IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 1092 of 2005(E)
1. K.S.SEBASTIAN, S/O. LATE DEVASSIA,
... Petitioner
Vs
1. KERALA STATE ELECTRICITY BOARD,
... Respondent
2. CHIEF ENGINEER(HUMAN RESOURCE MANAGEMENT
3. ACCOUNTS OFFICER (PAY FIXATION),
For Petitioner :SRI.O.V.RADHAKRISHNAN (SR.)
For Respondent :SRI.C.C.THOMAS, SC, K.S.E.B
The Hon'ble MR. Justice K.K.DENESAN
Dated :25/10/2006
O R D E R
K.K. DENESAN, J.
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W.P.(C) No. 1092 OF 2005 E
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Dated this the 25th October, 2006
J U D G M E N T
The petitioner is a Senior Superintendent
belonging to the service of the 1st respondent-Board.
He has sought for a declaration that he is entitled to
get his pay stepped up with the pay of his junior Smt.
P. Kunjamma from 1-8-1993 at Rs.2925 in the scale of
pay of Rs.2550-4215 from 1-8-1998 and at Rs.10,590/- in
the scale of pay of Rs.8200-12880. Ext. P9 is sought
to be quashed in as much as the petitioner has been
informed by the respondent that the request made by
seniors for stepping up the pay with that of juniors
cannot be entertained since the respondents had stopped
entertaining such claims by orders passed in 1996.
2. In the counter affidavit filed by the
respondents it is admitted that Smt. P. Kunjamma is
junior to the petitioner. It is also admitted position
that the above mentioned junior is drawing a higher pay
WPC No. 1092/2005 -2-
than the petitioner. There is no case for the
respondents that the petitioner, though senior, is paid
a lesser pay due to any fault on his part. The
disparity is the direct result of the pay revision
orders and the respective dates on which the increments
due to the senior and the junior have fallen due on
completion of one year from the date of sanction of
increment for the previous year. It is an accepted
principle of service jurisprudence that if the senior,
for no fault of his, is paid salary lesser than that of
the junior, the pay of the senior shall be stepped up
with that of the junior. The respondents have been
permitting the seniors to enjoy the above benefit. But
the same is denied to the petitioner based on a cut off
date fixed by the respondents for entertaining such
claims by the employees of the Board.
3. The service details of the petitioner and that
of Smt. P. Kunjamma have been furnished in the counter
affidavit filed by the 1st respondent. Paragraphs 4 and
5 of the counter affidavit are extracted for
convenience:
"4. The service details of the
petitioner are as noted below:
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Entered Board service as Junior
Assistant on 10-2-1978. Promoted as senior
Assistant with effect from 18-7-1983. First
Higher Grade promotion on 18-7-2001. Second
grade promotion on 18-7-2001.
Sri. Sebastian is seen assigned rank No.
391 in the gradation list of ministerial
staff as on 1-1-2002.
5. It is submitted that, on the other
hand, the proposed junior, Smt. P. Kunjamma
entered service a Cashier on 14-6-1978. She
was promoted as Senior Assistant with effect
from 11-7-1983. First and second, time bound
Higher Grade promotions were granted with
effect from 11-7-1993 and 11-7-2001
respectively. The serial number of Smt.
Kunjamma in the gradation list of ministerial
staff is 399.”
4. Learned counsel for the petitioner submits that
the petitioner could not bring to the notice of the
respondents the disparity in the pay of the petitioner
and that allowed to Smt. P. Kunjamma until he was
transferred to the Electrical Sub Division, Palai where
Smt. Kunjamma was working. The pleadings in the writ
petition go to show that the seniors who are working in
distant places may not have access to the service
records of the junior and it may not be possible for
them to ascertain the pay received by their juniors
until they get such opportunity either accidentally or
WPC No. 1092/2005 -4-
under fortuitous circumstances.
5. The above pleadings in the writ petition have
not been denied in the counter affidavit. Hence, the
only question to be considered is whether the
respondent-Board is right in fixing a cut off date for
entertaining requests made by senior employees to do
away with disparity or anomaly in the pay of the senior
and that of the junior.
6. This Court had occasion to consider similar
contentions in Kamala Devi v. Kerala State Financial
Enterprises Ltd. {2002 (1) KLT 157}. Paragraphs 6 and
8 of the above decision read as follows:
“6. Art. 14 guarantees equality before
law and equal protection of laws, but the
same does not prohibit classification. A
classification will not be hit by Art. 14, if
the same satisfies the twin tests:-
(1) there is an intelligible differentia
between those included in one group and those
excluded from it;
(2) it has a rational nexus with the
object of the law.
The Supreme Court has held that if the
classification suffers from the vice of
underinclusiveness, the same will be hit by
Art. 14. The Supreme Court has explained the
said principle pithily in In Re Special
Courts Bill, 1978, in the following words:
(AIR 1979 (1) SC 478):
WPC No. 1092/2005 -5-
“120. The Court in Mohammad Shujat Ali
v. Union of India, (1975) 1 SCR 449 at p.
477: (AIR 1974 SC 1631 at p. 1653) has
explained the constitutional facet of
classification:
This doctrine recognises that the
legislature may classify for the purpose of
legislation but requires that the
classification must be reasonable. It should
ensure that persons or things similarly
situated are all similarly treated. The
measure of reasonableness of a classification
is the degree of its success in treating
similarly, those similarly situated.
But the question is: what does this
ambiguous and crucial phrase similarly
situated means? Where are we to look for the
test of similarity of situation which
determines the reasonableness of a
classification? The inescapable answer is
that we must look beyond the classification
to the purpose of the law. A reasonable
classification is one which includes all
persons or things similarly situated with
respect to the purpose of the law.”
121. After having stated the general
proposition, the Court struck a note of
warning which is the main crux of the present
controversy: Ibid at p. 478: (at pp. 1653,
1654 of AIR):
“The fundamental guarantee is of equal
protection of the laws and the doctrine of
classification is only a subsidiary rule
evolved by Courts to give a practical content
to that guarantee by accommodating it with
the practical needs of the society and it
should not be allowed to submerge and drown
the precious guarantee of equality. The
doctrine of classification should not be
carried to a point where instead of being a
WPC No. 1092/2005 -6-
useful servant, it becomes a dangerous
master, for otherwise, as pointed out by
Chandrachud, J. in State of Jammu & Kashmir
v. Triloki Nath Khosa, (1974)1 S.C.C. 19:
(AIR 1974 SC 1), “the guarantee of equality
will be submerged in class legislation
masquerading as laws meant to govern well-
marked classes characterised by different and
distinct attainments. “…..That process
would inevitably end in substituting the
doctrine of classification for the doctrine
of equality; the fundamental right to
equality before the law and equal protection
of the laws may be replaced by the overworked
methodology of classification. Our approach
to the equal protection clause must,
therefore, be guided by the words of caution
uttered by Krishna Iyer, J. in State of Jammu
& Kashmir v. Triloki Nath Khosa. “Mini-
classifications based on micro-distinctions
are false to our egalitarian faith and only
substantial and straightforward
classification plainly promoting relevant
goals can have constitutional validity. To
overdo classification is to undo equality.”
122. Mathew, J. in State of Gujarat v.
Shri. Ambica Mills, Ahmedabad, (1974) 3 SCR
760 at p. 782: (AIR 1974 SC 1300 at pp 1312,
1313) placed the same accent from the angle
of underinclusion:
“The equal protection of the laws is a
pledge of the protection of equal laws. But
laws may classify…. A reasonable
classification is one which includes all who
are similarly situated and none who are not.
The question is what does the phrase
‘similarly situated’ means? The answer to
the question is that we must look beyond the
classification to the purpose of the law.
The purpose of a law may be either the
elimination of a public mischief or the
achievement of some positive public good.
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A classification is under-inclusive when
all who are included in the class are tainted
with the mischief but there are others also
tainted whom the classification does not
include. In other words, a classification is
bad as under-inclusive when a State benefits
or burdens persons in a manner that further a
legitimate purpose but does not confer the
same benefit or place the same burden on
others who are similarly situated. A
classification is over-inclusive when it
includes not only those who are similarly
situated with respect to the purpose but
others who are not so situated as well.”
(emphasis supplied).
8. Even without going into the nuances
of law relating to classification, it is
apparent that the present case is a clear
case of plain discrimination, in as much as
the appellant’s junior is drawing higher
salary than her without any reasonable reason
whatsoever. So, the appellant is entitled to
have her salary stepped up with effect from
the date her junior started to draw higher
pay than her. This view taken by us finds
support from two decisions of the Supreme
Court in Union of India & Ors. v. P. Jagdish
& Ors. (1997) 3 SCC 176) and in Calcutta
Municipal Corpn. & Anr. v. Sujit Baran
Mukherjee & Ors. (1997) 11 SCC 463). In the
first decision, the Supreme Court has held as
follows:
“This principle becomes applicable when
the junior officer and the senior officer
belong to the same category and the post from
which they have been promoted and in the
promoted cadre the junior officer on being
promoted later than the senior officer gets a
higher pay. This being the principle of
stepping up contained in the Fundamental
Rules and admittedly the respondents being
WPC No. 1092/2005 -8-
senior to several other Senior Clerks and the
respondents having been promoted earlier than
many of their juniors who have promoted later
to the post of Head Clerks, the principle of
stepping up should be made applicable to the
respondents with effect from the date of
their juniors in the erstwhile cadre of
Senior Clerks get promoted to the cadre of
Head Clerks and their pay was fixed at a
higher slab than that of the respondents.
The stepping up should be done in such a way
that the anomaly of juniors getting higher
salary than the seniors in the promoted
category of Head Clerk would be removed and
the pay of the seniors like the respondents
would be stepped up to a figure equal to the
pay as fixed for their junior officer in the
higher post of Head Clerk. In fact the
Tribunal by the impugned order has directed
to apply the principle of stepping up and we
see no infirmity with the same direction
subject to the aforesaid clarifications…..”
The Apex Court has made similar statements of law in
M.R. Gupta v. Union of India {(1995) 5 SCC 628.
7. Legal Liaison Officer appearing for the
respondents submits that the respondents are prepared
to reconsider the case of the petitioner and take a
fresh decision in the light of the law laid down in
(1995) 5 SCC 628 and 2002 (1) KLT 157 (supra).
8. In the result, Ext.P9 is set aside. The
respondents are directed to pass fresh orders
untrammeled by the stand taken by the Board in
paragraph 7 of the counter affidavit. This shall be
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done within two months on the petitioner producing a
copy of this judgment.
The writ petition is disposed of as above.
K.K. DENESAN
JUDGE
jan/-