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2002 DIGILAW 339 (KER)

P. S. Kalyanakrishnan v. state

2002-06-03

M.R.HARIHARAN NAIR

body2002
Judgment :- M.R.Hariharan Nair, J. The petitioners in these cases belong to the P.W.D. and Agricultural Departments. Neverhteless, these cases were heard together in view of the fact that a common question, viz. whether for fixation of pay in the Higher Grade granted to benefit stagnating officers it is Rule 28-A or Rule 30 of the K.S.R. Part I that would apply arises for decision in these cases. If it is Rule 28-A that applies as contended by the petitioners, they would stand to gain in so far as pay is fixed in the higher scale at the stage available therein just above what is reached after adding a notional increment the lower scale. On the other hand, if it is Rule 30 that should apply, as contended by the State, the said benefit would not be available to the petitioner and the pay will have to be fixed in the same or next lower stage in the higher scale. 2. Mr. B. Krishna Mani, who appeared for the petitioners in the majority of these cases and Mr.K.A. Abraham, who appeared in O.P.No.16544/92, submitted that the higher scales were granted taking into account the recommendations of the successive pay commissions based on the consideration that the Assistant Engineers and the Junior Agricultural Officers involved in these cases were stagnating in the said post for long and that the grant of grade has therefore to be treated as a promotion in which case it is Rule 28A that should apply for fixing pay. On the other hand the stand of the learned Government Pleader is that though the grant of Higher Grade was to alleviate the difficulties of officers like the petitioners arising from stagnation, what is granted is not a promotion; but only a higher scale and that in such circumstances, it is Rule 30 that would apply. 3. For the sake of convenience, Rule 28A of Part I KSR is extracted below: “28A. 3. For the sake of convenience, Rule 28A of Part I KSR is extracted below: “28A. Notwithstanding anything contained in these rules, where an officer holding a post in a substantive, temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity to another post carrying a higher time-scale of pay, his initial pay in the higher time-scale of pay shall be fixed at the stage next above the pay notionally arrived at in the lower time-scale of pay by increasing the actual pay drawn by him in the lower time-scale by one increment. A re-fixation of pay will be allowed when ever there is a change of pay in the lower time-scale.” It is clear from a plain reading of this provision that it would apply only when an officer is ‘promoted’ or ‘appointed’ in another post carrying a higher time-scale of pay. In other words, if there is no promotion or appointment to another post, the benefit of the Rule would be unavailable. 4. Rule 30 Part I KSR reads as follows: “30. The holder of a post, the pay of which is changed, shall be treated as if he were transferred to a new post on the new pay; provided that he may at his option retain his old pay until the date on which he has earned his next or any subsequent increment in the old scale, or until he vacates his post or ceases to draw pay in that time scale. The option once exercised is final.” Here again, the meaning is plain and not at all obscure. The Rule would apply when there is no change of post and only change of pay is involved. If there is such change of pay, it shall be treated that he was transferred to a new post on the new pay. Unlike Rule 28A, Rule 30 does not mention of any promotion; but only change in pay. 5. It would be useful to refer to Clause I for Government Decision No. I under Rule 28A. This provides that the provision of Rule 28A shall not apply to cases of revision of scales of pay referred to in Rule 30. It is also necessary to refer to Ruling No. 2 under Rule 30 issued through G.O.(P)522/81/Fin. 5. It would be useful to refer to Clause I for Government Decision No. I under Rule 28A. This provides that the provision of Rule 28A shall not apply to cases of revision of scales of pay referred to in Rule 30. It is also necessary to refer to Ruling No. 2 under Rule 30 issued through G.O.(P)522/81/Fin. Dated 21-8-91 according to which the pay of an officer, when the post held by him is upgraded, will be regularized as follows: “(i) if the competent authority specifically orders that the appointment of an officer to the upgraded post involves an enhancement of duties and higher responsibilities and is therefore a promotion, pay will be fixed under Rule 28, 28A or 37(a) of Part I Kerala Service Rules, as the case may be.” It is clear from the above that fixation under Rule 28A would be possible in the case of upgradation of a post only if it is certified by the competent authority that such upgradation involves an enhancement of duties and higher responsibilities and amounts to a promotion. The sum total of the provisions and clarifications aforementioned is taht Rule 28A could apply only if there is either a promotion stricto sensu or atleast it results in change of duties, more or less akin to a promotion. 6. The successive pay Commissions took into account the stagnation at the level of Assistant Engineers or Agricultural Officers, as the case may be and suggested the grant of higher grade compensate for the same. The learned counsel for the petitioners submitted that the purpose, obviously, was to give higher emoluments arising from want of promotion and as such the fixation of pay in the new scale has to be done liberally and hence Rule 28A has to be applied. In this regard, it is also pointed out that the Government itself understood that in the matter of fixation of pay in such Grades it is Rule 28A has to be applied as made clear in Ext. P9 letter of the Executive Engineer and in Ext.P14 Government Order (G.O. MS. 128/78/PW&E dated 15-11-1979 (produced in O.P.No. 15780/92) and that what is required now is only the extension of the same principle to the pay fixation of the petitioners pursuant to the pay revision involved in these cases. 7. P9 letter of the Executive Engineer and in Ext.P14 Government Order (G.O. MS. 128/78/PW&E dated 15-11-1979 (produced in O.P.No. 15780/92) and that what is required now is only the extension of the same principle to the pay fixation of the petitioners pursuant to the pay revision involved in these cases. 7. These Original Petitions have resulted from the Audit Objection as evident from Ext.P3 in O.P.No. 16544/92 wherein the Accountant General has pointed out, based on Government letter dated 11-9-1991 which is marked as Ext.P7 in O.P.No. 6446/92 that in the matter of time bound grade promotion on completion of prescribed period of service, it is only Rule 30 part I KSR and not Rule 28A of the same part that is applicable. 8. There is obvious conflict between the present stand in Ext.P7 and the earlier stand of the government in Ext.P14. According to the learned Government Pleader the stand taken in Ext.P7 (O.P.No. 6446/92) is only that two fixation applying Rule 28A need not be given in one and the same post. I find force in his contention that the benefit that the Government extended through liberal interpretation in Ext.P14 (O.P.No. 15780/92) need not be taken as an act of estoppel while deciding the controversy in question. In the matter of judicial review which is expected of this Court the legal interpretation of the relevant provisions is necessary and while doing so the erroneous or liberal stand, if any, taken by the Government at any stage cannot be a persuasive factor. 9. Notwithstanding the fact that the Higher Grade was granted to compensate for stagnation, Rule 28A can apply only to the cases where there is either a promotion or an appointment in another post carrying a higher time scale of pay. Fitment against a Higher Grade cannot be taken as promotion or appointment to another post. Notwithstanding the benefit of higher time scale, the post continues to be that of Assistant Engineer or Agricultural Officer, as the case may be. Even re-designation of these posts cannot be taken as a promotion. 10. Stagnation, according to the learned counsel for the petitioners, is continuance in the same post whereas, according to the learned Government Pleader, it implies continuance in the same pay scale after the maximum stage in that scale is reached which disentitles the Government servant to get the usual annual increments. 10. Stagnation, according to the learned counsel for the petitioners, is continuance in the same post whereas, according to the learned Government Pleader, it implies continuance in the same pay scale after the maximum stage in that scale is reached which disentitles the Government servant to get the usual annual increments. The petitioners stand is that the higher grade is allowed to avoid stagnation in the same post for long periods and has hence to be taken as a promotion for all purposes. 11. The term ‘stagnation’ does not appear to have been defined in the KSR or KS & SSR. According to the Concise Oxford Dictionary of current English VII Edition, the term ‘stagnate’ means to become motionless, have no current, cease to flow of life, action, mind, business; become dull or sluggish. According to the American Heritage Dictionary of the English Language, the word ‘stagnate’ indicates to be or become stagnant; to lie inactive; fail to progress or develop etc. Merriam Webster (Home and Office) edition defines ‘stagnation’ as being dull, inactive or motionless. 12. It would appear from the above, that stagnation can have both the meanings; that is to say it could refer to continuance in the same post for long without promotion or continuance in the same pay scale after having reached the maximum. Whatever that be, Rule 28A, as it stands now, can have application only where there is a change of post or ‘promotion’ carrying a higher time scale of pay. Though the Assistant Engineers were given the scale then available to the Assistant Executive Engineers through grant of grade, there does not appear to be any ‘promotion’ involved in the same. Nor is there ‘appointment’ to another post. It cannot also be said that application of Rule 30 would disentitle the petitioners from getting monetary benefit as envisaged by the pay Commissions because through the higher grades they would get annual increments which, but for the grant of such grades would have been lost due to their reaching the maximum pay in the previous time scale. As such, according to me, Rule 28A on a strict interpretation cannot have application to fixation of pay in a Higher Grade. In that perspective, the view taken in Ext. P7 aforementioned appears to be justified. 13. The petitioners are all persons who got the benefit of Rule 28A fixation once. As such, according to me, Rule 28A on a strict interpretation cannot have application to fixation of pay in a Higher Grade. In that perspective, the view taken in Ext. P7 aforementioned appears to be justified. 13. The petitioners are all persons who got the benefit of Rule 28A fixation once. Their claim is that they should continue to get the same benefit whenever the successive Pay Commissions proceed to grant revised Higher Grades. The said contention does not appear to be justified. Merely because the Government granted the benefit at the time when the first fixation was allowed pursuant to the grant of Higher Grade as recommended by the Third Pay Commission, the petitioners cannot claim it as a matter of right, the way Rule 28A is worded. It is for the Government to decide the question whether the same benefit should be continued to be given whenever there is a revision of scales or when a still Higher Grade is sanctioned pursuant to the recommendation of the new pay Commissions. What is apparent from the relevant orders is that the Government stopped by saying that pay would be fixed in accordance with the Rules in force. If a strict interpretation is given based on Rules 28A and 30 of Part I KSR, it is only Rule 30 that can apply for the fixation of pay. The petitioners have no legally sustainable claim for the benefit of fixation of pay under Rule 28A. The original petitions, in the circumstances, are found to be without merit and are hence dismissed.