IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 22ND SEPTEMBER 2009 / 31ST BHADRA 1931 WP(C).No. 27779 of 2008(R) -------------------------- PETITIONER(S): ------------------- 1. N.VELAPPAN,SECTION OFFICER/COURT OFFICER/ COURT FEE EXAMINER, HIGH COURT OF KERALA, ERNAKULAM. 2. ALEX MATHEW, SECTION OFFICER/COURT OFFICER/COURT FEE EXAMINER, HIGH COURT OF KERALA, ERNAKULAM. 3. V.SUDHAKARAN, SECTION OFFICER/COURT OFFICER/COURT FEE EXAMINER, HIGH COURT OF KERALA, ERNAKULAM. 4. MEENA.B.NAIR, SECTION OFFICER/COURT OFFICER/COURT FEE EXAMINER, HIGH COURT OF KERALA, ERNAKULAM. 5. V.S.AJITHKUMAR, SELECTION GRADE ASSISTANT, HIGH COURT OF KERALA, ERNAKULAM. 6. S.AJITHKUMAR, SELECTION GRADE ASSISTANT, HIGH COURT OF KERALA, ERNAKULAM. 7. G.PADMAKUMAR, SELECTION GRADE ASSISTANT, HIGH COURT OF KERALA, ERNAKULAM. 8. G.SREEKUMAR, SELECTION GRADE ASSISTANT, HIGH COURT OF KERALA, ERNAKULAM. 9. SHANAVAS KHAN, SELECTION GRADE ASSISTANT HIGH COURT OF KERALA, ERNAKULAM. 10. KERALA HIGH COURT STAFF ASSOCIATION, REG.NO.14/57, ERNAKULAM, KOCHI-682031,REPRESENTED BY THE SECRETARY. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.T.R.SADEESAN SRI.T.S.SHYAM PRASANTH WPC NO.27779/08 -2- RESPONDENT(S): ------------------- 1. STATE OF KERALA, REPRESENTED BY ADDL. CHIEF SECRETARY TO GOVERNMENT, HOME (C)DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31,REPRESENTED BY ITS REGISTRAR GENERAL. ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE FOR R2 GOVERNMENT PLEADER SRI.N.MANOJ KUMAR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/09/2009, ALONG WITH WPC NO. 36804 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.27779/08 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF SUBMISSION OF THE PETITIONERS BEFORE THE RESPONDENTS FOR CLAIMING THE BENEFIT SUBJECT TO CLARIFICATION IF ANY FROM THE GOVERNMENT. EXT.P2: TRUE COPY OF SUBMISSION ON 24.1.07 ALONG WITH REPRESENTATION BY THE 8TH PETITIONER BEFORE THE GOVERNMENT. EXT.P3: TRUE COPY OF OFFICE MEMORANDUM NO.A5-19864/05 DATED 26.2.07 ISSUED BY THE 2ND RESPONDENT. EXT.P4: TRUE COPY OF GO(MS) NO.214/97/HOME DATED 27.8.97 ISSUED BY THE 1ST RESPONDENT. EXT.P5: TRUE COPY OF GO(MS) NO.148/2002/HOME DATED 10.9.02 ISSUED BY THE 1ST RESPONDENT. EXT.P6: TRUE COPY OF GO(P) NO.452/06/FIN. DATED 6.11.06 ISSUED BY THE 1ST RESPONDENT. EXT.P7: TRUE COPY OF SUBMISSION ALONG WITH REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE GOVERNMENT ON 18.6.08. EXT.P8: TRUE COPY OF OFFICIAL MEMORANDUM NO.A5-42861/2008 DATED 30.6.08 ISSUED BY THE 2ND RESPONDENT. EXT.P9: TRUE COPY OF APPEAL SUBMITTED BY THE 1ST PETITIONER BEFORE THE HON'BLE CHIEF JUSTICE OF HON'BLE HIGH COURT OF KERALA ON 23.7.08. EXT.P10: TRUE COPY OF OFFICIAL MEMORANDUM NO.A5-42861/2008 DATED 11.8.08 ISSUED BY THE 2ND RESPONDENT. EXT.P11: TRUE COPY OF THE ORDER DATED 18.9.2008 IN VIDE GO(P) NO.420/08/FIN. ISSUED BY THE 1ST RESPONDENT. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NOS.27779 & 36804 OF 2008 ========================= Dated this the 22nd day of September, 2009 J U D G M E N T The claim made in these writ petitions being similar, the cases were heard together and are disposed of by this common judgment. 2. For sake of convenience, I shall refer to the facts as pleaded in WP(C) No.27779/08. 3. There are nine petitioners in this writ petition. They were appointed in the High Court Service by direct recruitment, during the period 1993-1995. Prior to their joining High Court Service, they have rendered services under various Government Departments and it is their case that on joining High Court Service, they were given pay protection. 4. While continuing as such, by GO(P) NO.145/06/Fin dated 25th of March 2006, pay revision was ordered to the Government employees, Clause 5 of which provided for service weightage. Subsequently, the Government issued GO(MS) No.230/06/ dated 26/12/2006 ordering pay revision to the High Court employees. This order contained Clause 6, which made WPC 27779 & 36804/08 :2 : applicable Clause 5 of GO(P) No.145/06/Fin. as well. 5. Once the pay was revised as above, although the petitioners did not claim the benefit of service weightage for their service under the Government in terms of the Government Order, they submitted Exts.P1 and P2, claiming that they are entitled to service weightage in terms of Rule 37(b) of Part I KSR. That was considered and rejected by Ext.P3 stating that in view of the decision of this Court in Jayasree v. State of Kerala (2002(3) KLT 803), the petitioners were not eligible for the benefit claimed. 6. They again submitted Ext.P7 representation relying on Exts.P4 to P6. That also was considered and was rejected by Ext.P8 order informing that the Hon'ble Chief Justice has ordered to reject the first petitioner's submission in the light of the aforesaid judgment. First petitioner thereafter pursued the matter by filing Ext.P9 appeal under Rule 27 of the Kerala High Court Service Rules, 2007. That was also considered and was rejected by Ext.P10 order. 7. It is thereupon that this writ petition is filed praying to quash Exts.P3, P8 and P10 and also to declare that the judgment in Jayasree's case is not applicable to the claims made by the WPC 27779 & 36804/08 :3 : petitioners. A direction to the respondents to grant the benefits in lieu of their service under the State Government prior to joining Kerala High Court Service is also sought for. 8. The contention raised by the counsel for the petitioner is that in view of Rule 37 of the Kerala High Court Service Rules, the provisions of the Kerala Service Rules have been adopted and that the said rule shall govern the members of the High Court Service. It is therefore stated that having adopted KSR, the petitioners are eligible for the weightage as provided under Rule 37(b) of Part I KSR. It is stated that in any event, if at all any clarification is necessary, the matter shall be referred to the Government as required under Rule 4 of Chapter 1, Part I KSR. It is on this basis the prayers are sought for. 9. On behalf of the 2nd respondent, it is contended that the claim made is inadmissible. It is stated if at all service weightage is admissible, it can be claimed only in terms of the provisions contained in GO(MS) No.230/06 read with GO(P) No.145/06. It is also the case of the 2nd respondent that Rule 37 of KSR by itself is inapplicable as clarified by this Court in the judgment in Jayasree's case. On behalf of the 1st respondent, it WPC 27779 & 36804/08 :4 : is contended that weightage can be claimed only in terms of the pay revision order and that the General Rules cannot be made applicable. 10. As already stated, the claim of the petitioners is on the basis that KSR having adopted, by virtue of Rule 37 of Kerala High Court Service Rules, they are eligible for the benefit of Rule 37(b) of Part I KSR. 11. The effect of Rule 37 has already been considered by this Court in Jayasree's case, in which, in para 9 to 12, it has been held thus: 9. From the aforesaid provisions of the High Court Service Rules, 1970, it is clear that so far as the members of the High Court services are concerned their conditions of service, pay and allowances, pension, leave or any of them are governed by the provisions of the Kerala High Court Services Rules. It is also clear that the Kerala Service Rules issued by the Governor in exercise of the powers vested in him under Art.309 of the Constitution is not applicable to the members of the High Court Service on its own force. The provisions of the Kerala Service Rules, Kerala State and Subordinate Service Rules. Government Servants' Rules, etc., are made applicable to the members of the High Court service only by adoption of the said Rules by R.35 of the Kerala High Court Service Rules. In other words, the Kerala Service Rules in its own force has no application to the members of the High Court Service and that it is only by virtue of R.35 of the Kerala High Court Service Rules the provisions of the Kerala Service Rules apply to the said members. This being the position in law R.37(b) of Part I K.S.R will not apply to the members of the WPC 27779 & 36804/08 :5 : Kerala High Court service when they are appointed in the services of the State Government on the advice of the Kerala Public Service Commission. 10. The contention of the petitioners, as already noted, is that the qualification prescribed for appointment to the post of Assistant Grade II in the High Court service and to the post of Assistant Grade II in the Government Secretariat are one and the same, viz., graduation, that the scales of pay of the said two posts are also identical, that both the members of the High Court service and the members of the Secretariat service are governed by the provisions of the Kerala Service Rules and that the members of the High Court service are also holding public offices and as such they are persons appointed to public service and posts in connection with the affairs of the State. 11. The Supreme Court in Chief Justice, A.P. v. L.V.A.Dikshitulu (AIR 1979 SC 193) in the context of the provisions of Art.371-D,Cl.(3), sub-cls.(a), (b), (c) and the provisions of the Andhra Pradesh Administrative Tribunal Order 1975 D/-19.5.1975 considered the question as to whether the phrase “Civil Service of the State” will take in the members of the staff of the High Court or of the Subordinate Judiciary and held that the posts held by the High Court staff or by the Subordinate Judiciary were adivsedly excluded from the purview of Cl.(3) of Art.371-D. So there is no merit in the contention of the petitioners that the members of the High Court service have to be treated as members of the civil service of the state. 12. As already noted the provisions of the Kerala Service Rules by its own force apply only to Government servants. The members of the High Court service can never be treated as members of the Government service. The provisions of the Kerala Service Rules have been made applicable to the members of the High Court service only by R.35 of the Kerala High Court Service Rules issued by the Chief Justice. In order to apply R.37 (a) and (b) of Part I K.S.R, the appointments WPC 27779 & 36804/08 :6 : contemplated therein must be from one post in the Government service to another post in the Government service. Admittedly the said situation did not arise in this case. As such the first respondent was not justified in fixing the pay of the petitioners on their appointments as Assistant Grade II in the Government Secretariat on the advice of the Kerala Public Service Commission by applying R.37(b) of Part I K.S.R. 12. A reading of the judgment shows that the appointments as provided in Rule 37 must be from post in the Government service to another post in the Government service. Even if it is accepted that the said rule is applicable to the petitioners, by virtue of its adoption, the Rule has to be understood as appointment from one post in the High Court Service to another post in the High Court Service. In so far as the case of the petitioners are concerned, their appointment was from one post in the Government service to the High Court Service. In any case, by no stretch of imagination, can this Rule apply to appointment from Government service to High Court Service. If so, the claim of the petitioners set up on the basis of Rule 37 Part I KSR is totally devoid of merit. 13. The other contention raised by the counsel for the petitioners is for a reference as provided under Rule 4 Part I KSR. This rule provides that if any doubt arises as to whether these WPC 27779 & 36804/08 :7 : rules apply to any person, the matter shall be referred to the Government and the decision of the Government shall be final. First of all, this provision takes in a case where a doubt is entertained by an authority subordinate to the Government. In such a case, the Rule requires that instead the Subordinate resolving the doubt shall refer the matter to the Government, whose clarification will be final. As already noticed, this Rule is applicable to those in the High Court Service by virtue of its adoption. If that be so, as against the term 'Government' mentioned in the Rule, it should be read as 'Chief Justice'. If that be so, the reference at best can only be to the Chief Justice and not to the Government. In any case, the Chief Justice cannot be said as an authority subordinate to the Government in order to confer a reference under Rule 4. In this case, the impugned orders show that the matter was referred to the Chief Justice. Therefore, there is no question of reference to the State Government. 14. I also find force in the submission of the learned senior counsel appearing for the 2nd respondent and also the learned Government Pleader that weightage can be claimed only in terms WPC 27779 & 36804/08 :8 : of the provisions of GO(MS) No.230/06, Clause 6 of which makes applicable to the service weightage as provided in Clause 5 of GO (P) No.145/06. It is also pointed out that in the Division Bench judgment in OP No.3365/03 and connected cases, a similar claim was raised and that the same has been answered in the following words: When the pay revision order does not specifically include a particular service for the purpose of weightage, it cannot be counted for granting the said benefits. If it is not stated that the aided school service shall be reckoned for weightage, it cannot be counted. One can draw a benefit only when there is permission in the order. Therefore, the view of the learned Single Judge, that objection raised by the Accountant General is not justified, cannot be supported. Similarly in the judgment of the Division Bench in WA No.1521/09, an identical claim has been negatived in the following words: The appellant was not able to show any rule or order which binds the Government to count the service under the Central Government also for granting pensionary benefits. Where there is a right, there is a remedy. In the absence of any right, no relief can be granted to the appellant. So, we find no reason to interfere with the judgment under appeal. As already stated, para 5 of GO(P) No.145/06/Fin provides for service weightage. Petitioners have no case that they satisfy the requirements of the said provision. On the other hand, WPC 27779 & 36804/08 :9 : admittedly, they are ineligible of the same and it is therefore they are attempting to take refuge under Rule 37 of Part I KSR. 15. In my view, the entitlement of the petitioners cannot go beyond the provisions of the Government order, for which, admittedly they are ineligible. In such circumstances, I see no merit in the contentions raised and WP(C) No.27779/08 will stand dismissed. In the light of the judgment in WP(C) No.27779/08, WP(C) No.36804/08 will also stand dismissed. ANTONY DOMINIC, JUDGE Rp