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2019 DIGILAW 569 (KER)

State Of Kerala v. P. K. Ponnamma

2019-07-17

K.VINOD CHANDRAN, V.G.ARUN

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JUDGMENT : Vinod Chandran, J. These appeals are by the State, against a common judgment of the learned Single Judge. The claim raised before the learned Single Judge was for the 4th Higher Grade, determining the years of service from the date of appointment to the entry post as per the 9th Pay Revision. The party respondent in W.A.No.746 of 2019, relied on Exhibit P2, which is a proceeding issued on the basis of the 9th Pay Revision. 2. On facts, we have to notice that all the respondents-writ petitioners were appointed as Last Grade Servants and then appointed, by-transfer as per the Mahatma Gandhi University Statutes, 1997 - Chapter 45, Part-C, Rule 44, as Lab Assistants. The relevant dates of first appointment as Last Grade Servants and the date of by-transfer appointment as Lab Assistants are to be necessarily noticed: W.A.No.746 of 2019 Sl. No. Name First appointed as Last Grade Servant Appointed by-transfer as Lab Assistant 1 T.C.Abraham 11/10/85 01/12/92 W.A.No.705 of 2019 Sl. No. Name First appointed as Last Grade Servant Appointed by-transfer as Lab Assistant 1 P.K.Ponnamma 03/06/83 06/06/87 2 N.G.Varghese 05/04/84 01/06/87 3 Benny Varghese 11/11/88 01/07/89 4 George Job 01/10/82 01/01/93 5 Johny Thomas 25/10/82 14/10/87 6 Narayanan Bahadur 17/03/88 01/02/95 7 A.P.Ashraf 10/12/84 15/01/93 8 N.Subhaitha Beevi 13/12/84 18/01/93 3. The respondents-writ petitioners are persons who were granted the 1st, 2nd and 3rd Higher Grade on a time bound manner on completion of specified years of service as a Lab Assistant. Some of the respondents-writ petitioners had retired by the time they filed the writ petition and the others were in service. The claim was that their 4th Higher Grade has to be granted from the date of first entry into service, i.e., as Last Grade Servants. 4. The learned Counsel appearing for the respondents-writ petitioners has produced before us Annexure-III of the 9th Pay Revision Order, which speaks about the “Scheme for Time Bound Higher Grade Promotion”. According to him the entry post can only be the first appointment. We specifically notice Clause (14), which is extracted hereunder: “(14) The term 'entry post' shall be defined as the post to which an employee is initially appointed to Government service by direct recruitment by the competent authority. Appointments made by PSC by transfer from other categories will also be treated as equivalent to direct recruitment for allowing the benefit of higher grade. Appointments made by PSC by transfer from other categories will also be treated as equivalent to direct recruitment for allowing the benefit of higher grade. However, promotion to a post in the direct line of promotion in a Department to be made on the basis of select list prepared by the Departmental Promotion Committee, cannot be treated as direct recruitment for allowing the benefit of time bound higher grade. The time bound higher grade admissible will be determined with reference to the initial entry post in the present department only. Service in different posts having same scale will not be treated as qualifying service. Similarly in the case of employees who get inter departmental transfer (interdepartmental transferees), their prior service in the same post in the former department may also be reckoned as qualifying service for time bound higher grade. Those who get regular promotion or appointment to higher posts within the period specified for each time bound higher grade may not be granted further time bound higher grade during that period”. 5. As per Clause (14), the term 'entry post' is defined as a post to which an employee is initially appointed by direct recruitment by the competent authority in Government service. Appointments made by PSC by-transfer from other categories are also treated as equivalent to direct recruitment for allowing the benefit of higher grade. Higher Grade, we have to notice, is a benefit conferred on employees who stagnate in a certain post for long years. Here, after entry into Government service as Last Grade Servants, the party respondents were all appointed, by-transfer as Lab Assistants. This appointment to a post having higher scale of pay should normally erase any grievance of stagnation. But, the Government was of the opinion that even stagnation in such higher post, which is akin to a last grade post should be conferred with benefit of higher grade on subsequent stagnation in that post. Hence, a by-transfer appointment has also to be treated as equivalent to direct recruitment for allowing the benefit of higher grade. Otherwise the party respondents herein would be dis-entitled from getting a higher grade, by reason only of the by-transfer appointment. They could not contend that they are stagnating in the entry post. Hence, a by-transfer appointment has also to be treated as equivalent to direct recruitment for allowing the benefit of higher grade. Otherwise the party respondents herein would be dis-entitled from getting a higher grade, by reason only of the by-transfer appointment. They could not contend that they are stagnating in the entry post. Hence, the time bound higher grade has to be computed from the time of the by-transfer appointment and not from the time of initial appointment or the first appointment as a Last Grade Servant. 6. In fact, we have to note that the specific averment of the respondent in W.A.No.746 of 2019 in the writ petition was that he was granted the 3rd Higher Grade on completion of 22 years of service with effect from 01.02.2014, i.e., computing the period from the date of his by-transfer appointment as Lab Assistant on 01.02.1992. If his claim for consideration of the 4th Higher Grade on the basis of his first appointment is to be allowed, then he would have been entitled to such 4th Higher Grade in 2012 itself, since his first appointment was on 11.10.1985. Obviously he had not claimed for such a benefit at that point of time. Identical anomaly stares at our face, on consideration of the relevant dates, in the case of other appellants too, as tabulated hereinabove. 7. We find that all the respondents-writ petitioners were appointed by-transfer to the post of Lab Assistant and they are also persons who had qualified in the test conducted by the PSC, which alone enables their continuance in the post of Lab Assistant. The 4th Higher Grade, even as per the 9th Pay Revision, can only be from the date of by-transfer appointment, in the case of the respondents herein, from the date of appointment as Lab Assistants. We find the judgment of the learned Single Judge to be not in accordance with the Pay Revision Order. We, hence, set aside the judgment of the learned Single Judge and allow the appeals of the State. Parties are left to suffer their respective costs.