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Judgment
Devan Ramachandran, J
The appellants voice grievance against the judgment of the learned Single Judge of this Court because, it has directed them to reconsider the claims of the party respondents/writ petitioners, adverting to Rule 28A, Part-I of the Kerala Service Rules (KSR).
Sri.P.C.Sasidharan - learned counsel for the appellants, argued that the factual matrix presented establishes inevitably that the anomaly in their pay scales - as alleged by the writ petitioners - are on account of very specific intervening circumstances in their career, and not because some of their juniors have been paid higher. He explained that the writ petitioners were initially appointed as peons/Office attendants in a particular scale of pay; but, were then selected and posted, by transfer, to the post of Escort Attendant, which carries a higher scale of pay. He added that, the writ petitioners, on completing seven years of service in the post of Office Attendants, had been granted the 1st Time Bound Higher Grade (TBHG); and that it is subsequent to this, that they were appointed on transfer to the post of Escort Attendant as mentioned above.
Sri.P.C.Sasidharan contended that, when the by-transfer appointment took place to the post of Escort Attendants – which post he asserted to be a selection post - they become eligible for the 2nd Time Bound Higher Grade only on completion of 15 years service in it, without reference to the earlier service. He predicated that this is because, going by the applicable Government Rules - which have been adopted by the appellants - appointments through by – transfer can be construed only to be direct recruitment; and that it is more so in this case because, the pay scales for the two posts are entirely different. He concluded saying that, however, the learned Single Judge appears to have misunderstood the factual position, thus concluding that the difference in the pay scales is on account of “senior - junior anomaly”; when, in fact, if there is any difference, it is because of the above circumstances.
Sri. Brijesh Mohan - learned counsel for the writ petitioners/party respondents, in response, argued that Government orders cannot be relied upon by the appellants to deny relief to his clients, particularly when the Kerala High Court Service Rules, 2007 (“the Rules” for short), define the word “appointment by transfer” to be “appointment of an approved probationer in one post, to another post which is not in the direct line of promotion”(sic). He showed us that the post of Office Attendant is neither in the line of promotion to the post of Escort attendant, nor is the former the feeder category for the latter; further that, going by the method of appointment under the “Rules”, it is the suitability of a person which alone is judged by a committee of judges of this Court, for being granted appointment by - transfer to the post of Escort Attendant.
Sri.Brijesh Mohan contended that, in such circumstances, even assuming that his clients’ claim for stepping up of pay based on “senior - junior anomaly” - which is edificed on the provisions of Rule 28 A of part I of the KSR – is not acceded to, they still would be entitled to relief since, they are eligible for the 2nd Time Bound Higher Grade on completion of 15 years of total service, including that spent in the post of Office Attendant. He argued that, however, the appellants seem to be relying upon certain Government orders, which have no application at all, without adverting to the definition of appointment “by – transfer:”, as available in the “Rules”. He concluded saying that, in any event, the learned Single Judge has not affirmatively declared any rights as of now, but has only directed the appellant to reconsider their claim, adverting to the afore position.
It is indubitable - as is also admitted by the appellants – that the pay revision orders issued by the Government of Kerala would not automatically apply to the High Court. In fact, their specific averment in paragraph 13 of their Counter affidavit filed in the writ petition, is that there are independent orders for the High Court; but asserting that by -transfer appointments can be reckoned only as direct recruitment, for the purpose of sanctioning Time Bound Higher Grades.
It is limpid that the appellants thus impel a contention that, for the purpose of sanctioning Time Bound Higher Grade, by - transfer appointments will be treated as direct recruitment; but this has not been established by them by producing any of the “independent orders” they refer to in paragraph 13 of their counter affidavit. This is more so, when they say that the general Pay Revision Orders of the government have no direct application to services under the High Court.
As noticed above, the “Rules” define “by - transfer appointment” to be appointment in one post, to another post, when the latter is not in the direct line of promotion.
As far as the present case is concerned, the post of Escort Attendant is, admittedly, not in the direct line of promotion from the post of Peon/ Office Attendant, or any other equivalent post, which is manifest from the conceded factum of the “Rules” providing that such post shall be filled up from suitable and willing members in the enumerated categories, based on their seniority qua the date of initial entry. Of course, the appointment is done after the assessment of suitability by a Committee of Judges, nominated by the Honourable the Chief Justice.
Therefore, one cannot countenance the argument that the post of Escort Attendant is a selection post because, the “Rules” stipulate that suitable and willing members from the categories enumerated, namely: Court Keeper (Higher Grade), Court Keeper (Higher Grade Office Attendant) and Office Attendant, will be selected through an assessment of suitability, but not by a process of selection per se.
To add to this, even though the appellants aver that there are independent orders with respect to the employees of the High Court and that the general Pay Revision orders of the Government has no direct application, the same have not been made available to the learned Single Judge, or even to us. But, their further averments in their pleadings are to the effect that such orders provide for by - transfer appointments to be equivalent to direct recruitment, but without any substantiating input.
When we say as above, we are fully conscious of the fact that the appellants rely upon clause 16 of Appendix 3 of the Pay Revision Order, qua the term “entry post”, to mean that to which an employee is initially appointed in Government service by direct recruitment by the competent authority. They further aver that, as per paragraph 20 of the Government Order dated 19.06.2018, employees in the entry scales of pay will be eligible for reckoning the last grade service for the 3rd and 4th Time Bound Higher Grades; but, that such service cannot be counted for the grant of the 2nd Higher Grade.
Ineluctably, all the afore averments are based on government orders and communications, issued by the Government from time to time.
Since the appellants themselves admit that such orders have no direct application, but that independent orders cover the field as far as the High Court is concerned, we cannot find fault with the learned Single Judge in not approving their afore recorded assertions.
Our views being recorded as afore, prima facie, the issues underpinned on “junior-senior anomaly” may, perhaps, not be so relevant, as has been thought by the learned Single Judge.
However, since the appeal has been filed by the appellants and not by the respondents, we choose not to say anything further; but to direct the competent authority of the appellants to reconsider the matter, as ordered in the impugned judgment, but adverting to our afore observations also specifically.
In such perspective, we affirm the directions contained in the impugned judgment, but not for the sole reasons recorded therein.
Resultantly, we direct the appellants to reconsider the claims impelled and issues projected by the petitioners, not only as an instance of “junior-senior anomaly”, as ordered therein, but adverting to our observations herein and in terms of the same also.
The above exercise shall be completed as expeditiously as is possible, and a fresh order issued, not later than three months from the date of receipt of a copy of this judgment.