High Court of KeralaSingle JudgePetition allowed; Writ petition disposed in fav...

KERALA CRIMINAL JUDICIAL STAFF ASSOCIATION, DISTRICT COMMITTEE, THIRUVANANTHAPURAM v STATE OF KERALA AND OTHERS

Case / Petition Number:WP(C) No. 16268 of 2019
Neutral Citation:/null

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Raja Vijayaraghavan V
Judgment Date
2023-11-30
Court Decision / Holding
Petition allowed. Exts. P3, P5 and P6 are quashed to the extent that they deny one advance increment. Petitioners 2–17 are held entitled to the benefit of one advance increment in view of the Pay Revision Order (Exhibit P2) on their appointment as Head Clerk in the Special Court for Forest Offences as created by Exhibit P1.
Final Disposition
Petition allowed; Writ petition disposed in favor of petitioners with relief as stated above.

Parties to the Case

Appellants / Petitioners

  • KERALA CRIMINAL JUDICIAL STAFF ASSOCIATION, District Committee, Thiruvananthapuram (represented by its President Bijib)
  • SHERLYS.S.
  • MANJUSHAR.
  • VIPINS.
  • SANTHOSHV.J.
  • SHIJUMONK.
  • V.R.JYOTHILAL
  • V.ASOKKUMAR
  • V.S.PRIJITH
  • ASHAM.P.
  • C.R.RAJENDRAN
  • N.UNNIKRISHNANPOTTY
  • APARNADEVI
  • LALYJOSEPH
  • BIJUS.
  • SREEJAJ.S.
  • LEKSHMIN.

Respondents

  • STATE OF KERALA, represented by its Chief Secretary
  • ADDITIONAL CHIEF SECRETARY, HOME DEPARTMENT
  • HIGH COURT OF KERALA, represented by its Registrar General
  • REGISTRAR (SUBORDINATE JUDICIARY), HIGH COURT OF KERALA
  • THE CHIEF JUDICIAL MAGISTRATE, CJM Court, Thiruvananthapuram
  • THE ACCOUNTANT GENERAL (G&SSA)

Legal Representation & Advocates

Counsels for Petitioners

  • • K.P.PRADEEP
  • • SRI.SANANDRAMAKRISHNAN
  • • SMT.NEENAARIMBOOR
  • • SRI.T.T.BIJU
  • • SMT.T.THASMI
  • • SMT.ANJANAKANNATH

Counsels for Respondents

  • • SRI.BGHARINDRANATH, SC FOR HIGH COURT OF KERALA
  • • GOVERNMENT PLEADER

Case Synopsis & Summary

The petitioners, a district committee of the Kerala Criminal Judicial Staff Association and 16 other members of the Kerala Judicial Ministerial Subordinate Service in the Criminal Wing, approached the Kerala High Court challenging denial of a one-advance increment under the Pay Revision Order (Exhibit P2) for incumbents officiating as Head Clerk in the Special Court for Forest Offences. They contend that Bench Clerk Grade II posts, when promoted or transferred to the Head Clerk post in the Forest Offences Court, carry the same pay scale as the feeder category post; Exhibit P2, Paragraph 43, provides that where promotion or transfer to posts carrying the same scale of pay occurs, an advance increment should be granted, subject to exceptions for time-bound promotions or interchangeable posts. They argue that Head Clerk in the Forest Offences Court was created by Government Order (Exhibit P1) and that the non-inclusion of these posts in the Special Rules should not deprive them of the Benefit, relying on prior Kerala Civil Judicial Staff Organisation judgments that promotees on the same scale are entitled to the increment. The respondents contended that the posts are not clearly regulated by the Special Rules and that allowing the increment would contravene the pay structure. The High Court ultimately held that denial of the advance increment cannot be sustained, quashing Exts. P3, P5 and P6 to the extent of denial, and directing that Petitioners 2–17 are entitled to the one advance increment on their Head Clerk appointments in terms of Ext. P1, relying on the principle of seniority-based appointment and subsequent judicial interpretations. The petition is allowed.

Provisions of Law Cited

Kerala Judicial Ministerial Subordinate Services Rules (KJMSS Rules)Special Rules for the Criminal Wing (Kerala Judicial Ministerial Subordinate Service)Paragraph 43 of Exhibit P2 Pay Revision OrderGO(MS) No. 206/2011/HOME (Exhibit P1)GO(P) No. 7/2016/FIN (Exhibit P2)GO(MS) No. 160/2017/HOME (Exhibit R4(B))High Court Order Exhibit R4(C) (8.2.2018)Administrative Order No C1-97906/2014 (Exhibit R4(E))Guideline No. 5 of High Court Order R-18/2000/SS/C2 (Exhibit R4(F))Interim Order dated 12.6.2018 in Contempt Case (C) No. 347/2018 (Exhibit R4(G))

Legal Doctrines & Maxims

  • Appointment by seniority principle for feeder and promotion posts carrying the same pay scale
  • Interchangeability of posts between feeder and promotion posts with the same pay scale (where recognized)
  • Delay in amending Special Rules cannot be a ground to deny benefits in pay revisions
  • Promotion by seniority where posts carry the same pay scale (as reflected in Exhibit P2, para 43)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that the Pay Revision Order Exhibit P2 provides for a single advance increment when a feeder post promotes or transfers to a post carrying the same pay scale, a benefit applicable to Head Clerk when promoted from Bench Clerk Grade II to Head Clerk in the Special Court for Forest Offences (created by Exhibit P1). They assert that the absence of explicit inclusion of the Head Clerk and Bench Clerk Grade II in the Special Rules does not bar the benefit, especially since the posts are interchangeable in terms of pay scale, and rely on Kerala Civil Judicial Staff Organisation v. State of Kerala to argue that delaying amendments cannot deny benefits. They assert that the Government's refusal to grant the increment results from a misapplication of pay revision policy and from treating the post as separate rather than floral to seniority-based advancement. They also point out that Exts. P7 and P8 and other authorities show the implementation was based on seniority. They request quashing of Exts. P3, P5 and P6 to the extent of denial and grant of the increment to Petitioners 2–17.

Contentions of Respondents

The respondents contend that the post of Head Clerk is established under Government Order (Exhibit P1) and that the Special Rules did not include Head Clerk or Bench Clerk Grade II in the Criminal Wing; Without amendments to Special Rules or Administrative Orders, pay revision benefits cannot be conferred; They argue that the posts are meant to be interchangeable only as per Exhibit R4(c) and that Interchangeability is not automatic; The grant of an advance increment would lead to excess pay, and Exts. P7 and P8 were issued without a proper legal basis. They rely on the principles of interchangability and the need for alignment with Special Rules and Administrative Orders to deny the increment.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Kerala Civil Judicial Staff Organisation v. State of Kerala(2016) SCC Online Kerala 40634PositiveHeld that where feeder and promotion posts carry the same scale of pay, the promotee is entitled to one advance increment; this supports the petitioners' claim in the present case.
The Kerala Civil Judicial Staff Organisation and Another v. State of Kerala and othersNeutral Citation No: 2023 KER 8067PositiveClarified non-interchangeability of certain posts (e.g., Central Nazir vs Bench Clerk Grade I) and reinforced seniority-based promotion; the present judgment aligns with the principle of seniority-based advancement and uses this to support grant of the increment.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against KERALA CRIMINAL JUDICIAL STAFF ASSOCIATION, DISTRICT COMMITTEE, THIRUVANANTHAPURAM v STATE OF KERALA AND OTHERS and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 30[TH] DAY OF NOVEMBER 2023 / 9TH AGRAHAYANA, 1945`** ## **`WP(C) NO. 16268 OF 2019`** ``` PETITIONERS: ``` ``` 1KERALACRIMINALJUDICIALSTAFFASSOCIATION, DISTRICTCOMMITTEE,THIRUVANANTHAPURAM,REPRESENTED BYITSPRESIDENTBIJIB.,AGED33,D/O.BHASIT., KUNNUMPURATHUVEEDU,DEEPANAGARALANTHARA, - VENJARAMMODUP.O.,THIRUVANANTHAPURAM695607. 2SHERLYS.S., AGED46YEARS D/O.N.SOMAN,ANUGRAHA,KALLUVILA,KARIYAM, - SREEKARIYAMP.O.,THIRUVANANTHAPURAM695017. WORKINGASJUNIORSUPERINTENDENTJFCMCOURT-I, - NEYYATTINKARA,THIRUVANANTHAPURAM695017. ``` ``` 3MANJUSHAR., AGED41YEARS D/O.E.K.RAMANKUTTY,T.C.8/702,KAMALALAYAM, - ELAMKULAM,SREEKARIAMP.O.,THIRUVANANTHAPURAM 695017.WORKINGASJUNIORSUPERINTENDENTJFCM COURT-II,THIRUVANANTHAPURAM,VANCHIYOOR, THIRUVANANTHAPURAM. ``` ``` 4VIPINS., AGED39YEARS S/O.SUNDARESANS.,SHEEJABHAVAN,OZHUKUPARA, - MADATHARAP.O.,THIRUVANANTHAPURAM695541.WORKING ASJUNIORSUPERINTENDENTJFCMCOURT-II,NEDUMANGAD, THIRUVANANTHAPURAM. ``` ``` 5SANTHOSHV.J., AGED52YEARS S/O.S.JANARAHANANNAIR,VARADAMHOUSE,KIZHUVILAM - P.O.,ATTINGAL(VIA),THIRUVANANTHAPURAM695014. WORKINGASJUNIORSUPERINTENDENTJFCMCOURT-I, VARKALA,THIRUVANANTHAPURAM. ``` W.P.(C.) No.16268 of 2019 2 ``` 6SHIJUMONK., AGED37YEARS S/O.KOCHUNARAYANAN,DEEPUNIVAS,VELLANAD,VELLANAD - P.O.,THIRUVANANTHAPURAM695543.WORKINGASJUNIOR SUPERINTENDENTJFCMCOURT,KATTAKADA, THIRUVANANTHAPURAM. ``` ``` 7V.R.JYOTHILAL, AGED41YEARS S/O.VIJAYAKUMAR,VRINDAVANAM,NEARST.THOMASU.P.S., - POTHENKODEP.O.,THIRUVANANTHAPURAM695101. WORKINGASJUNIORSUPERINTENDENTJFCMCOURT-II, ATTINGAL,THIRUVANANTHAPURAM. ``` ``` 8V.ASOKKUMAR, AGED46YEARS S/O.VIKRAMANNAIRA.,T.C.79/1031(1),DEEPAM, - KOLLAPERUVAZHI,KARIKKAKUM,THIRUVANANTHAPURAM 695021.WORKINGASJUNIORSUPERINTENDENTJFCMCOURT (TEMPORARY),NEYYATTINKARATHIRUVANANTHAPURAM. ``` ``` 9V.S.PRIJITH, AGED47YEARS S/O.K.SUKUMARAN,KRISHNANILAYAM,VADASSERIKONAM - P.O.,NJEKKAD,VARKALA,THIRUVANANTHAPURAM695143. WORKINGASJUNIORSUPERINTENDENTJFCMCOURT-III, ATTINGAL,THIRUVANANTHAPURAM. ``` ``` 10ASHAM.P., AGED44YEARS D/O.PUSHPANGADAN,T.C.30/940(1),PUSHPANJALI, - KAVARADIROAD,PETTAHP.O.,THIRUVANANTHAPURAM 695024.WORKINGASJUNIORSUPERINTENDENTJFCM COURT-III,NEYYATTINKARA,THIRUVANANTHAPURAM. ``` ``` 11C.R.RAJENDRAN, AGED47YEARS S/O.R.RAVINDRANNAIR,T.C.40/1080(1),VAISHAKAM, - SREEVARAHAM,THIRUVANANTHAPURAM695009.WORKINGAS JUNIORSUPERINTENDENTJFCMCOURT-XI, ``` W.P.(C.) No.16268 of 2019 3 ``` THIRUVANANTHAPURAM. ``` ``` 12N.UNNIKRISHNANPOTTY, AGED53YEARS - JAYANIVAS,NAVAIKULAMP.O.,THIRUVANANTHAPURAM 695603.WORKINGASJUNIORSUPERINTENDENTJFCM COURT-I,ATTINGAL,THIRUVANANTHAPURAM. ``` ``` 13APARNADEVI, AGED46YEARS D/O.G.S.NAIR,VRINDAVANHOUSINGCOLONY,PATTAMP.O., - THIRUVANANTHAPURAM695004.WORKINGASJUNIOR SUPERINTENDENTACJMCOURT,THIRUVANANTHAPURAM. ``` ``` 14LALYJOSEPH, AGED54YEARS D/O.JOSEPHP.J.,GEORGEBROSKUMBALASSERIYIL,DR.CRP NAGAR,PANGAPPARAP.O.,SREEKARIYAM, - THIRUVANANTHAPURAM695017.WORKINGASSENIOR SUPERINTENDENTACJMCOURT,THIRUVANANTHAPURAM. ``` ``` 15BIJUS., AGED54YEARS S/O.SUGUNANDANATH,T.C.49/399-1,KUTHUKALLINMOODU, - MANACAUDP.O.,THIRUVANANTHAPURAM695009.WORKING ASJUNIORSUPERINTENDENTJFCMCOURT-III, THIRUVANANTHAPURAM. ``` ``` 16SREEJAJ.S., AGED48YEARS D/O.JAYACHANDRAN,SREENANDANAM,T.C.31/1184-1, - THAZHASSERILANE,PETTAHP.O.,THIRUVANANTHAPURAM 695024.WORKINGASJUNIORSUPERINTENDENTJFCM COURT-I,THIRUVANANTHAPURAM. ``` ``` 17LEKSHMIN., AGED47YEARS W/O.RAMESH,RAJASREE,SASTHAMKOILSTREET,FORT, - THIRUVANANTHAPURAM695023.WORKINGASJUNIOR SUPERINTENDENT/ONDEPUTATIONASSECRETARYTALUKLEGAL ``` W.P.(C.) No.16268 of 2019 4 ``` SERVICECOMMITTEE,KOTTAYAM. ``` ``` BYADVS. K.P.PRADEEP SRI.SANANDRAMAKRISHNAN SMT.NEENAARIMBOOR SRI.T.T.BIJU SMT.T.THASMI SMT.ANJANAKANNATH ``` ## **`RESPONDENTS:`** ``` 1STATEOFKERALA, REPRESENTEDBYITSCHIEFSECRETARY,GOVERNMENTOF - KERALA,GOVERNMENTSECRETARIAT,THIRUVANANTHAPURAM 695001. 2ADDITIONALCHIEFSECRETARY, HOMEDEPARTMENT,GOVERNMENTSECRETARIAT, - THIRUVANANTHAPURAM695001. 3HIGHCOURTOFKERALA, REPRESENTEDBYITSREGISTRARGENERAL,HIGHCOURT, - KOCHI,ERNAKULAM682031. 4REGISTRAR(SUBORDINATEJUDICIARY), - HIGHCOURTOFKERALA,HIGHCOURT,KOCHI682031. 5THECHIEFJUDICIALMAGISTRATE, CJMCOURT,THIRUVANANTHAPURAM,VANCHIYOOR, - THIRUVANANTHAPURAM695035. 6THEACCOUNTANTGENERAL(GANDSSA), - KERALA,AG’SOFFICE,THIRUVANANTHAPURAM695001. BYADVS. GOVERNMENTPLEADER ``` W.P.(C.) No.16268 of 2019 5 ``` SRI.BGHARINDRANATH,SCFORHIGHCOURTOFKERALA ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSION ON30.11.2023,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` W.P.(C.) No.16268 of 2019 6 ## **JUDGMENT** The 1st petitioner is a District Committee of the Association of Staff working in the Criminal Wing of Subordinate Courts in the state of Kerala. Petitioners 2 to 17 are members of the Kerala Judicial Ministerial Subordinate Service and are working in the Criminal Wing of Subordinate Judiciary. The petitioners have approached this Court challenging the denial of the benefits under the pay revision orders and the consequent orders to recover the amounts already paid to them. 2. Short facts are as under: 2.1. The petitioners contend that Special Courts were established in the State to try the offenses categorized as forest offences. Their service is governed by the provisions of Kerala Judicial Ministerial Subordinate Services Rules (‘KJMSS Rules’ for the sake of brevity). According to the Petitioners, officers in the cadre of Bench Clerk Grade II are posted as Head clerks in the Special Court for Forest Offenses. On such appointment, they are entitled to one advance increment in terms of paragraph 43 of Exhibit P2 pay revision order. Relying on Exhibit P2, it is contended that when the W.P.(C.) No.16268 of 2019 7 promotion/appointment by transfer to posts happens to have the same scale of pay of the feeder category post, one advance increment will be granted to the incumbents appointed by promotion or by transfer to posts carrying the same scale of pay as the feeder category post without prejudice to the normal increments. It is the contention of the petitioners that the pay scale of Bench Clerk Grade II and Head Clerk in Forest Court are one and the same. It is on the basis of the above assertion that the petitioners contend that they were granted one advance increment when they were promoted and posted from the cadre of Bench Clerk Grade-II to the post of Head Clerk in the Special Court for Forest offenses. The petitioners refer to Ext.P7 order issued by the Chief Judicial Magistrate and contend that promotion to the post of Head Clerk was on the basis of seniority and can only be done by way of promotion or appointment by transfer. 2.2. The petitioners contend that by Ext. P3 communication issued by the Accountant General, it was informed that the grant of one advance increment was not in order and would lead to the drawing of excess pay. Being aggrieved, Exhibit P4 was submitted by the 2nd petitioner, raising her grievances. However, by Exhibit P5, it was informed that the posts of Bench Clerk Grade II in the Judicial Magistrate Court and Head Clerk in the Special W.P.(C.) No.16268 of 2019 8 Court for Forest Offences are only interchangeable posts. According to the petitioners, the post of Head Clerk in the Special Court for Forest Offences was created as per Exhibit P1 order, and the non-inclusion of the hierarchy of posts in the Special Rules is due to omission on the part of the rulemaking authority and the Petitioners cannot be faulted for the same. 2.3 It is on these assertions that this Writ petition is filed seeking the following reliefs. i. Call for the records, leading to issue Ext P3, P5 and P6 proceedings and to issue a writ of certiorari or any other writs or direction or orders to quash Ext P3, P5 and P6 to the extent of denial of one advance increment to the petitioners, as per Ext P2 Pay Revision Order, on officiating the post of Head Clerk in the Special Court for Forest Offences, ii. To quash ext P6 order issued by the 5th respondent to the extent of direction to refund the one advance increment disbursed to the petitioners herein, in terms of Ext P2 Pay Revision Order. iii. To declare that the petitioners No 2 to 17 herein are entitled for the benefit of one advance increment in view of Ext P2 order, when they have appointed and served as Head Clerk in the Special Court for Forest Offences, created as per Ext P1 order 3. A counter affidavit has been filed by respondents 3 to 5. According to the respondents, the appointment to the post sanctioned as per Exhibit P1 Government Order has to be in accordance with the method of appointment prescribed in the KJMSS Rules and the Special Rules for the W.P.(C.) No.16268 of 2019 9 last Grade. It is contended that the benefits envisaged in pay revision orders could be conferred on the staff only if it is in tune with the Special Rules or the Administrative Orders. According to the respondents, out of the 12 posts sanctioned as per Exhibit P1 Government Order, the post of Head Clerk (Criminal wing) was a new post. The extant Special Rules did not include either the post of Head Clerk or Bench Clerk Grade II in the Criminal wing. They rely on Ext.R4 (a) proposal, and it is contended that a suggestion was made to the Government to include the post of Head Clerk in KJMSS Rules. Relying on Ext.R4(a) and R4(b), it is contended that the proposal was to make the posts of Head Clerks and Bench Clerks Grade II of the Criminal wing as interchangeable posts just like their counterparts in the Civil wing where the post of Head Clerk already existed. It is stated that consequently, Ext.R4 (c) instructions were issued by this Court for filling up the post of Head Clerk of Judicial Magistrate Courts. It was ordered that the post of Head Clerk in the Court of the Judicial Magistrate of the First Class be interchangeable with the post of Bench Clerk Grade II (Criminal wing). It is also ordered that the appointment to the post of Head Clerk of Judicial Magistrate Court shall be made by promotion from the category of Senior Clerk/Bench Clerk Grade III or Kannada Translator (Criminal Wing) on the W.P.(C.) No.16268 of 2019 10 basis of their seniority in the common seniority list of the unit. The interchangeability of the post is clearly mentioned in Exhibit R4(c). It is contended that where posts are interchangeable, the petitioners are not entitled to advance increments. It is further stated that the post of Head Clerk has not been proposed as a feeder category post of Bench Clerk Grade II. When Ext.P1 Government Order was issued, as the recruitment method was not prescribed, the senior most Bench Clerk Grade-II in the Criminal wing was appointed to the post of Head Clerk in the Magistrate Court established to try Forest Offenses. It is urged that since the appointment to the post of Head Clerk in Judicial First Class Magistrate Court (for the Trial of Forest Offences) was made neither through promotion nor through appointment by transfer, the claim for advance increment cannot be granted. 4. Sri. K.P Pradeep, the learned counsel appearing for the petitioners, submitted that for the omission on the part of the rule-making authority, the petitioners herein cannot be faulted. It is further submitted that appointing the incumbents to the post of Head Clerk was purely based on seniority. As the further promotion to the post of Junior Superintendent is from the post of Head Clerk, the stand taken by the respondents cannot be sustained. It is submitted that pursuant to the directions issued by this Court W.P.(C.) No.16268 of 2019 11 in **Kerala Civil Judicial Staff Organisation v. State of Kerala[1]** , the 3rd respondent has granted benefits to the incumbents of the post of Bench Clerk Grade-I and Junior Superintendent in the Civil wing. 5. Sri. B.G Hareendranath, the learned counsel appearing for respondents 3 to 5, points out that the judgment relied on by the learned counsel appearing for the petitioners was rendered in different facts and circumstances. It is submitted that the post of Bench Clerk Grade -I has a hierarchical status below that of Junior Superintendent, whereas the post of - Bench Clerk Grade II and Head Clerk (Criminal wing) have an equivalent status. It is submitted that as the post of Bench Clerk Grade-II of the Criminal wing is interchangeable with that of Head Clerk, the advance increment as prayed for cannot be granted. It is further submitted that Exts.P7 and P8 orders were issued without adverting to any of these aspects and without the support of either Administrative Orders or Special Rules. 6. I have considered the submissions advanced. 7. Paragraph 43 of Exhibit P2 Pay revision order reads as under:- 43. Where promotion/appointment by transfer to posts happen to have the same scale of pay of the feeder category posts, one advance increment will be granted to the incumbents appointed > 1 (2016) SCC Online Kerala 40634 W.P.(C.) No.16268 of 2019 12 by promotion or by transfer to posts carrying the same scale of pay as the feeder category posts without prejudice to the normal increments. This advance increment will not be granted in the case of promotion from time bound higher grade to a regular promotion post in the same scale of pay and in the case of appointment to interchangeable posts in the same scale of pay. This will take effect from 01.07.2014. 8. The above paragraph outlines a policy regarding increments in pay for promotions or transfers. It says that if an officer is promoted or transferred to a position with the same pay scale as their current role, they are eligible for one advance increment in addition to their regular increments. However, this advance increment does not apply when the promotion is from a Time-bound Higher Grade to a regular post with the same pay scale or for appointments to interchangeable posts with the same pay scale. 9. There is no dispute that at the time of establishing the Special Court for Trial of Forest offenses in the year 2011, there was no such post as Head Clerk in the Criminal wing of the Subordinate Judiciary. The Special Rules did not include either the post of Head Clerk or Bench Clerk Grade II in the Criminal wing. It was in the said circumstances that much later proposals were suggested to the Government to include the post of Head Clerk in the W.P.(C.) No.16268 of 2019 13 Courts of the Judicial Magistrates. I find from Exhibit R4 (b), which is dated 21.07.2017, that a proposal was mooted to make the posts of Head Clerks and Bench Clerks Grade II of the Criminal Wing interchangeable posts as in the case of their counterparts in the Civil Wing where the post of head Clerk already existed. It was much later, on 08/02/2018, that the High Court issued Exhibit R4(c) Original Memorandum whereby the post of Head Clerk in the Judicial Magistrate Court was created, and it was made interchangeable with the post of Bench Clerk II in the Criminal Wing. 10. It is admitted that when appointments were made to the post of Head Clerk sanctioned as per Exhibit P1 Government Order, the senior most Bench Clerk Grade II in the Criminal wing of Thiruvananthapuram was appointed to the post of Head Clerk. Admittedly, both the posts carry the same scale of pay. 11. A learned Single Judge in **Kerala Civil Judicial Staff Organisation v. State of Kerala[2]** has occasion to consider the question whether there was any justification in denying the advance increment to Bench Clerk Grade-I, who was appointed as Junior Superintendent since the post of Bench Clerk Grade-I is below that of the Junior Superintendents in > 2 (2016) SCC Online Kerala 40634 W.P.(C.) No.16268 of 2019 14 the hierarchy. This Court, in paragraph No.7, had held that where promotion posts happen to have the same scale of pay of the feeder category post, one advance increment is to be granted to the incumbent appointed by promotion. This advance increment will not be granted if the promotion is from Time Bound Higher Grade to a regular promotion post in the same pay scale and in the case of appointment to interchangeable posts in the same scale. In paragraphs No.9 to 11 of the judgment, it was held as under: 9. It is clear from a reading of Exhibit P7 that the post is intended to be created between the posts of Head Clerk/Central Nazir/Bench Clerk and Junior Superintendent. It is also provided in Exhibit P7 that the post of Junior Superintendent will be filled up by appointment from the category of Bench Clerk Grade-I as per seniority. However, Exhibit P7 further goes on to hold that such appointees will not be eligible for advance increments. 10. It is clear that Exhibit P1 Government Order is intended to apply to all cases of employees governed by the same. It specifically contains a provision that where promotion is effected from the post carrying the same scale of pay, the promotee will be entitled to an advance increment. This is evidently in view of the fact that in cases of promotion to a post in the same scale of pay, the W.P.(C.) No.16268 of 2019 15 incumbent would get no other financial benefit. Since the concept of promotion itself contemplates the posting of an incumbent in a higher post, the Government thought it fit that at least an advance increment should be granted in cases where scale of pay of feeder category posts and the promotion post are identical. In the instant case also, it is evident from Exhibit P7 that what is contemplated is an appointment on the basis of seniority to the post of Junior Superintendent from the post of Bench Clerk Grade I. The said posts carry the same scale of pay. The 2nd petitioner has been appointed on the basis of his seniority in the post of Bench Clerk Grade I to the post of Junior Superintendent. It is evident from Exhibits P5 and P6 orders that the appointment has been understood as one made by promotion by the 1st respondent also. 11. In the above view of the matter, I am unable to see the rationale behind condition contained in Exhibit P7 that no advance increment will be granted to persons appointed from the post of Bench Clerk Grade I to Junior Superintendent, though both of the posts carrying the same scales of pay. It is evident that in all other cases of feeder category posts and promotion posts carrying the same scale of pay, the benefit of advance increment is being granted. The only reason stated for denying the benefit to Bench Clerk Grade-I appointed as Junior Superintendent is that the post of Bench Clerk Grade-I which was created in 2010, had not been incorporated in the Special Rules as a feeder category for appointment to the post of Junior W.P.(C.) No.16268 of 2019 16 Superintendent. However, the delay on the part of the Government in amending the Special Rules cannot be a reason for denying the benefits to persons who are appointed from the post of Bench Clerk Grade-I to the post of Junior Superintendent, in the light of the fact that post has been created and has been treated as a feeder category. 12. It was held by this Court that what was contemplated is an appointment on the basis of seniority. The said post carries the same scale of pay. In the instant case, the Bench Clerk Grade II were appointed as Head Clerks on the basis of seniority. Everyone understood at that point of time that the appointment was made by way of promotion, and it was made interchangeable only when Ext.R4(c) was issued on 08.02.2018. This Court in the judgment referred to above, had held that the rationale for denying the benefit is that the same was not incorporated in the Special Rules as a feeder category. It was held that the delay on the part of the Government in amending the Special Rules could not be a reason for denying the benefits to persons appointed from the post of Bench Clerk Grade I to the post of Junior Superintendent. 13. Later, this Court followed the law laid down in **Kerala Judicial Staff Organisation** in the judgment dated 20.1.2023 in W.P(C) No.20504 of W.P.(C.) No.16268 of 2019 17 2020 (Neutral Citation No:2023 KER 8067- **The Kerala Civil Judicial Staff Organisation and Another v. State of Kerala and others** ) wherein the issue was whether the denial of advance increments to officers who are promoted from the post of Central Nazir to the post of Bench Clerk Grade I in Kerala Judicial Ministerial Subordinate Service was in order. This Court held that the post of Central Nazir and Bench Clerk Grade I, though are on the same scale of pay, are not interchangeable posts. Following the earlier judgment, it was held that the promotion to the post of Bench Clerk Grade I from the post of Central Nazir is in effect, promotion on the basis of seniority. 14. As held by this Court, what is contemplated is an appointment on the basis of seniority to the post of Head Clerk from the post of Bench Clerk Grade II. Both the posts carry the same scale of pay. The mere fact that the respondents have not specified the hierarchy either by Special Rules or as per administrative orders is no reason for denying the benefits to the officers who have been appointed as Head Clerk. I concur with the observations and findings rendered in the **Kerala Civil Judicial Staff Organisation** (supra). In that view of the matter, I am of the considered opinion that the denial of one advance increment to the petitioners as per Ext.P2 pay revision order on them officiating the post of Head Clerk in the W.P.(C.) No.16268 of 2019 18 Special Court for Forest Offences cannot be sustained under law. 15. In view of the discussion above, the petitioners are entitled to succeed in this writ petition. This writ petition is accordingly ordered, and the following directions are issued: a) Exts. P3, P5 and P6 to the extent that it denies one advance increment to the petitioners, are quashed. b) It is held that the petitioners 2 to 17 are entitled to the benefit of one advance increment in view of Ext.P2 order on their appointment of Head Clerk in the Special Court for Forest Offences in terms of Ext.P1. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** IAP W.P.(C.) No.16268 of 2019 19 ## **`APPENDIX OF WP(C) 16268/2019`** - `PETITIONERS’ EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ORDER GO(MS) NO.206/2011/HOME DATED 20/09/2011 ISSUED BY THE 1ST RESPONDENT.` - `EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGES OF THE GO(P) NO.7/2016/FIN DATED 20/01/2016.` - `EXHIBIT P3 TRUE COPY OF THE COMMUNICATION NO.SGS II(HQ) III/II/8-3813/18-19/61 DATED 28/06/2018 ISSUED BY THE ACCOUNTANT GENERAL, KERALA TO THE 3RD RESPONDENT.` - `EXHIBIT P4 TRUE COPY OF THE FORWARDING LETTER NO.906/18 DATED 25/07/2018 WITH ANNEXURE REPRESENTATION DATED 24/7/2018.` - `EXHIBIT P5 TRUE COPY OF THE OFFICIAL MEMORANDUM NO.C2/98155/2018 DATED 24/01/2019 ISSUED BY THE 3RD RESPONDENT.` - `EXHIBIT P6 TRUE COPY OF THE OFFICIAL MEMORANDUM NO.A 700/19 DATED 13/02/2019 ISSUED BY THE 5TH RESPONDENT.` ``` EXHIBITP7TRUECOPYOFTHEORDERNO.A-3231/2016DATED 31/05/2016ISSUEDBYTHE5THRESPONDENT. EXHIBITP8TRUECOPYOFTHEORDERNO.A2981/2016DATED 30/04/2016ISSUEDBYTHE5THRESPONDENT. ``` W.P.(C.) No.16268 of 2019 20 ``` RESPONDENTS’EXHIBITS ``` ``` EXHIBITR4(A) ``` ``` TRUECOPYOFTHEPROPOSALFORKERALA JUDICIALSUBORDINATESERVICE(AMENDMENT) RULES ``` ``` EXHIBITR4(B)TRUECOPYOFTHEGO(MS)NO.160/2017/HOME DATED21.7.2017 ``` ``` EXHIBITR4(C)TRUECOPYOFTHEHIGHCOURTOM C3-92667/2017DATED8.2.2018 ``` ``` EXHIBITR4(D) ``` ``` TRUECOPYOFTHEHIGHCOURTOM R18/2000/SS/C2(A)DATED12.1.2012 ``` ``` EXHIBITR4(E)TRUECOPYOFTHEADMINISTRATIVEORDERNO C1-97906/2014DATED9.7.2018 ``` ``` EXHIBITR4(F)TRUECOPYOFTHEGUIDELINENO.5OFTHEHIGH COURTORDERR-18/2000/SS/C2DATED 20.12.2010 ``` ``` EXHIBITR4(G)TRUECOPYOFTHEINTERIMORDERDATED 12.6.2018INCONTEMPTCASE(C)NO.347/2018 ```