IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 32109 of 2002(V)
1. A. RAVEENDRAN, SUB REGISTRAR,
... Petitioner
2. K.P. GOPALAKRISHNAN ACHARI,
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE INSPECTOR GENERAL OF REGISTRATION,
3. THE DISTRICT REGISTRAR (GENERAL),
4. THSE ACCOUNTANT GENERAL (A & E)
For Petitioner :SRI.N.SUGATHAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :11/03/2010
O R D E R
S. SIRI JAGAN, J
----------------------
O. P. No.32109, 35776 of 2002
&
W.P.(C) No.19235, 23810, 31213 of 2005
&
W.P.(C) No.15732 of 2006
---------------------------------
Dated this the 11th day of March 2010
J U D G M E N T
Since these cases raise the same issues, they are
disposed of by this common Judgment. For convenience, I
shall refer to the Exhibits as obtaining in O.P.No.32109 of
2002 unless indicated otherwise.
2. The petitioners in this original petition were
originally Junior Superintendents of the Registration Department
of the Government of Kerala. At the time relevant for this
judgment, the post of Junior Superintendents and Sub Registrars
carried the same scale of pay of Rs.1520-2660/-. Therefore, the
practice followed was that the seniors among the Junior
Superintendents would be posted as Sub Registrars. The next
higher post in the hierarchy was Senior Grade Sub Registrar, in
the scale of pay Rs.2000-3200/-. In view of the fact that, Junior
O.P.No.32109 of 2002
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Superintendents and Sub Registrars carried the same scale of
pay and in view of the fact that the duties and functions of Sub
Registrars were superior to those of Junior Superintendents, it
became difficult for the Sub Registrars to manage the Junior
Superintendents. The Government wanted to find a solution to
this difficulty. Therefore, the Government decided to integrate
the posts of Sub Registrar, Senior Grade Sub Registrar, Chitty
Auditor and Cashier into one post by name Sub Registrar.
Accordingly by Ext.P1 order dated 20.5.1996 those posts were
unified into one post of Sub Registrar with the scale of pay of
Rs.2000-3200/-. Pursuant thereto, by Ext.P2 order dated
2.7.1996, 270 Sub Registrars, Chitty Auditors and Cashiers were
given placement as Sub Registrar in the scale of pay of Rs.2000-
3200/-. On coming over to the higher scale of pay of Rs.2000-
3200/-, they were given a fixation under Rule 28A of Part I of
KSR and their pay was fixed accordingly. But the Accountant
General by Ext.P5 raised an objection to the same, to the effect
that the fixation could not have been under Rule 28A but should
have been as per Ruling 2 under Rule 30 Part I of KSR applying
the provisions of Rule 37(a). Pursuant thereto, by Ext.P6, the
O.P.No.32109 of 2002
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pay of the petitioners were refixed and petitioners were directed
to refund the excess amounts drawn by them consequent to the
earlier refixation under Rule 28A. The representation filed by
the Association espousing the cause of the petitioners met with
Ext.P8 rejection. Therefore, the Association and the 6th
petitioner in W.P.(C) No.31213 of 2009 filed O.P.No.32029 of
2001 before this Court, in which by Ext.P1 judgment, this Court
directed the Government to reconsider their claim for fixation
under Rule 28A. Accordingly the Government reconsidered the
matter and passed Ext.P10 order. The operative portion of the
same reads thus :-
“Government have therefore reconsidered the matter in
the light of the report of the Inspector General of
Registration and the direction of Hon’ble High Court
and are pleased to order that the Sub Registrars who
were placed in the scale of Rs.2000-3200/- consequent
on the unification of the scales will also be given the
benefit of fixation under Rule 28A part I Kerala Service
Rules.”
3. Subsequently the Government issued Ext.P14
clarification to the Accountant General clarifying that by Ext.P10
the Government intended to give only the fixation as provided
under Rule 28A and not the refixation contemplated by the last
O.P.No.32109 of 2002
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sentence of Rule 28A. It is aggrieved by the same that the
petitioners have approached this Court seeking the following
reliefs :-
“i) to issue a writ of certiorari or any other appropriate
writ or order quashing Ext.P5 in so far as it directed to
refix the pay of the petitioners;
ii) to issue a writ of certiorari or any other appropriate
writ or order quashing Exts.P6, P6(a), P6(b), P7 and P7
(a);
iii) to issue an appropriate writ or order declaring that
the petitioners are entitled to draw pay and allowances
on the basis of Exts.P3 and P4 pay fixation orders;
iv) to say all proceedings pursuant to Exts.P6, P6(a), P6
(b), P7 and P7(a) for recovery of excess pay and
allowances already disbursed to the petitioners;
v) to issue a writ of certiorari or any other appropriate
writ or order quashing Ext.P14;
vi) to issue a writ of mandamus or any other
appropriate writ or order directing the 3rd respondent
to refix the pay of the 1st petitioner with effect from
1.2.2003 and 1.7.2004 on the basis of the pay fixed in
Ext.P3 and to grant the 1st petitioner all the
consequential benefits;
vii) to issue a writ of mandamus or any other
appropriate writ or order directing the 4th respondent
to fix the pay of the petitioner in the revised scale of
pay of the post of District Registrar with effect from
25.4.2005 and to issue pay slip so as to enable the
petitioner to draw the salary in the post of District
Registrar;
viii) to issue a writ of mandamus or any other
O.P.No.32109 of 2002
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appropriate writ or order directing respondents 2 and 4
to revise the pensionary benefits admitted and
sanctioned to the 1st petitioner as per Ext.P11 and to
grant him all consequential benefits :
4. Counter affidavits have been filed by the respondents
supporting Ext.P14. According to the learned Government
Pleader, actually the petitioners got a windfall, in so far as by
this unification process, the petitioners actually attained what in
normal course would have taken them years to attain. In other
words, had they continued as Sub Registrars without the
unification, it would have taken years for them to get promoted
as Senior Grade Sub Registrars. According to the learned
Government Pleader, Rule 28A as such is not applicable to the
petitioners in these cases since the process of unification by
Ext.P1 was not a situation contemplated in Rule 28A. It was
neither a promotion nor an appointment to a post carrying a
higher scale of pay. It was only a unification of two posts having
two scales of pay into one post bearing one scale of pay, which
cannot be treated as an appointment or promotion to a post
carrying a higher time scale of pay contemplated in Rule 28A.
Therefore, the petitioners are not as of right entitled to a fixation
O.P.No.32109 of 2002
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of under Rule 28A. But taking into account the peculiar facts
and circumstances of the case, as directed by this Court in
Ext.P9 judgment the Government reconsidered the matter and
decided to confer the benefit of Rule 28A on the petitioners,
which they were not actually entitled too. In that process the
Government decided to grant them only fixation under Rule 28A,
but not the refixation under that Rule, is the contention raised.
The reasoning put forward by the Government is that, once the
post of Sub Registrar is abolished to make Sub Registrar and
Senior Sub Registrar into one unified post, there is no post
carrying a lower scale of pay for the petitioners for enabling
them to get a refixation of pay as contemplated in the latter part
of Rule 28A. Therefore according to the learned Government
Pleader, the petitioners are not entitled to the reliefs prayed for.
5. The petitioner in W.P.(C) No.31213 of 2005 pointed
out that, in that writ petition, in paragraph 14, cases of Sri. C.
Raveendran, Sri. Sasankan P.K., Smt. Ammini G., Sri. Johnson
P.J., Smt. V. Radhamony and Sri. A. Raveendran who were
similarly placed like the petitioners and were given both the
fixation and refixation under Rule 28A have been quoted and in
O.P.No.32109 of 2002
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paragraph 25 of the counter affidavit filed in that writ petition,
the Government had admitted that they had been given both the
benefits and that they were situated identically like the
petitioners.
6. The explanation by the learned Government Pleader
for the same is that although the same is true, it escaped the
notice of the Government and only when the case of the
petitioners were pointed out by the Accountant General the
Government realized the mistake and decided to take corrective
action. According to the learned Government Pleader, the grant
of such benefits wrongly to some persons cannot be a ground for
the petitioners to claim the same benefit as of right on the
ground of negative discrimination.
7. I have considered the rival contentions in detail.
8. I will consider the question as to whether the
reasoning given in Exts.P1 and P14, for limiting the benefit of
the petitioners to fixation under Rule 28A and deny refixation
under that Rule is sustainable.
9. The reasoning given in Ext.P14 is that as per Rule
28A, such refixation benefit is applicable only when there is a
O.P.No.32109 of 2002
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lower post and in the case of the petitioners, there is no lower
post in so far as the post of Sub Registrar ceased to exist. I am
of the opinion that this reasoning is based on a fallacious
understanding of Rule 28A. The said Rule reads thus :-
“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 refixation of pay will be allowed
whenever there is a change of pay in the lower time-
scale.] *
On a reading of that Rule, I do not find any reference to a lower
post therein. On the other hand, what is contemplated in the
Rule is only a lower time-scale. That lower time-scale is relating
to the Officer who claims fixation under Rule 28A. In these
cases, the petitioners had a lower-time scale of pay and
continues to have a lower time-scale of pay, notwithstanding the
fact that the post in which they held that lower-time scale of pay
ceased to exist. What is contemplated in Rule 28A is only change
from a lower-time scale of pay into higher time-scale of pay.
O.P.No.32109 of 2002
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Here nobody can dispute the fact that the petitioners had gone
over to a higher time-scale of pay from a lower-time scale of pay.
Therefore, as far as the petitioners are concerned,
notwithstanding the abolition of post of Sub Registrar, which
they held earlier, they continue to have both a lower time-scale
of pay and a higher time-scale of pay for the purpose of Rule
28A. Therefore, I do not think that on the reasoning given in
Ext.P14, the refixation contemplated in Rule 28A can be denied
to the petitioner.
10. The learned Government Pleader would submit that
the benefits under Rule 28A was not given to the petitioners as
of right. She points out that the original fixation under Rule 28A
granted to the petitioners was objected to by the Accountant
General on the ground that the fixation should have been under
Rule 30 and 37(a). Therefore, according to her, Ext.P10 should
be construed in such a way as to limit the benefit under Rule
28A to the petitioners only to the extent of fixation and not
refixation. I do not think that the Government can put such a
restriction for the benefit of Rule 28A. After having decided to
give the petitioners benefit under Rule 28A they cannot now hold
O.P.No.32109 of 2002
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that they will give only benefit of the 1st part of the fixation and
would not give the benefit of the refixation in the 2nd part. In
fact in the case of similarly placed Sub Registrars, in
O.P.No.2071 of 2003, I had directed that similarly placed
persons whose fixation was sought to be changed should be
given restoration of the original fixation benefits under Rule 28A.
That means the benefit of whole Rule 28A. In that case, both
benefits under Rule 28A were given to the petitioners.
11. In view of my above finding I do not think it necessary
to go into the other questions involved because the above finding
would conclusively decide the lis between the parties.
Accordingly, I hold that as per Ext.P10 the petitioners are
entitled to the whole benefit of Rule 28A including the refixation
benefit in the latter part of the Rule. The petitioners’ pay shall
be refixed accordingly in all stages and their retirement benefits
shall be recomputed consequently since they have retired from
service. Orders in this regard shall be passed as expeditiously as
possible at any rate within three months from the date of receipt
of a copy of this judgment. Arrears payable consequent thereto
shall be disbursed within another one month. Needless to say,
O.P.No.32109 of 2002
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those of the petitioners who have obtained further promotion
would be entitled to normal refixation of pay in the promoted
post also consequent to the refixation under Rule 28A as
directed above.
12. The petitioners have got another case that they were
not given the benefit of fixation of pay consequent to the general
pay revision order issued under G.O.(P) 145/06/Fin dated
28.03.2006 with effect from 01.07.2004. If any of the petitioners
have been denied the benefit of that pay revision order/orders in
respect of the same shall also be passed and arrears disbursed
within the periods as directed above. Consequently the
impugned orders in all the writ petitions are quashed.
The Original Petitions/Writ Petitions are disposed of as
above.
S. SIRI JAGAN, JUDGE
Jvt
