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2002 DIGILAW 477 (KER)

A. K. Padmajan v. Executive Engineer

2002-07-17

M.R.HARIHARAN NAIR

body2002
Judgment :- M.R.Hariharan Nair, J. The petitioner started his career as Works Superintendent in the Public Works Department. On 4.10.1962 he was posted as Tracer and on 28-8-1965 he was promoted as Second Grade Draftsman. On 29-3-1968 he was further promoted as First Grade Draftsman. The dispute in the case is with regard to the grant of grade benefit based on reports of the IVth and Vth Pay Commissions. The petitioner is aggrieved that by issuance of Ext.P1 his pay, which was originally fixed as Rs. 2470/- w.e.f. 1-7-1989 has been reduced to Rs. 2310/-. The prayer is the quash Ext.P1 order and to direct the respondents not to recover the alleged excess pay as directed in Ext. P1. 2. As per G.O. (Ms) 439/79/GAD dated 1-8-1979 Government servants in the entry grade without getting any promotion in the normal course were allowed the benefit of higher grade on completion of 13 years of service in the entry grade. This was modified as per G.O.(P) 939/80(270) Fin. Dated 19-12-1980. The benefit was limited to persons holding posts carrying nine scales of pay. On 16-9-1985 G.O.(P) 515/85/Fin. was issued stipulated that employees in the revised scales of pay ranging from Rs.550 – 800 to Rs. 1150 – 2270 will be allowed promotion to higher grade on completion of 10 years of service and a second higher grade after either 10 years of service in the first higher grade or a total service of 20 years in the two grades together, whichever is earlier. On 8.2.1988 G.O.(P) 97/88(192)/(Ext.P2) was issued clarifying that the government’s intention was that one higher grade should be available to all non-gazetted officers irrespective of their entry grade; that when the scheme was liberalized the intention was to enlarge the coverage; that the government did not want to withdraw the benefits already given; and that what the government intended was to confer one more benefit to the employees by reducing the period to earn higher grade from13 to 10 years and allowing a second higher grade after a total service 20 years provided they are in the scale of pay ranging from Rs. 550-800 to Rs.1150-2270. 550-800 to Rs.1150-2270. It was further clarified that even in the case of employees who had two levels of promotion, under the liberalized scheme of time-bound higher grade promotion after 10 years of service and a second higher grade after 20 years of service in the last promoted post in the regular line provided its scale of pay is within the range of Rs.550-800 and Rs.1150-2270. Petitioner was in the scale of Rs.1050-2000, which was the scale allowed for Assistant Engineers w.e.f. 1-7-1983 and hence he claimed the benefit of the said Government order and that is how his pay was fixed as Rs. 2470 w.e.f. 1-7-1989. 3. New pay scales came into effect based on the recommendations of the Vth pay Commission w.e.f. 1-7-1988 G.O.(P) 480/89/Fin. Dated. 1.11.1989, issued in this regard provided, inter alia, as follows: The revised scheme of time bound grade promotions will be as follows with reference to the scales of pay on initial recruitment: (i) Employees in the revised scales of pay from Rs. 750-1025 to Rs.1050-1830 will be allowed promotion to higher grade on completion of 10 years of service, a second higher grade after grade either 10 years of service, a second higher grade after either 10 years of service in the first higher grade or a total service of 20 years in the two grades together, whichever is earlier and, a third higher grade completion of a total service of 25 years in the three grades together on the following pattern.” (Schedule omitted) Doubts arose whether the earlier Government order dated. 8-12-1988 was in force after introduction of the revised scale of time bound grade promotion brought into effect from 1-7-1988. It was clarified that the said Government order dt. 8-2-1988 would not be in force on or after 1-7-1988 and the time bound grade promotion, if any, given on or after 1-7-1988 should be reviewed with immediate effect. This was by issuing Government Circular No. 2/PRC-A/91(84)Fin dated 5.1.91. It was for this reason that the petitioner’s pay fixation was reviewed and Ext.P1 order issued. 8-2-1988 would not be in force on or after 1-7-1988 and the time bound grade promotion, if any, given on or after 1-7-1988 should be reviewed with immediate effect. This was by issuing Government Circular No. 2/PRC-A/91(84)Fin dated 5.1.91. It was for this reason that the petitioner’s pay fixation was reviewed and Ext.P1 order issued. The Department took the stand that under the government order of 1-11-1989 there could only be three levels of promotion within a period of 25 years and that the petitioner has already received three levels with the first ‘Grade promotion’ and that a second grade promotion would be due only when he completed 20 years in the last promoted post. It was also its view that no grade promotion could be allowed on or after 1-7-1988 which was the petitioner’s date of option under the Government Order of 1-11-1989 which he claims now. This is on the assumption that the benefits of the earlier government orders would not be available after the pay reforms based on the V pay commission Report has come into effect. 4. During hearing, the learned Government Pleader fairly brought to my notice a subsequent Circular No. 35/PRC-A /92(135)/Fin. Dt. 7-7-1992 further reviewing the direction for review of grade promotion effected after 1-7-1988 and stating that the clarifications per Circular dt.5.1.1991 need be given only prospective effect to avoid review of a number of settled cases and also to extend the benefits accrued during the period between the date of effect of pay revision (1-7-1988) and the date of the clarification as per Circular viz. 5.1.1991. It was clarified that the clarification as per Circular as per Circular dated 5-1-1991 will have effect only from 1-2-1991. The petitioner’s pay fixation was made prior to the said cut off date and the review resulting in Ext.P1 was effected after the cut off date. Petitioner, in the circumstances, is entitled to the benefit of the aforesaid circular dated 7-7-1992. In fact he had retired in the year 1991 itself and hence there is no justification for sustaining Ext.P1 order. 5. Accordingly Ext.P1 is set aside and the retirement benefits due to the petitioner is directed to be worked out based on the pay fixation that was in force prior to the issuance of Circular dated 5-1-1991. In fact he had retired in the year 1991 itself and hence there is no justification for sustaining Ext.P1 order. 5. Accordingly Ext.P1 is set aside and the retirement benefits due to the petitioner is directed to be worked out based on the pay fixation that was in force prior to the issuance of Circular dated 5-1-1991. It goes without saying that there will be no recovery of any excess pay as directed in Ext.P1. The retirement benefits shall be disbursed to the petitioner within a period of 3 months from the date on which a copy of this judgment is produced before the first respondent, failing which the amount due will carry interest at 10% p.a. from the date of expiry of the said time limit. The original Petition is disposed of as above.