K.V.Rajan vs Kerala Khadi & Village Industries ...
2021 Latest Caselaw 10265 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

     FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943

                      WP(C).No.20720 OF 2011(L)


PETITIONER:

               K.V.RAJAN, S/O.K.V.BAPPU,
               SASWATHAM, POOKKADU, P.O CHEMMANCHERY,
               KOZHIKODE,, (RETIRED DRIVER KERALA KHADI & VILLAGE
               INDUSTRIES BOARD).

               BY ADVS.
               SRI.K.D.BABU
               SRI.G.SANTHOSH KUMAR (P).

RESPONDENTS:

      1        KERALA KHADI & VILLAGE INDUSTRIES BOARD
               THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, PIN
               - 695 039.

      2        THE SECRETARY
               KERALA KHADI & VILLAGE INDUSTRIES BOARD,,
               THIRUVANANTHAPURAM,, PIN - 695 039.

               SRI.R.S.HARI KUMAR ,SC
               SRI.TOM K.THOMAS, SC
               SRI.M.SHARAFUDHEEN, SC
               SRI.N.RAJAGOPALAN NAIR, SC.

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD           ON
26.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.20720 OF 2011(L)

                                     2


                               JUDGMENT

Dated this the 26th day of March 2021

The petitioner says that prior to his regular service in

the Kerala Khadhi and Village Industries Board (for short,

'the Board'), he had served it as a driver on provisional basis,

being sponsored through the Employment Exchange from

30.08.1982 to 23.08.1985. He says that he thereafter

obtained a permanent appointment in the Board as a "Boy

Assistant", which is a last grade post, on 24.08.1985 in which

position he worked until 31.12.1987.

2. The petitioner says that, subsequently, on completion

of ten years in the entry post of driver, he was granted his

first Time Bound Higher Grade with effect from 01.01.1998,

as is evident from Ext.P1; and that even though it is noted

therein that he was promoted as a driver, this is not correct

because the post of driver is not a promotion post of Boy

Assistant; and therefore, that his appointment as a driver

ought to have been considered as an appointment by transfer

only.

3. The petitioner relies on Ext.P2 in substantiation and

argues that, while reckoning his service as driver for WP(C).No.20720 OF 2011(L)

granting the First Higher Grade, his provisional service as

driver was not counted. He says that since the grant of

increments reckoning provisional service was discontinued

by the Government only through Ext.P3 and since his

provisional service was prior to 01.10.1994, he was entitled

to have his such service also reckoned for increments and

says that he was constrained to approach this Court by filing

W.P.(C) No.30247/2010, which was disposed of directing the

first respondent - Board to consider his grievances as per

law.

4. The petitioner says that consequent to this, Ext.P12

order has been issued by the Board denying his request for

reckoning his provisional services as driver and Boy

Assistant, solely saying that, as per Rule 33 of Part I of the

Kerala Service Rules (KSR), he is not eligible for the said

periods to be reckoned because the said posts carry different

scales of pay and carries different qualifications, as also

duties and responsibilities.

5. The petitioner contends that Ext.P12 order is

egregiously improper because it has not taken into account

Ext.P5 Government order dated 06.06.1989, which clarifies WP(C).No.20720 OF 2011(L)

that provisional services of the employees, including broken

period on regular appointment, will be reckoned as qualifying

service for grade promotions, even though such services may

not be reckoned for increments, owing to change of scale of

pay and due to Pay Revision.

6. The petitioner asserts that, therefore, even if the

Board takes the stand that he is not entitled to increments

reckoning his provisional service, the said period could not

have been jettisoned as far as his grade promotions are

concerned. He thus prays that Ext.P12 be set aside and the

first respondent - Board be directed to reconsider the matter

taking into account Ext.P5 Government Order.

7. In response to the submissions of Sri.K.D.Babu, the

learned counsel for the petitioner as afore, the learned

standing counsel for the first respondent - Sri.N.Rajagopalan

Nair, submitted that a counter affidavit has been filed by his

client, wherein, it has been explained that, as per the

provisions of the Government decision under Rule 33 of Part I

of the KSR, the provisional service or regularisation followed

by a regular appointment, with or without break, in the same

category of post can be treated as an officiating service, WP(C).No.20720 OF 2011(L)

provided the posts should carry identical scales of pay and

the qualification and method of recruitment should be the

same. He submitted that, going by the afore stipulations,

since the scales of pay of "Boy Assistant" and that of a

"driver" (provisional service) are different and since the

qualifications for the said posts are also different, the

petitioner's request for grant of increments could not have

been granted. He, however, submitted that if the petitioner

requires the reckoning of the afore periods, for the purpose

of grade promotions alone, to be reconsidered adverting to

Ext.P5, the competent Authority of the first respondent is

willing to do that; but prayed that this Court may not make

any affirmative declarations with respect to the same.

8. When I consider the afore submissions, it is

undoubted that the petitioner requires his provisional service

to be reckoned both for increments and for grade

promotions. As per Ext.P5 order issued by the Government

on 06.06.1989, it has been made clear that provisional

service, including broken periods on regular employment,

will have to be reckoned as qualifying service for grade

promotions, even if the same cannot be reckoned for WP(C).No.20720 OF 2011(L)

increments, owing to the change of scale of pay or Pay

Revision.

9. Pertinently, Ext.P5 order has been issued specifically

with reference to the Government decision No.2, under Rule

33 of Part I of the KSR and I, therefore, cannot see why the

first respondent be not directed to advert to this order with

respect to petitioner's claim for grade promotion reckoning

his provisional service also. This is because I notice that

Ext.P12 order is silent on this issue and it mentions only

about the increments claimed for by the petitioner. Obviously

therefore, even if increments are not eligible to the petitioner

reckoning his provisional services, the first respondent must

consider his request for grade promotion, reckoning the said

period, based on Ext.P5 Government Order.

10. In the afore circumstances, I set aside Ext.P12; with

a consequential direction to the Board to reconsider the

petitioner's claims, adverting to Ext.P5 Government order

and after affording him an opportunity of being heard -

either physically or through video conferencing - thus

culminating in an appropriate order thereon, as expeditiously

as is possible, but not later than two months from the date of WP(C).No.20720 OF 2011(L)

receipt of a copy of this judgment.

11. It is needless to say that I have not found

affirmatively in favour of the petitioner and it is made clear

that it is up to the first respondent to take an apposite

decision on his claims on the basis of Ext.P5 Government

order or any other applicable Government Order that the

petitioner may produce at the time of hearing.

This writ petition is thus ordered.

                                            Sd/- DEVAN RAMACHANDRAN

Stu                                                  JUDGE
 WP(C).No.20720 OF 2011(L)






                              APPENDIX
PETITIONER'S EXHIBITS:

EXHIBIT P1         TRUE COPY OF THE SERVICE BOOK OF THE PETITIONER
                   DATED NIL

EXHIBIT P2         TRUE COPY OF THE GO (P) 889/86/(112)/FIN DATED
                   12.12.1986

EXHIBIT P3         TRUE COPY OF THE GO (P) NO 540/94/FIN DATED
                   30.9.1994

EXHIBIT P4         TRUE COPY OF THE GO(P)554/84/(597/FIN DATED
                   27.9.1984

EXHIBIT P5         TRUE COPY OF THE GO(P) 281/89/(256)/FIN DATED
                   6.6.1989.

EXHIBIT P6         TRUE COPY OF THE GO (P) NO 367/96/(87)/FIN DATED
                   19.4.1996

EXHIBIT P7         TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE

PETITIONER BEFORE THE 2ND RESPONDENT DATED 29.12.2007

EXHIBIT P8 TRUE COPY OF THE PENSION PAYMENT ORDER OF THE PETITIONER DATED 19.11.2008

EXHIBIT P9 TRUE COPY OF THE GO (P) NO 543/89/(87)/FIN DATED 20.11.1989

EXHIBIT P10 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 2ND RESPONDENT DATED 8.9.2009

EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 1.10.2010 IN WPC NO 30247/2010

EXHIBIT P12 TRUE COPY OF THE ORDER NO KB/400/08/E2/E3 DATED 5.3.2011 PASSED BY THE 2ND RESPONDENT