Posted On by &filed under High Court, Kerala High Court.

Kerala High Court
A. Raveendran vs The State Of Kerala on 11 March, 2010




OP.No. 32109 of 2002(V)

                      ...  Petitioner


                       ...       Respondent




                For Petitioner  :SRI.N.SUGATHAN

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice S.SIRI JAGAN

 Dated :11/03/2010

 O R D E R
                       S. SIRI JAGAN, J
                O. P. No.32109, 35776 of 2002
           W.P.(C) No.19235, 23810, 31213 of 2005
                   W.P.(C) No.15732 of 2006
           Dated this the 11th day of March 2010

                       J U D G M E N T

Since these cases raise the same issues, they are

disposed of by this common Judgment. For convenience, I

shall refer to the Exhibits as obtaining in O.P.No.32109 of

2002 unless indicated otherwise.

2. The petitioners in this original petition were

originally Junior Superintendents of the Registration Department

of the Government of Kerala. At the time relevant for this

judgment, the post of Junior Superintendents and Sub Registrars

carried the same scale of pay of Rs.1520-2660/-. Therefore, the

practice followed was that the seniors among the Junior

Superintendents would be posted as Sub Registrars. The next

higher post in the hierarchy was Senior Grade Sub Registrar, in

the scale of pay Rs.2000-3200/-. In view of the fact that, Junior

O.P.No.32109 of 2002


Superintendents and Sub Registrars carried the same scale of

pay and in view of the fact that the duties and functions of Sub

Registrars were superior to those of Junior Superintendents, it

became difficult for the Sub Registrars to manage the Junior

Superintendents. The Government wanted to find a solution to

this difficulty. Therefore, the Government decided to integrate

the posts of Sub Registrar, Senior Grade Sub Registrar, Chitty

Auditor and Cashier into one post by name Sub Registrar.

Accordingly by Ext.P1 order dated 20.5.1996 those posts were

unified into one post of Sub Registrar with the scale of pay of

Rs.2000-3200/-. Pursuant thereto, by Ext.P2 order dated

2.7.1996, 270 Sub Registrars, Chitty Auditors and Cashiers were

given placement as Sub Registrar in the scale of pay of Rs.2000-

3200/-. On coming over to the higher scale of pay of Rs.2000-

3200/-, they were given a fixation under Rule 28A of Part I of

KSR and their pay was fixed accordingly. But the Accountant

General by Ext.P5 raised an objection to the same, to the effect

that the fixation could not have been under Rule 28A but should

have been as per Ruling 2 under Rule 30 Part I of KSR applying

the provisions of Rule 37(a). Pursuant thereto, by Ext.P6, the

O.P.No.32109 of 2002


pay of the petitioners were refixed and petitioners were directed

to refund the excess amounts drawn by them consequent to the

earlier refixation under Rule 28A. The representation filed by

the Association espousing the cause of the petitioners met with

Ext.P8 rejection. Therefore, the Association and the 6th

petitioner in W.P.(C) No.31213 of 2009 filed O.P.No.32029 of

2001 before this Court, in which by Ext.P1 judgment, this Court

directed the Government to reconsider their claim for fixation

under Rule 28A. Accordingly the Government reconsidered the

matter and passed Ext.P10 order. The operative portion of the

same reads thus :-

“Government have therefore reconsidered the matter in
the light of the report of the Inspector General of
Registration and the direction of Hon’ble High Court
and are pleased to order that the Sub Registrars who
were placed in the scale of Rs.2000-3200/- consequent
on the unification of the scales will also be given the
benefit of fixation under Rule 28A part I Kerala Service

3. Subsequently the Government issued Ext.P14

clarification to the Accountant General clarifying that by Ext.P10

the Government intended to give only the fixation as provided

under Rule 28A and not the refixation contemplated by the last

O.P.No.32109 of 2002


sentence of Rule 28A. It is aggrieved by the same that the

petitioners have approached this Court seeking the following

reliefs :-

“i) to issue a writ of certiorari or any other appropriate
writ or order quashing Ext.P5 in so far as it directed to
refix the pay of the petitioners;

ii) to issue a writ of certiorari or any other appropriate
writ or order quashing Exts.P6, P6(a), P6(b), P7 and P7


iii) to issue an appropriate writ or order declaring that
the petitioners are entitled to draw pay and allowances
on the basis of Exts.P3 and P4 pay fixation orders;

iv) to say all proceedings pursuant to Exts.P6, P6(a), P6

(b), P7 and P7(a) for recovery of excess pay and
allowances already disbursed to the petitioners;

v) to issue a writ of certiorari or any other appropriate
writ or order quashing Ext.P14;

vi) to issue a writ of mandamus or any other
appropriate writ or order directing the 3rd respondent
to refix the pay of the 1st petitioner with effect from
1.2.2003 and 1.7.2004 on the basis of the pay fixed in
Ext.P3 and to grant the 1st petitioner all the
consequential benefits;

vii) to issue a writ of mandamus or any other
appropriate writ or order directing the 4th respondent
to fix the pay of the petitioner in the revised scale of
pay of the post of District Registrar with effect from
25.4.2005 and to issue pay slip so as to enable the
petitioner to draw the salary in the post of District

viii) to issue a writ of mandamus or any other

O.P.No.32109 of 2002


appropriate writ or order directing respondents 2 and 4
to revise the pensionary benefits admitted and
sanctioned to the 1st petitioner as per Ext.P11 and to
grant him all consequential benefits :

4. Counter affidavits have been filed by the respondents

supporting Ext.P14. According to the learned Government

Pleader, actually the petitioners got a windfall, in so far as by

this unification process, the petitioners actually attained what in

normal course would have taken them years to attain. In other

words, had they continued as Sub Registrars without the

unification, it would have taken years for them to get promoted

as Senior Grade Sub Registrars. According to the learned

Government Pleader, Rule 28A as such is not applicable to the

petitioners in these cases since the process of unification by

Ext.P1 was not a situation contemplated in Rule 28A. It was

neither a promotion nor an appointment to a post carrying a

higher scale of pay. It was only a unification of two posts having

two scales of pay into one post bearing one scale of pay, which

cannot be treated as an appointment or promotion to a post

carrying a higher time scale of pay contemplated in Rule 28A.

Therefore, the petitioners are not as of right entitled to a fixation

O.P.No.32109 of 2002


of under Rule 28A. But taking into account the peculiar facts

and circumstances of the case, as directed by this Court in

Ext.P9 judgment the Government reconsidered the matter and

decided to confer the benefit of Rule 28A on the petitioners,

which they were not actually entitled too. In that process the

Government decided to grant them only fixation under Rule 28A,

but not the refixation under that Rule, is the contention raised.

The reasoning put forward by the Government is that, once the

post of Sub Registrar is abolished to make Sub Registrar and

Senior Sub Registrar into one unified post, there is no post

carrying a lower scale of pay for the petitioners for enabling

them to get a refixation of pay as contemplated in the latter part

of Rule 28A. Therefore according to the learned Government

Pleader, the petitioners are not entitled to the reliefs prayed for.

5. The petitioner in W.P.(C) No.31213 of 2005 pointed

out that, in that writ petition, in paragraph 14, cases of Sri. C.

Raveendran, Sri. Sasankan P.K., Smt. Ammini G., Sri. Johnson

P.J., Smt. V. Radhamony and Sri. A. Raveendran who were

similarly placed like the petitioners and were given both the

fixation and refixation under Rule 28A have been quoted and in

O.P.No.32109 of 2002


paragraph 25 of the counter affidavit filed in that writ petition,

the Government had admitted that they had been given both the

benefits and that they were situated identically like the


6. The explanation by the learned Government Pleader

for the same is that although the same is true, it escaped the

notice of the Government and only when the case of the

petitioners were pointed out by the Accountant General the

Government realized the mistake and decided to take corrective

action. According to the learned Government Pleader, the grant

of such benefits wrongly to some persons cannot be a ground for

the petitioners to claim the same benefit as of right on the

ground of negative discrimination.

7. I have considered the rival contentions in detail.

8. I will consider the question as to whether the

reasoning given in Exts.P1 and P14, for limiting the benefit of

the petitioners to fixation under Rule 28A and deny refixation

under that Rule is sustainable.

9. The reasoning given in Ext.P14 is that as per Rule

28A, such refixation benefit is applicable only when there is a

O.P.No.32109 of 2002


lower post and in the case of the petitioners, there is no lower

post in so far as the post of Sub Registrar ceased to exist. I am

of the opinion that this reasoning is based on a fallacious

understanding of Rule 28A. The said Rule reads thus :-

“28A. Notwithstanding anything contained in these
rules, where an Officer holding a post in a substantive,
temporary or officiating capacity is promoted or
appointed in a substantive, temporary or officiating
capacity to another post carrying a higher time-scale of
pay, his initial pay in the higher time-scale of pay shall
be fixed at the stage next above the pay notionally
arrived at in the lower time-scale of pay by increasing
the actual pay, drawn by him in the lower time-scale by
one increment. [A refixation of pay will be allowed
whenever there is a change of pay in the lower time-

scale.] *

On a reading of that Rule, I do not find any reference to a lower

post therein. On the other hand, what is contemplated in the

Rule is only a lower time-scale. That lower time-scale is relating

to the Officer who claims fixation under Rule 28A. In these

cases, the petitioners had a lower-time scale of pay and

continues to have a lower time-scale of pay, notwithstanding the

fact that the post in which they held that lower-time scale of pay

ceased to exist. What is contemplated in Rule 28A is only change

from a lower-time scale of pay into higher time-scale of pay.

O.P.No.32109 of 2002


Here nobody can dispute the fact that the petitioners had gone

over to a higher time-scale of pay from a lower-time scale of pay.

Therefore, as far as the petitioners are concerned,

notwithstanding the abolition of post of Sub Registrar, which

they held earlier, they continue to have both a lower time-scale

of pay and a higher time-scale of pay for the purpose of Rule

28A. Therefore, I do not think that on the reasoning given in

Ext.P14, the refixation contemplated in Rule 28A can be denied

to the petitioner.

10. The learned Government Pleader would submit that

the benefits under Rule 28A was not given to the petitioners as

of right. She points out that the original fixation under Rule 28A

granted to the petitioners was objected to by the Accountant

General on the ground that the fixation should have been under

Rule 30 and 37(a). Therefore, according to her, Ext.P10 should

be construed in such a way as to limit the benefit under Rule

28A to the petitioners only to the extent of fixation and not

refixation. I do not think that the Government can put such a

restriction for the benefit of Rule 28A. After having decided to

give the petitioners benefit under Rule 28A they cannot now hold

O.P.No.32109 of 2002


that they will give only benefit of the 1st part of the fixation and

would not give the benefit of the refixation in the 2nd part. In

fact in the case of similarly placed Sub Registrars, in

O.P.No.2071 of 2003, I had directed that similarly placed

persons whose fixation was sought to be changed should be

given restoration of the original fixation benefits under Rule 28A.

That means the benefit of whole Rule 28A. In that case, both

benefits under Rule 28A were given to the petitioners.

11. In view of my above finding I do not think it necessary

to go into the other questions involved because the above finding

would conclusively decide the lis between the parties.

Accordingly, I hold that as per Ext.P10 the petitioners are

entitled to the whole benefit of Rule 28A including the refixation

benefit in the latter part of the Rule. The petitioners’ pay shall

be refixed accordingly in all stages and their retirement benefits

shall be recomputed consequently since they have retired from

service. Orders in this regard shall be passed as expeditiously as

possible at any rate within three months from the date of receipt

of a copy of this judgment. Arrears payable consequent thereto

shall be disbursed within another one month. Needless to say,

O.P.No.32109 of 2002


those of the petitioners who have obtained further promotion

would be entitled to normal refixation of pay in the promoted

post also consequent to the refixation under Rule 28A as

directed above.

12. The petitioners have got another case that they were

not given the benefit of fixation of pay consequent to the general

pay revision order issued under G.O.(P) 145/06/Fin dated

28.03.2006 with effect from 01.07.2004. If any of the petitioners

have been denied the benefit of that pay revision order/orders in

respect of the same shall also be passed and arrears disbursed

within the periods as directed above. Consequently the

impugned orders in all the writ petitions are quashed.

The Original Petitions/Writ Petitions are disposed of as




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