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2010 DIGILAW 93 (KER)

Viswambharan Nair v. State of Kerala

2010-01-29

C.T.RAVIKUMAR

body2010
JUDGMENT : C.T. Ravikumar, J. The petitioners are Upper Division Clerks in the Labour Department. Both the petitioners commenced their service as Lower Division Clerks. They were promoted as U.D. Clerks on 30.6.1988 and 15.10.1988 respectively. Based on the notification enabling to exercise option from the senior most Upper Division Clerks of the Department for appointment as Assistant Labour Officer Grade II both the petitioners exercised their option for appointment as Assistant Labour Officer Grade-II which is in the executive wing prior to the occurrence of vacancies in that cadre. The cadres up to Junior Superintendent in the department belong to the ministerial wing. However, they were not appointed by transfer as Assistant Labour Officer Grade-II based on the said option on account of non availability of vacancies in the cadre of Assistant Labour Officer Grade-II. In short despite the exercise of option the petitioners continued in the cadre of Upper Division Clerks which is on the ministerial wing. This Writ Petition has been filed by the petitioners challenging Ext.P10 whereby their claim for granting the first time bound higher grade in the scale of pay of Assistant Labour Officer Grade-II and the second time bound higher grade in the scale of pay applicable to Assistant Labour Officer Grade I were rejected. 2. The claim of the petitioners for the aforesaid grades is founded on the option made by them for appointment by transfer as Assistant Labour Officer Grade II. According to them, the option exercised by them had become final. Therefore, they should have been treated as gone over to the category of Assistant Labour Officer Grade-II by appointment by transfer for the purpose of time bound grade promotions attached to the post of Assistant Labour Officer Grade-I and Grade-II. The petitioners are not disputing the correctness of the facts based on which their claim was rejected as per Ext.P10. In other words, they are admitting the fact that despite their option they continued to be in the cadre of Upper Division Clerks. 3. A counter affidavit has been filed in this Writ Petition resisting the claims and contentions of the petitioner. The fact that the petitioners have opted for appointment by transfer to the category of Assistant Labour Officer Grade-II has been admitted. 3. A counter affidavit has been filed in this Writ Petition resisting the claims and contentions of the petitioner. The fact that the petitioners have opted for appointment by transfer to the category of Assistant Labour Officer Grade-II has been admitted. It is further stated in the counter affidavit that despite the said option they were not appointed by transfer as Assistant Labour Officer Grade-II on account of non availability of vacancies in that cadre. On account of the said reasons, the petitioners have continued in the category of Upper Division Clerks, it is contended. Further it is stated therein under the Kerala Ministerial Subordinate Service Rules a U.D. Clerk is eligible for promotion as Head Clerk and Junior Superintendent and Senior Superintendent etc. Taking into account the stagnation of the petitioners in the category of Upper Division Clerks they have been given the due grade promotions to higher posts and granted the scale of pay applicable to the category of Head Clerks and Junior Superintendent. In the absence of appointment by transfer to the cadre of Assistant Labour Officer Grade-II, the petitioners are not entitled to claim the grade promotions in the scale of pay applicable to Assistant Labour Officer Grade-I and Grade-II, viz., ie Rs. 5000-8150 and Rs. 6500-10550 respectively. 4. In the context of the contentions it is relevant to refer to the decision of this Court in State of Kerala v. Philomina reported in 2008 (1) KLT 666 (FB) and it reads thus :- "When concessions having financial implications are granted by the Government widening the scope of such concessions by judicial interpretation would invite unexpected burden on the public exchequer. Time bound higher grade is not a conditions of service guaranteed by statutory rules but a concession extended to employees who are stagnating in a particular post for want of regular promotion." In view of the aforesaid decision I am of the view that the petitioners cannot claim grade promotions after treating them as gone over to the cadre of Assistant Labour Officer Grade II and then grant the first and second higher grade promotions in the scales of pay attached to the post of Assistant Labour Officer Grade II and Grade I respectively ie., in the scale of pay of 75000-8150 and 26500-10550 respectively as long as they are continuing in the cadre of UD clerks and obtained higher grade promotions in the ministerial wing ie., in the scale of pay attached to the posts of Head Clerk and Junior Superintendents without any demur. So also, there is nothing on record to show that they had challenged the promotions effected to their juniors who did not opt for appointment by transfer as Assistant Labour Officer Grade II overlooking their seniority and based on their option for appointment by transfer as Assistant Labour Officer Grade II. Whether they could have succeeded in case of such challenge is another matter. Another aspect that requires consideration in this context is regarding their contention for deemed appointment by transfer for the purpose of granting them higher grades in the scales of pay attached to the posts of Assistant Labour Officer Grade I and Grade-II. Apart from its un-sustainability in the light of the decision in 2008 (1) KLT 666 it is unsustainable on another ground as well. The term 'Option' means simply choice or freedom of choice. It is a wish, power or right of election or power of choosing. In this case, option was to be exercised by senior Upper Division Clerks in the ministerial wing for appointment by transfer as Assistant Labour officer Grade-II in the Executive wing and the petitioners had opted for the same. However, there cannot be any dispute that therefore, despite option the chance of getting actuate appointment by transfer would invariably depends on the availability of vacancies in the said cadre. However, there cannot be any dispute that therefore, despite option the chance of getting actuate appointment by transfer would invariably depends on the availability of vacancies in the said cadre. In the absence of actual vacancies for such appointment by transfer, merely on the basis of option, the petitioners cannot contend that they should be deemed to have been gone over, rather, appointed by transfer as Assistant Labour Officer Grade-II solely for the purpose enabling to them to draw higher Grades in the scale of pay attached to the posts of Assistant Labour Officer Grades II and I. An option by itself cannot confer any such right unless it is ultimately materialised. They did not have a case that despite vacancies in the post of Assistant Labour Officer Grade II they were denied appointment by transfer. At any rate, a mere option unaccompanied by actual posting based on such option on account of non-availability of vacancies in the opted post cannot be a reason for a deemed appointment by transfer for the purpose higher grade promotions. The grade promotions are given as a concession and therefore the entitlement to such concession are governed strictly by the terms and conditions of the concerned Government Order. The petitioners did not bring to my attention any Government Order to substantiate their contention that despite their non appointment by transfer to the category of Assistant Labour Officer Grade-II they are entitled to get time bound higher Grade promotions in the scale of pay applicable to Assistant Labour Officer Grades-11 and I solely on the strength of the option exercised by them. As already noticed, taking note of their stagnation despite option they were admittedly given scale of pay attached to the post of Head Clerk and Junior Superintendents, in the ministerial wing. As already noticed hereinbefore, they accepted the same and did not challenge it or challenge the promotion of their juniors in the U.D cadre to the posts of Head Clerk and Junior Superintendents. When it is an admitted fact despite their option they were not appointed by transfer to the post of Assistant Labour Officer Grade-II on account of non-availability of vacancies they cannot legally claim that they should be deemed to have been gone over, rather appointed by transfer as Assistant Labour Officer Grade-II solely for the purpose of grade promotions. When it is an admitted fact despite their option they were not appointed by transfer to the post of Assistant Labour Officer Grade-II on account of non-availability of vacancies they cannot legally claim that they should be deemed to have been gone over, rather appointed by transfer as Assistant Labour Officer Grade-II solely for the purpose of grade promotions. They cannot contend that because of stagnation in that cadre and they are entitled to grade promotions in the manner explained above. Above all, the factual matrix would reveal that stagnation occurred only in the cadre of Upper Division Clerk and on account of that stagnation they were given their due time bound higher grade promotions. In this circumstances, I cannot find any illegality warranting interference with Ext.P 10 order. The Writ Petition is devoid of any merit and it is accordingly dismissed.