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Judges : G.SIVARAJAN
P.Jayasree - Appellant
Versus
State of Kerala - Respondent
Case No : O.P.No.7621 of 1993
Decided On : 10/18/2002
Advocates Appeared :
For the Petitioner: K.A.Abraham, Advocate. For the Respondent: Lal George, Govt. Pleader.
Service Rules Kerala – Part I Rule 37(b), 37(b) – High Court Service Rules, 1970 – Rule 35, 37(b), 2, 3, 31, 32, 33 – Constitution Of India – Article 309, 310(1), 320(3)(c), 229, 310, 311(i) – Statutory provision – Misrepresentation – Discrimination – Question that arises for consideration in this case is as to whether pay drawn by petitioners while in High Court service as Assistant Grade court can be reckoned for purpose of fixing their pay in post of Assistant Grade II on their appointment as such in Government Secretariat pursuant to advise made by Kerala Public Service Commission – To put it briefly, question is as to scope and applicability of R. 37(b) of Part I of Kerala Service Rules – Held, Supreme Court also in Sahib Ram v. State of Haryana and others observed that principal of college where appellant was working as a Librarian allowed him revised pay scale purporting to act under a Government order – Government directed principal to withdraw said scale of pay – While rejecting challenge against the said order Supreme Court noted that since date of relaxation appellant had been paid his salary on revised scale and observed as however, it is not on account of any misrepresentation made by appellant that benefit of higher pay scale was given to him but by wrong construction made by principal for which appellant cannot be held to be at fault – Under circumstances amount paid till date may not be recovered from appellant – Petition is Allowed
The question that arises for consideration in this case is as to whether the pay drawn by the petitioners while in the High Court service as Assistant Grade I can be reckoned for the purpose of fixing their pay in the post of Assistant Grade II on their appointment as such in the Government Secretariat pursuant to the advise made by the Kerala Public Service Commission. To put it briefly, the question is as to the scope and applicability of Rule 37 (b) of Part I of the Kerala Service Rules (for short "the K.S.R.").
2. Both the petitioners were initially appointed as Assistant Grade II in the High Court of Kerala on 10-2-1986 and 4-10-1985 respectively. They were also promoted as Assistant Grade I on 16-12-1988 and on 11-1-1988 respectively. While continuing as such they applied to the post of Assistant Grade II in the Secretariat. Pursuant to the advise made by the Public Service Commission the petitioners were appointed as Assistant Grade II in the Secretariat and they joined the Secretariat Service on 30-6-1990 and 7-7-1988 respectively. The scale of pay of Assistant Grade II and Assistant Grade I in the High Court service is the same as in the Secretariat service. Their pay in the post of Assistant Grade II un the Secretariat Service was fixed in terms of Rule 37(b) of Part I Kerala Service Rules. The petitioners were subsequently promoted as Assistant Grade I in the Secretariat service in October 1992 and in December, 1990 respectively. While so the Accountant General. Kerala (second respondent herein) on conducting audit in the Secretariat noted in enquiry report Nos. 29 and 22 respectively (Exts. P1 and P2) that the fixation of the petitioners" pay in the post of Assistant Grade II in the Secretariat was irregular. Based on the audit report the petitioners were asked to file their objections and they submitted Exts.P3 and P4 replies respectively. The first respondent Government, however as per orders dated 28-5-1993(Exts P5 and P6) respectively took the view that the employees of the High Court are not under the control of the State Government and therefore their service cannot be considered as Government service. It was accordingly held that the pay protection allowed to the petitioners in the post of Assistant Grade II in the Government Secretariat by applying Rule 37(b) of K.S.R. taking into account the service rendered in the High Court as Government service is not correct. The excess pay drawn on account of wrong fixation in leave salary, promotion, increments, etc. have been worked out which came to Rs.17,692/- in the case of the first petitioner and Rs.23,373/- in the case of the second petitioner. It was also ordered that the said amount will be recovered in 58 monthly instatlments at the rate of Rs.300/- in the case of the first petitioner and Rs.400/- in the case of second petitioner. Petitioners being aggrieved by Exts. P5 and P6 memos have filed this original petition.
3. The stand taken by the petitioners is that the service in the High Court and the service in the Secretariat are public service and service in the affairs of the state; the appointments to the High Court Service are made by the Hon'ble the Chief Justice of the High Court; consultation with the Public Service commission is obligatory only if the Governor specifies so by rules to that effect; the Governor of the State has not made any rule for consultation with the Public Service Commission; the pay and allowances, pension, etc. payable to the servants of the High Court is charged upon consolidated fund of the State and any rule with regard to the pay and allowance shall have the approval of the Governor of the State. It is also their case that the staff pattern is also the same, that the rates of pay are also governed by the same recommendations of State Pay Commission and therefore the conditions of service with regard to pay fixation, rate of pay, etc. are one and the same for the High Court staff and the State Secretariat.
4. The
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