated that, the employees in the
scales of pay of Rs.8730-13540 and Rs.8960-14260 alone will be
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eligible for reckoning their service in the last grade for allowing
22 years higher grade, and that this benefit will not be allowed to
employees in the posts having the revised scale of Rs.9190-15780
and above. In the instant case as can be seen from Ext.P-9
produced by the appellant in the WP(C) (see page 24 of the paper
book of the WP(C)), the pre-revised scale of pay of the post of
Telephone Operator is Rs.5250-8390 and the revised scale of
pay is Rs.9190-15780. The post of Gardener is in the last
grade service. It is stipulated in Clause 17 that only
employees in the scales of pay mentioned therein would be eligible
for reckoning their service in the last grade for allowing 22 years
higher grade. Since, the revised scale of pay of the post of
Telephone Operator is Rs.9190-15780, it can be seen that
incumbents holding the post of Telephone Operator like the
appellant is barred even from getting the 3rd Higher Grade on
completion of 22 years service by reckoning their service in the last
grade, in view of the restriction imposed in the second limb of
Clause 17 of the Scheme appended to Ext.R-1(a). It is only if the
claimant incumbent is able to get the said benefit of counting the
service in the post of Gardener, etc in the last grade service, by way
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of 3rd Higher Grade, will the question of considering similar benefit
of 4th Higher Grade to that incumbent will arise. Going by the
restrictions imposed in Clause 17 of the Scheme appended to
Ext.R-1(a), the said claim of the petitioner to reckon his service in
the last grade is impermissible even for the grant of 3 rd Higher
Grade on completion of 22 years of service, and hence the learned
Single Judge is fully right in holding that there is no question of an
incumbent like the appellant holding the post of Telephone
Operator in the revised scale of pay of Rs.9190-15780, getting the
benefit reckoning the previous service in last grade service, for the
purpose of 4th Higher Grade.
14. So, it can be seen that the claim of the writ appellant for
counting his service in the last grade prior to his By Transfer
appointment to the post of Telephone Operator with effect from
6.4.1990, is untenable for reasons more than one. It has to be
borne in mind that, the very essence of the objectives of Time
Bound Higher Grade is to given some financial incentives and
career encouragement to incumbents who consistently suffer
stagnation in lower level posts. In the instant case, even going by
the case of the appellant, he has secured promotions and career
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advancement during the time for the period prior to his
appointment as Telephone Operator.
15. From the pleadings of the petitioner it is evident that he
was initially appointed as Gardener in the last grade service on
1.10.1982 and thereafter was appointed as Duplicator Operator on
20.10.1986, which is a Class III post and thereafter, he was
promoted as Clerical Assistant on 1.1.1987. Later, after reversions
he had been given appointment by way of transfer as Telephone
Operator with effect from 6.4.1990. As observed by the learned
Single Judge in page 9 of the impugned judgment of the WP(C),
the post of Telephone Operator is in the revised scale of pay of
Rs.9190-15780, and comes within the range of Rs.8390-13270 to
Rs.9940-16580 in subordinate service and the post of Gardener is
also within the range specified above, but in the last grade service.
16. Since the petitioner is facing serious hurdles in view of
restriction imposed in Clause 17 of the Scheme appended to
Ext.R-1(a), and as very many anomalous situations would arise if
his claim for 4th Time Bound Higher Grade is granted by reckoning
his service from the post of Gardener instead of the post of
Telephone Operator, we are not in a position to take the view that
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the learned Single Judge has committed an error of jurisdiction or
illegality in arriving at the impugned conclusions in the judgment.
Moreover, the appellant had earlier accepted the first three higher
grades by reckoning only his service from 6.4.1990 onwards as
Telephone Operator, without any demur. On the other hand, we are
of the firm view that the reasonings and conclusions arrived at by
the learned Single Judge in the impugned judgment is based on
holistic consideration of various nuanced and subtle aspects borne
out from Exts.P-8, P-9, P-10 & R-1(a) and the Scheme appended
thereto, and the view cannot be said to be in any manner tainted
with any unreasonableness or illegality. In other words, the view
taken by the learned Single Judge in not interfering with the
impugned Ext.P-12 rejection order cannot be found fault with.
This appeal is bereft of any merit and the same will stand
dismissed.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
T.R.RAVI, JUDGE
MMG
