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2009 DIGILAW 215 (KER)

Reghunath v. State of Kerala

2009-03-02

P.R.RAMACHANDRA MENON

body2009
Judgment: The basic challenge involved in this Writ Petition is against Ext. P2 proceedings of the government and Ext.P3 consequential order passed by the second respondent, whereby the claim of the persons like the petitioners for granting the time bound higher grade on completion of eight years service in the post of Treasurer has been rejected. While challenging Exts. P2 and P3, the petitioners have also challenged the virus of Note (ii) to Rule 4 of the Kerala Treasury Subordinate Service Rules (hereinafter referred to as the Rules) whereby it is stated that the persons appointed as Treasurers subsequent to 10.02.1964 by transfer from among the category of Senior/Junior Accountants shall retain their lien in the cadre of Senior/Junior Accountants and shall be given promotions to higher categories on the basis of their relative seniority in the cadre of Senior/Junior Accountants. 2. It is pointed out by the learned counsel for the petitioners that the post of Treasurer is a much higher post carrying a higher scale of pay than the post of Junior Accountant and even as per the terminology used in the order of their appointment giving posting as Treasurer, it has to be treated as an order of promotion. It is contended that, though their entry post was Junior Accountant, by virtue of their promotion to the post of Treasurer, they are entitled to get the benefit of Time Bound Higher Grade on completing the requisite period of eight years in the post of Treasurer. It is further submitted by the learned counsel for the petitioners that as per the relevant rules, the post of Treasurer is shown as the feeder category for promotion to the post of categories 2 and 3 and by virtue of Note (ii) incorporated under Rule 4, the very scope and purpose of the rule itself is defeated and hence that Note (ii) has to be struck down from the Rules, particularly since no clause in the form of a Note can restrict the mandate of the Rule. 3. The learned Government Pleader referring to the contents of the counter affidavit, submits that the scale of pay of the post of Treasurer and that of the Senior Accountant is one and the same, though the post of Junior Accountant and that of the Typist are having a lesser scale of pay. 3. The learned Government Pleader referring to the contents of the counter affidavit, submits that the scale of pay of the post of Treasurer and that of the Senior Accountant is one and the same, though the post of Junior Accountant and that of the Typist are having a lesser scale of pay. Notwithstanding the lesser status with regard to the post of Junior Accountant and Typist, the incumbents of these categories along with the persons holding the post of Senior Accountant, by virtue of the specific rule position as envisaged under Rule 4 of the Rules, are provided with a chance/option to be appointed as Treasurer carrying a higher scale of pay, of course, coupled with higher level of duties and higher responsibilities. It is submitted by the learned Government Pleader that in view of the higher job specification attached to the post of Treasurer, normally the people working in the other categories of posts, which are being considered for appointment to the post of Treasurer by transfer, as provided under Rule 4 are rather averse to have such assignment. It is for this reason that Note (ii) has been incorporated under Rule 4, making it clear that such categories of persons, on their option and appointment by transfer as Treasurer shall be given promotions to the higher categories on the basis of their relative seniority in the cadre of Senior/Junior Accountants. 4. It is true that Rule 4(4) of the Rules does not give a distinctive categorization between Senior and Junior Accountants and the word used therein is collectively as Accountants and Typists who opt for such appointment. Such appointment by transfer is on the basis of the option to be exercised by such employees who come within the purview of the zone of consideration, as specified therein. In other words, the Rule does not say anywhere that the post of Treasurer is liable to be treated as a promotional post from any other category including the post of Junior Accountant/Typist. In the absence of any such provision, the persons like the petitioners who were admittedly appointed as Junior Accountants and later posted as Treasurers by transfer can never successfully contend that the posting given to them as Treasurers was by promotion. In the absence of any such provision, the persons like the petitioners who were admittedly appointed as Junior Accountants and later posted as Treasurers by transfer can never successfully contend that the posting given to them as Treasurers was by promotion. In other words, the said posting was only by way of some accommodation/concession on the basis of the Rule, which could not have been claimed as a matter of right, treating the post of Junior Accountant (to which the petitioners were originally appointed) as the feeder category to the post of Treasurer. As it stands so, it cannot be accepted that the petitioners are entitled to get the benefit of Time Bound Higher Grade promotion on completion of eight years service in the post of Treasurer, treating it as the first promoted post, for the plain reason that the line of hierarchy of the petitioners lay elsewhere. 5. Sustainability of Exts.P2 and P3 orders passed by the Government and the second respondent had already been subjected to challenge before this court by some other similarly situated persons, by filing W.P.(C) 551 of 2005. After considering the relative merits and demerits, this Court vide judgment dated 04.02.2009 had declared it in crystal clear terms that no higher grade could be given to such persons on completion of eight years service and further that they would be eligible for higher grade only as applicable and as ordered in the relevant government orders. This being the position, the main relief prayed for by the petitioners stands already answered in the negative and this Court does not find any reason to take a different view. Hence it is rejected. 6. With regard to the challenge against Note (ii) to Rule 4 of the Rules, it is to be noted that the manner of posting/appointment to the post of Treasurer by transfer from the different categories mentioned under Rule 4(4) cannot be made a workable arrangement, unless Note (ii) is in existence. In other words, if Note (ii) is deleted, fate of the persons concerned who opt to work in the post of Treasurer will rather be in the dark; particularly when no where in the rules is it stated that the post of Treasurer can be filled up in some other manner, either by direct recruitment or by promotion from the category of persons holding the post like that of the petitioners. That apart, this is not a case where the doctrine of "Blue Pencil Rule" can be applied to find out whether Note (ii) provided under Rule 4 should be marked and deleted treating it as a separable part from the rest so as to make the remaining portion of the rule intact and to give effect to the legislative intent. The legislative intent will not be complete and effective in the absence of Note (ii) provided under Rule 4. 7. Yet another important aspect to be noted is that Note (ii) to Rule 4 was very much in existence right from 1972. The amendment brought out in 1986 and also in 1997 did not delete or add anything contrary to the rule position which was already in existence so as to affect the persons like the petitioners adversely on a fine morning. The option exercised by the petitioners to occupy the post of Treasurer was also during the existence of the above Note, stipulating that their promotion and appointment in the hierarchy will only be with respect to the lien to be maintained in the post of Accountant. This being the position, there is absolutely no pith or substance in the challenge raised against Note(ii), that too, more than three decades after coming into effect of the said Rule/Note. This court does not find any tenable ground to warrant interference. The Writ Petition is dismissed accordingly. No costs.