IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1592 of 2007(E)
1. THE GREATER COCHIN DEVELOPMENT
... Petitioner
2. THE ADMINISTRATIVE OFFICER,
Vs
1. A.M.SHANAVAS,
... Respondent
For Petitioner :SRI.MILLU DANDAPANI
For Respondent :SRI.P.K.RAVISANKAR
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :06/01/2010
O R D E R
C.R.
K. BALAKRISHNAN NAIR
&
C.T. RAVIKUMAR, JJ.
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W.A. NO. 1592 OF2007
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Dated this the 6th day of January, 2010
JUDGMENT
Balakrishnan Nair, J.
The point that arises for decision in this case is whether on the junior
getting grade promotion, can the senior claim the same pay as his junior,
though the latter has not completed the required number of years for grade
promotion. The respondents in the Writ Petition are the appellants. The
first respondent herein was the petitioner.
2. The brief facts of the case are the following: The first respondent
joined the service of the first appellant as Draftsman/Overseer/Surveyor
Grade III/Tracer on 13.5.1985. He was promoted as Draftsman/
Overseer/Surveyor Grade II with effect from 13.5.1987. Still later, he was
promoted as Draftsman/Overseer/Surveyor Grade I with effect from
14.5.1988. One Smt. Suprabha,who joined the service of the first
appellant as Draftsman/Overseer/Surveyor Grade II on 4.3.1988 and
W.A. NO. 1592/2007 2
who was junior to the respondent, was promoted as Draftsman/
Overseer/Surveyor Grade I on 4.3.1990. On completion of eight years in
the said cadre, she became eligible for grade promotion in the scale of pay
of Assistant Engineer. Since she opted to come over to the scale of
Assistant Engineer on 1.11.1998, she was granted higher grade with
effect from the said date. As a result of the grade promotion, she started
drawing higher pay than the first respondent. The first respondent,
therefore, filed a representation claiming stepping up of his pay equal to
that of Smt. Suprabha. The competent authority of the first appellant
considered the said claim and rejected it, by Ext.P2 communication dated
18.5.2002. Challenging that order, the Writ Petition was filed. The
appellants filed a counter affidavit, stating that the first respondent/
petitioner is not eligible for stepping up of his pay. They also produced
Ext.R1(a) reply, furnished to the first appellant by the Deputy Director,
Local Fund Audit, for the clarification sought by them regarding the
eligibility of the first respondent for stepping up of his pay.
3. The learned Single Judge, after hearing both sides, took the view
that it is highly unjust to allow the situation of the first
respondent/petitioner drawing lesser pay than his junior, Smt. Suprabha
and quashed Ext.P2 and Ext.R1(a), even though there was no specific
W.A. NO. 1592/2007 3
pleading for quashing the latter order. The learned Single Judge also
ordered to step up the pay of the first respondent/petitioner to the level of
the pay drawn by his junior, Smt. Suprabha with effect from the date on
which she started drawing higher pay.
4. We heard the learned counsel on both sides. The learned
counsel for the appellants submitted that the rules and orders governing
fixation of pay do not permit stepping up of the pay of the first respondent
to make it equal to that of his junior, who got grade promotion as
Assistant Engineer. The learned counsel for the first respondent, on the
other hand, submitted that in every respect the first respondent and Smt.
Suprabha were on the same footing in Grade II and Grade I and the first
respondent was also senior to Smt. Suprabha. Therefore, when the junior
starts drawing higher pay, the first respondent is entitled to have his pay
stepped up and therefore, the view taken by the learned Single Judge is
legal and valid. In support of his submission, the learned counsel for the
first respondent relied on the decision of the Apex Court in Union of India
v. P. Jagdish [(1997) 3 SCC 176] and also a decision of the Division
Bench of this Court in Kamala Devi v. K.S.F.E. Ltd., [2002(1) K.L.T.
157].
W.A. NO. 1592/2007 4
5. The concept of junior-senior fixation finds statutory recognition
in Rule 28A of Part I of the Kerala Service Rules. Ruling No.1 under it
permits stepping up of the pay of the senior, who draws lesser pay than
his junior. The said ruling reads as follows:
“In cases where the application of the rule
would give rise to anomalies in as much as an
officer officiating in a higher post could get his
pay refixed at a stage higher than the pay drawn
by another who stands confirmed in the higher
post on the same scale of pay, the anomaly will
be removed by refixing the pay of the senior
officer at the stage equal to that fixed for the
junior officer in the higher post, the orders of
refixation being issued by the Competent
Authority under Rule 34, Part I, Kerala Service
Rules. The refixation of pay in such cases will be
made subject to the following conditions:-(a) Both the junior and senior officers
should belong to the same cadre and the post in
which they have been promoted or confirmed, as
the case may be, should be identical and in the
same cadre.(b) The scale of pay of the lower post in
which they would have drawn their pay but for
their promotion or confirmation should be
identical.( c) The anomaly should be directly as a
result of the application of Rule 28A. For
example, if the junior officer draws from time to
time a higher rate of pay than the senior by virtue
of fixation of pay under the normal rules or any
advance increment granted to him, the provisionW.A. NO. 1592/2007 5
contained in this ruling should not be invoked to
step up the pay of the senior officer.(d) The refixation of pay of the senior
officer should be done with effect from the date
of refixation of pay of the junior officer. The
next increment of the senior officer will however
be drawn on the date on which it would have
fallen due but for this refixation of pay.”By G.O.(P) No.110/84/Fin dated 20.2.1984, further clarification has been
issued. The said Government Order reads as follows:
“In the Government Order read above,
orders have been issued to the effect that the
rules of fixation of pay as laid down in Rules 28
A, Part I, Kerala Service Rules will not be
applicable to cases of promotions/appointments
made from posts carrying a scale of pay the
minimum of which exceeds Rs.1300. It is
observed that consequent on the implementation
of the above Government Order, certain officers
promoted on or after 29.6.1983 are entitled to pay
higher than that drawn by their Seniors who
could not get the benefit of the Government
Order having been promoted prior to 29-6-1983.
In order to remove the anomaly of Junior drawing
higher pay than the Senior consequent on the
implementation of the above orders, Government
are pleased to order that in cases where a Junior
happens to draw on promotion on or after 29-6-
1983 pay higher than that drawn by his Senior
who got promotion prior to 29-6-1983, solely on
account of the implementation of the orders in
the Government Order read above, the pay of
such Senior in the post to which he has been
promoted in the higher scale will be refixed at theW.A. NO. 1592/2007 6
same stage as that of the Junior with effect from
the date of fixation of pay of the Junior subject to
the following conditions:-i. Both the Junior and the Senior Officers
should belong to the same cadre and the
posts in which they have been promoted
should be identical and in the same
cadre.ii. The scale of pay of the lower post should
be identical.iii.If the Junior Officer draws from time to
time a higher rate of pay than the Senior
in the lower post by virtue of fixation of
pay under the normal rules or any
advance increment granted to him, the
benefit of stepping up the pay of the
Senior Officer shall not be admissible.”
Going by the above orders, we find that the case of the first respondent is
not covered by them. Whenever pay revision orders are issued and
anomaly of the junior drawing higher pay arises as a result of fixation of
pay, specific provisions are made therein to rectify the said anomaly. In
this case, the alleged anomaly did not arise as a result of implementation
of pay revision.
6. It is well settled that there is no universal principle that the
senior in a cadre must always draw higher pay than the junior. On valid
grounds, it may so happen that the junior may draw higher pay than the
W.A. NO. 1592/2007 7
senior. In this case, the junior, Smt. Suprabha completed eight years
service in the post of Overseer Grade I. Therefore, she is entitled to get
the scale of pay of the promotion post of Assistant Engineer. The time
bound higher grade relevant in this case was the one contained in G.O.(P)
No. 3000/98/Fin dated 25.11.1998. The relevant portion of the said
Government Order dealing with higher grade reads as follows:
Promotion Prospects
5.(1)(a) Ratio/Percentage based higher grade.
The existing ratio/higher grade and the
improved ratio to the various categories are indicated
at the appropriate places under each Department. The
newly introduced ratio/improved ratio promotion will
have effect from the date of this order.
(b) Time bound higher grade promotion
scheme:-
(1) The existing time bound higher grade
promotion scheme and the grades to be assigned on
revision of pay scales under the scheme, will be
modified as specified in the Table I and II given
below [with effect from the date of order.](2) Employees who remain in their entry posts on
scale of pay ranging from Rs.2610-3680 to Rs.4600-
7125 will be granted three higher grades on
completion of the period of qualifying service in their
posts as follows with the scale of pay indicated in
Table-I
(i) The first higher grade on completion
W.A. NO. 1592/2007 8
of 10 years service in the entry post.
(ii) The second higher grade on
completion of either 8 years of service
in the first promoted post or a total
service of 18 years in the entry post
and the first regular promotion
post/time bound higher grade together,
whichever is earlier.
(iii) The third higher grade on completion
of 23 years of total service in the
entry post and the regular promotion
post(s)/ time bound higher grade(s)
together.
(iv) A fourth time bound higher grade in
the scale of Rs.3350-5275 will be
allowed to Class IV employees on
completion of 30 years.”
As per the above quoted time bound higher grade promotion scheme, Smt.
Suprabha is entitled to get the scale of pay of Assistant Engineer with
effect from 3.3.1998. But, she opted to come over to the scale with effect
from 1.11.1998. If the claim of the first respondent is allowed, it will have
the effect of granting him the higher grade of Assistant Engineer, even
though he is ineligible for the same, in terms of the above quoted higher
grade promotion scheme. In fact, in this case, the anomaly of the junior
drawing higher pay did not arise out of fixation under Rule 28A of Part I
of the Kerala Service Rules or by reason of fixation of pay pursuant to pay
revision order. It was as a result of grant of higher grade to Smt. Suprabha
W.A. NO. 1592/2007 9
on account of her completion of eight years’ service. After 1.11.1998,
Smt. Suprabha went to the scale of pay of Assistant Engineer, whereas the
first respondent continued in the same scale of pay of Overseer Grade I.
As a result, the disparity in pay arose. The same arises out of the scheme
of time bound higher grade promotion. By pressing into service the
abstract principle of equal pay for equal work arising from Article 14 of
the Constitution of India, the first respondent cannot claim pay at the rate
drawn by his junior. We cannot re-write the time bound higher grade
promotion scheme by saying that whenever a junior gets grade promotion,
the senior should also be given the higher grade to satisfy the principle of
equality. The decisions relied on by the first respondent also do not have
any application to the facts of the case.
In the result, the Writ Appeal is allowed. The judgment of the
learned Single Judge is reversed and the Original Petition is dismissed.
(K. BALAKRISHNAN NAIR)
JUDGE
(C.T. RAVIKUMAR)
JUDGE
sp/
W.A. NO. 1592/2007 10
C.R.
K.BALAKRISHNAN NAIR
&
C.T. RAVIKUMAR, JJ.
W.A.NO.1592/2007
JUDGMENT
6th January, 2010
W.A. NO. 1592/2007 11