Kerala High Court

Sindu.N vs The Secretary on 10 May, 2022

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
     TUESDAY, THE 10TH DAY OF MAY 2022 / 20TH VAISAKHA, 1944

                    WP(C) NO. 23284 OF 2017

PETITIONER/S:

      SINDU.N
      AGED 37 YEARS
      D/O.N.KUTTAN NAIR,
      AGED 37,
      STENO TYPIST GRADE II,
      NSS POLYTECHNIC COLLEGE,PANDALAM,
      RESIDING AT MANIMANGALAM,
      KOZHUVALOOR P.O., CHENGANNUR, ALAPPUZHA.

      BY ADV SRI.LIJU. M.P


RESPONDENT/S:

 1    THE SECRETARY
      HIGHER EDUCATION DEPARTMENT,GOVT.
      SECRETARIAT, THIRUVANANTHAPURAM 695 001.

 2    THE DIRECTOR OF TECHNICAL EDUCATION
      TECHNICAL EDUCATION
      DEPARTMENT,THIRUVANANTHAPURAM 695 001.

 3    THE SENIOR JOINT DIRECTOR
      TECHNICAL EDUCATION
      DEPARTMENT,THIRUVANANTHAPURAM 695 001.

 4    THE PRINCIPAL
      NSS POLYTECHNIC COLLEGE,
      PANDALAM,PATHANAMTHITTA 689 501.

      BY SMT.ANIMA. M.GOVERNMENT PLEADER



  THIS WRIT PETITION (CIVIL) HAVING COME UP FOR HEARING ON
  8.4.2022, THE COURT ON 10.5.2022 DELIVERED THE FOLLOWING:
 W.P.(C) No. 23284/2017                     2




                                JUDGMENT

The petitioner states that she was appointed as Steno-Typist Grade II at

the NSS Polytechnic College, Pandalam on 1.2.2008. By Ext.P1 order dated

15.4.2008, the appointment of the petitioner was approved in the scale of pay

of Rs.6080-9830 under the Direct Payment Scheme. She contends that she

completed her probation on 1.2.2010 and the pay scale drawn by her was

Rs.20,000/ - Rs.45800/-.

2. The petitioner contends that she completed 8 years of continuous

service on 31.1.2016 and hence, she became entitled to First Time Bound

Higher Grade (TBHG) with effect from 1.2.2016. Relying on Circular No.

46/2008/Fin. dated 8.8.2008, it is contended that those persons who possess

the required qualifications for promotion post are entitled to be granted the

scale of pay of such promotion post. If such a promotion post is not available

in that particular department, the scale of pay of a normal promotion post is

to be granted a higher grade. The petitioner relies on Ext.P2 scheme of

TBHG promotion/Annexure-3 attached to the Pay Revision Order 2016 to

substantiate her contention.

3. The petitioner contends that as per the relevant rules, the next

promotion post for a Steno-Typist Grade-II such as the petitioner is

Steno-Typist Grade-I. The revised pay scale of the said post is Rs.27,800/- to

Rs.59,400/-. She asserts that she is having the required qualifications. In the

said circumstances, the petitioner is stated to have submitted an application

for First TBHG promotion on the pay scale of Rs.27800 to 59400/-. However,

by Ext.P3 order dated 26.9.2016, the request made by the petitioner was

rejected by the 3rd respondent on the ground that no promotion post exists

in that department. Being aggrieved, the petitioner had challenged Ext.P3

before the 1st respondent. However, the said request was also rejected by

Ext.P5 order. It is in the afore circumstances that the petitioner is before this

Court seeking the following reliefs:

i) Issue writ of certiorari or any other appropriate writ order or direction quashing Ext.P3 and P5 orders to the extent it denies the payment of normal promotion post to the petitioner.

ii) Issue writ of mandamus or any other appropriate writ order or direction on declaring that in the light of Ext.P2 and Circular No. 46/2008/Fin dated 8.8.2008, the petitioner is entitled to First Time Bound Higher Grade with pay scale of Rs.27800/- to 59400/-.

iii) Issue a writ of mandamus or any other appropriate writ order or direction directing the respondents 1 and 2 to provide the petitioner with First Time Bound Higher Grade with pay scale of Rs.27800/- to 59400/- with effect from 1.2.2016 at the earliest, at any rate, within a time limit as fixed by this Hon'ble Court.

4. In the counter affidavit filed by the 1st respondent, it is stated

that on completion of 8 years of service in the cadre of Steno/Typist

Grade-II, a proposal was forwarded to the DTE for sanctioning First Time

Bound Higher Grade in the scale of pay of Rs.27800/- to 59400/-, which is the

scale of pay of Steno/Typist Grade-I. However, in Aided Polytechnic College,

there is no promotion post of Steno/Typist Grade -II and in view of the above,

the scale of pay of promotion post cannot be granted as Time Bound Higher

Grade. As per the Pay Revision Order, G.O.(P) No.7/2016/Fin. dated

20.1.2016, it has been clarified that if there is a regular promotion post

(including ratio promotion post) in respect of the categories of posts (Entry)

coming under pay range from 16500/- to 35700/- to Rs.32300/- to 68700/-

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

regular promotion post in the Direct line of promotion as Time Bound Higher

Grade Scale (while assigning higher grade, only qualified hands eligible for

regular promotion will get the scales of regular promotion posts). In cases

where there exists no such immediate regular promotion post under common

category in a department, the scale of pay of immediate regular promotion

post as shown in the schedule of post under common category as per the

special rules alone will be admissible as Grade Scale (i.e., in case where there

are only Junior Superintendent Post and no intermediary post of Head Clerk in

a Department, a U.D. Clerk will be eligible for Higher Grade in the scale of pay

of Head Clerk only). As the post of Steno/Typist Grade-I does not exist in the

Private Polytechnic Colleges, the petitioner is not eligible for the scale of these

posts as Grade Scales. It was in the said circumstances that the petitioner

was granted Time Bound Higher Grade in accordance with the tables in the

respective pay revision orders. It is also stated that as per paragraph No. 10

of Circular dated 8.8.2008, in the cases where a particular category of posts

in the normal hierarchy of promotion posts is not available in a department,

the scale of the normal promotion post only will be allowed as Grade Scale.

In view of the above, the petitioner is eligible for 8 years Higher Grade only

on the scale of pay of Rs.22200 to 48000/- as per Annexure-III Table I of

Government order dated 20.2.20214. According to the 1st respondent, since

the post of Steno/Typist Grade - I do not exist in Aided Polytechnic Colleges, it

would not be possible to sanction the scale of pay of that post.

5. I have heard Sri. Liju M.P., the learned counsel appearing for the

petitioner and Smt. Anima M., the learned Government Pleader.

6. From the submissions advanced by the learned counsel

appearing for the petitioner and the learned Government Pleader, it appears

that the entire controversy revolves around the interpretation to be given to

Annexure-III of the pay revision order G.O.(P) No. 7/2016/Fin. dated

20.1.2016. From paragraph No.3 of the counter affidavit filed by the 1st

respondent, it is evident that there is no promotion post of Steno/Typist

Grade-II in Aided Polytechnic Colleges. It is also stated therein that since the

post of Steno/Typist Grade-I does not exist in the Private Polytechnic Colleges,

the petitioner is not eligible for the scale of these posts as Grade Scales. The

1st respondent has not disputed in the counter that the petitioner is qualified

for a regular promotion post. It would be apposite at this juncture to extract

paragraph No. 6 of Annexure-III referred to by both sides.

6. If there is a regular promotion post (including ratio promotion post) in respect of the categories of posts (entry) coming under pay range from 16500/- to 35700/- to Rs.32300/- to 68700/- 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 regular promotion post in the Direct line of promotion as Time Bound Higher Grade Scale (While assigning higher grade, only qualified hands eligible for regular promotion will get the scales of pay of regular promotion posts). In cases where, there exists no such immediate regular promotion post under common category in a department, the scale of pay of immediate regular promotion post as shown in the schedule of post under common category as per the Special Rules alone will be

admissible as Grade Scale (i.e., in case where there are only Junior Superintendent Post and no intermediary post of Head Clerk in a Department, a U.D. Clerk will be eligible for Higher Grade in the scale of pay of Head Clerk only). Unqualified hands will be allowed the next scale of pay above that of the scale of pay of the post held at that time, in the standards scales of pay in Annexure-I. (emphasis supplied)

7. What is stated in paragraph No.6 is that if there is a regular

promotion post, including a ratio promotion post, in respect of the entry post

coming under the pay ranges stated therein and if the scale pay is higher

than the Time Bound Higher Grade proposed in Annexure-III, then the

incumbent, if qualified, is to be given the scale of pay of the regular

promotion post in the Direct Line of promotion as the Time Bound Higher

Grade. The records produced before this Court reveals that the regular

promotion post of a Steno/Typist Grade-II under the common category as per

Special Rules is Steno/Typist Grade-I. From the counter, it is evident that

there is no promotion post of Steno/Typist Grade-II in Aided Polytechnics or in

Government Polytechnics. If that is the case, the underlined portion of

paragraph No. 6 above would apply. In other words, as there exists no

immediate promotion post under the common category, the scale of pay of

immediate regular promotion post, which is Steno/Typist Grade-I, will be

admissible as Grade Scale. However, if the petitioner was unqualified, she can

be allowed only the next higher scale of pay above that of the scale of pay of

the post held by her at that time, in the standard scales of pay in Annexure-I.

This aspect of the matter was lost sight of by the respondents.

8. Furthermore, paragraph No.10 of Circular No.46/2008/Fin. Dated

8.8.2018 would shed more light on these aspects.

10. In respect of those who are eligible for the scale of pay of normal promotion post as Time Bound Higher Scales, based on the scale of pay prescribed in the Pay Revision Order, only qualified hands, i.e, those who possess the required qualification for promotion posts, will be granted the scale of pay of promotion posts. Even in cases, where a particular category of post in the normal hierarchy of promotion post is not available in a department, the scale of pay of normal promotion post will be allowed as Higher Grade. (emphasis supplied)

9. While rejecting the request made by the petitioner by Ext.P3

order, all that is stated is that since no regular promotion post is available in

the establishment, she is not entitled to the scale of pay of immediate regular

promotion post as Grade Scale. The same stand is taken in Ext.P5 as well.

Though in the counter affidavit reference is made to Ext.R1 and R2, no such

documents have been produced. I am of the view that Ext.P2, paragraph

No.6 of the Pay Revision Order G.O.(P) No.7/2016/Fin dated 20.1.2016 and

the Circular No. 46/2008/Fin dated 8.8.2008 has been misinterpreted by the

respondents to reject the request made by the petitioner while claiming her

entitlement for First Time Bound Higher Grade with pay scale of Rs.27,800/-

to 59,400/-. In that view of the matter, Ext.P3 and P5 orders cannot be

sustained.