State Of Kerala vs State Of Kerala
2021 Latest Caselaw 7013 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

            THE HONOURABLE MR.JUSTICE A.K.JAYASANKARAN NAMBIAR
                                     &
                   THE HONOURABLE MR.JUSTICE GOPINATH P.

           MONDAY, THE 01ST DAY OF MARCH 2021/10TH PHALGUNA, 1942

                            W.A.No.2134 OF 2018

   AGAINST THE JUDGMENT DATED 30.09.2016 IN W.P(C).NO.4033/2009(E)
                       OF HIGH COURT OF KERALA


APPELLANTS/RESPONDENTS 1 TO 3 IN WP(C):

       1        STATE OF KERALA
                REPRESENTED BY SECRETARY TO GOVERNMENT,
                HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
                THIRUVANANTHAPURAM-695 001.

       2        THE DIRECTORATE OF
                COLLEGIATE EDUCATION, THIRUVANANTHAPURAM

       3        THE DEPUTY DIRECTOR OF COLLEGIATE
                EDUCATION, THIRUVANANTHAPURAM

                BY SRI.A.J.VARGHESE, SR.GOVERNMENT PLEADER

RESPONDENT/PETITIONER IN WP(C):

                C.K.KOYAMMU
                SENIOR SUPERINTENDENT(RET), P.S.M.O.COLLEGE,
                RESIDING AT C.K.HOUSE, VENNIYUR P.O., VALAKULAM,
                MALAPPURAM DISTRICT-676 508.

                R1 BY ADV. SRI.K.JAJU BABU (SR.)
                R1 BY ADV. SMT.M.U.VIJAYALAKSHMI
                R1 BY ADV. SRI.BRIJESH MOHAN

         THIS  WRIT      APPEAL HAVING      BEEN   FINALLY  HEARD ON
    01.03.2021, THE      COURT ON THE       SAME   DAY DELIVERED THE
    FOLLOWING:
 W.A.No.2134/2018                        :: 2 ::




                               JUDGMENT

A.K. Jayasankaran Nambiar, J.

The State is in appeal against the judgment dated 30.9.2016 of

the learned Single Judge in W.P.(C).No.4033/2009. The brief facts

necessary for a disposal of the appeal are as follows:

2. The petitioner in the writ petition joined service as

Laboratory Attender in a Private College on 15.7.1968. He was

later appointed as Lower Division Clerk in the same College on

1.7.1970. Later, he was promoted as Upper Division Clerk on

24.6.1975, and as Head Accountant with effect from 12.9.1977.

While working as Head Accountant, and on completion of ten years

of service in the said post, he was sanctioned the first time bound

Higher Grade on 12.9.1987 in the scale of Junior Superintendent,

although such a post was not sanctioned in the College concerned.

It would appear that he was later promoted as Senior

Superintendent with effect from 20.8.1992 and retired from the said

post on 30.6.2003.

W.A.No.2134/2018 :: 3 ::

3. The writ petition was preferred by the petitioner

challenging the orders by which his request for fixation of pay in the

scale of Senior Superintendent, consequent to his promotion as

such, by considering the first time bound Higher Grade obtained by

him in the Junior Superintendent scale on completion of ten years as

Head Accountant, was rejected by the Government. By the orders

impugned in the writ petition, the Government had taken a stand

that inasmuch as the petitioner had been granted the first time

bound Higher Grade on completion of ten years as Head

Accountant, in the scale of Junior Superintendent, and the said post

had not been sanctioned in the College where the petitioner was

working, the sanctioning of the said time bound Higher Grade, in

the scale of Junior Superintendent, was a mistake.

4. The learned Single Judge, after considering the averments

in the counter affidavit filed on behalf of the Government that

sought to justify the orders impugned in the writ petition, found that

the petitioner was entitled to the time bound Higher Grade on

completion of ten years in the post of Head Accountant in the scale

of pay of Junior Superintendent, since he was qualified for the post

of Junior Superintendent, even though the post of Junior W.A.No.2134/2018 :: 4 ::

Superintendent was not sanctioned in the particular College where

the petitioner worked. The mere fact that the said post was not

sanctioned to the College was held inconsequential while

determining the eligibility of the petitioner for the benefit of the

time bound Higher Grade as per the Pay Revision orders in force.

The learned Judge therefore found that the refusal on the part of the

State authorities to grant fixation of pay in the scale of pay of Senior

Superintendent on regular promotion, as requested by the

petitioner, was illegal. The contention of the State Government that

G.O.(P) No.968/87/Fin. dt. 17.11.1987 would have a bearing on the

fixation of pay of the petitioner in the scale of Senior

Superintendent was rejected, and it was found that the question of

notional fixation under the said Government Order need not be

considered since the grade promotion granted to the petitioner in

the scale of pay of Junior Superintendent in 1987 was regular and

was liable to be upheld. A direction was therefore given to the State

Government to re-fix the pay of the petitioner with effect from

20.8.1992, in the scale of Rs.2000 - 3200, and to compute the

pensionary benefits due to the petitioner accordingly.

5. Before us, it is the contention of the learned senior

Government Pleader that the claim of the petitioner for a second W.A.No.2134/2018 :: 5 ::

Higher Grade and fixation of pay was rejected by the Government

since his pay had already been fixed under Rule 28A earlier, and a

second fixation under Rule 28A was not legally permissible. The

basis of the said argument seems to be the assumption that the

petitioner was erroneously granted the benefit of the scale of Junior

Superintendent with effect from 12.9.1987, the date on which he

completed ten years of service as a Head Accountant. It is

contended that inasmuch as there was no post of Junior

Superintendent in the College where the petitioner worked, such a

time bound Higher Grade in the scale of Junior Superintendent

could not have been granted to the petitioner, and the benefits due

to the petitioner in the post of Junior Superintendent ought to have

been computed notionally by applying the Government Order then

in force for such notional fixation.

On a consideration of the rival submissions, we are of the

view that the contention of the appellants are devoid of merit. It is

not in dispute that the petitioner completed ten years of service as

Head Accountant on 12.9.1987, and on that date, he was entitled to

the benefit of the Government Orders in force that envisaged the

grant of first time bound Higher Grade in the scale of Junior

Superintendent. Although there was no post of Junior W.A.No.2134/2018 :: 6 ::

Superintendent sanctioned to the College where the petitioner

worked, the mere fact that there was no post sanctioned to the

College, could not have been a reason to deny the benefit of the first

time bound Higher Grade in the scale applicable to the post which

was in the immediate line of promotion, to the post of Head

Accountant under the Collegiate Education Department. If that be

the case, when the writ petitioner was subsequently promoted to the

post of Senior Superintendent with effect from 20.8.1992, his pay in

the scale applicable to the post of Senior Superintendent had to be

fixed after reckoning the pay drawn by the petitioner in the scale of

Junior Superintendent after obtaining his first time Bound Higher

Grade Promotion. We do not see any reason to interfere with the

finding of the learned Single Judge as regards the entitlement of the

petitioner for re-fixation of the pay. We therefore uphold the

findings of the learned Single Judge and dismiss the Writ Appeal.

Sd/-

A.K.JAYASANKARAN NAMBIAR JUDGE

Sd/-

GOPINATH P.

JUDGE

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