Shaffique, J. Since common questions arise for consideration in these appeals, they are decided together. W.A. No. 909/2008 is filed by the State and its authorities challenging the judgment of the learned Single Judge in W.P (C) No. 22543/2004, directing the respondents to fix the pay of the petitioners in the cadre of Special Grade Executive Engineer with effect from the date on which they took charge in the post. There was also a direction to give the consequential benefits to the petitioners and Ext. P10 dated 7.10.2003 was quashed to the extent of not including the name of the petitioners.
2. In W.A. No. 904/2012, which is against the judgment dated 30.1.2009 in W.P(C) No. 2251/2005, the learned Single Judge directed the petitioner to be given the benefit of Ext. P3 judgment by which a direction was issued to the respondents to sanction and disburse the amounts due to the petitioner as a result of the promotion to the cadre of Executive Engineer, to revise the pensionary benefits and to pay the arrears as expeditiously as possible.
3. The facts giving rise to these appeals can be summarized as under:
4. By Government Order, GO(MS) No. 43/9/PW &T dated 9.8.1996, a decision was taken to re-construct the service and re-distribution of posts in PWD with effect from 1.1.1996 into a 'seven tier' system. This decision was taken when it was noticed that there was acute stagnation faced by graduate Engineers and the structure then prevailing was a 'five tier' system. The change from five tier system to seven tier system was by including 2 cadres as Special Grade Assistant Executive Engineer and Special Grade Executive Engineer. The scale of pay was also fixed.
5. Pursuant to the aforesaid Government Order, a further order was issued as GO(MS) No. 46/98/PWD dated 20.6.1998 by which 74 posts of Executive Engineers were upgraded to the post of Special Grade Executive Engineers on provisional basis with effect from 1.1.1996 under Rule 31(a)(i) of the General Rules in Kerala State and Subordinate Service Rules. By the same order, 22 Executive Engineers were promoted as Special Grade Executive Engineers and 22 Assistant Engineers were promoted as Special Grade Assistant Executive Engineers. The seven tier system came to be challenged before this Court in a public interest litigation filed by one K.E. Mammen in O.P. No. 23889/2001. By an interim order dated 5.11.2001 in C.M.P.No. 54437/2001, this Court directed that no promotion to the posts on the seven tire promotion system shall be granted. By a further order dated 7.1.2002, the interim order dated 5.11.2001 was confirmed until further orders. However, it was observed that the order does not preclude the Government from granting normal promotion other than seven tier promotion system and does not preclude the Government from modifying, amending or rescinding the seven tier promotion system, as deemed fit. By judgment dated 28.2.2003 in O.P. No. 23889/2001, this Court took note of the fact that the Government had withdrawn the seven tier system. However, it was observed that persons who had already been promoted shall not be reverted. A review petition was filed by the State as R.P. No. 667/2005 and by order dated 23.6.2009, the Division Bench made it clear that the review petitioners will not be bound by the observation contained in paragraph 3 of the judgment to the effect that Government had decided not to revert the officers who had obtained promotion till 9.2.1996.
6. By order dated 7.10.2003, the Government revoked the seven tier system and observed that the same will be limited only to 13 persons named thereunder. It is in this background that several writ petitions came to be filed claiming the benefit of seven tier system and scale of pay fixed thereunder.
7. W.P(C) No. 22543/2004 was filed by two persons. The 1st petitioner claims to have been promoted as Special Grade Executive Engineer with effect from 1.1.1996. He retired from service on 31.5.1998. The 2nd petitioner was appointed as Executive Engineer with effect from 1.1.1996 and as Special Grade Executive Engineer with effect from 31.7.1997. Orders were issued pursuant to Government Order dated 20.6.1998. The 2nd petitioner retired on 30.11.1999. They made representations for fixation of pay scale on the basis of the promotions granted to them. The Government has subsequently withdrawn the order on 9.12.1996 as per Ext. P10 dated 7.10.2003. They claimed that their juniors were given the benefit of Ext. P10, which confined only to 13 persons. Hence, the writ petition is filed claiming that they should also be given the benefit of higher pay scale under the 7 tier system, which was extended to 13 persons mentioned in Ext. P10.
8. W.P(C) No. 2251/2005 has been filed by a person who retired as Executive Engineer on 31.12.2001. He was not included in the list prepared by the Government on 20.6.1998. He claims that he was also entitled to a higher pay scale as prescribed in Government Order dated 9.2.1996 and therefore sought for appropriate reliefs.
9. While allowing the above writ petitions, the learned Single Judge relied upon the judgment in W.P (C) No. 616/2004 and W.P(C) No. 2571/2004. In fact, an appeal was filed against the judgment in W.P(C) No. 616/2004 as W.A. No. 2462/2005. The Division Bench of this Court, by judgment dated 11.1.2010, dismissed the appeal filed by the State holding that the case of the petitioner was similar to the case of the petitioner in W.A. No. 2503/2005. In fact, W.A. No. 2503/2005 was a common judgment relating to a similar issue. The Division Bench, after considering the respective contentions of the parties, held in paragraph 5 as under:
“The 7 tier system was introduced in 1996. The 1st respondent was promoted in 1998. The Government decided to revoke the 7 tire system, but to protect the promotions ordered on 15.1.2003. Thereafter, only on 7.10.2003, a new decision was taken not to grant monetary benefits to those who were already promoted. We think, those decisions cannot have any bearing on the claim of the 1st respondent, who has already retired from service in 2000. Under Ext. P1, the 1st respondent got promotion. He has worked in the promoted post also till his date of retirement. Therefore, the appellants have a duty to pay him the salary in the promoted post and the 1st respondent has a legal right to claim that benefit.”
10. The learned Government Pleader has placed strong exception to the judgment of the Division Bench by contending that the factual aspects involved in the present writ petitions totally differ from that of the judgment in W.A. No. 2503/2005 and connected cases. Therefore a perusal of the facts in W.A. No. 2503/2005 will be useful. The petitioner in that case was promoted as per order dated 20.6.1998 as Special Grade Executive Engineer and he retired from service on 30.6.2000. During the relevant time, the promotion order and the 7 tier system were in force. The Division Bench held that the Government decisions revoking the seven tier system cannot have any bearing on the claim of the petitioner who had retired from service in 2000. Since he has worked in the promoted post till his date of retirement he was entitled for salary in the promoted post. Further, in respect of another category of petitioners in W.P.(C) No.27585/2006, who were not promoted as per order dated 20.6.1998, the Division Bench held that such persons are not entitled for any benefit as they were never included in the list published on 20.6.1998.
11. As far as the petitioner in W.P(C) No. 2251/2005 is concerned, he is not a person who has been promoted in terms of Government Order dated 20.6.1998. He had not been given any benefit of 7 tier system. Though he retired from service on 31.12.2001 as Executive Engineer, apparently, he was not included in the list prepared for promoting Assistant Engineer to the post of Executive Engineer under the 7 tier system. Facts being so, the judgment of the Division Bench in W.P(C) No. 27585/2006 applies to the facts of the case.
12. The learned Single Judge, however, relied upon Ext. P3 judgment and allowed the writ petition. Ext. P3 is the judgment in O.P. No.11211/2003, whereby the learned Single Judge disposed of the original petition directing the respondents to sanction and disburse amounts due to the petitioner as a result of his promotion to the cadre of Executive Engineer within three months. In fact, the contention in that case was that the petitioners were promoted as Executive Engineers under the 7 tier system. That is not the situation here. That apart, Ext. P3 judgment was dated 1st April, 2003. Subsequently, the Government had revoked the 7 tier system by order dated 7.10.2003. Therefore, Ext. P3 judgment could not have been made applicable at all. That apart, the Division Bench in W.P(C) No. 27585/2006 has categorically held that a person who is not promoted as per the notification dated 9.2.1996 cannot get the benefit of 7 tier system. Further, we are of the view that when a person is not promoted under the 7 tier system and the said system had been revoked by the Government, no further right will flow from the system which is not in existence. Therefore W.A.No.904/2012 is liable to be allowed.
13. The next question is regarding W.A. No. 909/2008. There is no dispute about the fact that the petitioners in this case were included in view of the notification dated 20.6.1998. The 1st petitioner was appointed as Special Grade Executive Engineer on 1.1.1996 as per order dated 20.6.1998. In fact, even before the order dated 20.6.1998 had come into force, the 1st petitioner had superannuated. Therefore, this is not a case in which he had worked as Special Grade Executive Engineer at any point of time. That apart, the order dated 20.6.1998 indicates that he was on deputation and was allowed to continue in that post. Such being the situation, there is factual difference with the judgment in W.A. No. 2503/2005 and the same cannot be made applicable to the 1st petitioner.
14. In regard to the 2nd petitioner, he was promoted as Executive Engineer effective from 1.1.1996 and as Special Grade Executive Engineer effective from 31.7.1997. He retired on 30.11.1999.
15. The Division Bench in W.A.No.2503/2005 proceeded on the basis that since the concerned employees have worked in the promoted post and retired before the Government order dated 7.10.2003, the Government has a duty to pay the salary in the promoted post. The argument of the learned Government Pleader is that certain pertinent factual materials were not placed before the Division Bench at the relevant time and that apart a mandamus cannot be issued based an an order which is not in existence. It is argued that only 13 persons were given the benefit of 7 tier system as per Government order dated 7.10.2003. Those persons had already obtained directions from this court and therefore such a classification was reasonable. Primarily it is evident that the promotions were given on provisional basis. This is evident from the paragraph 3 of the Government order dated 20.6.1998 placed before us. Their duties and functions were the same as that of Executive Engineers. Therefore it is clear that their appointments were provisional and there was no change in their duties or work. The salary in terms of the respective pay scale was not paid and later the Government revoked the order dated 20.6.1998. As rightly contended by the learned Government pleader, a mandamus cannot be issued based on an order which is already revoked unless the Government order dated 7.10.2003 is found to be arbitrary or discriminatory. It is evident that the benefit of seven tier system was given only to persons who had court orders in their favour. The said classification, we do not think is discriminatory or arbitrary in any manner. Such a decision was taken to avoid a huge liability that the Government may incur if the benefit is given to all the employees mentioned in the Government order dated 20.6.1998. Therefore, we are of the view that the judgment in W.A.No.2503/2005 cannot be treated as a binding precedent to give any benefit to the petitioners.
16. It is argued by the learned counsel for writ petitioners that several of their juniors obtained the benefit of higher scale of pay. It is not disputed that by virtue of court orders the benefit of seven tier system has been given to certain employees. But the question is whether the employees have a legal right to claim the benefit of an order which is already withdrawn by the Government. When the order dated 20.6.1998 has been withdrawn by subsequent orders it ceases to have any effect and can never be the basis of a legal right.
In the result, W.A. No. 909/2008 and W.A.No. 904/2012 are allowed, setting aside the judgment of the learned Single Judge and dismissing the writ petitions.
Sd/-
Ashok Bhushan, Ag. Chief Justice Tds/ Sd/-
A.M. Shaffique, Judge.