Allowed

N.Velappan v. State of Kerala

Kerala HC2 Jun 2014WA/2515/2009

Case brief

AI extract

What is this about?

The High Court quashed rejection orders preventing Kerala High Court service members from claiming prior government service for pension and weightage. It directed the Government to promptly clarify applicability of service weightage rules to High Court staff under Article 229.

What did the court decide?

Quashed official memoranda rejecting claims; directed Government to consider Registrar General letter for service weightage clarification within three months.

N.Velappan Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID &

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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MONDAY, THE 2ND DAY OF JUNE 2014/12TH JYAISHTA, 1936 WA.No. 2515 of 2009 ( ) IN WP(C).27779/2008

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AGAINST THE JUDGMENT IN WP(C) 27779/2008 of HIGH COURT OF KERALA DATED 22.9.09

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APPELLANTS/PETITIONERS 1 TO 8 AND 10 IN W.P.:

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N.VELAPPAN, SECTION OFFICER/ COURT OFFICER/COURT FEE EXAMINER, HIGH COURT OF KERALA, ERNAKULAM.

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ALEX MATHEW, SECTION OFFICER, -DO- -DO-

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V.SUDHAKARAN, SECTION OFFICER,

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-DO- -DO-

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MEENA B.NAIR, SECTION OFFICER,

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-DO- -DO-

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V.S.AJITHKUMAR, SELECTION GRADE ASSISTANT, HIGH COURT OF KERALA ERNAKULAM.

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S.AJITHKUMAR, SELECTION GRADE ASSISTANT,

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-DO- -DO-

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G.PADMAKUMAR, SELECTION GRADE ASSISTANT,

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-DO- -DO-

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G.SREEKUMAR, SELECTION GRADE ASSISTANT, -DO- -DO-

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KERALA HIGH COURT STAFF ASSOCIATION, REG.NO.14/57, ERNAKULAM, KOCHI-682031 REPRESENTED BY THE SECRETARY.

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BY ADVS.SRI.N.SUGATHAN

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SMT.VARSHA BHASKAR SRI.S.PRASANTH (AYYAPPANKAVU)

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RESPONDENT(S)/RESPONDENTS 1 & 2 AND 9 PETITIONER IN W.P:

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STATE OF KERALA, REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT HOME (C) DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM.

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WA.No. 2515 of 2009

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THE HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31, REPRESENTED BY ITS REGISTRAR GENERAL.

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SHANAVAS KHAN, SELECTION GRADE ASSISTANT HIGH COURT OF KERALA, ERNAKULAM.

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R1 BY SR.GOVERNMENT PLEADER SMT.P.A.REZIYA

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R2 BY ADV. SRI.B.UNNIKRISHNA KAIMAL

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02-06-2014, ALONG WITH WA. 2576/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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APPENDIX IN W.A.NO.2515/09

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APPELLANTS' ANNEXURES:

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ANNEXURE I: COPY OF STATEMENT SHOWING THE SERVICE DETAILS OF APPELLANTS 1 TO 8.

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ANNEXURE II: COPY OF GO(P)NO.145/2006/FIN. DT.25.3.2006.

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ANNEXURE III: COPY OF RULES FOR FIXATION OF PAY IN THE REVISED SCALE (OMITTING THE ILLUSTRATIONS).

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ANNEXURE IV: COPY OF CIRCULAR NO.23/2006/FIN. DT.24.5.06 ISSUED BY THE GOVERNMENT.

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ANNEXURE V: COPY OF GO(MS)NO.236/2006/HOME DT.26.12.06.

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RESPONDENTS' ANNEXURES: NIL

TRUE COPY

P.S.TO JUDGE

dsn

HARUN-UL-RASHID & ANIL K.NARENDRAN, JJ.

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----------------------------------------------------

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W.A.Nos.2515 & 2576 of 2009

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---------------------------------------------------

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DATED THIS THE 2^nd DAY OF JUNE, 2014

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JUDGMENT

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ANIL K.NARENDRAN, J.

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These Writ Appeals arise out of judgment dated 22.9.2009 in W.P.(C).No.27779/08 of the learned Single Judge of this Court. W.A.No.2515/09 is filed by petitioners 1 to 8 and 10 in W.P.(C). No.27779/08 and W.A.No.2576/09 is filed by the 9^th petitioner in that Writ Petition. In this judgment, the parties are referred to as ‘petitioners’ and ‘respondents’, as arrayed in the Writ Petition.

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The petitioners are members of the Kerala High Court Service, who have been appointed substantively to permanent posts borne on the cadre thereof. They entered the High Court Service during the period 1990-95, as Assistant Grade II, on recruitment by transfer, as defined under Rule 2(j) of the Kerala High Court Service Rules, 1970, which was then in force. At the time of their first appointment to the High Court Service, the petitioners were members of other services, holding substantive posts in various State Government Departments as advised by the Kerala Public Service Commission. They have filed W.P.(C).No.27779/08 seeking

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a writ of certiorari to quash Exts.P3, P8 and P10 and for other consequential reliefs in order to count their prior Government service, before they joined the Kerala High Court Service, for service weightage and pensionary benefits.

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Recruitment and conditions of service of the members of the Kerala High Court Service are governed by the Kerala High Court Service Rules, 2007, (hereinafter referred to as the High Court Service Rules) made by the Chief Justice of Kerala in exercise of the powers conferred by Article 229 of the Constitution of India, which came into force on 1.1.2007. Prior to these rules, the members of High Court Service were governed by the Kerala High Court Service Rules, 1970.

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In Jayasree v. State of Kerala (2002 (3) KLT 803) this Court held that, “so far as the members of the Kerala High Court Service are concerned their conditions of service, pay and allowances, pension, leave or any of them are governed by the Kerala High Court Service Rules. It is also clear that the Kerala Service Rules issued by the Governor in exercise of the powers vested in him under Article 309 of the Constitution is not

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applicable to the members of the High Court Service on its own force. The provisions of the Kerala Service Rules, Government Servants Conduct Rules, etc. are made applicable to the members of the High Court Service only by adoption of the said Rules by Rule 35 of the Kerala High Court Service Rules, 1970 (corresponding to Rule 37 of the Kerala High Court Service Rules, 2007).”

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Based on the report of the 8^th Pay Revision Commission, the Government vide G.O.(P)No.145/06/Fin.dated 25.3.2006 revised the pay and allowances of State Government employees and teachers. Later, the Government vide Circular No.23/2006/Fin. dated 24.5.2006 clarified various points relating to revision of scale of pay with effect from 1.7.2004. By the said order, it was clarified, among other things, that prior regular service of those who are appointed to posts having same/higher time scale of pay by direct recruitment by Public Service Commission or by transfer method while officiating in a post, shall be reckoned for giving service weightage. Still later, the Government issued G.O.(P)No.180/06/Fin. dated 18.4.2006 revising the pension and other related benefits consequent on the

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revision of scale of pay with effect from 1.7.2004.

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The Chief Justice of Kerala required the 8^th Pay Revision Commission to examine the matter of revision of pay and allowances of the members of the High Court Service and accordingly the 8^th Pay Revision Commission submitted its report to the Chief Justice. On receipt of that report, the Chief Justice had constituted a Committee of Judges to study the recommendations of the Pay Revision Commission. Based on the report submitted by the Committee of Judges, the Chief Justice submitted a proposal to the Governor of Kerala, under Article 229 (2) of the Constitution of India, for approval of the pay revision of the members of High Court Service. After examining the matter, the Government vide G.O.(MS)No.230/06/Home dated 26.12.2006, issued under the Proviso to Article 229(2) of the Constitution of India, sanctioned revision of pay and allowances and other benefits to the members of the High Court Service.

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According to the petitioners, though their pay was fixed in the revised scale of pay of the post held by them as on 1.7.2004, when such fixation of pay was made they were not granted the service weightage reckoning their prior regular

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service in Government Departments, which has to be reckoned along with their High Court Service for service weightage at the rate of one increment for each completed 4 years of service, as they satisfied the conditions for grant of such benefit. In order to reckon prior service in Government Department for service weightage, if necessary, after obtaining clarifications from the Government of Kerala, the petitioners have submitted Ext.P1 submission. It was followed by Ext.P2 submission made by the 8^th petitioner, pointing out, inter alia, that the judgment of this Court in Jayasree’s case (supra) is applicable only to those employees who are relieved from the High Court Service to join State Government service and not vice versa. But, the request made in Exts.P1 and P2 was turned down vide Ext.P3 Official Memorandum dated 26.2.2007, stating that, in view of the decision of this Court in Jayasree’s case (supra) binding on the question involved, no further clarification from the Government is called for.

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According to the petitioners, the Government vide Ext.P4 order dated 27.8.1997 accorded sanction to extend the

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effect of Government orders issued for the benefit Government Secretariat staff, from time to time, to the corresponding categories of employees in the High Court Service. Later, vide Ext.P5 order dated 10.9.2002, it has been decided that, whenever there is parity in the scale of pay, the disparity in the payment of special pay and other allowances to the staff of the High Court will be rectified. By Ext.P6 order dated 6.11.2006, the Government has fixed a time limit of two years from the date of order, to those who are already in service, for preferring claims for reckoning their prior service for service benefits.

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Relying on Ext.P6 Government order, the 1^st petitioner has filed Ext.P7 submission, enclosing therewith a representation dated 18.6.2008 addressed to the 1^st respondent, in order to reckon his prior service for pensionary benefits. But, the said submission was rejected by Ext.P8 Official Memorandum, again relying on the decision of this Court in Jayasree’s case (supra). Though Ext.P9 appeal, as contemplated under Rule 27 of the High Court Service Rules was submitted, the same also ended in dismissal vide Ext.P10 Official Memorandum. It was in such

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circumstances, the petitioners have approached this Court in W.P.C.27779/08 seeking a writ of certiorari to quash Exts.P3, P8 and P10 and for other consequential reliefs.

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A counter affidavit has been filed on behalf of the Government, the 1^st respondent in the Writ Petition, contending, inter alia, that as held by this Court in Jayasree’s case (supra), the conditions of service, pay and allowances, pension, leave or any of them of the members of High Court Service are governed by the High Court Service Rules and that the Kerala Service Rules (hereinafter referred to as the KSR) will not apply to them on its own force. In the absence of any provision for reckoning the prior Government service of the appellants for service benefits, the reliefs prayed for are not admissible under the High Court Service Rules or the KSR.

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On behalf of the 2^nd respondent in the Writ Petition, a counter affidavit has been filed by the Registrar General, contending, inter alia, that the decision taken in Exts.P3, P8 and P10 is perfectly legal and valid. The conditions of service, pay and allowances, pension, leave or any of them of the members of High Court Service are governed by the High Court Service Rules.

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In view of the judgment of this Court in Jayasree’s case (supra), there is no need for seeking any clarification from the Government and the decision was communicated to the petitioners vide Ext.P3 Official Memorandum. The rejection of Ext.P7 representation and Ext.P9 appeal were communicated vide Exts. P8 and P10 and the said decisions are also based on the judgment of this Court in Jayasree’s case (supra). If High Court service cannot be treated as Government service, the position does not differ if one is appointed from the High Court service to Government service or if he is appointed vice versa. Hence, the contention of the petitioners regarding non-applicability of the judgment of this case in Jayasree’s case (supra) cannot be accepted and the prayer for reckoning their prior Government service for service benefits is liable to be rejected.

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The learned Single Judge of this Court heard W.P.(C) No.27779/08 along with another connected matter, i.e., W.P.(C). No.36804/08, and dismissed both the Writ Petitions by a common judgment dated 22.9.2009, relying on the judgment of this Court in Jayasree’s case (Supra), holding that, the claim set up by the appellants on the basis of Rule 37 of Part I KSR is totally devoid

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of merit. The impugned orders show that the matter was referred

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to the Chief Justice of Kerala and therefore, there is no question of reference to the State Government. Weightage can be claimed only in terms of the provisions in G.O.(MS)No.230/06/Home dated 26.12.2006, Clause 6 of which makes it applicable the service weightage as provided in Clause 5 of G.O.(P) No.145/06/Fin. dated 25.3.2006. The entitlement of the petitioners cannot go beyond the provisions of the Government order, for which, admittedly they are ineligible. It is aggrieved by the judgment of the learned Single Judge, the writ petitioners are in appeal before us in these Writ Appeals.

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Heard the learned counsel appearing for the writ petitioners (appellants in both the Writ Appeals), the learned Senior Government Pleader appearing for the 1^st respondent and the learned Counsel appearing for the 2^nd respondent in the Writ Petition. The learned counsel for the writ petitioners and the learned counsel for the 2^nd respondent submitted that, both the Writ Appeals may be disposed of taking note of the amendment made to the High Court Service Rules inserting Sub-rule (3) to Rule 37 and also the fact that, the request made by the Registrar

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General seeking clarification to Government Circular dated 24.5.06, in order to reckon the prior Government service of the members of the High Court Service for grant of service weightage is pending consideration before the Government. The learned counsel for the 2^nd respondent has also made available to us copy of the aforesaid notification dated 26.9.2013 and letter dated 17.7.2013.

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We have considered the rival submissions made at the Bar. The petitioners, who are members of the High Court Service, are governed by the High Court Service Rules. Their conditions of service, pay and allowances, pension, leave, etc., are governed by the High Court Service Rules. The provisions of KSR will not apply to the members of the High Court Service on its own force. The provisions of the KSR, Government Servants Conduct Rules, etc. are made applicable to the members of the High Court Service only by adoption of the said Rules by Rule 37 of the High Court Service Rules. The thrust of the argument made before the learned Single Judge was that, in the absence of any provision for reckoning the prior Government service of the petitioners for service benefits, the reliefs prayed for are not admissible to them

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under the High Court Service Rules or the KSR.

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During the pendency of these Writ Appeals, Sub-rule

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(3) was incorporated to Rule 37 of the Kerala High Court Service Rules, 2007, vide Notification No.A1-19864/2005 dated 9.3.2012, with effect from 1.1.2007, which reads as follows;

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“37. Pay, allowances, leave salary, pension and other conditions of service:-

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(1) xxxx xxxx xxxx

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(2) xxxx xxxx xxxx

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(3) Subject to Rule 37(2) of these rules, prior service of a member of the service, in the Government of Kerala or the Central Government or a local Self Government Institution or a University coming within Rule 20 of the Kerala Service Rules, Part III, will be reckoned for pensionary benefits and for counting weightage of service consequent on revision of pay and allowances or otherwise, as applicable to the officers under the Government of Kerala.”

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Later, vide Notification No.A1-19864/2005 dated 26.9.2013, Subrule (3) to Rule 37 quoted above is substituted with the following:

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“37. Pay, allowances, leave salary, pension and other conditions of service:-

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(1) xxxx xxxx xxxx

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(2) xxxx xxxx xxxx

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(3) Subject to Rule 37(2) of these rules, prior service of a member of the service, in the Government of Kerala or the Central Government or a local Self Government Institution or a University coming within Rule 20 of the Kerala Service Rules, Part III, will be reckoned for pensionary benefits consequent on revision of pay and allowances or otherwise, as applicable to the officers under the Government of Kerala.“

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The above amendment was brought out in the Kerala High Court Service Rules, taking into consideration the concern expressed by the Government in its letter No.39887/C2/2012/Home dated 2.9.2012, as borne out from the Explanatory Note to that notification. The Explanatory Note to Notification No.A119864/2005 dated 26.9.2013 reads thus:

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“Rule 37(3) was incorporated in the High Court Service Rules, 2007, as the Rules do not contain specific provision enabling employees of High Court to reckon their prior service in other Government departments. The Government have since pointed out that the issue of reckoning different service for weightage will become applicable only at the time of revision of pay and allowances and the selection of such services for weightage has been under the sole discretion of the respective pay commission and criteria for selecting different services might be changed from commission to

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commission. Considering the concern expressed by the Government, the Honourable Chief Justice is pleased to order that Rule 37(3) be amended accordingly. Hence the amendment.”

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In addition to this, vide letter No.A1-19864/2005 dated 17.7.2013, the Registrar General has informed the Government that, taking into consideration the concern expressed by the Government in its letter referred to above dated 2.9.2012, regarding absence of specific provision in the High Court Service Rules enabling employees of the High Court to reckon their prior service in other Government departments for weightage of service, the matter was reconsidered and it was decided to modify the amended provision. It was further pointed out the necessity of reconsideration on the part of the Government with respect to Circular No.23/2006/Fin. dated 24.5.2006, as the appointments of officers and servants of the High Court can only be made by the Chief Justice or his nominee, in terms of Article 229(1) of the Constitution of India.

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The Government vide G.O.(MS)No.230/06/Home dated 26.12.2006, issued orders revising the pay and allowances of the

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officers and staff of the High Court, with effect from 1.7.2004, and Para.11 of the said order says that, all Government orders following the general pay revision order of the Government employees shall be applicable to High Court Service. But, going by Government Circular No.23/2006/Fin. dated 24.5.06, the prior Government service of an employee shall be considered for service weightage only if his present appointment is by the Public Service Commission. If the said circular is followed verbatim, a section of the employees of the High Court, having prior service in Government Departments will lose service weightage as the appointments made to the High Court Service are not done through the Public Service Commission.

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As non-reckoning of prior service of High Court employees on the ground that recruitment to High Court Service is not done through Public Service Commission is not justifiable, the Registrar General, vide letter referred to above dated 17.7.2013, requested the Government to issue necessary clarifications with regard to Government Circular referred to above dated 24.5.2006, so as to include the employees of the

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High Court appointed by the High Court for grant of service weightage, on par with the employees of other Government Departments and the matter is now pending consideration before the Government.

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In view of the amendment made to the Kerala High Court Service Rules, by inserting Sub-section (3) of Section 37, and also the clarification sought for from the Government, vide letter referred to above of the Registrar General dated 17.7.2013, in order to include the employees of the High Court for grant of service weightage, on par with the employees of other Government Departments, we find it appropriate to direct the Government to consider the clarification sought by the Rgistrar General in his letter referred to above dated 17.7.2013 and take an appropriate decision expeditiously, keeping in mind the fact that appointment of officers and staff of High Court can only be made by the Chief Justice or his nominiee in terms of Article 229 (1) of the Constitution of India.

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In the result, Exts.P3, P8 and P10 Official Memorandums are quashed and the Government (1^st respondent in W.A.No.2515/09/10^th respondent in W.A.No.2576/09) is

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directed to consider the request made in letter No.A119864/2005 dated 17.7.2013 of the Registrar General, seeking clarification with regard to Government Circular No.23/2006/Fin. dated 24.5.2006, in order to include the employees of the High Court appointed by the High Court for grant of service weightage, on par with the employees of other Government Departments, and pass appropriate orders, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment.

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Writ Appeals are disposed of as above. No order as to costs.

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Sd/- HARUN-UL-RASHID ,

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JUDGE

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Sd/- ANIL K.NARENDRAN, JUDGE

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dsn

N.Velappan v. State of Kerala

Case brief

What is this about?

What did the court decide?

N.Velappan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

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