Dismissed

V.Nandakumaran v. the High Court of Kerala

Kerala HC3 Nov 2016WP(C)/24850/2010

Case brief

AI extract

What is this about?

This writ petition challenged orders denying the petitioner his claim for time-bound higher grade. The Court held that since the petitioner was initially appointed to the post of Office Superintendent via promotion, not entry, he could not combine that service with his subsequent transfer to Court Officer to claim higher grade, dismissing the petition.

What the court decided

AI extract

V.Nandakumaran Vs the High Court of Kerala — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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THURSDAY, THE 3RD DAY OF NOVEMBER 2016/12TH KARTHIKA, 1938

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WP(C).No. 24850 of 2010 (R)

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PETITIONER(S):

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V.NANDAKUMARAN, COURT OFFICER, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-31.

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BY ADVS.SRI.K.JAJU BABU SRI.BRIJESH MOHAN SRI.T.R.SADEESAN SRI.T.S.SHYAM PRASANTH SMT.M.U.VIJAYALAKSHMI

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RESPONDENT(S):

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1. THE HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031, REPRESENTED BY ITS REGISTRAR GENERAL.

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2. STATE OF KERALA, REPRESENTED BY ADDL.CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM-695 001.

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R1 BY ADVS. SMT.K.RADHAMANI AMMA

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SRI.K.RAMACHANDRAN (THYKOODAM) SRI.V.A.MUHAMMED R2 BY GOVERNMENT PLEADER SRI.RAJI T.BHASKAR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/10/2016 THE COURT ON 03-11-2016, THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 24850 of 2010 (R)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 TRUE COPY OF THE ORDER NO.A2-5339/2000 DATED 7/7/2001 ISSUED BY THE R1

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P2 TRUE COPY OF THE ORDER NO.A5-4567/2006 DATED 22/2/06 ISSUED BY THE R1

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P3 TRUE COPY OF THE REQUEST MADE BY THE PETITIONER BEFORE THE R1 DATED 20/4/06

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P4 TRUE COPY OF THE OFFICIAL MEMORANDUM NO.A5-3659/2006 DATED 6/12/2006 ISSUED BY THE R1

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P5 TRUE COPY OF THE RELEVANT EXTRACT OF SCHEME FOR TIME BOUND GRADE PROMOTION AS PER GO(P)145/06 DATED 25/3/06

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P6 TRUE COPY OF THE REQUEST SUBMITTED BY THE PETITIONER BEFORE THE R1 DATED 20//09

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P7 TRUE COPY OF THE OFFICIAL MOMORANDUM NO.A5-1588/2007 DATED 26/8/09 ISSUED BY THE R1

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P8 TRUE COPY OF THE APPEAL SUBMITTED BY THE PETITIONER BEFORE THE R1 DATED 30/9/09

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P9 TRUE COPY OF OFFICIAL MEMORANDUM NO.A5-1588/07 DATED 14/12/09 ISSUED BY THE R1

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P10 TRUE COPY OF GO(P)705/81/(372)/FIN.DATED 28/10/1981 ISSUED B Y THE R2

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P11 TRUE COPY OF JUDGMENT DATED 24/1/06 IN WPC.33881/04 OF THIS HONOURABLE COURT.

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RESPONDENT(S)' EXHIBITS

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R1(A) COPY OF THE LETTER NO.290/PRC.CI/2001/FIN DATED 23/1/2001 OF THE GOVT.OF KERALA

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R1(B) COPY OF THE RELEVANT EXTRACT OF THE CIRCULAR NO.46/2008/FIN DATED 8/8/08 OF THE GOVERNMENT OF KERALA.

/ TRUE COPY /

P.S. TO JUDGE

ANU SIVARAMAN, J.

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= = = = = = = = = = = = = = = = = = = = = = = = = =

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W.P.(C).No.24850 of 2010

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= = = = = = = = == = = = = = = = = = = = = = = = = Dated this the 3^rd day of November, 2016

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JUDGMENT

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The prayers in this writ petition are as follows:-

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i. Issue a writ of certiorari or other appropriate writ, order or direction, calling for the records leading to Exts.P7 and P9 and quash the same.

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ii. Issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to sanction and disburse the Time Bound Higher Grade benefits sought for by the petitioner as per Exhibit.P6 with all consequential benefits”.

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2.Heard the learned counsel for the petitioner and the learned counsel appearing for the respondents.

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3.It is agreed by the counsel appearing on both sides that the question of grant of advance increment to the petitioner on appointment as Court Officer by transfer from the post of Office Superintendent is covered against the petitioner by the judgment of a Division Bench of this Court dated 03.01.2012 in W.A.No.582 of 2009. The question that remains for

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W.P.(C).No.24850/10

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consideration is with regard to the grant of higher grade to the petitioner in the post of Office Superintendent.

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4.The petitioner contends that he was appointed as Office Superintendent w.e.f. 07.07.2001. He was later posted by transfer as Court Officer in the very same scale of pay by Exhibit P2 proceedings dated 22.02.2006. It is also contended that he is entitled to a higher grade on completion of 8 years of service as Office Superintendent and Court Officer taken together. He relies on Exhibit P5 Government Order as well as Exhibit P11 judgment of this Court to contend that Officers who remain in an entry cadre for the requisite period are entitled to grant of higher grade even if they are appointed by transfer to other equivalent post carrying the same scale of pay. This position is covered by Exhibit P11 judgment wherein the post in question were Court Fee Examiner, Court Officer and Section Officer. The petitioner would contend that the reason for rejection of the claim raised by him by Exhibit P9 order of the appeal committee constituted under Rule 28 of the Kerala High Court Service Rules is that the petitioner had

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W.P.(C).No.24850/10

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received many promotions from his initial entry post and he is therefore not entitled to claim time bound higher grade in the post in question. It is contended that Exhibit P11 clearly covers this issue.

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5.A counter affidavit has been filed on behalf of High Court, wherein it is contended that entry post is the post to which an employee is initially appointed in service. It is contended that after appointment as Office Superintendent, the petitioner was granted one more promotion by Exhibit P2 as Court Officer, though in the same scale of pay and that he is not entitled to time bound higher grade. It is further stated in the counter affidavit as follows:-

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“paragraph 7 of the Government Circular No.46/2008/Fin dated 08.08.2008 provides that the service rendered in different categories on identical scale of pay was reckoned for computing qualifying service for 13 years time bound higher grade as per G.O.(P) 705/81(372)/Fin dated 28.10.1981, up to 15.09.1985. From 16.09.1985 onwards time bound higher grade is admissible with reference to entry post only. Therefore, the G.O. Dated 28.10.1981 cannot be relied on in the case of the petitioner”.

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W.P.(C).No.24850/10

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6.I have considered the contentions advanced on either side.

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The reasons stated in Exhibit P9 as well as the contention as noted above contained in the counter affidavit of the 1^st respondent cannot be accepted in view of the clear findings contained in Exhibit P11 judgment, which on the admission of parties has attained finality. Exhibit P11 considered the case of eligibility for first time bound higher grade on completion of 8 years of service in the post of Section Officer/Court Fee Examiner/Court Officer taken together. The petitioners therein were also persons appointed by transfer to the post of Court Fee Examiner. They had also obtained appointment by transfer to the post of Court Officer/ Section Officer. This Court declared that the post of Court Fee Examiner, where the method of appointment was by transfer, was an entry post for the purpose of grant of higher grade. It was further held that further appointments by transfer to posts carrying an equivalent scale of pay cannot be a reason to deny the time bound higher grade to the petitioners who had completed the requisite years of service in the posts carrying equivalent scales of pay taken together.

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W.P.(C).No.24850/10

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7.However, in the instant case, the petitioner claims time bound higher grade on the basis of his appointment by Exhibit P1 to the post of Office Superintendent. The post of Office Superintendent, going by the rules in force is a promotion post. Exhibit P1 would also clearly indicate that the petitioner was promoted to the post of Officer Superintendent from the post of Selection Grade Typist.

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8.In the above view of the matter, the declaration contained in Exhibit P11 to the effect that petitioners therein are entitled to count service in equivalent post for grade promotion cannot help the petitioner since his initial appointment as Office Superintendent was not in an entry post by any definition of the term. His appointment as Office Superintendent being one made by promotion he cannot claim grade promotion on the basis of his service in the said promoted post and the equivalent post of Court Officer taken together.

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In the result, the claim raised by the petitioner which is based on Exhibit P5 Government Order and Exhibit P11 judgment

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W.P.(C).No.24850/10

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has to fail. The writ petition is, therefore, devoid of merits and the same is dismissed.

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sd/- Anu Sivaraman, Judge

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V.Nandakumaran v. the High Court of Kerala

Case brief

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V.Nandakumaran v. the High Court of Kerala

Case brief

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