K J LUKA Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner in O. P. 6619/89 was a Workshop Foreman and that post comes under Kerala Technical Education Subordinate Service. ' Thereafter, the petitioner was appointed by transfer to the category of Workshop Superintendent of the Polytechnic which is the post falling under the Kerala Technical Education Service. By Ext. P1 proceedings, the provisional appointment of the petitioner was regularised with effect from 2nd September 1987. The scale of pay of Workshop Superintendent 'in Polytechnic is its. 750-1450 (pre-revised) and the pay of the petitioner was fixed in the minimum of the scale on Rs. 750-1450. In the final gradation list as on 31st December 1979 published in the Kerala Gazette No. 45, dated 13th November 1984, the petitioner was assigned rank No. 6. Serial numbers 2, 4 and 5 in that list is direct recruits.

(2.) Government issued Ext. P3 G. O. (Ms.) No. 489/79/ FAD., dated 1st August 1979 allowing the benefit of a Higher Grade with effect from 1st April 1979 to all non gazetted officers "who remain in the entry grade, without promotion in the normal course, on completion of 13 years of service in the entry grade. The benefit of Higher Grade allowed to non gazetted officers was extended to Gazetted Officers also from 1st July 1979 as per G. O. (P) 901/79/(-116)/Fin., dated 3rd October 1979. Subsequently, detailed instructions for implementation of the above orders were issued. Ext. P-4 is the detailed instruction dated 27th November 1979. Government. subsequently issued Ext. P5 Government Order ordering that the benefit of Higher Grade would apply also to all cases of appointments by direct recruitment either through Public Service Commission or through Employment Exchange. It also stated that a doubt was raised whether the appointment by transfer was qualified for higher grade and that thereafter examining the question in detail, the Government was pleased to order that the appointment by transfer will also be treated as equivalent to direct recruitment for allowing the benefit of Higher Grade. The 2nd respondent issued Ext. P-6 order dated 20th August 1982 granting Higher Grade to certain Workshop Superintendents appointed by direct recruitment with effect from 1st July 1979; The 2nd respondent issued proceedings granting Higher Grade to ten Lecturers/Heads-of Section in Polytechnics in the scale of Rs. 7.50-1450 who were appointed to the cadre by transfer in terms of G. O. dated 27th September 1984. The petitioner alleges that he completed 13 years of service in the category of Workshop Superintendent/Ist Grade Instructor (Mechanical) of Engineering Colleges in the State service by 1st September 1950 and, therefore, he was entitled to the benefits of Higher Grade on and from 2nd September 1980. The petitioner was not granted Higher Grade. He filed a representation dated 17th January 1986, before the 2nd respondent requesting to grant him higher grade on and from 2nd September 1980. As there was no response to the above representation, the petitioner was constrained to file O. P. No. 2503/1986 praying for a direction to the respondents to grant" him Higher Grade with effect from 1st September 1980. This Court disposed of the above Original Petition by judgment dated 3rd April 1936 ' directing the respondents to consider and dispose of the representation as expeditiously as possible. Thereafter, the 3rd respondent, by his letter dated 11th June 1986, informed the 2nd respondent that "appointments by transfer" involving the normal line of promotion in a department to be made on the basis of select list prepared by the Departmental Promotion Committee will not come under the purview of Ext. P-5 Government Order and the "transfer" is actually promotion from the feeder categories and the appointment is only technically termed as "appointment by transfer" since it involves transfer from subordinate service to State Service. Thereafter, the petitioner received a letter dated 6th July 1986 from the 2nd respondent. It stated that appointment of the petitioner, as Workshop Superintendent from the feeder category cannot be treated as direct recruitment in terms of Ext. P-8. In Ext. P9 it has been further ' stated that the orders already issued granting Higher Grade to certain Section Officers who are not direct recruits to the cadre are being reviewed. Thereafter, Ext. P10 order was issued stating persons mentioned therein were not eligible for the benefit of Higher Grade, and therefore, the orders issued granting Higher Grade to such persons were/cancelled with retrospective effect. The petitioner states that Ext. P10 order was challenged by certain affected persons in O. P. No. 5484/1986 before this Hon'ble Court. The petitioner also filed O. P. No. 7379/86 challenging Ext. P-8 and "Ext. P-10 orders. This Hon'ble Court disposed of the above Original Petition by a common judgment. This Hon'ble Court observed that the Government had not made up its mind as to whether it did really mean to confine upgradation only to such categories in which persons as were initially appointed in Government Service who had to stagnate for 13 years in that grade or post. This Court finally quashed Ext. P-8 and Ext. P-10 orders and directed the Government to take a decision in the matter after hearing the petitioners. Ext. P11 is the judgment. Pursuant to this direction, the matter was taken up for hearing. Subsequently the 1st respondent passed G. O. dated 8th December 1988 ordering that the petitioner in the Original Petition and those similarly placed are not eligible for Higher Grades sanctioned in the G. O. dated 27th November 1979. Ext. P12 is the order.

(3.) In this O. P, petitioner has challenged Ext. P-12 order which is patently illegal. It is pointed out that Ext. P-5 G. O. dated 27th September 1984 ordering that "appointment by transfer" will also be treated as equivalent to "direct recruitment" for allowing Higher Grade is not cancelled or modified.