Gopi T.N. and others v. State of Kerala and The Kerala State Civil Supplies Corporation

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **TUESDAY, THE 1ST FEBRUARY 2011 / 12TH MAGHA 1932** **WP(C).No. 12781 of 2007(V)** - **--------------------------------------** ## **PETITIONER(S):** - **-----------------------** **1. GOPI T.N, AISWARYA, SOUTH PARUR, ERNAKULAM.** **2. K.K.VALSALA, PULARI, RESIDENT'S LANE ROAD, EDAPPALLY, KOCHI-24.** **3. M.I.RAHIMA,PALLIKKARA HOUSE, ELOOR EAST,UDYOGAMANDAI P.O.** **4. ANGELA MOLLY P.J., VALIYAPRAMBIL HOUSE, VATTEKKATTU ROAD, KALOOR, KOCHI-17.** **5. V.GIRIJA DEVI,RAILWAY QUARTERS-143 J, ERNAKULAM SOUTH PIN-682 016.** **6. ALIAS V.P./, VELLAMKUZHIL HOUSE, CHOTTANIKKARA P.O.,PIN-682 312.** **7. R.AMBIKA DEVI, ANJATTU HOUSE, POONITHURA.P.O., GANDHI SQUARE,ERNAKULAM DISTRICT.** **BY ADVS. SMT.V.P.SEEMANTHINI** - **SMT.S.KARTHIKA** **SRI.M.S.UNNIKRISHNAN SMT.K.P.GEETHA MANI SRI.M.R.ANISON** - **SRI.T.R.RAJESH** ## **RESPONDENT(S):** - **-------------------------** **1. STATE OF KERALA REP. BY THE SECRETARY TO GOVERNMENT, FOOD AND CIVIL SUPPLIES AND CONSUMER,AFFAIRS DEPARTMENT, GOVT. SECRETRIAT,TRIVANDRUM.** **2. THE KERALA STATE CIVIL SUPPLIES CORPORATION, REP. BY ITS MANAING DIRECTOR, P.B.NO.2030, MAVELI BHAVAN, MAVELI ROAD, GANDHI NAGAR,COCHIN-20.** **R1 BY GOVERNMENT PLEADER SMT.N.SUDHA DEVI R2 BY ADV. SMT.MOLLY JACOB,SC,SUPPLYCO** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **WP(C)NO.12781/2007** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **P1 COPY OF THE G.O.MS-29/97/97/F & C DATED 29/7/97. P2 COPY OF THE PROCEEDINGS DATED 21/6/1999. P3 COPY OF THE PROCEEDINGS DATED 19/8/98. P4 COPY OF THE PROCEEDINGS DATED 30/11/2000. P5 COPY OF THE PROCEEDINGS DATED 2/2/1999. P6 COPY OF THE G.O.(P)NO.968/87/87 DATED 17/11/87. P7 COPY OF THE REPRESENTATION DATED 13/7/2006. P8 COPY OF THE LETTER DATED 13/11/2006 ISSUED BY THE 2ND RESPONDENT. P9 COPY OF THE G.O. DATED 12/3/2007. RESPONDENT'S EXHIBITS: NIL** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **S. SIRI JAGAN, J.** ----------------------------------- ## W.P.(C) No.12781 OF 2007 --------------------------------------Dated this the 1[st] day of February, 2011 ## **JUDGMENT** The petitioners are Helpers (Higher Grade) in the service of the Kerala State Civil Supplies Corporation. The next promotion post for Helpers (Higher Grade) is that of Salesman. There is another post having higher scale of pay than Salesman namely, Junior Assistant. The method of appointment to the post of Junior Assistant is by transfer from Salesman having educational qualification of pass in 8[th] standard with one year experience as Salesman and appointment by transfer from Higher Grade Helpers having the qualification of SSLC or equivalent with three years experience as Higher Grade Helper. In accordance with the said Rule, the petitioners were given appointment by transfer as Junior Assistants, since they had the educational qualifications and experience prescribed as per the Recruitment Rules. According to the petitioners, on such appointment as Junior Assistants, they are entitled to a fixation in the intermediate post of Salesman and a further fixation in the post of Junior Assistant 2 W.P.(C)No.12781/07 in view of Ext.P6 Government Order on the subject. Although initially the Corporation was also inclined to grant that relief to the petitioners, by Ext.P8 they requested the Government for clarification in the matter. By Ext.P9, the Government declined the benefit to the petitioners on the ground that Ext.P6 order is applicable only to cases of appointment by promotion and not for appointment by transfer. Since the method of appointment to the post of Junior Assistant from the category of Salesman and Higher Grade Helper is by transfer, and not by promotion, the Government opined that the petitioners are not entitled to get the benefit of Ext.P6 Government Order. It is challenging the said order, the petitioners have filed this writ petition seeking the following reliefs: “a) to issue a writ of certiorari or other appropriate writ order or direction to quash Ext.P9 letter to the extent of holding that the petitioners are not entitled to the benefit of fixation of scale of pay based on Ext.P6 G.O, since such a finding has been entered by the govt. on total non application of mind to the relevant materials placed before it and on a wrong interpretation of Ext.P6 G.O., as also Rule 28A of Part I MSR; b) to issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to sanction the benefit of Ext.P6 G.O. To the petitioners dehors Ext.P9 letter issued by the govt.; c) to issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to sanction and disburse the scale of pay applicable to the petitioners based on Ext.P6 G.O. Including arrears of pay and all other allowances attached to that post to the W.P.(C)No.12781/07 3 petitioners without any further delay” 2. The contention raised by the petitioners is that appointment by transfer to the post of Junior Assistant being appointment to a higher scale of pay than that of Helper (Higher Grade) and Salesman, essentially it is a promotion and therefore, Ext.P6 Government Order should apply to such appointments also, insofar as Helpers (Higher Grade) are being given appointment to the post of Junior Assistant without an intermediate appointment to the post of Salesman. The petitioners also rely on the definition of 'promotion' in Rule 2 (11) of Part I of KS & SSR, in which 'promotion' is defined to mean, the appointment of a member of any category or grade of a service or a class of service to a higher category or grade of such service or class. The petitioners would contend that since the appointment as Junior Assistant is appointment of Helpers (Higher Grade) to a higher category or grade namely, Junior Assistant, the same answers the definition of 'promotion' and therefore, such appointment should also be treated as appointment by promotion, in which event the petitioner would be eligible for the benefit of Ext.P6. 3. With the help of the counter affidavit filed by the 4 W.P.(C)No.12781/07 first respondent, the learned Government Pleader opposes the contentions of the petitioner. According to the learned Government Pleader, promotion and appointment by transfer are two entirely different methods of appointment and the two cannot be equated for the purpose of benefits of such appointments. She points out that the words 'recruited by transfer' has also been given a meaning in Rule 2(13) of Part I of KS & SSR, which itself would show that the intention of the rule making authority was to treat these two types of appointments differently for all purposes including fixation of pay. Ext.P6 is expressly made applicable to only cases of promotion and not appointments by transfer. Therefore, the petitioners are not entitled to the benefits of Ext.P6 order on the appointment of the petitioners by transfer to the post of Junior Assistant is the contention raised. 4. I have considered the rival contentions in detail. Ext.P1 is the Recruitment/Promotion rules applicable to the employees of the Kerala State Civil Supplies Corporation. The Recruitment Rules relating to the post of Junior Assistant reads as follows: W.P.(C)No.12781/07 5 _**Sl.No. Name of Post and Scale of Method of Recruitment Qualification Pay**_ 1. Junior Assistant- Rs.950a) Appointment by A Pass in 1500/transfer from Salesman VIIIth standard with one year experience as Salesman b) Appointment by A pass in SSLC transfer from Higher or equivalent. Grade Helpers Three years experience as Higher Grade Helper Those eligible under (a) and (b) will have to pass the selective test conducted by the KSCSC c) By deputation of LD Clerks from Civil Supplies Department In the absence of qualified candidates under (a) and (b) these vacancies will also be filled up by method (c) Note: 1. The ratio between Sr.Asst.Grade I, Sr.Asst.Grade II and Junior Asst. will be 1:1:1 Note:II.20% of the posts of Junior Asst.will be reserved for appointment by transfer The Recruitment Rules for the post of Salesman and Helper are as follows: W.P.(C)No.12781/07 6 _**Sl.No. Name of Post and Scale of Method of Qualification Pay Recruitment**_ Promotion from 1. Pass in VII Higher Grade standard Salesman Rs.825-1250/1 Helpers 2. Two years experience as Helper Higher Grade Direct Recruitment Pass in VII (through K.P.S.C.) Standard. 2 Helper Rs.775-1065/- ## Ext.P6 Government Order reads as follows: “At present there are no guidelines as to how the pay of those officers who are given promotion to more than one post on the same day and those who are given promotion to posts next above, the immediate higher post without officiating in the intermediary post Government are receiving many requests for giving notional fixation of pay in the intermediary posts in such cases. Government have examined the matter and are pleased to order that in cases where officers are given promotion to more than one post on the same date consequent only revision of seniority list etc, and also in case where officers given direct promotion to the post next to the immediate higher post, their pay in the intermediary post will be notionally fixed under rule 28A, Part I, Kerala Service Rules” (underlining supplied) ## Ext.P9 reads as follows: “With reference to your letters cited, I am to bring to your notice that the benefit of GO(P) No.968/87/Fin. Dated 17-11-87 is confined to cases of appointment by promotion. The appointment of Junior Assistant from the category of Salesman and Higher Grade helper in KSCSC is by transfer. Hence the employees of KSCSC who got transfer appointment as Junior Assistant (not double promotion) are not entitled to get the benefit of the GO dated 17-11-87” From the above, it is clear that the question to be decided is whether the appointment to the post of Junior Assistant is W.P.(C)No.12781/07 7 appointment by promotion only if the answer is in the affirmative the petitioners would be entitled to succeed. The word 'promotion' is defined in Rule 2(11) of the KS & SSR reads as follows: “ 'Promotion' means the appointment of a member of any category or grade of a service or a class of service to a higher category or grade of such service or class” The words 'recruited by transfer' is also given a meaning in Rule 2(13) of Part I of KS & SSR as follows: “[(13) A candidate is said to be 'recruited by transfer' to a service,- (i) if his appointment to the service is in accordance with the orders issued or rules prescribed for recruitment by transfer to the service; and (ii) if at the time of his first appointment thereto- (a)he is either a full member or an approved probationer in any other service, the rules for which prescribed a period of probation for members thereof: Provided that where the Special Rules for a service provide for recruitment by transfer to any class or category thereof from any specified class or category of another service, a candidate shall, unless the recruitment is made from a post carrying an identical scale of pay, be a full member or an approved probationer in the class or category so specified;or b)he is the holder of a post in any other service for which no probation has been prescribed, and has put in satisfactory service in that post for a period of two years on duty within a continuous period of three years”. From Ext.P1 Recruitment Rules, it is abundantly clear that the Recruitment Rules contemplate three types of appointments namely, 1) Direct recruitment 2) Promotion and 3) By transfer. W.P.(C)No.12781/07 8 I am not inclined to hold that whenever an appointment is made to a post carrying higher scale of pay that would automatically amount to promotion for all purposes. This, I say so because, if that be so, a person in service, if eligible for consideration for direct recruitment for a higher post, if he is appointed by direct recruitment, that also should be then considered as promotion, with the benefit of Ext.P6 order, which is not what is contemplated by Ext.P6. Take for example, the case of a Junior Assistant himself, who has all the qualifications for being appointed by direct recruitment as Junior Manager and he is so appointed, then going by the interpretation sought to be put by the petitioners, then such a person will have to be given the successive fixation in the post of Senior Assistant and Junior Manager, which can never be the intention of the rule makers. As is clear from the Recruitment Rules, the method of appointment to the post of Junior Assistant is expressly stated to be by transfer from the Salesman having pass in 8[th] Standard and one year experience and also by appointment by transfer from higher grade Helpers having SSLC or equivalent qualification and three years experience as Higher Grade Helper. The Recruitment Rules also contemplate the three types of appointments and the 9 W.P.(C)No.12781/07 Recruitment Rules treat direct recruitment, promotion and by transfer distinctly and separately. Ext.P6 Government order is expressly made applicable to promotions to more than one post on the same day or in other words, double promotion because of certain contingencies such as retrospective revision of seniority list etc. Such contingencies cannot be applicable to appointment by transfer. Therefore, Ext.P6 is meant to apply to a particular situation where on account of unforeseen situations an employee has to be given more than one promotion at the same time. But, in the case of appointment by transfer that is not the case. Only if a person in the lower category has the qualifications prescribed for that post, he is eligible to be considered and appointed. In such circumstances, the consideration of the petitioners for fixation of pay in the intermediate post is not contemplated at all. Ext.P6 is applicable only in cases where a person gets double promotion without having to officiate in the intermediate post, because ordinarily only after officiating in the intermediate post that person can aspire for further promotion to the next higher post. In the case of appointment by transfer to the post of Junior Assistant the Higher Grade Helper is not expected to officiate even notionally in the post of Salesman. W.P.(C)No.12781/07 10 That is not at all the situation contemplated in Ext.P6. As such, I am of opinion that Ext.P6 is not applicable to cases of appointment by transfer but, is exclusively applicable only to cases of direct promotion to the post, next to the intermediate higher post without having to officiate in the intermediary post. The counsel for the petitioners refers me to the following decisions in; _“_ _**Kerala Water Authority** v._ _**Augustine** [2001(3) KLT 746],_ _**Senior Superintendent of Post Office** v._ _**Raji Mol** [2004 (1) KLT 183],_ _**State of Kerala** v._ _**Chathan** [2005(1)KLT 75],_ _**Krishna Kumar** v._ _**State of Kerala** [2006(2) KLT 75] and_ _**Somarajan** v._ _**State of Kerala** [2007(1) KLT 186]”_ I have gone through those decisions. I am not satisfied that those decisions lay down any different law. In the above view, the petitioners are not entitled to the reliefs prayed for in this writ petition and accordingly, the writ petition is dismissed. ## **S. SIRI JAGAN, JUDGE** acd W.P.(C)No.12781/07 11 W.P.(C)No.12781/07 12