N. G. Prabhu v. The Honble Chief Justice — 1973 DIGILAW 102 (KER)

JUDGMENT P. Subramonian Poti, J. 1. These two petitions are by Shorthandwriters in the High Court Service. The petitioner in O.P. 4339 of 1972 is a Shorthand writer Grade I aspiring for promotion to the Selection Grade while the two petitioners in O.P. 4329 of 1972 are Shorthand writers Grade 11 who claim to be entitled to be promoted to Grade I. 2. We will first state the facts in O.P.No. 4329 of 1972. Petitioners, two in number, seek the issue of a writ of certiorari to quash Ex. P-13 order passed in appeal against Ex. P-10 order of the Chief Justice of the High Court of Kerala and also seek the issue of a writ of mandamus to direct that Ex. P-10 order in so far as it concerns the appointment of the petitioners as Shorthand writers Grade I be maintained and continued. 3. The first and second petitioners were appointed as Stenographers in the High Court on 30-5-1959 and 19-11-1959 respectively. The first petitioner had been in service earlier as Stenographer in the Subordinate Courts having been appointed to that post on 3-2-1955. The second petitioner had been similarly appointed in service in the Subordinate Courts on 7-7-1958. At the time these petitioners joined the service of the High Court as Stenographers there was only one Grade of Stenographers. The petitioners were admittedly possessed of qualifications necessary for appointment to the post of Stenographer in the High Court when they were so appointed. The minimum qualifications required for appointment to that post in the High Court at that time were, inter alia, a pass in Typewriting Higher and Shorthand Lower examinations and the minimum general educational qualification of pass in S.S.L.C. 4. The Kerala High Court Service Rules 1959 came into force on 15-3-1960. These rules prescribed qualifications for appointment to the post of Stenographers different from those which were in force till then. While the minimum general educational qualification remained as before the rule prescribed possession of Shorthand Higher (K.G.T.E. or L.C.C.) and Typewriting Higher, or Diploma in Shorthand and Typewriting as requisite qualifications. A note appended to Column 3 in Category 5 of Annexure I to the rules provided that:- preference shall be given to Graduates with the above qualification in Shorthand and Typewriting. A note appended to Column 3 in Category 5 of Annexure I to the rules provided that:- preference shall be given to Graduates with the above qualification in Shorthand and Typewriting. If candidates with Higher qualification are not available persons with Lower qualification may be appointed but the Stenographer should secure the Higher qualification at least in Short-hand before confirmation. This change in the qualifications required for the post of Stenographers did not affect the petitioners who had already been appointed by that time. Rule 24 of the Kerala High Court Service Rules 1959 was the saving provision in those rules. It read:- 24. Savings:- Nothing in these Rules shall affect any member of an All India Service when holding any post in the High Court and nothing in these rules shall adversely affect any person who was a member of the service on the date of coming into force of these rules. That the petitioners were members of the service on the date the rules came into force is not disputed. Therefore the rules would not adversely affect them. Into force is not disputed. Therefore the rules would not adversely affect them. Moreover, the rules prescribed only qualifications for appointment to the post of Stenographer and not for continuing to hold the post. It may also be mentioned here that in the annexure to the said rules different categories or grades of Stenographers were not contemplated. 5. The scale of pay of the Stenographers in the State was only Rs.50-200 at the time the Kerala High Court Service Rules, 1959 came into force. The question of sanctioning higher scale to the Senior Stenographers so as to give them some encouragement was engaging the attention of the Government. After careful consideration of the question, Government sanctioned a higher Grade of Rs.100-8-140-10-250 and fixed the ratio between the Stenographers in the Higher and Lower Grade as 1:4. That meant the 1/5th of the post of Stenographers was to be upgraded in the various departments. For this purpose Stenographers of the various Departments were grouped into three units one of which was the High Court and Subordinate Courts. It was by G.O. MS.No.222 dated 2-4-1962 that the Government passed the order, copy of which is ex. P-4. That meant the 1/5th of the post of Stenographers was to be upgraded in the various departments. For this purpose Stenographers of the various Departments were grouped into three units one of which was the High Court and Subordinate Courts. It was by G.O. MS.No.222 dated 2-4-1962 that the Government passed the order, copy of which is ex. P-4. That order further provided:- The heads of Departments and offices concerned are directed to forward to the Controlling authority, the seniority lists of the Stenographers working in their departments and offices with the necessary particulars for the preparation of the common gradation list in each unit so as to implement the orders immediately. There was some difficulty in the matter of applying Ex. P-4 Government Order to the High Court and Subordinate Courts which were treated as one unit in the said order. The High Court staff formed a separate unit governed by the High Court Service Rules while the staff of the lower courts in Malabar and Travancore-Cochin area were governed by different sets of rules and further the staff of the Criminal Judiciary was kept distinct from the staff of the Civil Judiciary. Taking these matters into consideration the High Court made certain recommendation one of which was that all the Stenographers in the High Court be put on a uniform scale of pay of Rs.150-250 per menses or they be granted in the alternative the higher scale of pay Rs. 100-250 and also the existing special pay of Rs. 25/-. It was also recommended that the Stenographers of the High Court may be continued as a separate unit groverned by the High Court Service Rules for the purpose of seniority and promotion. Government, after taking into account these proposals, partially modified Ex. P-4 order in regard to the High Court and Subordinate Courts. This was by G.O. MS. No.97 dated 23-2-1963, copy of which is Ex. P-5. According to this order the High Court establishment was to be administered as a unit consisting of the posts of Stenographers in the High Court and of the 12 permanent and two temporary posts, the number of Higher Grade posts was fixed as 2. This was followed by the proceedings of the High Court dated 21-8-1963, copy of which is Ex. This was followed by the proceedings of the High Court dated 21-8-1963, copy of which is Ex. P-6, nominating the two senior most Stenographers in the High Court at the time to the Higher Grade of Rs.100-250 with effect from 2-4-62. The question whether the two upgraded posts of Stenographers in the High Court must be scheduled as a separate category was left to be considered at the time of redrafting the High Court Service Rules. The result was that while in the Kerala High Court Service Rules 1959 there was only one Grade of Stenographers whose qualifications were prescribed by those rules, the senior two among the Stenographers in the High Court obtained a higher scale of pay by the up gradation of two of the Stenographers post. The practice of appointing such senior Stenographers to the higher grade as and when vacancies arose therein continued with the result that the first petitioner was, in due course, promoted to officiate as Stenographer Grade I in place of Sri. P.A. Gopalakrishnan granted leave with effect from 4-6-1970. It may be mentioned here that in the meanwhile the designation of Stenographers was changed to Shorthand writers. It is also seen that when first petitioner was so promoted on 4-6-1970 he commenced his probation. By another order dated 22-11-71 the first petitioner was again reappointed in the category of Shorthand writer Grade I with effect from 16-11-1971. He was later reverted to Grade II with effect from 1-3-1972. 6. There was an amendment in 1967 to the qualifications prescribed for appointment to the category of Shorthand writers in the Kerala High Court Service Rules, 1959 which, though may not be material for the purpose of this case, may be mentioned here for the sake of completeness of narration:- Category 5. Stenographers: B.A. or B.Sc or B.Com. or B.A. (Hons) or B.Sc. (Hons) or B.Com (Hons) Degree of a University in the Indian Union. Shorthand Higher (Government Technical Examination or L.C.C.) and Typewriting Higher or Diploma in Shorthand and Typwriting. 7. The Kerala High Court Service Rules, 1959 were superseded by a new set of rules framed by the Chief Justice under Article 229 of the Constitution of India. These were the High Court Service Rules, 1970 which came into force on 19-1-1971. Rule 4 of these rules defined the Divisions and categories in the Service. 7. The Kerala High Court Service Rules, 1959 were superseded by a new set of rules framed by the Chief Justice under Article 229 of the Constitution of India. These were the High Court Service Rules, 1970 which came into force on 19-1-1971. Rule 4 of these rules defined the Divisions and categories in the Service. Division II included Shorthand writers Grade I as the 7th category and Shorthand writers Grade II as the 10th category. Rule 6 which deals with the method of appointment provided that appointment to the several categories mentioned in Column 1 below shall be by the method prescribed against each in Column 2 and where appointment is by promotion, it shall, if any category or categories are specified in Column 3, be only from such category or categories. Shorthand writers Grade I were to be appointed by promotion from Shorthand writers Grade II and Shorthand writers Grade II were to be appointed by promotion, transfer or direct recruitment from categories not specified. Rule 7 dealt with the qualifications for appointment. We are not concerned her with Rule 7 (1) which deals with the general qualification for appointment by direct recruitment. Rule 7 (2) (a) provides that :- Special:- Subject to the provisions contained in Rule 16 no person shall be eligible for appointment to a category unless he possesses the general and educational qualifications and the special qualifications prescribed for the category in columns 3 and 4 of Annexure I or qualifications which the Chief Justice by order declares to be equivalent qualifications. There is an Annexure to the 1970 rules which shows the qualification prescribed for appointment. The qualification for Shorthand writers Grade I were fixed as:- A degree of a University in the Indian Union in Arts or Science or Commerce or a degree of any other University, which is recognized as an equivalent degree by the Kerala University, Shorthand Higher (Government Technical Examination or L.C.C.) and Typewriting Higher or Diploma in Shorthand and Typewriting. Note: Preference will be given to law graduates with higher qualification in Shorthand and Typewriting. If graduates with higher qualifications are not forthcoming non-graduates with higher qualification in Shorthand and Typewriting will be appointed. These rules of 1970 were not to adversely affect any person who was a member of the service on the date the rules came into force. Note: Preference will be given to law graduates with higher qualification in Shorthand and Typewriting. If graduates with higher qualifications are not forthcoming non-graduates with higher qualification in Shorthand and Typewriting will be appointed. These rules of 1970 were not to adversely affect any person who was a member of the service on the date the rules came into force. Reference may be made to the relevant rule which is Rule 36. It reads:- Savings:- Nothing in these rules shall (1) adversely affect any person who is a member of the service on the date of coming into force of these rules excepting the operation of sub-rule (2) (b) of Rule 7 and sub-rule (3) of Rule 15 or, (2) be construed to limit or abridge the power of the Chief Justice to deal with the case of any member of the service or any person to be appointed to the service in such manner as may appear to him to be just and equitable:- Provided that, when any such rule is applicable to such member or person the case shall not be dealt with in any manner less favourable to him than that provided by that rule. The 1970 rules were further amended on 29-2-1972 by adding one more category in Division II as forming part of the Service. This was category IB relating to Selection Grade Shorthand writers. The qualifications for appointment to the post of the Selection Grade Shorthand writers were the same as the qualifications for Category 7, namely Shorthand writers Grade I. The appointment to this category was to be made by promotion from the category of Shorthand writers Grade I. It may be noticed that the Selection Grade posts came into existence only after the High Court Service Rules, 1970 commenced its operation. 8. It may also be necessary to refer here to Rule 16 of the High Court Service Rules 1970 which specifies selection categories among the various categories in the Service. Rule 16 (a) provides that: Categories 1 to 7 in Division I and categories 1 to 13 in Division II shall be selection categories and promotion thereto shall be made on grounds of merit and ability are approximately equal. In all other cases promotion shall be in the basis of seniority subject to fitness. Rule 16 (a) provides that: Categories 1 to 7 in Division I and categories 1 to 13 in Division II shall be selection categories and promotion thereto shall be made on grounds of merit and ability are approximately equal. In all other cases promotion shall be in the basis of seniority subject to fitness. The newly created category of Selection Grade Selection Grade Shorthand writers as well as Shorthand writers Grade I and II were thus selection categories. Merit and ability were to be reckoned as criteria for selection, seniority being considered only where merit and ability were approximately equal. 9. In the newly created posts of Selection Grade Shorthand writers, M/s. P.A. Gopalakrishnan and M. Bhaskaran were promoted with effect from 10-1-1972. They were at that time occupying posts of Shorthand writers Grade I. Necessarily these posts had to be filled up from Shorthand writers Grade II. In the said vacancies, petitioners were appointed by promotion. Though the petitioners were so promoted, such promotion was made subject to the condition that they should a quire the Shorthand Higher qualification in Government Technical Examination or L.C.C. within a period of two years and their probation as Shorthand writers Grade I will be approved only n acquiring the said qualification. It was further provided in the order of promotion dated 7-4-1972, copy of which is Ex.P-10, that if they failed to acquire the qualification within the specified period their promotions were liable to be cancelled. 10. It is necessary to mention here that though the petitioners do not possess Shorthand Higher qualification in K.G.T.E. or L.C.C. or for that mater a Diploma in Shorthand and Typewriting, they have passed the Senior Examination in Shorthand conducted by the Indian Merchants Chamber, Bombay. On the basis of this Higher qualification the first petitioner had been sanctioned the special allowance of Rs.15/- in accordance with G.O. (P) No.328/PD dated 29-10-1958. The qualification prescribed in the said proceedings for obtaining special allowance did not include Higher qualification in I.M.C. It would appeal that all along the High Court considered the possession of I.M.C. Higher in Shorthand as equivalent to the requisite Higher qualification in Shorthand, though it now turns out that is was not in accordance with the existing rules. In consultation with the Kerala Public Service Commission and Director of Technical Education, Government, by G.O. MS.No. 432 dated 17-8-1962 (Ex. In consultation with the Kerala Public Service Commission and Director of Technical Education, Government, by G.O. MS.No. 432 dated 17-8-1962 (Ex. P-1) had directed that I.M.C. Senior Certificate in Shorthand with a speed of not less than 110 words per minute will be treated as equivalent to L.C.C. (Higher) in Shorthand for purposes of appointment in Public Service. This Government order was in force for a few years. But in 1968, Government, by G.O. (P) No. 328/PD dated 29th October, 1968, ordered that the recognition granted to the said Senior Certification Examination in Shorthand and Typewriting of the Indian Merchasts Chamber, Bombay for the purpose of appointment will be withdrawn with effect from the date of that order. This order, Ex. P-2, further provided that: Those who are already in service by virtue of the above qualification will not be affected by this order and they will be exempted from the operation of this order. Since the saving concerned only persons who were in service by virtue of� the I.M.C. qualification, those who, subsequent to entering service, obtained a pass in I.M.C. Senior Certificate Examination and who, on that basis obtained special allowance had to refund such allowance. This was brought to the notice of the Government when the Government, by Ex. P-3 order, G.O. MS. No.191/71/ PD dated 1-7-1971 modified its earlier order, Ex. P-2, by directing that the Typists/Stenographers who were in service as on 29-10-1958 and who acquired the Senior Certificate in Shorthand and Typewriting of the Indian Merchants Chamber, Bombay prior to that date would also be eligible for the benefit and the consequent fixation of pay by merging the higher qualification allowance in their pay admissible as per the orders issued by the Finance Department in this regard. But it was further provided that such candidates were, however, not eligible for promotion to higher posts by virtue of the above qualifications. The result was that, subsequent to the date of Ex.P-2, possession of the I.M.C. Senior Certification qualification did not entitle the person to claim promotion on the basis of such qualification. It may be mentioned here that Ex. P-1 was not at any time made applicable to the High Court Service. The Chief Justice had not, at any time, declared the I.M.C. Senior Crtificate in Shorthand as an equivalent qualification. It may be mentioned here that Ex. P-1 was not at any time made applicable to the High Court Service. The Chief Justice had not, at any time, declared the I.M.C. Senior Crtificate in Shorthand as an equivalent qualification. So far as the members of the High Court Service were concerned, qualifications were prescribed by the Rules governing them and Rule 8 (b) of the Kerala High Court Service Rules, 1959 as amended by notification provided that:- Section 8 (b) Special:- Any person shall be eligible for appointment to any of the posts referred to in Column 2 of Appendix I unless he possesses the general educational and Special Test qualifications specified in the corresponding entries in Columns 3 and 4 thereof, or the qualifications which the Chief Justice by order declares to be equivalent qualifications. In the absence of a declaration by the Chief justice that the I.M.C. Senior Certificate qualification was equivalent to the qualifications prescribed in the Annexure to the rules, it is contended by respondents in the petition, that so far as High Court Service was concerned, I.M.C. Senior certificate was not recognized as a qualification even during the period when Ex. P-1 was in force. 11. When the petitioners were promoted to the posts of Shorthand writers Grade I by Ex. P-10 order, the condition that they should secure the qualifications prescribed in the High Court Service Rules 1970 for appointment to Grade I was imposed because they were found not possessed of the requisite qualifications. This order of appointment, Ex. P-10, was challenged by two persons who were juniors to the petitioners, namely respondents 2 and 3, but who possessed the qualifications required for promotion to Grade I. According to them, if the cases of the petitioners were ruled out, they would be entitled to be promoted as the seniormost qualified hands and that ought to have been done. Rule 25 of the High Court Service Rules 1970 provides for an appeal against certain orders and the appellate authority is a Committee of three Judges consisting of the Chief Justice and two other Judge nominated by him. Respondents 2 and 3 filed appeals against Ex. P-10 order to such Appellate Authority which heard the appeals. The Committee heard the parties. The two Judges nominated by the Chief Justice took the view that Ex. Respondents 2 and 3 filed appeals against Ex. P-10 order to such Appellate Authority which heard the appeals. The Committee heard the parties. The two Judges nominated by the Chief Justice took the view that Ex. P-10 order cannot be sustained while the Chief Justice stood by the order passed by him. One of the two Judges who held that Ex. P-10 was unsustainable, took the view that the petitioners were not qualified under the Rules, the I.M.C. Senior Certificates Examination having been held to be not a valid qualification. It had been so held in a similar administrative appeal filed by another Shorthand writer, Sri. Balan. That decision was followed by that learned Judge. The learned Judge further noticed that even if the power exercised by the Chief Justice was considered as power of exemption, the order of promotion will have to be unsettled for the reason that the promotion was to a selection post and therefore the claims of all eligible candidates ought to have been considered, which had not been done. The mere fact that petitioners were senior would not be sufficient to promote them even by exercising a power of exemption without considering the claims of respondents 3 and 4 who were also eligible for promotion. The other learned Judge in the Committee who also took the view that Ex. P-10 was not sustainable, treated the case as one where the Chief Justice had granted exemption in exercise of the powers under Rule 36 (2) of the High Court Service Rules, 1970. But according to the learned Judge such power could not be exercised so as to adversely affect other persons. The learned Chief Justice sought to sustain his order on the ground the even without invoking any power of exemption under Rule 36 (2) it must be held to be valid because it was just and equitable that this treatment be meted out to the petitioners in view of the fact that I.M.C. Senior Certificate Examination was considered by the High Court as sufficient qualification all along. In accordance with the views of the majority, Ex. P-10 was set aside and the Chief Justice had therefore to consider the matter afresh. It is against this order of the Appellate Authority, Ex. P-10, that the petitioners have come to this Court challenging the said order. 12. In accordance with the views of the majority, Ex. P-10 was set aside and the Chief Justice had therefore to consider the matter afresh. It is against this order of the Appellate Authority, Ex. P-10, that the petitioners have come to this Court challenging the said order. 12. Now we will advert to the facts in O.P. 4339 of 1972. The petitioner joined service as Stenographer in the High Court of Travancore-Cochin on 18-2-1954. On the formation of Kerala High Court he continued as Stenographer in the Kerala High Court. The petitioner had the qualification of Typewriting Higher and Shorthand Lower which were the minimum qualifications required for the appointment of Stenographer in the High Court. Though, under the Kerala High Court Service Rules, 1959, Higher qualifications were fixed for appointment as Stenographer, these did not apply to the petitioner as he was already holding the post of Stenographer. When some posts in the category of Stenographers where upgraded that too did not require the acquisition of any fresh qualification by him. The petitioner was promoted from Grade II to Grade I with effect from 16-6-1964. When the 1970 Rules came into force the petitioner was a Shorthand writer Grade I. The said rules were amended by notification dated 29-2-1972 which recognized a category of new posts of Shorthand writers Selection Grade. Appointment to the Selection Grade was by promotion from Grade I. On the basis of seniority and merit the petitioner claims that he should have been entitled to be appointed to the Selection Grade but his claims were overruled and respondents 2 and 3, his juniors, were promoted to the Selection Grade with effect from 10-1-1972 by Ex. P-5 order. This was because it was considered that the petitioner did not possess the qualifications prescribed for the promotion to the Selection Grade. That the petitioner is not possessed of such qualifications is not disputed. The petitioner filed an appeal against Ex. P-5 order which was heard by a Committee of three Judges who passed Ex. P-6 order dismissing the petitioners appeal. That order is challenged in the Original Petition. The petitioner seeks orders of promotion to the Selection Grade. The grounds urged, mainly, are: (1) that the petitioner, in view of his long experience, seniority and merit. Should have been considered for exemption by the learned Chief Justice. P-6 order dismissing the petitioners appeal. That order is challenged in the Original Petition. The petitioner seeks orders of promotion to the Selection Grade. The grounds urged, mainly, are: (1) that the petitioner, in view of his long experience, seniority and merit. Should have been considered for exemption by the learned Chief Justice. According to the petitioner his was an appropriate case for exercise of the power of exemption under Rule 36 (2) of the High Court Service Rules 1970; (2) at any rate, the saving provision in Rule 36 (1) should apply to the case of the petitioner and his right to be promoted on the basis of qualifications possessed by him earlier should be considered as saved by the Rules. These are the only two questions urged by counsel and since counsel confined his arguments to these contentions only, we will consider these points alone. We will come to this after we deal with the case in O.P.4329 of 1972. 13. Reverting to the case of the petitioners in O.P. 4329 of 1972, there are several grounds urged by the petitioners in support of their challenge to Ex. P-13 order. According to them the qualifications which they possessed were good enough when they were appointed as Stenographers in the High Court. The qualification prescribed under the Kerala High Court Service Rules 1959 was for the post of Stenographers in which post there were no different grades at that time. The question of their having to possess any qualification in accordance with the Kerala High Court Service Rules, 1959 did not arise at all as they were appointed earlier. The upgradation of the posts in 1963 entitled the seniors to be automatically appointed or nominated to the Higher Grade. That was the position till 1971 when the High Court Service Rules, 1970 came into force. They would therefore contend that the saving in Rule 36 (1) of the High Court Service Rules, 1970 would enable them to seek promotion to Grade I on the basis of their seniority and seniority alone since, prior to the commencement of the said Rules they would have been so entitled to be promoted to Grade I. If this contention of the petitioners is accepted, no question of exemption would arise for consideration. It may also not be necessary then to consider whether the claims of respondents 3 and 4 should also have been taken into account when the petitioners were promoted. That is because the promotion would then be due to the petitioners not on the basis of any selection but on the basis of their seniority which is contended to be the basis of promotion to the upgraded posts prior to the commencement of 1970 rules. It is also contended by the petitioners that the Chief justice has powers de hors the provisions of Rule 36 (2) of the 1970 Rules to pass an order in the nature of Ex. P-10 and it is that power that has been exercised. It is also the case of the petitioners alternatively that in any view the power of exemption vested in the Chief Justice by Rule 36 (2) of the 1970 Rules was appropriately exercised in Ex. P-10 order and did not require interference in appeal as was done by Ex. P-13 order. They also contend that by grant of special allowance the High Court recognised the petitioners as possessing the requisite qualifications and it was not open to the Chief Justice to go back upon the stand originally taken. As against the first petitioner, it is contended that the appeal before the Appellate Authority was, at any rate, time barred. 14. We have already noticed that the petitioners, when they were appointed in 1959, possessed necessary qualifications to hold the post of Stenographer in the High Court. The Kerala High Court Service Rules, 1959 did not affect their appointment. There was no question of promotion to any post under those rules at that time. Both the petitioners were in fact confirmed soon after the commencement of the Kerala High Court Rules, 1959. While so, the Government, as part of a statewide policy, sanctioned the upgrading of two posts of Stenographers in the High Court. Ex. P-4 order would indicate that seniority lists were to be prepared in the various departments and Ex. P-4 was to be implemented by nominating seniors to the upgraded posts. The Kerala High Court Service Rules 1959 were not amended pursuant to the upgradation of the two posts treating the Higher Grade Stenographers as a different category. Ex. P-4 order would indicate that seniority lists were to be prepared in the various departments and Ex. P-4 was to be implemented by nominating seniors to the upgraded posts. The Kerala High Court Service Rules 1959 were not amended pursuant to the upgradation of the two posts treating the Higher Grade Stenographers as a different category. Therefore the position at that time was that those who were considered to be senior most in the category of Stenographers were automatically to be nominated to the Higher Grade. In fact it was so done in the case of M/S. Krishna Menon and Janardhana Shenoi as is evident from Ex. P-6 order. 15. It has been urged before us that though by Ex. P-6 order Krishna Menon and Janardhana Shenoi were nominated to the Higher Grade, that ought not to have been done. According to Sri, Rama Shenoi, counsel for respondents 2 and 3, the nominations of the seniors to the upgraded posts of Stenographers made under. Ex. P-6 and made thereafter were wrongly done and those cases ought to have been treated as cases of promotion within the scope of the definition of that term in Rule 2 (i) of the Kerala High Court Service Rules, 1959. That term is defined as meaning:- the appointment of a member of the service to a post in the Service on a Higher Seale of Pay. Counsel would contend that since the upgraded posts were on a higher scale of pay appointment to the upgraded posts must be considered as promotion. If it be promotion to the posts of Stenographers, Higher Grade, then for the promotion, the qualifications prescribed in the Kerala High Court Service Rules, 1959 must, according to him, be possessed by the candidate. Since such qualification includes the possession of the pass in the Higher in Shorthand the petitioners cannot claim to be promoted to the newly created posts of Stenographers, Higher Grade. We do not find our way to agree with the learned counsel. It does not appear to us that the nomination of the seniors to the upgraded posts amount to promotion, strictly speaking, or promotion as defined in the Kerala High Court Service Rules, 1959 though in a loose sense the term promotion might be used in the context. The history of such upgradation as evident from Exs. It does not appear to us that the nomination of the seniors to the upgraded posts amount to promotion, strictly speaking, or promotion as defined in the Kerala High Court Service Rules, 1959 though in a loose sense the term promotion might be used in the context. The history of such upgradation as evident from Exs. P-3, P-4 and P-5 indicates that Government only raised the salary of a few of the posts of Stenographers to give them better service conditions. In all the departments seniority lists were to be prepared so as to assign the seniors to the upgraded posts. There was no question of persons so nominated to the Higher Grades leaving posts which they were holding and occupying new posts. There was really no question of appointment involved. The promotion as defined in Rule 2 (1) of the Kerala High Court Service Rules, 1959 contemplates the appointment of a member of the Service to a post in the service on a higher scale of pay. Really what was contemplated by Ex. P-4 was only the raising of the salary scale in regard to some of the posts without effecting any change in the category. 16. We will look at this question in another way. As we have indicated. Sri. Rama Shenoi argues firstly, that the appointment to the Higher Grade must be treated as a promotion to a different post and secondly, that it must be assumed that the qualifications for promotion to that post have been prescribed by the Kerala Court Service Rules, 1959. Though the rules of 1959 have not been amended so as to prescribe separate qualifications for the category of Stenographers Higher Grade and under the Rules only the qualification for the category of Stenographers is prescribed, it is counsel argument that when Higher Grade is also created the category of Stenographers must be read as referring both to Stenographers and also to Stenographers Higher Grade. It should further be read, according to counsel, that in regard to both, the qualifications are those which are prescribed for Stenographers. It should further be read, according to counsel, that in regard to both, the qualifications are those which are prescribed for Stenographers. Treating the case of appointment to the Higher Grade as promotion, it should, according to counsel, be necessary that the promote must be possessed of qualification for the Stenographer post prescribed under the Rules though that may not be necessary if he is to continue merely as a Stenographer in the Grade in which he was appointed before the commencement of the 1959 Rules. Naturally, this requires examination of the question whether there is promotion in the assignment of the Higher Grade and the further question whether, if it be a promotion, that requires possession of any qualifications which the promote was not possessed of while holding the post of Stenographer. We have already indicated that though in a loose sense the phenomena of nomination to the Higher Grade pursuant to Exs. P-4 and P-5 orders and subsequent appointment to the Higher Grade from time to time may be styled as promotions, taking into account the history of the upgradation of these posts it may not be properly so termed. Promotion is, of course, appointment to a different post carrying a higher scale of pay in the service. If, to better the conditions of service of the incumbents in posts in the same category the scale of pay of all the posts in the category is raised, the incumbents would naturally get the higher scale of pay. But in such a case it may not be proper to characterize the event as promotion to higher posts though a benefit of a higher scale of pay is obtained by all concerned. In otherwords, if the upgradation relates to all the posts in a category naturally, there is no sense in calling it a promotion of all the persons in that category. That is because there is no question of appointment from one post to another. Parties continue to hold the same post but get a higher scale of pay. It may be that it is not all the posts in a particular category that are so upgraded, but only a part of it. Normaly, the benefit of such upgradation would go to the seniors in the category. They would automatically get a higher scale of pay. It may be that it is not all the posts in a particular category that are so upgraded, but only a part of it. Normaly, the benefit of such upgradation would go to the seniors in the category. They would automatically get a higher scale of pay. That is because though the posts continue in the same category a higher scale of pay is fixed for those posts. It is appropriate then to say that the seniors have been nominated to the Higher Grade which has been so created by upgradation. This phenomena does not differ from the case where all the posts are upgraded and, it appears to us that those who get the higher grade cannot be said to have been promoted because here again there is no question of appointment from one post to another. They continue to hold the same post, but because of seniority in the same post they are given a higher scale of pay. When a person is nominated to the higher scale of any from time to time based on seniority it may perhaps loosely be termed as a promotion. But it appears to us that it is different from promotion as envisaged it normally and promotion as defined in Rule 2 (1) of the 1959 Rules. 17. Even assuming that there is a fresh appointment by promotion to the Higher Grade under to 1959 Rules, it was not necessary that the person so appointed should possess any particular qualification for such promotion. That is because, the Rules prescribe only qualifications for appointment to particular categories of posts and one of them is that of Stenographers. If Stenographers Higher Grade are considered as posts different from that of Stenographers, it is not possible to read the qualifications fixed for Stenographers as qualifications fixed for Stenographers Higher Grade which are assumed to be a different set of posts. It is not possible to read the Annexure in that manner. That would mean that there is no requirement under the Rules that an appointee to the Higher Grade should possess any particular qualification which he did not already possess. It is not possible to read the Annexure in that manner. That would mean that there is no requirement under the Rules that an appointee to the Higher Grade should possess any particular qualification which he did not already possess. We cannot view the category of Stenographers as two separate categories and then hold that, for Stenographers Higher Grade, qualifications are separately prescribed which happens to be the same as the qualification for Stenographers and further say that since the Stenographers who seek appointment to the Higher Grade are not possessed of that qualification they cannot be promoted. We see no warrant to strain the language of the 1959 Rules in that manner and to read into it what is not there. Hence, even if, for the sake of argument, we accept the contention that appointment to the Higher Grade really involves a promotion, respondents 2 to 4 will not stand to gain because the Rules in force till the new Rules of 1970 came into operation did not prescribe the requirement of any particular qualification for holding the post of Stenographer, Higher Grade and therefore on the basis of seniority the Stenographers would automatically be appointed to the Higher Grade. The practice over the years shows that this was how the Rule was understood and implemented. Many obtained the benefit of this including the first petitioner who was also promoted earlier, before the coming into force of the 1970 Rules. Hence we find that if the 1970 Rules had not come into force the petitioners would have had the right to be appointed to the Higher Grade on the basis of their seniority. 18. If this be the position, would the right to get the Higher Grade based on seniority alone be saved, notwithstanding the High Court Service Rules, 1970? We think, it would be. Rule 36 (1) of the 1970 Rules is the saving provision and that provides that nothing in the 1970 Rules shall adversely affect any person who is a member of the service on the date of coming into force of the said Rules. That plainly means that if there is any provision in the 1970 Rules which would affect those already in service that would not be operative so far as they are concerned. That plainly means that if there is any provision in the 1970 Rules which would affect those already in service that would not be operative so far as they are concerned. The 1970 Rules recognized two categories of Shorthand writers, that in Grade I and II and under Rule 16 of the said rules promotion to Grade I was by selection. The requirement of particular qualifications for promotion to Grade I was also provided by the said Rules though the qualifications so prescribed were the same as those for that of Shorthand writer Grade II. The result was that after 1970 rules came into force promotion to Grade I would be only on the basis of possession of those qualifications prescribed for Grade II and such promotion would be by selection. The qualifications included possession of the pass in the Higher in Shorthand and therefore only persons who possessed Higher in Shorthand would have been eligible for competing at the selection. This was not the position prior to the 1970 Rules, as we have pointed out earlier. Under those Rules appointment to the Higher Grade was a matter of course, based on seniority. If that be the position, the 1970 Rules would adversely affect the petitioners. But Rule 36 (1) would operate to save them from the prejudice so caused. The requirement of the qualification for appointment to Grade I and the provision that such appointment would be by selection would not apply in the case of petitioners because of such saving provision and that would mean that in spite of the changes brought about by the 1970 Rules the position would continue to be the same as before so far as are concerned. They would have to be promoted even if they did not possess the qualifications prescribed in the 1970 Rules to posts to which the promotion was merely on the basis of seniority prior to the 1970 Rules. 19. We may notice here that there is no case that at any time the Government cancelled the sanction for the Higher Grade posts made under Exs. P-4 and P-5 and created new posts of Shorthand writers Grade I. Had there been such a case and had there been material to support such a case, possibly the question would have required examination. 20. P-4 and P-5 and created new posts of Shorthand writers Grade I. Had there been such a case and had there been material to support such a case, possibly the question would have required examination. 20. Now that we find that the petitioners were qualified to be appointed to the post of Shorthand writer Grade I irrespective of possession of qualification prescribed in the 1970 Rules, they were entitled to promotion on the basis of seniority when Ex. P-10 order was passed. That would incidentally mean that the imposition of the condition in Ex. P-10 that they should acquire qualification within the time provided therein is not warranted. That is a matter to be taken note of for modifying Ex. P-10 order appropriately. 21. In the view we have taken, we do not think that we are called to consider the other questions raised in the case. It is not necessary to go into the power of exemption available to the learned Chief Justice, though on that question there is the authority of a recent decision of the Full Bench of this Court. 22. Therefore, we allow O.P. No. 4329 of 1972, set aside Ex. P-13 and direct that Ex. P-10 order of promotion would be enforced subject to what we have said about that part of the order Ex. P-10 which requires the petitioners to acquire qualification within a prescribed time. 23. Coming to the case of the petitioner in O.P. 4339 of 1972, we think, both the contentions could easily be answered. The petitioner cannot have a complaint that the power of exemption under Rule 36 (2) of the 1970 rules should have been exercised by the learned Chief Justice in his favour when apparently no motion had been made by him or, at any rate, the grievance is against the appellate order, Ex. P-5. It is open to the petitioner, if he is so advised, to move appropriately for the purpose. Not that we are expressing any view on the eligibility of the petitioner for such exemption. That is not a matter which is within our province. 24. The petitioner cannot seek the benefit of the saving provision in Rule 36 (1). There was no right to be promoted to the Selection Grade under the Kerala High Court Service Rules, 1959. Selection Grade itself came into being only in 1972. That is not a matter which is within our province. 24. The petitioner cannot seek the benefit of the saving provision in Rule 36 (1). There was no right to be promoted to the Selection Grade under the Kerala High Court Service Rules, 1959. Selection Grade itself came into being only in 1972. It cannot be said that when the 1970 Rules came into force petitioner had a right to be promoted to the Selection Grade. If so, no such right could be said to have been saved. For these reasons, the Original Petition must fail. In the result, O.P. No. 4339 of 1972 is dismissed. In the circumstances of the case, parties in both the petitions are directed to suffer costs.