Kerala High Court
Subair T vs State Of Kerala on 18 February, 2020
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 18TH DAY OF FEBRUARY 2020 / 29TH MAGHA, 1941
WP(C).No.37379 OF 2016(R)
PETITIONER:
SUBAIR T
THELAPPURATH VEEDU, CHENBRAKKANAM, KALLAKOLLI,
THIMINI P.O, KASARAGOD 671 313.
BY ADVS.
SRI.K.M.ANEESH
SRI.ADARSH KUMAR
SRI.BIJU VARGHESE ABRAHAM
SRI.DILEEP CHANDRAN
SRI.K.SANTHOSH KUMAR (KALIYANAM)
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
2 HIGH COURT OF KERALA
ERNAKULAM 682 031, REPRESENTED BY ITS REGISTRAR,
SUBORDINATE JUDICIARY.
3 THE DISTRICT JUDGE
KASARAGOD 671 121
4 THE SUB JUDGE
KASARAGOD 671 121.
R1 BY GOVERNMENT PLEADER
R2-4 BY ADV. SRI.ELVIN PETER P.J.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
18.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.37379 OF 2016
2
JUDGMENT
Dated this the 18th day of February 2020 The petitioner is aggrieved by the denial of annual increments to him on 1st April of every year. Petitioner who entered service as a Process Server on 15.04.2005 in the last grade service, got promoted as Process Server (Higher Grade) on 01.04.2011. It is stated that he was thereafter transferred as Court Keeper to Munsiff Court, Kasargod on 15.11.2013. While so, as per Ext.P1 order dated 29.11.2013, he was appointed by transfer as Attender Grade II. The grievance of the petitioner is that on his appointment as Attender Gr II, he was denied increment on 1st April , the month in which he was drawing his increments since his initial appointment. On his appointment as Attender Grade II, increment was granted to him only in December 2014. He claims that his increment should have been granted on 01.04.2014 and subsequently in the month of April every year. In Ext.P2 representation dated 31.05.2014, he WP(C).No.37379 OF 2016 3 requested the Sub Judge, Kasaragod to fix his pay granting him increment with effect from 01.04.2014. The Sub Judge rejected his request as per Ext.P3 order dated 25.09.2014 stating that the petitioner was drawing pay in a higher time scale as Process Server (Higher Grade) as on the date of his appointment as Attender Grade II, which is in a lower scale of pay. It was stated that his pay was fixed under Rule 37(b) of Part I of KSR treating the difference of pay as personal pay to be absorbed in future increments. It was stated that there is no lower time scale in which annual increment is due on 01.04.2014, since he was already appointed in a higher time scale of pay to a lower scale of pay of Attender Grade II.
2. Hence, it was stated that increment can be sanctioned to him only after declaration of probation in the post of Attender Grade II. As per Ext.P5 order dated 29.11.2014, the High Court rejected his appeal stating that when transfer appointment is made to a post with a lower scale of pay, it is to be regulated under Rule 37(b) of Part I of KSR and therefore his pay WP(C).No.37379 OF 2016 4 was fixed protecting the pay in the former post and there is no provision to protect the date of increment in the former post.
3. The petitioner has challenged orders Ext.P3 and Ext.P5. According to him, he is entitled to annual increment on completion of every year in April. According to the learned Counsel for the petitioner under Rule 31 Part I of KSR, there is no provision for withholding or postponing increment except by way of punishment.
4. Respondents 2 to 4 have filed a statement reiterating their stand in the impugned order. It is stated that the post of Process Server is included in the Special Rules for Kerala Last Grade Service. The appointment to the post of Attender is by transfer of the Last Grade Servants as per Rule 4 of the Kerala Judicial Ministerial Subordinate Service Rules. As per the special rules, a person appointed to the Ministerial Subordinate Service rules, has to be on probation for one year. The petitioner also has to undergo probation in accordance with law under special WP(C).No.37379 OF 2016 5 rules. It is also pointed out that as a Process Server (Higher Grade) the petitioner was already drawing pay in the scale of pay of Rs.8,960-14,260 at the time of his appointment as Attender Grade II in the scale of pay of Rs.8,730-13,540. When he was appointed from a post carrying higher scale of pay to a post carrying lower scale of pay, his fixation of pay is governed by Rule 37(b), Part I of KSR. It is also stated that on his appointment 'by transfer' to the Ministerial Subordinate Service, his increment will be due only on completion of one year service in the new post and as per the provisions contained in Rule 31 Part I, KSR, the increment accrued consequent on declaration of probation shall be drawn only with effect from the date of completion of probation. It is also stated that the petitioner is not eligible for advance increment on his appointment as Attender Grade II as the petitioner's appointment was not a promotion from a lower post but a transfer from a post carrying a higher scale of pay to a post with a lower scale of pay.
5. Even though the petitioner has filed a reply WP(C).No.37379 OF 2016 6 affidavit stating that he is entitled to be granted increment and has claimed the benefit under Rule 37 B(b)(ii). It is not disputed that the post of Process Server (Higher Grade) is in the scale of pay of Rs. 8,960-14,260 and that his appointment was to the post of Attender Grade II in a lower scale of pay of Rs.8,730-13,540. When he is appointed as Attender Grade II under the method of 'by transfer' appointment the pay can be fixed only in accordance with Rule 37(b) Part I, KSR, which reads as follows:-
"In the case of officiating appointments from a higher time scale of pay to a lower time scale of pay, by direct recruitment, the officers officiating pay in the lower time scale shall be fixed at the minimum of the scale of pay of the new post without considering his pay in the higher time scale except in the case where such appointments are made in accordance with the special rules applicable to such appointment, the officers officiating pay in the new time scale shall be fixed at his officiating pay in the previous appointment, if it is a stage in the new time scale, or at the next lower stage, if WP(C).No.37379 OF 2016 7 it is not a stage in the new time scale, the difference being treated as personal pay to be absorbed in future increases. But nothing in this sub rule shall apply to cases of reversions."
6. It is also relevant to note Rule 33 (b)(1) which provides that service in another post " other than a post carrying less pay" shall count for increments in the time scale applicable to the post on which the officer holds a lien. Rule 31, which the petitioner relies on, also only provides: "an increment shall "ordinarily" be drawn as a matter of course unless it is withheld. Appointment to a post with lower scale does not happen ordinarily. W hen the petitioner is appointed as Attender Grade II in Ministerial Subordinate service, he will be entitled to the first annual increment only on completion of his probation in that service for a period of one year in that post. The contention of the petitioner that his date of increment cannot be altered on his appointment as Attender Grade II or that the appointment to the post of Attender Grade II is a promotion and therefore he is entitled to get annual increment from 1st April WP(C).No.37379 OF 2016 8 itself cannot be accepted. Increments can be drawn only in accordance with rules.
In the above circumstances, the writ petition is dismissed.
Sd/-
P.V.ASHA JUDGE AJ WP(C).No.37379 OF 2016 9 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1. COPY OF THE ORDER DATED 29.11.13 APPOINTING THE PETITIONER AS ATTENDER GRADE.
EXHIBIT P2. COPY OF THE REPRESENTATION DATED 31.5.14.
EXHIBIT P3. COPY OF THE ORDER DATED 25.9.14 PASSED BY THE 3RD RESPONDENT.
EXHIBIT P4. COPY OF THE APPEAL PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT P5. COPY OF THE ORDER DATED 29.11.14 PASSED BY THE 2ND RESPONDENT.