Decided on August 17,1967



- (1.) In October 1946, the petitioner, a law graduate, who was a clerk in the Travancore Secretariat acting in the grade Rs. 100-125/- was, on his own application (Ext. R-2 dated 16 3 1946), appointed as a Second Classes Magistrate, a post carrying a fixed pay of Rs. 150/- and at that time attached to the Revenue Department. [It was then usual for clerks in the Secretariat to improve their prospects by securing appointment by transfer to higher posts in other departments, especially the Revenue Department. Those with law qualifications found it easy enough to secure appointment to posts requiring such qualifications, and, generally speaking, they were able to secure promotion to the post of Assistant Peishkar or Deputy Collector borne on the same cadre as the post of Assistant Secretary, before they would have become Assistant Secretaries in the ordinary course had they remained in the Secretariat. But there was no rule (at any rate none has been brought to our notice Article 101A of the Travancore Service Regulations to which reference has been made concerns itself with service in one post counting for increment in another on the same scale of pay to which an officer may be transferred, and not with promotion in the parent department while serving in another) like for example R.8 of the General Rules in Part II of the Kerala State and Subordinate Services Rules which expressly protects the prospects of promotion in his service of a member absent from duty therein, or like R.50(b) of the Bombay Civil Services Rules (corresponding to R.33(b) of Part I of the Kerala Service Rules) which the Supreme Court has held in State of Mysore v. M. B. Bellary AIR 1965 SC 868 to have a like effect. On the contrary, in 1943, and again in 1947, Government had issued circulars warning persons securing transfers from one department to another for improving their prospects that they could not have the best of both worlds. Ext. R-3, the circular issued in 1947, said that a person so going from one department to another did so at his own risk and would not be "permitted to keep a lien on his original post or reserve any claim for a return to the original department or for rank or position there." It pointed out that no one could have a career in two departments simultaneously and went on to say that the rule laid down therein should always be maintained and that no exception should be allowed in any circumstances. It seems to us meaningless to suggest that the rule was with reference to permanent transfers, for, on a permanent transfer, a person ceases to have any connection whatsoever with his original department. The rule could have reference only to transfers which have not become permanent by reason of the confirmation of the person concerned in the new department.] Subsequently, while still continuing as a Second Class Magistrate the petitioner never reverted to the Secretariat the petitioner was confirmed as a clerk in the Secretariat on Rs. 100-125 and was promoted to act in the grade, Rs. 125-165, both with effect from 17 8 1948, a date prior to his going out as a magistrate. In March 1949, he was promoted to act as Tahsildar/ First Class Magistrate in the Revenue Department in the Grade, Rs. 175-225. Then, on 23 11 1949, at a time when the integration of the Travancore and Cochin services consequent on the formation of the Travancore-Cochin State on 1 7 1949 was under consideration, the petitioner was, the rule in Ext. R-3 notwithstanding, provisionally confirmed as a Secretariat clerk on Rs. 125-165 with effect from 6 6 1949. However, on 31 7 1954, he was confirmed as a Second Class Magistrate on a fixed pay of Rs. 150/- with effect from 9 9 1951. All this while he was continuing as a Tahsildar.
(2.) On 25 1 1957, the petitioner was promoted to act as Deputy Collector, a post then on the scale of Rs. 300-500 but subsequently raised to Rs. 475-700 with effect from 1 4 1958. On 8 8 1960, he was appointed on deputation as Private Secretary to the Chief Minister and he held that post till 8 4 1962.
(3.) Meanwhile, the integration of the Travancore and Cochin Secretariat services was effected as on 19 11 1953 by Ext. R-4 dated 31 7 1954 in in accordance with the principles of integration laid down in Ext. P1 of the former date. Para.3 (e) and 4 of Ext. P1 are relevant. Para.3(e) set out with reference to particular cases the principles to be followed with regard to Superintendents of the Secretariat who were working in other departments. And Para.4 said, "The principle as laid down in Para.3 (e) above with regard to retention of lien in the Secretariat will apply likewise to all categories of staff who were on other duty in permanent departments outside.";

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