VIJAYAN WARRIER Vs. DIRECTOR OF TECHNICAL EDUCATION

JUDGEMENT

(1.) Petitioner was a Lecturer in the N.S.S. Engineering College. He was promoted provisionally as Assistant Professor in the scale of Rs. 850-1440. He continued in that post from 1-10-1977 to 31-7-1978. He suffered reversion from 1-8-1978 to 16-7-1979. He was again promoted as Assistant Professor on 17-7-1979 and he continued as such up to 11-5-1980. After reversion, he was further promoted as Assistant Professor on 6-2-1982. By the time he was promoted as Assistant Professor the second time, the scale of salary applicable to that post had been revised to Rs. 1125-1725. He was given the minimum of the scale on his temporary promotion. Petitioner submits that he is entitled to increments on completion of 12 months of service excluding broken periods and periodic enhancement in his salary on completion of one year each. He filed Ext. P1 requesting for grant of first increment in the scale of Rs. 850-1440 as on 17-9-1979, a second increment on 12-5-1980, and a 3rd increment on 1-6-1983. According to him, his salary ought to have been fixed at Rs. 1245/- as on 11-6-1982 and at Rs. 1,305/- as on 1-6-1983 with the usual dearness and other allowances. In Ext. P2, the Director of Technical Education informed the petitioner through the Principal of the College that his request would be considered only on production of necessary evidence to make out his promotion, declaration of probation, etc. Petitioner sent a further representation, Ext. P3, reiterating his claim for the first increment on 17-9-1979, second increment on 6-6-1982 and a third increment on 1-6-1984. The relief which the petitioner seeks is the issue of a writ of mandamus directing the respondents to immediately grant the petitioner the increments which fell due from 1-10-1977 till date and fix his pay accordingly and disburse to him the new pay so fixed with arrears from 1-10-1977.

(2.) The relevant rules which governs fixation of pay are R.28 and 28A Part I of the Kerala Service Rules. The substantive pay which the petitioner was drawing as Lecturer at the time of his first promotion on 1-10-1977 was less than the minimum in the scale of Rs. 850-1440. His initial pay in the higher time scale was, therefore, fixed at the minimum in the scale of Rs. 850-1440. R.31 Part I of the Kerala Service Rules deals with increment and provides that increment, shall ordinarily be drawn as a matter of course unless it is withheld. R.33 lays down conditions on which service count for . increment in the time scale. Clause (a) provides that all duty in a post on a time scale counts for increments in that time scale. It is clear that the duty rendered by the petitioner in the post of Assistant Professor shall count towards increment irrespective of the fact that he was reverted during the period from 1-8-1978 to 16-7-1979 and again from 12-5-1980 to 5-2-1982. Duty for a period of 12 months was completed in the salary scale of Rs. 1125-1725 with effect from 1-7-1978. The petitioner was, therefore, entitled for one increment in the scale of Rs. 1125-1725 on completion of one year of service inclusive of the nine months from 1-10-1977 to 31-7-1978. He is entitled to further increment on completion of every subsequent period of one year of duty in the scale of Rs. 1125-1725.

(3.) In the counter affidavit it is submitted that the petitioner is not entitled to count the period of his service in the time scale of Rs. 850-1440 for purpose of increment in the scale of Rs. 1125-1725, in view of the ruling in R.33 Part I of the Kerala Service Rules as follows: