K SULOCHANA Vs. HIGH COURT OF KERALA

JUDGEMENT

(1.) COMMON questions arise in these cases and that is whether amins borne on the Kerala Judicial Ministerial Service can be posted as Lower division Clerks even if they opt against it. In O. P. No. 2655 of 1995, the challenge is with regard to Ext. P1 official memorandum issued by an Assistant registrar of this Court directing the District Judges of the State to post qualified and suitable persons, who hold the post of Amins, as L. D. Clerks irrespective of the question whether they had permanently relinquished promotion as L. D. Clerk before the amendment to Rule 5 (d) of the Kerala Judicial Ministerial subordinate Service Rules against vacancies arising in future. Amins admittedly are governed by the Kerala Judicial ministerial Subordinate Service Rules. Under Rule 5 Class II of the said Rule, amins come within category 7. They did not form part of the feeder category to the post of L. D. Clerks who come as category 4 (a ). On the other hand they formed the feeder category for promotion as Upper Division Clerks (Civil Wing)under Category 3 (a) though their entitlement for promotion was to arise only in the absence of qualified L. D. Clerks and Examiners coating under Category 4. An amendment to Rule 5 aforementioned was brought in through G. O. (P) No. 24/91/home dt. 7-2-199 1 which provided for the following amendment to Rule 5 (d); "d ). The appointing authority shall subject to the availability of vacancy, transfer a member belonging to category 7 or 8 in clause I to a post in category 4 or 6 (c) in the same unit provided he is suitable and qualified to hold the latter post and has served for at least two years in the former category. "* It is pursuant to the aforesaid amendment that Ext. P1 o. M. now under challenge was issued. The learned counsel for the petitioner submits that implementation of Ext. P1 would adversely affect the interest of amins in so far as they could have aspired for direct promotion as U. D. Clerks earlier and now they can only go in as L. D. Clerks and wait for their turn for further promotion as U. D. Clerks. It was also pointed out that their service conditions are adversely affected in so far as they have to pass the MOP test as a condition precedent for the above post and also have to forego the substantial traveling allowance that they are getting in the capacity as Amins. Learned Government Pleader, who appeared for and on behalf of the State as also for the High Court, submitted that the present contentions of the petitioners are concluded by a Bench decision of this Court, produced as Ext. P1 in O. P. No. 11021 of 1997. After examining all the aforesaid contentions the court concluded therein that the contentions of the amins are unacceptable for various reasons set forth in the judgment and that the amendment to the rule cannot be successfully assailed. There is no dispute of the fact that Ext. P1 judgment aforementioned has become final. If that is so, the Registrar of the High Court was bound to implement the same and the issuance of Ext. P1 in O. P. No. 2655 of 1995 obviously is only to further the implementation process with regard to the amendment. It is not brought to my notice that there is anything in Ext. P1 which goes against the letter and spirit of Ext. P1 judgment in O. P. No. 11021 of 1997 or against the amended provisions in the Judicial Ministerial subordinate Service Rules. In the circumstances O. P. No. 2655 of 1995 is found to be without merit and it is accordingly dismissed. In O. P. No. 11021 of 1997 the challenge is with regard to ext. P2 Memorandum issued by the District Judge, Trivandrum promoting one sulochana, Amin, District Court, Trivandrum as L. D. Clerk in the Sub-Court, trivandrum. The petitioners in the said case were Peons; but promoted as Amins in due course. The contention raised is that persons who have rendered service of 3 or 5 years as Amin have to forego their past service once appointed as l. D. Clerk and that Amins could have aspired for the post of Nazar on the strength of length of service, but for Ext. P1 judgment produced in O. P. No. 11021 of 1997 though such promotions, in actual practice never happened. In the absence of any such promotion, the contention is that by posting Amins as L. D. Clerks, they are penalised by asking to forego their past service. There is no merit in the said contention also. There is no question of forfeiture of past service for service benefits of Amins. The purport of the amendment is only to enable Amins to be posted to work, as L. D. Clerks in the better interest of the department. It is conceded that both posts carry the same pay scale. In actual fact the amendment to the Rules have only accelerated their chances of promotion as U. D. Clerks though they have to pass through the intermediate channel of service as L. D. Clerks. The petitioners cannot hence be said to be aggrieved in any manner. O. P. 11021 of 1997 is also without merit and it is hence dismissed. . .