IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 13TH JANUARY 2010 / 23TH POUSHA 1931 WA.No. 2180 of 2007() --------------------- AGAINST THE JUDGMENT IN OP.23004/2001 Dated 10/07/2007 .................... APPELLANT(S): RESPONDENTS 1 TO 3 IN THE O.P ------------------------------------------ 1. THE COMMISSIONER & SECRETARY (FINANCE), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT, AGRICULTURE, (AHE) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE ACCOUNTANT GENERAL (A & E) KERALA, KALOOR BRANCH, ERNAKULAM. BY SENIOR GOVT. PLEADER SRI.BENNY GERVASIS RESPONDENT(S): PETITIONER IN THE O.P ----------------------------------- G.RAMACHANDRAN, ADMINISTRATIVE ASSISTANT, DIRECTORATE OF ANIMAL HUSBANDRY, VIKAS BHAVAN, THIRUVANANTHAPURAM, RESIDING AT AKSHARAM, T.C.NO.28/133, KAITHAMUKKU, THIRUVANANTHAPURAM. ADV.SRI.P.G.P.PANICKER (SENIOR) SRI.P.GOPAL THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NO. 2180 OF 2007 --------------------------------------------- Dated this the 13th day of January, 2010 JUDGMENT Balakrishnan Nair, J. The respondents in the Original Petition are the appellants. The respondent herein was the petitioner. The brief facts of the case are the following: 2. The respondent joined the Department of Animal Husbandry as a Lower Division Clerk. In due course, he was promoted as Upper Division Clerk, Head Clerk and on 9.3.1994, he was promoted as Junior Superintendent. Still later, he was promoted as Senior Superintendent on 13.7.1998. The dispute regarding fixation of pay, on his promotion to the post of Senior Superintendent on 13.7.1998, was the subject matter of the Writ Petition. 3. As per the pay revision of 1988, the scale of pay of Junior W.A. NO. 2180/2007 2 Superintendent was Rs.1520-40-1600-50-2300-60-2660. The respondent/ petitioner was promoted to that post on 9.3.1994, which was after the pay revision introduced with effect from 1.3.1992 Since the rate of increment in the pre-revised scale of Junior Superintendent was higher than that of the revised scale, the respondent/petitioner was granted protection for the incremental rate. Therefore, on the date of promotion as Senior Superintendent on 13.7.1998, the respondent was drawing a basic pay of Rs.2,300/- and a personal pay of Rs.150/-. The difference in incremental rate given at the rate of Rs.30/- on five occasion, accumulated into a personal pay of Rs.150/-. 4. The protection for incremental rate was granted by virtue of paragraph 13 (a) of Ext.P1 (G.O.(P) 600/93/Fin. dated 25.9.1993), which reads as follows: “13.(a): Rates:-- Increment rates in the revised scales of pay are comparatively less than those in the existing State scales of pay. In order to protect the drop in the incremental rates on fixation of pay in the revised scale, the following procedure will be followed: If the increment drawn in the pre-revision scale is higher than the increment due in the revised scale, the difference will be protected by way of 'personal pay' at each incremental stage in W.A. NO. 2180/2007 3 the revised scale. Such personal pay will continue till the rate of increment in the revised scale becomes the same or more than that drawn in the pre-revision scale on earning increments in the revised scale or on promotion or on revision of scales of pay.” Later, the said clause was substituted by paragraph 9 of G.O.(P) No.930/93/(2)/Fin. dated 8.12.1993, a copy of which was produced as Ext.P2 in the Original Petition. That portion of the said Government Order which is relevant in this case is quoted below: “9. Para 13 (a) of G.O(P) 600/93/Fin. Dated 25.9.1993 is substituted by the following:- Rates:- Increment rates in the revised scales of pay are comparatively less than those in the existing state scales of pay. In order to protect the drop in the increment rates on fixation of pay in the revised scale the following procedure will be followed:- If the increment drawn in the pre-revision scale is higher than the increment due in the revised scale, the difference will be protected by way of 'Personal Pay' at each incremental stage in the revised scale. Such personal pay will continue till the rate of increment in the revised scale becomes the same or more than that drawn in the pre-revision scale on earning increment in the revised scale or on promotion or on revision of scales of pay. On promotion/revision of scales of pay, this personal pay will be merged with basic pay and the pay in the promoted scale fixed on the basis of it. In cases where there is difference W.A. NO. 2180/2007 4 between the increment rate drawn in the pre- revision scale and the rate in the promoted post, that difference will be protected as personal pay. The personal pay will also be taken into account for calculating D.A, H.R.A and C.C.A rates.” 5. Upon promotion to the post of Senior Superintendent, the pay of the respondent/petitioner was fixed, taking into account the above quoted portion of Ext.P2 read in the light of Rule 28A of Part I of the Kerala Service Rules. The said rule reads as follows: “28A. Notwithstanding anything contained in these rules, where an Officer holding a post in a substantive, temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity to another post carrying a higher time-scale of pay, his initial pay in the higher time-scale of pay shall be fixed at the stage next above the pay notionally arrived at in the lower time-scale of pay by increasing the actual pay, drawn by him in the lower time-scale by one increment. [A refixation of pay will be allowed whenever there is a change of pay in the lower time-scale] This rule shall be deemed to have come into force with effect from 3rd February, 1962.” 6. As mentioned earlier, the basic pay of the respondent /petitioner, for the purpose of fixation under Rule 28A of Part I of the Kerala Service Rules, was taken as Rs.2,450/-( pay - Rs.2300 + personal pay - Rs.150/-). W.A. NO. 2180/2007 5 One increment in the scale of pay of Junior Superintendent, that is, Rs.60/- was also added and the pay was arrived at Rs.2,510/-. Since that was not a stage in the scale of pay of Senior Superintendent, it was fixed at the next higher stage, that is, Rs.2,525/-. 7. The respondent/petitioner represented against the above fixation. According to him, his increment, Rs.60/-, in the revised scale of pay of Junior Superintendent and Rs.20/-, the protected drop in the increment also should be added as increment in the lower scale, in terms of Rule 28A of Part I of the Kerala Service Rules. If that be so, then his basic pay should be Rs.2,530/- (Rs.2300 + 150 + 60 + 20) and his pay has to be fixed at the next stage of Rs.2,600/-. Since, the said claim was rejected by the competent authority by Ext.P4, the Original Petition was filed, challenging Ext.P4 and seeking consequential reliefs. The petitioner also challenged the clarificatory order issued by the Government as per Ext.P5, which specified that only the actual increment in the lower post should be added on promotion and not the notional increment that was granted in the lower post. The relevant portion of Ext.P5, which was impugned, reads as follows: “6. The notional increment to be reckoned for W.A. NO. 2180/2007 6 fixation of pay on promotion under Rule 28A/37 (a), Part I, KSRs in the revised Pay scales will be the rate of increment specified in the revised scales. No protection of the increment drawn in the pre-revision scale is allowable for notional fixation of pay.” The learned Single Judge, after hearing both sides, allowed the Writ Petition. Hence, this appeal by the respondents. 8. We heard the learned counsel on both sides. The point that arises for consideration in this appeal is whether, for the purpose of fixation under Rule 28A of Part I of the Kerala Service Rules, the actual increment available under the lower post should be added or the notional increment that was being paid for the purpose of avoiding a drop in the rate of increment, in the light of Exts.P1 and P2 orders, should be added. A plain reading of Rule 28A of Part I of the Kerala Service Rules, which we have already quoted above, would show that only the actual increment could be claimed by the respondent/petitioner. The said position, which is already clear from Rule 28A has been further clarified by paragraph 6 of Ext.P5. We think the said view taken by the appellants is a view in consonance with the provisions of Rule 28A of Part I of the Kerala Service Rules. If notional increment, which includes actual increment and additional payment, to avoid drop in incremental rate, is to be added, W.A. NO. 2180/2007 7 there should be a specific provision to that effect under Rule 28A of Part I of the Kerala Service Rules or the Government should issue an executive order to that effect. In the absence of such an order in his favour, the respondent/petitioner can claim only fixation as provided under Rule 28A. Unless the provisions of Rule 28A of Part I of the Kerala Service Rules are re-written, the claim of the respondent/petitioner cannot be upheld. In the result, the Writ Appeal is allowed. The judgment under appeal is reversed and the Original Petition is dismissed. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. NO. 2180/2007 8 K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.A.NO.2180/2007 JUDGMENT 11th January, 2010 W.A. NO. 2180/2007 9