IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 29TH FEBRUARY 2008 / 10TH PHALGUNA 1929 WA.No. 2197 of 2007() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.26376/2004 Dated 22/11/2006 .................... APPELLANTS: ----------- 1. GOVERNMENT OF KERALA,REP.BY SECRETARY, TO GOVERNMENT (HEALTH & FAMILY WELARE (D) DEPT. INDIAN SYSTEMS OF MEDICINES,THIRUVANANTHAPURAM. 2. THE DIRECTOR OF INDIAN SYSTEMS OF MEDICINES,THIRUVANANTHAPURAM. 3. THE PRINCIPAL SECRETARY,FINANCE DEPARTMENT,GOVERNMENT OF KERALA,SECRETARAIT, THIRUVANANTHAPURAM. 4. THE ACCOUNTANT GENERAL (A & E) KERALA, INDIAN AUDIT AND ACCOUNTS DEPARTMENT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER MR.M.C.CHERIAN RESPONDENTS: ------------- P.R.SUBRAMONIAN PILLAI,ADMINISTRATIVE OFFICER,MEDICAL COLLEGE,KOTTAYAM,RESIDING AT CHAITHRAM,C.M.C-14,CHERTHALA,ALLEPPEY. BY ADV. SRI.M.C.CHERIAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. -------------------------------------------------------------------------------- Writ Appeal No.2197 of 2007-E -------------------------------------------------------------------------------- Judgment Balakrishnan Nair, J. The respondents in the Writ Petition are the appellants. The writ petitioner approached this Court, challenging Ext.P7 order by which the Accountant General's office informed the petitioner that his claim for grant of one advance increment on his appointment from the post of Administrative Assistant to the post of Accounts Officer in the Directorate of Indigenous Medicine is not admissible. He also challenges Ext.P11 order, under which the Government affirmed the above stand taken in Ext.P7. According to the petitioner, his case is covered by paragraph 47 of the 1998 pay revision order (GO(P)No.3000/98/FIN. `dated 25.11.1998). The said paragraph reads as follows : “Where promotion posts happen to have the scale of pay of feeder category posts, one advance increment will be granted to the incumbents appointed by promotion in posts carrying the scale of pay of feeder category posts. This advance increment WA NO.2197/07 2 will not be granted in the case of promotion from a time-bound higher grade to a regular promotion post in the same scale of pay.” The petitioner also points out that he has been promoted as Accounts Officer pursuant to Ext.P3 DPC list. It is a “select list of officers fit for selection to various categories in the Indian System of Medicine department for the year 2001 prepared by the Departmental Promotion Committee and approved by the Government.” Under the category of Accounts Officer, the petitioner's name is included. So, unless his appointment is by promotion, there was no necessity to publish the DPC list with the approval of the Government in terms of Rule 28 of the KS & SSR. The above contention of the petitioner was accepted by the learned Single Judge and the Writ Petition was allowed. 2. But the respondents point out that the petitioner's appointment cannot be treated as a promotion in view of the provisions contained in the amendment to the Special Rules, a copy of which is produced as Ext.P4. The relevant portion of the said amendment reads as follows : “In the rules in sub-rule (a) of rule 2, in category IA , for the entries in column (2) against the item “Accounts Officer, office of WA NO.2197/07 3 the Director of Indigenous Medicine”, the following entries shall be substituted, namely :- (1) By appointment from the category of Administrative Assistant in the Department of Indian Systems of Medicine. OR (2) In the absence of suitable candidates under item (1) above, by promotion from Senior Superintendent in the Department of Indian Systems of Medicine OR (3) In the absence of suitable candidates under items (1) and (2) above, by transfer from among Junior Superintendents in the Department of Indian Systems of Medicine.” The appellants point out that the first method of filling up the post of Accounts Officer is by appointment from the category of Administrative Assistant . The second method is by promotion from the post of Senior Superintendent and the third method is by transfer from the post of Junior Superintendent in the Department of Indian Systems of Medicine. So, going by the above Special Rules, the petitioner's appointment cannot be treated as one by promotion, it is WA NO.2197/07 4 submitted. They also rely on the definition of 'promotion' contained in S.2(11) of Part I KS&SSR. The said definition 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.” In view of the above definition and the second method of appointment contained in Ext.P4, it is submitted that the petitioner's appointment is not by promotion and therefore, he is not entitled to get the benefit of paragraph 47 of the pay revision order quoted above. In tune with the said stand, the Government have issued Annexure A1 order, modifying the petitioner's appointment. In answer, the writ petitioner relied on the explanatory note to Ext.P4 and contended that his appointment is by promotion. 3. Going by the definition of promotion, the petitioner's appointment cannot be treated as a promotion. But, in common parlance, it is a promotion. The word 'promotion' used in paragraph 47 quoted above is not in the technical sense as defined under S.2(11) of Part I KS & SSR. In the technical sense, the promotion of an incumbent to a post carrying the same scale of pay can never be treated as a promotion. Therefore, paragraph 47 of the pay revision order WA NO.2197/07 5 will become redundant and unworkable. So, we feel that the definition of promotion contained in S.2(11) of Part I KS & SSR cannot be mechanically applied to understand the term 'promotion' used in paragraph 47 of the pay revision order. Rule 2 of the KS & SSR itself says, the definition of a word should be accepted unless there is nothing repugnant in the subject or context. If the technical definition of promotion is used, we are of the view that paragraph 47 of the pay revision order will become unworkable. The word promotion is used as understood in common parlance. Then only it can be implemented. Therefore, we declare that the appointment of the petitioner from the post of Administrative Assistant to the post Accounts Officer is promotion for the limited purpose of paragraph 47 of the pay revision order. In the result, we affirm the judgment of the learned Single Judge. Accordingly, the Writ Appeal is dismissed. The appellants are given two months' time from today to implement the judgment of the learned Single Judge. K.BALAKRISHNAN NAIR,JUDGE 29.02.2008 P.N.RAVINDRAN, JUDGE True copy PA TO JUDGE WA NO.2197/07 6 sta