IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 14TH JUNE 2010 / 24TH JYAISTHA 1932 WP(C).No. 15697 of 2010(J) -------------------------- PETITIONER(S): --------------- A.ANZAR, DIVISIONAL ACCOUNTANT, (KERALA GENERAL SERVICE), O/O. EXECUTIVE ENGINEER, PWD ROADS DIVISION, PAINAVU, IDUKKI. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF FINANCE, SECRETARIAT, THIRUVANANTHAPURAM. 2. SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 3. ACCOUNTANT GENERAL (A & E) KERALA, OFFICE OF THE ACCOUNTANT GENERAL (A & E), THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.ARAVINDKUMAR BABU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J ....................... W.P.(C).15697/2010 ....................... Dated this the 14th day of June, 2010 JUDGMENT Petitioner was appointed as HSST (Senior) (Commerce). While continuing as such, petitioner responded to a notification issued by the PSC for recruitment to the post of Divisional Accountant. According to the petitioner, such notification was to fill up 1/3rd of the posts in the direct recruitment quota. Petitioner was selected and was ultimately relieved from the post of HSST (Senior) on 4.9.2007. He joined for training of Divisional Accountant with effect from 5.9.2007 and on completion of the training, joined service as Divisional Accountant on 4.9.2008 at Malappuram. Petitioner was thereafter transferred to Idukki on 22.7.2009 and is working there since then. 2. According to the petitioner, initially on his appointment as Divisional Accountant his pay as HSST (Senior) was protected. But, that was denied to him later. There upon, he made Ext.P1 application for pay protection and that application was rejected by W.P.(C).15697/10 2 Ext.P2. Again he submitted a representation that was also rejected by Ext.P5. The reason stated in Exts.P2 and P5 is that the petitioner is not entitled to the benefit of pay protection as provided under Rule 37(b) of Part-I, KSR, for the reason that his appointment as Divisional Accountant was by way of direct recruitment and not by transfer method. It is the correctness of this conclusion in Exts.P2 and P5 which arises for consideration. 3. Rule 37(b) of Part-I, KSR provides that “in the case of officiating appointments from a higher time scale of pay to a lower time scale of pay by direct recruitment, the officer's officiating pay in lower time scale shall be fixed at the minimum scale of pay of the new post when considering his pay in the higher time scale except in the case where such appointments are made in accordance with the Special Rules applicable to such appointment.” Therefore the petitioner can claim protection of the higher time scale of pay of HSST (Senior) only if his appointment as Divisional Accountant was made in accordance with the Special Rules. W.P.(C).15697/10 3 4. As per the Special Rules provided in the Kerala General Service, the post of Divisional Accountant falls in category-III. First, method of appointment is by absorption, second, by direct recruitment and third by transfer appointment. The appointment from employees holding substantive posts can be only by absorption or by transfer method. Therefore, the appointment from other service in accordance with the Special Rules, as provided in Rule 37(b) of Part-I, KSR can apply only if appointment is either by absorption or by transfer from other services. This protection is extended to the direct recruitment for which 1/3rd of the vacancies are earmarked. Therefore, conclusion in Exts.P2 and P5 that the protection as provided in Rule 37(b) will not come to the benefit of those who were appointed by direct recruitment is unassailable. 5. Learned counsel for the petitioner then contended that recovery of the excess amount of pay is unsustainable as he cannot be attributed of having made any misrepresentation or fraud to justify such recovery of amounts already paid. However, there is dearth of pleading in this behalf and it is essentially a matter for W.P.(C).15697/10 4 the petitioner to take up with the authorities and it is for them to consider the contentions of the petitioner and decide the issue. Therefore, it is directed that in pursuance to the impugned orders, if recovery of the excess amount received by the petitioner have not been effected so far, it will be open to the petitioner to make an appropriate representation before the 1st respondent in which event, 1st respondent shall consider the claim of the petitioner not to effect recovery of the amount already paid, and orders thereon will be passed as expeditiously as possible. Writ petition is disposed of as above. ANTONY DOMINIC, Judge mrcs