Case: C. C. Padmanabhan and Others Vs. Director of Public Instructions and Others

two items:(a) Special pay in lieu of higher time scale of pay.(b) Special pay for specifically arduous nature of work.The expression special pay in lieu of higher time scale of pay may be better understood with reference to the provisions of rule 12(31) of the Kerala Service Rules which may be extracted here:"12(31) Special Pay:-means an addition of the nature of pay to the emoluments of a post or of an officer granted in consideration of the following:"(a) Where a post would call for a higher scale of pay in view of the additional and/or higher responsibilities attached to it: or"(b) Where the nature of work is specially arduous; or"(c) Where an officer has to attend to work in addition to normal duties attached to his post."Sub-clauses (b) &(c) of clause (31) obviously relate to posts having the same designation or the same nature of duties in the same time scale which is not the case here. On the other hand, the special pay granted to an A.E.O. would squarely fall within the sub-clause (a) of clause (31), in view of the nature of higher responsibilities shouldered by him. And if that be so, the grad e of the post of an A.E.O. must be equated to the time scale plus special pay, which would be a grade higher than the one available to an H.S.A.11. In contending to the contrary Mr. Abdul Khader sought support from P. G. Joshi and others, etc etc, v. The Director General, Posts and Telegraphs, New Delhi, etc.(1), in which the posts of Wireless Licence Inspectors and Town Inspectors, to such of which a special pay of Rs. 30/- was attached, were held equivalent to those of clerks, the time scale for all the three being the same. The dictum in that case is, however, not applicable to the facts with which we are concerned. Therein this Court took note of the definition of special pay occurring in Fundamental 9(25) which states:"Special pay means, an addition of the nature of pay, to the emoluments of a post or of a Government servant, granted in consideration of(a) the specially arduous nature of the duties; or(b) a specific addition to the work or responsibility; or(c) the unhealthiness of the locality in which the work is performed."then proceeded to observe:"The provision for payment of a special pay of Rs. 30/- in addition to the time scale of pay of clerks is inconsistent with the constitution of a separate cadre of Wireless Licence Inspectors and Town Inspectors. The provision for special pay shows that they continue in the cadre of time-scale clerks. Appointment as Wireless Licence Inspectors or Town Inspectors is not a case of transfer from one cadre to another or a case of promotion from a lower cadre to a higher cadre or from a lower post to a higher post. Though, for directly recruited Wireless Inspectors, there is an avenue of promotion from those posts to the post of Wireless Investigating Inspectors, no such avenue of promotion has been shown to exist for Wireless Licence Inspectors appointed from amongst time-scale clerks. Their avenues of promotion are from their substantive posts of time-scale clerks. The posts of Wireless Licence Inspectors to which time-scale clerks are appointed by selection did not constitute a separate cadre and the appointments are not by way of promotion. The posts of Wireless Licence Inspectors are in the cadre of time- scale clerks and carry a special pay on account of additional work."Special pay of Rs. 30/- in that case, it may thus be seen something quite different from the special pay in the instant case which, as we have already found, was fitted in lieu of a higher scale of pay consistent with the higher responsibilities which are entailed in the performance of his functions by an A.E.O. All the three clauses of Fundamental Rule 9(25) correspond with the definition of special pay contained in sub-clauses (b) &(c) of clause (31) of rule 12 of the Kerala Service Rules and none of them takes within its sweep the type of special pay envisaged by sub-clause (a) of rule 12(31). The case cited is thus fully distinguishable and is of no assistance to the case propounded on behalf of the State Government.12. We now take up the second limb of the argument of Mr. Nair, namely, that even if the post of an A.E.O. is not regarded as higher to that of an H.S.A. either category-wise or grade-wise, the impugned reversions are still hit by article 14 of the Constitution of India. In this connection two important factors have to be taken note of. The first is that the post of an A.E.O. carries a special pay of Rs. 50/- per month, and, therefore, ensures for its incumbents higher emoluments than are available to an H.S.A. The second is that the special pay is counted towards pension as is made out on a reading of rules 12(23) and 62 of the Kerala Service Rules. According to rule 12(23) special pay is part of pay while rule 62 states inter alia that emoluments which are reckoned for pension include pay as defined in rule 12(23). The post of an A.E.O. thus carries with it not only benefits enjoyable by the incumbent so long as he holds the post but also such as are availa ble to him after retirement. The substantial improvements in the benefits which an H.S.A. thus enjoys after his posting as an A.E.O. constitute a compelling circumstance which would necessitate the formulation of rational criteria to be followed in transferring an H.S.A. as an A.E.O. and vice-versa so that mere caprice does not deprive an A.E.O. of the benefits enjoyed by him. The direction contained in the letter dated 19-5-1977 that an A.E.O. should be transferred back as an H.S.A. after six years of service as A.E.O. is wholly arbitrary and not based on any principle. It is, therefore, violative of article 14 and we hold it to be so.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. Here we may briefly advert to the constitution of the Kerala General Education Service as detailed in G.O. (P) No. 356/PD, dated 28th October, 1967 and published in Kerala Gazette No. 46, dated 21st November 1967. That Service is divided into two classes. The post of the District Educational officer falls in Class I which is superior to Class II. The posts enumerated in Class II include those of Headmasters of High Schools. The post of H.S.A. does not find a place in either Class. On the other hand the H.S.A. belongs to the Kerala Educational Subordinate Services and works under the Headmaster of a High School. He is, therefore, two steps below the District Educational officers. Mr. Nair sought to utilise this circumstance as another pointer to the post of H.S.A. lying in a category lower tha n that of an A.E.O. for, according to him, the latter was only one step below the post of a District Educational officer. The argument has not commended itself to us as no foundation has been laid for the assumption that the post of an A.E.O. furnishes an immediate avenue of promotion to that of the District Educational officer. In fact an indication to the contrary is provided by the various categories listed in Classes I and II mentioned above, neither of which include s either H.S.As. or A.E.Os. This may well mean that the A.E.O. too is to hold another post (out of those listed for the purpose in the G.O. last mentioned) before he would have a chance of promotion as a District Educational officer. And if that b e so, an A.E.O. must also be regarded as two steps below a District Educational officer. The G.O. under consideration is, therefore, of no help to the case of the appellant, but then this conclusion does not adversely affect the finding already arrived at by us otherwise to the effect that the post of an A.E.O. lies in a higherthe Government has been appointing A.E.Os, also as Headmasters of High Schools which means that A.E.Os are equated with H.S.As. Now this is, to say the least. a strange argument. If the rules do not permit A.E.Os. to become Headmasters of High Schools but the Government has been posting them as such in contravention of the rules it would not follow that the rules automatically stand amended to be read in conformity with the contravention. In any case, there is no incongruity in two categories of posts, one higher and the other lower, furnishing two sources of recruitment to another higher post; and it would not necessarily follow from such a practice that the two sources must be regarded as equivalent to each other for allpay of Rs. 30/- in that case, it may thus be seen something quite different from the special pay in the instant case which, as we have already found, was fitted in lieu of a higher scale of pay consistent with the higher responsibilities which are entailed in the performance of his functions by an A.E.O. All the three clauses of Fundamental Rule 9(25) correspond with the definition of special pay contained in sub-clauses (b) &(c) of clause (31) of rule 12 of the Kerala Service Rules and none of them takes within its sweep the type of special pay envisaged by sub-clause (a) of rule 12(31). The case cited is thus fully distinguishable and is of no assistance to the case propounded on behalf of the State Government.12.We now take up the second limb of the argument of Mr. Nair, namely, that even if the post of an A.E.O. is not regarded as higher to that of an H.S.A. eithere, the impugned reversions are still hit by article 14 of the Constitution of India.In this connection two important factors have to be taken note of. The first is that the post of an A.E.O. carries a special pay of Rs. 50/- per month, and, therefore, ensures for its incumbents higher emoluments than are available to an H.S.A. The second is that the special pay is counted towards pension as is made out on a reading of rules 12(23) and 62 of the Kerala Service Rules. According to rule 12(23) special pay is part of pay while rule 62 states inter alia that emoluments which are reckoned for pension include pay as defined in rule 12(23). The post of an A.E.O. thus carries with it not only benefits enjoyable by the incumbent so long as he holds the post but also such as are availa ble to him after retirement. The substantial improvements in the benefits which an H.S.A. thus enjoys after his posting as an A.E.O. constitute a compelling circumstance which would necessitate the formulation of rational criteria to be followed in transferring an H.S.A. as an A.E.O. and vice-versa so that mere caprice does not deprive an A.E.O. of the benefits enjoyed by him. The direction contained in the letter dated 19-5-1977 that an A.E.O. should be transferred back as an H.S.A. after six years of service as A.E.O. is wholly arbitrary and not based on any principle. It is, therefore, violative of article 14 and we hold it to bea necessary consequence if any of the appellants has had to relinquish charge of the post of A.E.O. in compliance with such orders, he shall be deemed to have continued to hold the post of an A.E.O. (in spite of and right from the date of the order of his transfer as H.S.A.) and to be entitled to all the benefits pertaining to that post, and the respondents are directed to repost him as A.E.O. as expeditiously as possible and within a month from the date of this order at the latest.14. We make it clear that the vice of arbitrariness and other infirmities we have pointed out are curable if only the State Government amends the rules fairly and rationally. This judgment does not stand in the way of Government framing new rules or amending the old rules but such rules must be in conformity with Part III of thehearing learned counsel for the parties at length we find both these contentions to beis common ground between the parties that in the instant case the two posts belong to the same service or class of service. Applying the above test, therefore, to them it would follow that the appointment of an H.S.A. to the post of an A.E.O. would be a promotion if, and onlythe post of an A.E.O. is of a higher category than that of an H.S.A.or(b) the post of an A.E.O. carries a higher grade than that of an H.S.A.In case of either of these conditions being fulfilled, the appointment of an H.S.A. to the post of an A.E.O. would be a promotion within the meaning of the clause above reproduced.r ascertaining whether or not the post of A.E.O. lies in a category higher than that of an H.S.A. a reference may be made to clauses (5) and (7a) of rule 2 of the Kerala Education Rules, 1959 and section 12A ofthe Kerala Education Act,combined effect of these provisions is that if so authorised by the Government an A.E.O. shall have the power to take disciplinary proceedings against a teacher, including a Headmaster, of an aided school, to suspend him when such proceedings are proposed to be taken and to impose upon him all or any of the penalties to which he may be liable under the relevantthe Government has been appointing A.E.Os, also as Headmasters of High Schools which means that A.E.Os are equated with H.S.As. Now this is, to say the least. a strange argument. If the rules do not permit A.E.Os. to become Headmasters of High Schools but the Government has been posting them as such in contravention of the rules it would not follow that the rules automatically stand amended to be read in conformity with the contravention. In any case, there is no incongruity in two categories of posts, one higher and the other lower, furnishing two sources of recruitment to another higher post; and it would not necessarily follow from such a practice that the two sources must be regarded as equivalent to each other for allthis connection two important factors have to be taken note of. The first is that the post of an A.E.O. carries a special pay of Rs. 50/per month, and, therefore, ensures for its incumbents higher emoluments than are available to an H.S.A. The second is that the special pay is counted towards pension as is made out on a reading of rules 12(23) and 62 of the Kerala Service Rules. According to rule 12(23) special pay is part of pay while rule 62 states inter alia that emoluments which are reckoned for pension include pay as defined in rule 12(23). The post of an A.E.O. thus carries with it not only benefits enjoyable by the incumbent so long as he holds the post but also such as are availa ble to him after retirement. The substantial improvements in the benefits which an H.S.A. thus enjoys after his posting as an A.E.O. constitute a compelling circumstance which would necessitate the formulation of rational criteria to be followed in transferring an H.S.A. as an A.E.O. andso that mere caprice does not deprive an A.E.O. of the benefits enjoyed by him. The direction contained in the letter datedthat an A.E.O. should be transferred back as an H.S.A. after six years of service as A.E.O. is wholly arbitrary and not based on any principle. It is, therefore, violative of article 14 and we hold it to be