Allowed

M.A. Nissar v. State of Kerala

Kerala HC23 Jun 2016WP(C)/4361/2012

Case brief

AI extract

What is this about?

The High Court of Kerala held that a qualified lower division clerk is entitled to the scale of pay of available promotion posts as his time-bound higher grade despite the non-existence of such posts in his department, relying on Clause 6 of the 2006 Pay Revision Order. The court set aside the lower order denying this benefit and directed the fixation of the appropriate pay scale within three mont

What did the court decide?

Ext.P9 order set aside; petitioner granted scale of pay of promotion posts as time-bound higher grade within three months; consequential benefits released within one month.

M.A. Nissar Vs State 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 23RD DAY OF JUNE 2016/2ND ASHADHA, 1938

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WP(C).No. 4361 of 2012 (U)

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PETITIONER(S):

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M.A. NISSAR,LOWER DIVISION CLERK, JANATHA HIGHER SECONDARY SCHOOL, THEMPAMOODU, PULLAMPARA P.O., THIRUVANANTHAPURAM-695 607.

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BY ADVS.SRI.S.MOHAMMED AL RAFI SRI.N.NISHAM

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RESPONDENT(S):

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

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2. THE SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEXE, THIRUVANANTHAPURAM-695 001.

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3. THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM-695 014.

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4. THE DISTRICT EDUCATIONAL OFFICER ATTINGAL-695 101.

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R1 TO R4 BY GOVERNMENT PLEADER SRI. BABY THOMAS

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-06-2016,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 4361 of 2012 (U)

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APPENDIX

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PETITIONER(S) EXHIBITS

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EXT.P1	: TRUE COPY OF THE ORDER DTD.22.6.1973 ISSUED BY THE GOVERNMENT.
EXT.P2	: TRUE COPY OF THE ORDER DTD.3.9.1983 ISSUED BY THE GOVERNMENT.
EXT.P3	: TRUE COPY OF RELEVANT EXTRACT OF G.O.(P) NO.145/2006/FIN. DTD.25.3.06 ISSUED BY THE GOVERNMENT ALONG WITH ANNEXURES.
EXT.P4	: TRUE COPY OF THE GOVERNMENT LETTER DTD.10.6.07 ISSUED BY THE 1ST RESPONDENT.
EXT.P5	: TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DTD.24.8.06.
EXT.P6	: TRUE COPY OF THE ORDER DTD.16.3.07 PASSED BY THE 1ST RESPONDENT.
EXT.P7	: TRUE COPY OF THE ORDER DTD.18.6.07 PASSED BY THE 1ST RESPONDENT.
EXT.P8	: TRUE COPY OF THE JUDGMENT DTD.1.8.2011 IN WPC 31120/2007.
EXT.P9	: TRUE COPY OF G.O.(RT)NO.8424/2011 FIN DTD.18.11.2011 ISSUED BY THE 1ST RESPONDENT.
RESPOND	ENTS' EXHIBITS :
EXT.R1(	A): COPY OF THE GOVERNMENT LETTER DT 20/11/2012.
EXT.R1(	B): COPY OF THE EXHIBIT P9 JUDGMENT IN WPC NO. 31120/200 DT 1/8/2011.

//TRUE COPY//

P.A. TO JUDGE

ANU SIVARAMAN, J. ............................................................... W.P (C) No. 4361 of 2012

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................................................................

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Dated this the 23^rd day of June, 2016

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JUDGMENT

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The writ petition is filed challenging Exts.P5 and P9 orders passed by respondents 3 and 1 respectively and also seeking directions for fixation of the petitioner’s pay in the scale of pay applicable to Head Clerk as his 18 years time bound higher grade and in the scale of pay of Junior Superintendent as his 23 years time bound higher grade.

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The petitioner was working as LD Clerk in an Aided school. He was fully qualified for appointment to the post of UD Clerk, Head Clerk and Junior Superintendent. This contention was not disputed by any of the parties in this writ petition. He had drawn the scale of pay of UD Clerk as his ten years time bound higher grade. When he sought the scale of pay of Head Clerk as his 18 years time bound higher grade, Ext.P5 was issued by the District Educational Officer stating that there is no post of UD Clerk or Head Clerk available in the Aided school and therefore the petitioner would not be entitled to the scale of pay

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WP(C) 4361/2012

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of Head Clerk as his second time bound higher grade. It is also noted that the grant of the scale of pay applicable to the post of UD Clerk as his ten years time bound higher grade was erroneous.

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When orders were issued rejecting his representation, the petitioner had approached this Court. This Court had, by Ext.P8 judgment, set aside the orders and directed the consideration of the contentions raised by the petitioner after issuing notice. Pursuant thereto, Ext.P9 order dated 18.11.2011 was passed after hearing the petitioner. It is reiterated in Ext.P9 order that there is no post of UD Clerk or Head Clerk in the Aided school in which the petitioner was working and therefore he would be entitled only to corresponding scale of pay which is fixed as the time bound higher grade for the post of LD Clerk in the pay revision order.

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Heard the learned counsel for the petitioner and the learned Government Pleader appearing for the respondents.

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The petitioner placed reliance on Clause No.6 in Exhibit P3 of the pay revision order dated 25.3.2006. The relevant extract of which is produced as Ext.P3 along with this

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WP(C) 4361/2012

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writ petition. Clause (6) reads as follows:

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If there is a regular promotion post in respect of the categories of posts coming under pay scales ranging from Rs.4400-6680 to Rs.9590-16650 and if such scale of pay is higher than the corresponding time bound higher grade proposed in Tables A & B above, then the time bound higher grade for such incumbent will be the scale of pay of such regular promotion post, provided he is otherwise qualified for such promotion. Even in cases where a particular category of posts in the normal hierarchy of promotion posts is not available in a Department, the scale of pay of the normal promotion post only will be allowed as the higher grade. (Thus, for example, in a Department where there is no post of Head Clerk and U.D Clerks get promoted as Junior Superintendents, the time bound higher grade for the U.D Clerk will still be the scale of Head Clerk). While assigning such higher grad, only qualified hands i.e., those possessing the qualification, including approval of the D.P.C (where necessary), prescribed for the promotion post will get the scales of pay of regular promotion posts. Unqualified hands will be allowed the next higher scale of pay above that of the scale of pay of the post held at that time, in the standard scales of pay at Annexure 1. The competent authority

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WP(C) 4361/2012

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sanctioning the time bound higher grade should indicate in the order whether the official possesses qualification for promotion (including approval of D.P.C) and also specify the scale of pay admissible on time bound higher grade.

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It is submitted that from a reading of Clause No.6 of

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Ext.P3, it is clear that even in cases where there is no promotion post available for actual promotion of the incumbent, the employee would be entitled to the scale of pay of the promotion post as his time bound higher grade. The counter affidavit filed by the respondents also does not answer this specific contention raised by the petitioner relying on Clause No.6 of Ext.P3 of the pay revision order.

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Having considered the contentions raised by the parties on either side and having gone through Clause No.6 and taking into consideration Ext.P3, it is clear that even in a case where there is no post of UD Clerk or Head Clerk in an Aided school, the scale of pay which the employee would be entitled to as the time bound higher grade, in the case of a qualified employee, would be the scale of pay applicable to the promotion post which is without dispute the respective posts of UD Clerk,

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WP(C) 4361/2012

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Head Clerk and Junior Superintendent in the petitioner’s case. This is the inescapable conclusion of a close reading of Clause No.6 of Ext.P3. This aspect though raised by the petitioner before the respondents was not even adverted to.

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In the above circumstances, Ext.P9 which proceeds on the basis that the petitioner would be entitled only to the scale of pay which is shown as the corresponding higher grades in respect of the post of LD Clerk cannot stand. Ext.P9 is therefore set aside. The petitioner shall be granted the scale of pay of the promotion posts as his time bound higher grades considering his qualification and eligibility without delay, at any rate, within three months from the date of receipt of a copy of this judgment. The consequential benefits due on the revision of pay of the petitioner shall be released within one month thereafter.

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The writ petition is disposed of as above.

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ANU SIVARAMAN JUDGE

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sks

M.A. Nissar v. State of Kerala

Case brief

What is this about?

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M.A. Nissar v. State of Kerala

Case brief

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