C.P.U. Farook Shafi vs State of Kerala and Another

Arijit Pasayat, C.J.—An interesting question is raised in this Writ Appeal filed by a member of the Kerala Judicial Service. Question is from what date an officer is deemed to be in service, i.e., whether from the date of his order of appointment or the date he assumes charge.

Factual position is undisputed. By order dated 22nd March 1983, Government of Kerala appointed Appellant and five Ors. as District and Sessions Judges. Pursuant to that, this Court issued an order on 30th June 1983 posting him as Additional District Judge, Thrissur. He took charge on 25th July 1983. Pay scales of District and Sessions Judges were revised as per G.O. (P) 515/85/Fin., dated 16th September 1985. Pay revision was given retrospective effect from 1st July 1983. In the order revising scales of pay, it was stipulated that an incumbent in the post could exercise an option to remain in the pre-existing pay scale until a future date to be chosen by him. It was further stipulated that an employee whose scale of pay immediately prior to 1st July 1983 is revised, will be allowed to exercise option to remain in the existing scale until such date as considered necessary. Six months time was given to the employees to exercise such option. Appellant exercised option to continue in the scale of pay of District Judges that existed prior to 1st July 1983 for a future period and then to come to the revised scale of pay which came into force with effect from 1st July 1983. This claim of Appellant was turned down by Respondents on the ground that he was not a District Judge on 1st July 1983. Refusal was challenged in O.P. 4847 of 1989. Learned Single Judge rejected the petition holding that since Appellant was appointed as District and Sessions Judge after 1st July 1983 and on such appointment he came into the revised scale of pay which came into force with effect from 1st July 1983, his claim to continue in the pre-existing scale was misconceived.

In support of the appeal, it is stated that Appellant was appointed on 22nd March 1983. The fact that he took charge as Additional District Judge only on 25th July 1983 cannot take away the effect of his appointment. Learned Counsel for the State, on the other hand, submitted that until Appellant took charge, it cannot be said that he was a District Judge. Stand of Appellant was that he was entitled to salary from the date he took charge and for all practical purposes, he was a District Judge from the date of his appointment.

In our view, stand of Appellant is clearly untenable. It is accepted that Appellant was functioning as Subordinate Judge till he took charge on 25th July 1983. The relevant rules read as follows:

Rules for fixation of pay.-(1) An employee whose scale of pay immediately prior to 1st July 1983 is revised, will be allowed to exercise option to remain in the existing scale, whether substantive or officiating in the post, until such date as he considers necessary. A period of six months from the date of this order is allowed for the exercise of option. A specimen form for exercise of option is given in Appendix I.

(2) Where the pay of an employee has to be fixed in more than one post, option will have to be exercised separately in respect of each such post. If such an officer exercises option within the time limit only in respect of one scale, he will be deemed to have opted for the revised scale/scales with effect from 1st July 1983 in respect of the other scale/scales.

The Rule makes it clear that an employee, whose scale of pay immediately prior to 1st July 1983 is revised, was entitled to exercise option to remain in the existing scale. As on 1st July 1983, Appellant was not in the scale of pay of District and Sessions Judge. It is well-known that on assumption of office only a person holds the post. Mere order of appointment until assumption of charge does not make a person holder of the post. It is the Stand of Appellant that in the order of appointment there was no mention that he shall be deemed to be holding post from the date he assumes charge. That does not make any difference. In service law, a well established norm is that a person can be said to hold an office from the date he assumes charge and not before that date. Even on factual background, the undisputed position is that Appellant was functioning as Subordinate Judge till he assumed charge. Stand of the Appellant that only for purpose of fixation of scale of pay and drawl of salary that was relevant is a contention to be noted and rejected. A person cannot hold two posts-one post for one purpose and Anr. for Anr. purpose. Such a position is not conceivable in law. That being the position, the Writ Appeal is without any merit.

Writ Appeal is dismissed.