IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 WA.No. 512 of 2009() -------------------- AGAINST THE JUDGEMENT/ IN WPC.32569/2008 Dated 26/11/2008 .................... APPELLANTS/PETITIONERS: -------------- 1. M.ABDULLA, S/O. LATE ALIKUTTY, AGED 57 YEARS, MUNDODAN HOUSE, URANGATTIRI P.O., MALAPPURAM, LAB ASSISTANT (RETIRED) S.S. HIGHER SECONDARY SCHOOL, MOORKANAD, ARECODE, MALAPPURAM. 2. CHANDRASEKHARAN, AGED 55 YEARS, S/O. K. KRISHNAN NAIR (LATE) PULLARE HOUSE, P.O. THIRUNAVAYA, MALAPPURAM, LAB ASSISTANT (RETIRED), NAVAMUKUNDA HIGHER SECONDARY SCHOOL, THIRUNAVAYA, MALAPPURAM DIST. BY ADV. SMT.LATHA PRABHAKARAN SRI.K.M.JAMALUDHEEN RESPONDENTS/RESPONDENTS: --------------- 1. THE STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE ACCOUNTANT GENERAL ( A & E) INDIAN AUDIT & ACCOUNTS DEPARTMENT, OFFICE OF THE ACCOUNTANT GENERAL ( A & E) KERALA, M.G. ROAD, P.B, NO. 5607, THIRUVANANTHAPURAM 695 039, 4. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM -1. SPL. GOVERNMENT PLEADER, SRI.N.MANOJ KUMAR FOR R1-4 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------- W.A.No.512 OF 2009 ------------------------------- Dated this the 17th day of September, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The writ petitioners are the appellants. The brief facts of the case are the following: 2. The appellants were working in Aided High Schools as Peons. The 1st appellant was appointed as Peon on 1.7.1976 and the 2nd appellant on 19.7.1973 in their respective schools. Higher Secondary wings were sanctioned to those High Schools. The Government created the post of Laboratory Assistants in those and other schools with effect from 28.3.2003. As per the provisions of Chapter XXXII of the Kerala Education Rules, the method of appointment to the post of Lab Assistant was appointment by transfer from Last Grade Servants and by direct recruitment. The ratio between those two methods was 25%:75% The appellants were appointed by tr-ansfer as Lab Assistants. At the relevant time, the appellants were drawing W.A.No.512/2009 2 salary in the scale of pay of Rs.3050-5230, which is a higher grade scale of pay of Peons. But, the post of Lab Assistants, at the relevant time, was carrying a scale of pay of Rs.2650-4150. Their salary on appointment by transfer was fixed in the lower scale of pay of Lab Assistant, giving pay protection as provided under Rule 37(b) of Part I of the Kerala Service Rules (for short 'K.S.R.'). But, the appellants claimed they should be given fixation of pay under Rule 28A of Part I of the K.S.R. They also claimed protection of their scale of pay on promotion to the post of Lab Assistants. The claim of the appellants for protection of pay scale was considered by the Government and rejected by Exts.P6 and P7. But, it was ordered that they shall be given protection of pay. Dis-satisfied with those orders, the Writ Petition was filed claiming protection of pay scale and also fixation of pay under Rule 28A. The learned Single Judge, noticing the reliefs granted to the appellants under Exts.P6 and P7 and the submission made by the learned Government Pleader that the benefits under those exhibits will be extended to them, disposed of the Writ Petition. Dis-satisfied with the direction of the learned Single Judge, this Writ Appeal is filed. W.A.No.512/2009 3 3. We heard Smt.Latha Prabhakaran, learned counsel for the appellants and learned Special Government Pleader, Sri.N.Manoj Kumar for the respondents. Going by Rule 28A of Part I of the K.S.R, the appellants are not entitled to get fixation of pay, as provided therein, as they are appointed from a higher scale of pay to a lower scale of pay. Their claim is squarely covered by Rule 37(b) of Part I of the K.S.R., which 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 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.” W.A.No.512/2009 4 Therefore, the claim of the appellants for fixation of pay under Rule 28A cannot be upheld. The same is the case with the claim of the appellants for protection of their scale of pay, as no rule has been brought to our notice, which enables the appellants to sustain such a claim. In the absence of any right emanating from a rule or order, this Court cannot grant any relief. Accordingly, the Writ Appeal fails and it is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (P.BHAVADASAN, JUDGE) ps