Litty K. vs State of Kerala

Antony Dominic, J.—Appellant, who was appointed as Head Clerk in the Court of the Chief Judicial Magistrate as per Ext.P4 order dated 4.10.2002 and governed by the Kerala Judicial Ministerial Subordinate Service Rules, 1975, hereinafter referred to as the "Rules", is aggrieved by the judgment of the learned single Judge dismissing WP(C)No.33336/2010 filed by her, claiming the benefit of one advance increment provided as per the pay revision order issued on 25.9.1993.

We heard the learned counsel for the appellant, learned Government Pleader for the first respondent and also the learned standing counsel for the second respondent.

The appellant joined service as a Lower Division Clerk on 3.4.1982. Subsequently, by Ext.P4 order dated 4.10.2002, she was appointed as a Head Clerk. In the pay revision order dated 25.9.1993, it was specified that, when employees like the appellant are promoted, they will be entitled to the benefit of one advance increment. She claimed the said benefit on the basis that her appointment to the post of Head Clerk was by promotion. That claim having being been declined, this she filed the writ petition and on its dismissal, this appeal is filed.

The Special Rules which govern the appointment provided that, the post of Head Clerk in the Court of the Chief Judicial Magistrate is to be filled up by promotion from the feeder category. Subsequently, by Ext.P2, the Rule was amended and instead of promotion, the method of filling up of the post of Head Clerk was specified as ''appointment''. This position continued until Ext.P3 was issued on 21.1.2006 again amending the rule and making the method of appointment by transfer. The aforesaid provision of the Rule shows that, on 4.10.2002, when the appellant was appointed as Head Clerk, the method of filling up of the post was appointment and not appointment by way of promotion. Therefore, the appellant is not entitled to the benefit of pay revision order which is available only to those who are promoted. Learned senior counsel contended that one of the method of recruitment is appointment by way of promotion. Therefore, according to him, the appointment of the appellant to the post of Head Clerk should also be taken as a case of promotion.

We are unable to accept the contention for the reason that, a reading of Ext.P2 would show that, for filling up of the post of Head Clerk, the first method was appointment from Category 2 (d). The Rule further provided that, if no qualified and suitable member is available for such appointment, promotion is to be effected from Category 2(e) and if no qualified hand is available for such promotion, promotion is to be effected from Category 3 (b). Evidently therefore, the Rule making authority was conscious of the distinction between method of appointment and method of promotion. Therefore, one cannot contend that both are one and the same.

Under such circumstances, the learned single Judge was right in concluding that, the case of the appellant that she is entitled to the benefit of one advance increment, is devoid of merits and does not warrant interference.

Referring to Ext.P7, the learned senior counsel for the appellant contended that, certain other persons similarly situated were granted the benefit and that the appellant alone was denied the benefit. First of all, the Rule does not warrant acceptance of the case of the appellant and therefore, even if it is assumed that anybody else has been erroneously granted the benefits, parity cannot be claimed on the basis of such erroneous decision and illegality cannot be perpetuated.

Writ Appeal fails. It is accordingly dismissed.