IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 WP(C).No. 12803 of 2007(R) ---------------------------------------- PETITIONER(S): ----------------------- 1. KERALA HIGH COURT GAZETTED OFFICERS ASSOCIATION, RAM MOHAN PALACE, ERNAKULAM, REP. BY ITS SECRETARY, P.S.JOSEPH,(SECTION OFFICER), HIGH COURT OF KERALA, ERNAKULAM. 2. S.ABDUL SAMAD, SECTION OFFICER(HIGHER GRADE), HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI RESPONDENT(S): ------------------------ THE HIGH COURT OF KERALA, ERNAKULAM KOCHI-31, REP. BY THE REGISTRAR GENERAL. ADV. SRI.KRB.KAIMAL (SR.) FOR R1 SRI.B.UNNIKRISHNA KAIMAL FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/01/2009, THE COURT ON 08/01/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.12803/2007 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE NOTIFICATION NO.A3-11052/1996 DT. 6.1.05 ISSUED BY THE RESPONDENT. P2:- COPY OF THE NOTIFICATION NO.A3-11052/1996 DT. 23.2.05 ISSUED BY THE RESPONDENT. P3:- COPY OF THE JUDGMENT DT. 12.7.02 IN OP. NO.23037/01 OF THIS HON'BLE COURT. P4:- COPY OF THE PROCEEDINGS DT. 4.3.03 ISSUED BY THE RESPONDENT. P5:- COPY OF THE PROCEEDINGS DT. 21.11.05 ISSUED BY THE RESPONDENT. P6:- COPY OF THE REPRESENTATION SUBMITTED BY THE COURT OFFICERS AND SECTION OFFICERS BEFORE THE RESPONDENT IN JANUARY 2006. P7:- COPY OF THE ORDER NO.A5-3659/06 DT. 6.12.06 ISSUED BY THE RESPONDENT. P8:- COPY OF THE JUDGMENT DT. 24.1.06 IN WPC. NO.33890/04 OF THIS HON'BLE COURT. P9:- COPY OF THE PROCEEDINGS A5-60921/97 DT. 6.4.98 ISSUED BY THE RESPONDENT. P10:- COPY OF THE PROCEEDINGS NO.A5-36607/00 DT. 14.7.2000 ISSUED BY THE RESPONDENT. P11:- COPY OF THE PROCEEDINGS NO.A5-38541/04 DT. 8.10.04 ISSUED BY THE RESPONDENT. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE RELEVANT PORTION OF THE G.O.(P) NO.600/93/FIN. DT. 25.9.93. R1(b):- COPY OF THE RELEVANT PORTION OF THE GO (P) NO.3000/98/FIN DT. 25.11.98. R1(c):- COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC. NO.33881/04 DT. 24.1.06. /TRUE COPY/ P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.12803 of 2007-R - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of January, 2009. JUDGMENT The petitioners are aggrieved by Ext.P7 whereby their claim for advance increment was rejected. The reason stated for the rejection of the claim is that the officers concerned were not promoted from the lower category to the higher category. 2. Heard learned counsel for the petitioners Shri K. Jaju Babu and learned Senior Counsel appearing for the High Court Shri K.R.B. Kaimal. 3. The first petitioner is an association of Gazetted Officers and the second petitioner is a Section Officer (Hr. Grade). The service conditions of the officers of the High Court at the relevant time were governed by the Kerala High Court Service Rules, 1970. (They stand replaced by the Service Rules, 2007 which came into force on 1.1.2007) An amendment was effected as per Ext.P1 with effect from 5.1.2005 providing for the definition of the term “promotion” and by Ext.P2, this was given retrospective effect from 1.3.1992. The detailed averments in para 5 show that at the time of framing of the Service Rules, an appointment could be termed as promotion only if the appointment was from a post carrying a lower scale of WPC 12803/2007 2 pay to a post carrying a higher scale of pay. Originally, the post of Section Officer carried a higher scale of pay than the post of Court Officer and Court Fee Examiner. The scale of pay of Court Officer was equated to that of Section Officer in the year 1976 and the scale of pay of Court Fee Examiner was equated to that of Court Officer/Section Officer with effect from 1.7.1978. Therefore, from 1.7.1978 onwards the scale of pay of Section Officer, Court Officer and Court Fee Examiner became identical. Similarly, the scale of pay of Court Officer Higher Grade and Section Officer Higher Grade is also identical. Since the definition of promotion under Rule 2(h) governs an appointment from a lower scale to a higher scale, the method of appointment of Court Fee Examiner to that of Court Officer was amended as appointment by transfer instead of promotion as per notification dated 28.2.1979. Similarly, the method of appointment of Court Officer to that of Section Officer was also modified as appointment by transfer as per notification dated 4.2.1976. Likewise, after equation of the scaled of pay of Section Officer (Higher Grade) and Court Officer (Higher Grade), the method of appointment of Court Officer (Higher Grade) to that of Section Officer (Higher Grade) also became appointment by transfer by way of substitution in the service rules as per notification dated 21.8.1999. The claim for advance increment is based on the relevant clauses of pay WPC 12803/2007 3 revision orders of the year 1993 (G.O.(P) 600/93/Fin. Dated 25.9.1993) and the pay revision order of the year 1998 (G.O.(P) 3000/98/Fin. Dated 25.11.1998). These have been produced as Exts.R1(a) and R1(b) by the respondent along with the counter affidavit. 4. The relevant clause in Ext.R1(a) is clause 24 which reads that “when promotion post happen to have the scale of pay of feeder category post, one advance increment will be granted to the incumbents appointed by promotion in posts carrying the scale of pay of feeder category posts.” In Ext.R1(b) the relevant clause is clause 47 which is similarly worded. 5. Learned counsel for the petitioners contended that in view of Exts.P1 and P2 amendments, the appointment of Court Fee Examiner as Court Officer, Court Officer as Section Officer and Court Officer Higher Grade as Section Officer Higher Grade have to be considered as promotions as done in the case of Attender Grade II which is evident from Ext.P5 proceedings of the High Court. It is submitted that from Ext.P5 proceedings it is evident that the Court Keepers who have got appointment by transfer as Attender Grade II on account of the same scale of pay, were given advance increment by modifying their appointment as promotion. The same benefit has to be granted to the other categories also. Elaborating the argument it is contended that Court Keeper is not a feeder category for promotion to the WPC 12803/2007 4 post of Attender Grade II and still the benefit was granted and the petitioners are entitled for similar relief. 6. Learned Senior Counsel appearing for the High Court submitted that the relevant clauses in Exts.R1(a) and R1(b) can apply only in the case of a promotion and when the promotion posts happen to have the scale of pay of feeder category posts and in this case the appointments of the officers concerned are only by transfer as provided under the relevant rules and no promotion is involved. It is contended that as far as these posts are concerned, separate feeder category posts have been mentioned in the various Divisions of the rules for promotion, apart from specifying the posts governing the appointment by transfer. It is also submitted that as far as Court Keepers and Attenders are concerned, the feeder categories have not been specifically provided and it is in such circumstances these appointments were treated as promotion in the light of Exts.P1 and P2. My attention also was drawn to the relevant divisions of High Court Service Rules 1970. 7. It is evident from Exts.R1(a) and R1(b) that only if promotion is involved from the respective feeder categories and only when promoted posts and the feeder category posts carry the same scale of pay, the incumbents appointed by promotion are entitled for the benefit of one WPC 12803/2007 5 advance increment. Therefore, the position will have to be examined as to whether the posts held by the officers concerned before such appointment, were posts coming within the feeder categories and whether they have obtained promotion to the higher posts. An examination of the various Divisions of the relevant rules shows the following: “Section Officer (Higher Grade) comes within Division 1. 3BB and the method of appointment is by promotion, transfer from category 3 BC, the said category being Court Officer (Higher Grade). The promotion is from category 5, viz. Section Officer. As far as the category of Section Officer in category 5 is concerned, the method of appointment is transfer from category 6A in Division I Court Officers or promotion. The feeder categories for promotion are Head Translators, Selection Grade Assistants, Senior Assistants. As far as the category of Court Officers is concerned, it comes within category 6A in Division I and the method of appointment is promotion and transfer from category 6B (Court Fee Examiners) or by direct recruitment. The feeder categories for promotion are Head Translator, Selection Grade Assistant, Senior Grade Assistant, Selection Grade Shorthand Writer, etc. Therefore, the Court Fee Examiner comes to the category of Court Officer only by the method of appointment by transfer. It is therefore clear that the three categories who claim that they WPC 12803/2007 6 have been promoted are not within the respective feeder categories for promotion. They are appointed only by the method of appointment by transfer. These two concepts are totally different. No question of any promotion is involved in their cases. 8. It is evident from the pre-amended definition of promotion that it is appointment from a post carrying a lower scale of pay to a post carrying a higher scale of pay. When the officers like the petitioners are not included in the feeder categories for promotion, they cannot claim that they have been appointed by way of promotion. As the relevant provision under which they have been accommodated is a different one, i.e. Appointment by transfer, Exts.R1(a) and R1(b) cannot apply in their cases. The further question is whether the amendment by which the definition of promotion was modified by Ext.P1, will help the argument raised by the petitioners. It will not, since that can apply only when the higher post is filled up by “promotion” from the feeder category. The word “promotion” has got a particular connotation. The distinction between an appointment by promotion and by transfer are evident. Therefore, the argument that they should be deemed to have been promoted by relying upon Exts.P1 and P2, cannot be sustained. This court cannot go behind the rules and enter a finding that in view of Exts.P1 and P2, the officers concerned stand WPC 12803/2007 7 promoted to the respective posts ignoring the fact that they have been placed there only by appointment by transfer. It cannot be disputed that to attract the relevant provisions of Exts.R1(a) and R1(b), the officers concerned should have been promoted from the feeder category posts. As none of these officers come within the feeder category posts, I am of the view that the reasons stated in Ext.P7 to reject their claim for advance increments, is well founded and Ext.P7 does not suffer from any infirmity. What is plain and clear in the rules have to be adhered to and no other interpretation is possible also. The benefit conferred by Exts.R1(a) and R1 (b) are on a particular category and the question has to be examined in the light of the clear provisions therein and the examination is only limited to the question whether the incumbents are promoted from a feeder category to a promotion post and whether the scale of pay of feeder category posts and the promotion posts are identical. Simply because the scales of pay stands identical, it cannot be said that they can claim the benefit of Exts.R1 (a) and R1(b). 9. A reference herein of the judgment in W.P.(C) No.33881/2004 produced as Ext.R1(c) is profitable. While considering the claim for benefit of second higher grade, it was observed in para 6 that “the post of Court Fee Examiners, Court Officers and Section Officers all carry the same scale of WPC 12803/2007 8 pay and appointment to the post of Court Officer from the post of Court Fee Examiner and Section Officer from the post of Court Officer is by transfer.” This also goes against the plea raised by the petitioners. 10. It was vehemently argued by relying upon Ext.P5 that the relevant provisions of the amended Service Rules and Ext.R1(a) have been understood by the respondent as applicable to such categories and therefore the petitioners cannot be singled out for a differential treatment. It is stated that the said approach is totally discriminatory and violative of Article 14 of the Constitution of India. 9. For one thing, the fact that another employee was granted a particular benefit does not automatically entitle an officer/employee from another category to claim the same relief. In this case, as pointed out by the learned Senior Counsel, in the Service Rules even though for the post of Attender Grade II the method of appointment is prescribed as promotion, transfer or direct recruitment, it did not specify the feeder categories for promotion. Therefore, the appointment of Court Keepers as Attender Grade II was treated as promotion and accordingly Ext.P5 order was passed. The said argument is well founded in the light of the facts pleaded in para 8 of the counter affidavit. But according to the learned counsel for the petitioners, it cannot be said that the Court Keepers have attained promotion WPC 12803/2007 9 when they were appointed as Attender Grade II. Even if for the sake of argument it is found correct, it cannot help the petitioners, since it is well settled that such orders will not result in discriminatory treatment and the question of violation of Article 14 is not attracted, as an illegal order in favour of a class cannot advance the cause of another class. In that view of the matter also, the said argument cannot be accepted. Therefore, the writ petition fails and the same is dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/