IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27779 of 2008(R)
1. N.VELAPPAN,SECTION OFFICER/COURT OFFICER
... Petitioner
2. ALEX MATHEW, SECTION OFFICER/COURT
3. V.SUDHAKARAN, SECTION OFFICER/COURT
4. MEENA.B.NAIR, SECTION OFFICER/COURT
5. V.S.AJITHKUMAR, SELECTION GRADE
6. S.AJITHKUMAR, SELECTION GRADE ASSISTANT,
7. G.PADMAKUMAR, SELECTION GRADE ASSISTANT,
8. G.SREEKUMAR, SELECTION GRADE ASSISTANT,
9. SHANAVAS KHAN, SELECTION GRADE ASSISTANT
10. KERALA HIGH COURT STAFF ASSOCIATION,
Vs
1. STATE OF KERALA, REPRESENTED BY ADDL.
... Respondent
2. THE HIGH COURT OF KERALA, ERNAKULAM,
For Petitioner :SRI.K.JAJU BABU
For Respondent :SRI.KRB.KAIMAL (SR.)
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :22/09/2009
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NOS.27779 & 36804 OF 2008
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Dated this the 22nd day of September, 2009
J U D G M E N T
The claim made in these writ petitions being similar, the
cases were heard together and are disposed of by this common
judgment.
2. For sake of convenience, I shall refer to the facts as
pleaded in WP(C) No.27779/08.
3. There are nine petitioners in this writ petition. They
were appointed in the High Court Service by direct recruitment,
during the period 1993-1995. Prior to their joining High Court
Service, they have rendered services under various Government
Departments and it is their case that on joining High Court
Service, they were given pay protection.
4. While continuing as such, by GO(P) NO.145/06/Fin
dated 25th of March 2006, pay revision was ordered to the
Government employees, Clause 5 of which provided for service
weightage. Subsequently, the Government issued GO(MS)
No.230/06/ dated 26/12/2006 ordering pay revision to the High
Court employees. This order contained Clause 6, which made
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applicable Clause 5 of GO(P) No.145/06/Fin. as well.
5. Once the pay was revised as above, although the
petitioners did not claim the benefit of service weightage for their
service under the Government in terms of the Government Order,
they submitted Exts.P1 and P2, claiming that they are entitled to
service weightage in terms of Rule 37(b) of Part I KSR. That was
considered and rejected by Ext.P3 stating that in view of the
decision of this Court in Jayasree v. State of Kerala (2002(3)
KLT 803), the petitioners were not eligible for the benefit claimed.
6. They again submitted Ext.P7 representation relying on
Exts.P4 to P6. That also was considered and was rejected by
Ext.P8 order informing that the Hon’ble Chief Justice has ordered
to reject the first petitioner’s submission in the light of the
aforesaid judgment. First petitioner thereafter pursued the
matter by filing Ext.P9 appeal under Rule 27 of the Kerala High
Court Service Rules, 2007. That was also considered and was
rejected by Ext.P10 order.
7. It is thereupon that this writ petition is filed praying to
quash Exts.P3, P8 and P10 and also to declare that the judgment
in Jayasree’s case is not applicable to the claims made by the
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petitioners. A direction to the respondents to grant the benefits in
lieu of their service under the State Government prior to joining
Kerala High Court Service is also sought for.
8. The contention raised by the counsel for the petitioner
is that in view of Rule 37 of the Kerala High Court Service Rules,
the provisions of the Kerala Service Rules have been adopted and
that the said rule shall govern the members of the High Court
Service. It is therefore stated that having adopted KSR, the
petitioners are eligible for the weightage as provided under Rule
37(b) of Part I KSR. It is stated that in any event, if at all any
clarification is necessary, the matter shall be referred to the
Government as required under Rule 4 of Chapter 1, Part I KSR. It
is on this basis the prayers are sought for.
9. On behalf of the 2nd respondent, it is contended that
the claim made is inadmissible. It is stated if at all service
weightage is admissible, it can be claimed only in terms of the
provisions contained in GO(MS) No.230/06 read with GO(P)
No.145/06. It is also the case of the 2nd respondent that Rule 37
of KSR by itself is inapplicable as clarified by this Court in the
judgment in Jayasree’s case. On behalf of the 1st respondent, it
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is contended that weightage can be claimed only in terms of the
pay revision order and that the General Rules cannot be made
applicable.
10. As already stated, the claim of the petitioners is on the
basis that KSR having adopted, by virtue of Rule 37 of Kerala High
Court Service Rules, they are eligible for the benefit of Rule 37(b)
of Part I KSR.
11. The effect of Rule 37 has already been considered by
this Court in Jayasree’s case, in which, in para 9 to 12, it has
been held thus:
9. From the aforesaid provisions of the High Court
Service Rules, 1970, it is clear that so far as the
members of the High Court services are concerned their
conditions of service, pay and allowances, pension,
leave or any of them are governed by the provisions of
the Kerala High Court Services Rules. It is also clear
that the Kerala Service Rules issued by the Governor in
exercise of the powers vested in him under Art.309 of
the Constitution is not applicable to the members of the
High Court Service on its own force. The provisions of
the Kerala Service Rules, Kerala State and Subordinate
Service Rules. Government Servants’ Rules, etc., are
made applicable to the members of the High Court
service only by adoption of the said Rules by R.35 of the
Kerala High Court Service Rules. In other words, the
Kerala Service Rules in its own force has no application
to the members of the High Court Service and that it is
only by virtue of R.35 of the Kerala High Court Service
Rules the provisions of the Kerala Service Rules apply to
the said members. This being the position in law R.37(b)
of Part I K.S.R will not apply to the members of theWPC 27779 & 36804/08
:5 :Kerala High Court service when they are appointed in
the services of the State Government on the advice of
the Kerala Public Service Commission.
10. The contention of the petitioners, as already
noted, is that the qualification prescribed for
appointment to the post of Assistant Grade II in the High
Court service and to the post of Assistant Grade II in the
Government Secretariat are one and the same, viz.,
graduation, that the scales of pay of the said two posts
are also identical, that both the members of the High
Court service and the members of the Secretariat
service are governed by the provisions of the Kerala
Service Rules and that the members of the High Court
service are also holding public offices and as such they
are persons appointed to public service and posts in
connection with the affairs of the State.
11. The Supreme Court in Chief Justice, A.P. v.
L.V.A.Dikshitulu (AIR 1979 SC 193) in the context of the
provisions of Art.371-D,Cl.(3), sub-cls.(a), (b), (c) and
the provisions of the Andhra Pradesh Administrative
Tribunal Order 1975 D/-19.5.1975 considered the
question as to whether the phrase “Civil Service of the
State” will take in the members of the staff of the High
Court or of the Subordinate Judiciary and held that the
posts held by the High Court staff or by the Subordinate
Judiciary were adivsedly excluded from the purview of
Cl.(3) of Art.371-D. So there is no merit in the
contention of the petitioners that the members of the
High Court service have to be treated as members of
the civil service of the state.
12. As already noted the provisions of the Kerala
Service Rules by its own force apply only to Government
servants. The members of the High Court service can
never be treated as members of the Government
service. The provisions of the Kerala Service Rules have
been made applicable to the members of the High Court
service only by R.35 of the Kerala High Court Service
Rules issued by the Chief Justice. In order to apply R.37
(a) and (b) of Part I K.S.R, the appointments
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contemplated therein must be from one post in the
Government service to another post in the Government
service. Admittedly the said situation did not arise in
this case. As such the first respondent was not justified
in fixing the pay of the petitioners on their appointments
as Assistant Grade II in the Government Secretariat on
the advice of the Kerala Public Service Commission by
applying R.37(b) of Part I K.S.R.
12. A reading of the judgment shows that the
appointments as provided in Rule 37 must be from post in the
Government service to another post in the Government service.
Even if it is accepted that the said rule is applicable to the
petitioners, by virtue of its adoption, the Rule has to be
understood as appointment from one post in the High Court
Service to another post in the High Court Service. In so far as the
case of the petitioners are concerned, their appointment was from
one post in the Government service to the High Court Service. In
any case, by no stretch of imagination, can this Rule apply to
appointment from Government service to High Court Service. If
so, the claim of the petitioners set up on the basis of Rule 37 Part
I KSR is totally devoid of merit.
13. The other contention raised by the counsel for the
petitioners is for a reference as provided under Rule 4 Part I KSR.
This rule provides that if any doubt arises as to whether these
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rules apply to any person, the matter shall be referred to the
Government and the decision of the Government shall be final.
First of all, this provision takes in a case where a doubt is
entertained by an authority subordinate to the Government. In
such a case, the Rule requires that instead the Subordinate
resolving the doubt shall refer the matter to the Government,
whose clarification will be final. As already noticed, this Rule is
applicable to those in the High Court Service by virtue of its
adoption. If that be so, as against the term ‘Government’
mentioned in the Rule, it should be read as ‘Chief Justice’. If that
be so, the reference at best can only be to the Chief Justice and
not to the Government. In any case, the Chief Justice cannot be
said as an authority subordinate to the Government in order to
confer a reference under Rule 4. In this case, the impugned
orders show that the matter was referred to the Chief Justice.
Therefore, there is no question of reference to the State
Government.
14. I also find force in the submission of the learned senior
counsel appearing for the 2nd respondent and also the learned
Government Pleader that weightage can be claimed only in terms
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of the provisions of GO(MS) No.230/06, Clause 6 of which makes
applicable to the service weightage as provided in Clause 5 of GO
(P) No.145/06. It is also pointed out that in the Division Bench
judgment in OP No.3365/03 and connected cases, a similar claim
was raised and that the same has been answered in the following
words:
When the pay revision order does not specifically
include a particular service for the purpose of
weightage, it cannot be counted for granting the said
benefits. If it is not stated that the aided school service
shall be reckoned for weightage, it cannot be counted.
One can draw a benefit only when there is permission in
the order. Therefore, the view of the learned Single
Judge, that objection raised by the Accountant General
is not justified, cannot be supported.
Similarly in the judgment of the Division Bench in WA No.1521/09,
an identical claim has been negatived in the following words:
The appellant was not able to show any rule or order
which binds the Government to count the service
under the Central Government also for granting
pensionary benefits. Where there is a right, there is
a remedy. In the absence of any right, no relief can
be granted to the appellant. So, we find no reason to
interfere with the judgment under appeal.
As already stated, para 5 of GO(P) No.145/06/Fin provides for
service weightage. Petitioners have no case that they satisfy the
requirements of the said provision. On the other hand,
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admittedly, they are ineligible of the same and it is therefore they
are attempting to take refuge under Rule 37 of Part I KSR.
15. In my view, the entitlement of the petitioners cannot
go beyond the provisions of the Government order, for which,
admittedly they are ineligible. In such circumstances, I see no
merit in the contentions raised and WP(C) No.27779/08 will stand
dismissed.
In the light of the judgment in WP(C) No.27779/08, WP(C)
No.36804/08 will also stand dismissed.
ANTONY DOMINIC, JUDGE
Rp