IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 8TH FEBRUARY 2010 / 19TH MAGHA 1931 WA.No. 1595 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN OP.35308/2002 Dated 02/01/2009 .................... APPELLANT(S): -------------- 1. STATE OF KERALA, REP. BY THE SECRETARY, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. BOARD OF REVENUE,REP. BY THE SECRETARY, DEPARTMENT OF REVENUE, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, KOLLAM. GOVT.PLEADER SRI.BENNY GERVASIS RESPONDENT(S): --------------- A. JALEELA BEEVI, L.D. TYPIST, TALUK OFFICE, KOTTARAKKARA. ADV.SRI.S.KRISHNAMOORTHY. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R. K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------- W.A.No.1595 of 2009 ---------------------------------------- Dated 8th February, 2010 JUDGMENT Balakrishnan Nair, J. The appellants were the respondents in the Writ Petition. The respondent herein was the writ petitioner. The point that arises for decision in this appeal is whether an inter-district transferee, who was working as U.D. Typist, but reverted as L.D. Typist and transferred to another district, could claim protection of pay, in the transferee unit, which he drew as U.D. Typist. 2. The brief facts of the case are the following. The respondent joined Wayanad District as L.D. Typist on 1.11.1996. She was promoted as U.D. Typist on 16.1.1999 with effect from 1.1.1999. She was transferred to Kollam District, as per Ext.P1 proceedings of the District Collector, Kollam dated 23.5.2001. Her transfer was subject to the stipulations in G.O.(MS)No.4/61/PD dated 2.1.1961, a copy of which is produced as Ext.P3 in the Writ Petition. She was relieved from Wayanad District on 12.6.2001 and she joined Kollam District on 14.6.2001. On transfer, her pay was fixed in the scale of pay of L.D. Typist at Rs.3,350/-. The scale of pay of that post was W.A.No.1595/2009 2 Rs.3050-5230. The scale of pay of U.D. Typist was Rs.4000 - 6090. Her basic pay was Rs.4190/- in the post of U.D. Typist in Wayanad District. Claiming that the said pay should be protected, the Writ Petition was directly filed before this Court, without moving the departmental authorities. The prayer was for a writ of mandamus to grant the above said relief. Since the Writ Petition was moved without moving the appellants, treating the High Court as the controlling officer, the Writ Petition should have been dismissed in limine. But, it was entertained and the learned Single Judge ordered to grant pay protection to the respondent. This was done relying on Ext.P7 judgment of a learned Single Judge of this Court, in which pay protection was ordered in similar circumstances. The appellants, who were respondents in the Writ Petition, feeling aggrieved by the direction of the learned Single Judge, have preferred this Writ Appeal. 3. We heard the learned counsel on both sides. Sri.Benny Gervacis, learned Senior Government Pleader appearing for the appellants, submitted that appointment to the post of U.D. Typist is by promotion from L.D. Typist, which is the entry cadre, to which direct recruitment is made. A U.D. Typist can seek inter-district transfer only after opting to be reverted as L.D. Typist. In this case, the respondent was reverted as L.D. Typist and thereafter she was transferred to Kollam District. Therefore, she cannot carry the benefit of the pay drawn by her on her promotion as U.D. Typist. Ext.P3 does W.A.No.1595/2009 3 not permit such a course of action, it is submitted. He also brought to our notice a clarification issued by the Finance Secretary in an identical case, relating to the appointment of an Assistant Grade I of Local Fund Audit Department to the post of Assistant Grade II in the Advocate General's office. The Finance Secretary by letter No.54506/R1/84/Fin. dated 19.11.1984 issued a clarification, which would run counter to the claim raised by the respondent. 4. Sri.S.Krishnamoorthy, who appeared for the respondent/writ petitioner, took us through Ext.P3 and stated that the said order deals with only loss of seniority and not loss of emoluments. According to him, no order stands in the way of granting pay protection to the respondent. He took us through Ext.P4 communication issued by the High Court to the Chief Judicial Magistrate, Ernakulam, concerning pay protection on the transfer of an L.D. Typist (Higher Grade) in similar circumstances. He also placed reliance on Ext.P6 proceedings of the Board of Revenue (LR) Thiruvananthapuram dated 26.7.1984, which, in similar circumstances ordered protection of the pay drawn in the post of U.D. Typist. Reference was also made to Ext.P5, which is a Government order, governing pay protection of teachers. The learned counsel submitted that the principles behind that order will apply to the present case also. In view of Ext.P7 judgment, the learned counsel submitted that the learned Single Judge has rightly ordered to grant pay protection to the W.A.No.1595/2009 4 respondent. 5. In answer, the learned Senior Government Pleader, took us through the counter affidavit filed by the appellants in the Writ Petition and explained the circumstances under which Ext.P6 has been passed by the Board of Revenue. According to him, as per that order, an L.D. Typist was granted increments for her entire service, including the period she has worked as U.D. Typist, on her transfer. 6. A U.D. Typist can be granted inter-district transfer only after reverting him to the cadre of L.D. Typist. In other words, he can join the new unit only as L.D. Typist. So, the point to be considered is, whether an incumbent, who is being reverted on his own request to a lower post, is entitled to pay protection. No order or rule has been brought to our notice, which supports such a claim. Further, Rule 37 (b) of Chapter IV of Part I of the Kerala Service Rules specifically says that on reversion pay protection cannot be granted. Rule 37(b) of Chapter IV of Part I of the Kerala Service Rules, as it stood, when the transfer was ordered in 2001, reads as follows: 37.(b) 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 the lower time scale shall be fixed at the minimum of the scale of pay of the new post without 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 and in the case of such appointments, the officer's officiating pay in the new time scale shall be fixed at his officiating pay in the previous appointment, if it is a stage in the new time scale, or W.A.No.1595/2009 5 at the next lower stage, if it is not a stage in the new time scale, the difference being treated as personal pay to be absorbed in future increases. But nothing in this sub-rule shall apply to cases of reversions.” (emphasis supplied) The last part of Rule 37(b) is categoric, in that, it denies pay protection on reversion. In view of the above statutory provision, the orders relied on by the respondent, like Ext.P4 or Ext.P6, cannot be taken into consideration. Ext.P5 has nothing to do with Revenue Department or inter-district transfer in other departments. It deals with inter-district transfer of teachers in the General Education Department only. Now, coming to Ext.P7 judgment, we notice that without giving any reason whatsoever, it has been ordered that a U.D. Typist, on inter-district transfer, is entitled to get pay protection. But, that observation is made without giving any reasons for the same. We are not able to make out what is the basis for arriving at the said conclusion. So, we feel, Ext.P7 cannot be treated as a precedent in other cases. In this context, we notice a letter issued by the Finance Secretary to the Advocate General of Kerala on 19.11.1984 which reads as follows: “In accordance with clause (3) of G.O.(Ms.) 4/61/PD dated 2.1.1961, 1st grade position of Smt.Elizebeth Teresa in the Local Fund Audit Department may be ignored on her transfer to the Advocate General's Office as Grade II Assistants since a person seeking inter-departmental transfer relinquishes all claims in the existing department in the lieu of other advantages of getting employment in the new department. The pay of the incumbent may therefore be fixed at the stage in the scale of Rs.350- W.A.No.1595/2009 6 580 had she continued as Assistant Grade II.” Going by the above letter, when a person is transferred from the post of Assistant Grade I to another department as Assistant Grade II, he is not entitled to get pay protection. The Government have directed to fix her pay treating that she all along continued as an Assistant Grade II. In view of the above position, we find no authority for the proposition that the respondent is entitled to get protection of her pay on her transfer to Kollam District as L.D. Typist. The learned counsel for the respondent relied on the decision of this Court in Narayanan Namboodiri v. State of Kerala (1987 (2) KLT 418). We find that it is concerning the transfer of teachers, which is governed by special orders. Therefore, the said decision has no application to the facts of this case. In the result, the Writ Appeal is allowed. The judgment of the learned Single Judge is reversed and the Writ Petition is dismissed. K.BALAKRISHNAN NAIR Judge P.N.RAVINDRAN Judge TKS