C. K. Jose v. Kerala State Electricity Board — 1987 DIGILAW 210 (KER)

JUDGMENT 1. The two petitioners were appointed as First Grade Overseers on 8th April 1969 and 1st May 1969 respectively. They were ranked as Nos. 963 and 1045 respectively in the gradation list of First Grade Overseers. In the bipartite settlement dated 25th November 1978 between the Electricity Board and the trade unions representing its employees, it was provided that First Grade Overseers completing 11 years of service in the grade would be granted a higher scale of pay of Rs. 660-1080 without any change of duties and responsibilities. The petitioners had not completed 11 years of service by the time when they were promoted as Assistant Engineers in the scale of Rs. 800-1250. The first petitioner was promoted as Assistant Engineer on 20th February 1980. The 2nd petitioner was promoted later. However, one Sri V. T. Venugopal who was junior to the petitioners in the category of First Grade Overseers could obtain the benefit of higher grade of pay in that post by the time he was promoted later as an Assistant Engineer. His salary was fixed at Rs. 780 in the post of First Grade Overseer allowing higher grade on completion of 11 years of service. He was promoted as Assistant Engineer on 15th September 1980. When the salary was re-fixed in the higher grade of Assistant Engineer, he was granted a higher pay than the petitioners. This is entirely due to the fact that it was only after obtaining the benefit of grade promotion in the post of First Grade Overseer on completion of 11 years of service as stipulated in the agreement that Sri Venugopal obtained promotion as Assistant Engineer. Petitioners submits that since they are seniors both in the category of first Grade Overseers and in the category of Assistant Engineers and since their junior is drawing a higher salary, they are entitled to the benefit of re-fixation of salary in terms of R.28A, Part I of KSR and ruling No. 1 therein. According to the petitioners, payment of a lower amount of salary to a senior is an anomaly which has to be rectified in accordance with the above ruling. The first petitioner submitted Ext. P-1 representation seeking such rectification. That was forwarded in Ext. P-2. However, the request of the petitioner was turned down in Ext. P-3. According to the petitioners, payment of a lower amount of salary to a senior is an anomaly which has to be rectified in accordance with the above ruling. The first petitioner submitted Ext. P-1 representation seeking such rectification. That was forwarded in Ext. P-2. However, the request of the petitioner was turned down in Ext. P-3. Reference is made to Clause.14 of Art.IX of Board Order dated 2nd December 1978 accepting the memorandum of settlement whereby it was stated that "request for rectification of anomaly of juniors drawing more pay than that of seniors arising out of the grade promotion and subsequent regular promotion is not entertainable". Petitioners seek the issue of a writ of certiorari to quash Ext. P-3 order. 2. Counsel for the petitioners submits that the situation where a senior draws a lesser salary than a junior is covered by R.28A, Part I of KSR. It is his further submission that Ext. P-3 is illegal and discriminatory in so far as it refuses to refer to that statutory provision which is part of the service conditions. Reference is also made to Ext. P-5 order dated 29th March 1986, whereby, the Board ordered that the anomaly of a junior drawing higher pay than the senior should set right by re-fixing the pay of the senior at the stage equal to that fixed for the junior in the higher post in terms of R.28A, Part I KSR and Ruling No. 1 therein. 3. Counsel appearing for the Electricity Board submits that the petitioners are bound by the terms of Clause.14 of Art.IX of the agreement which was accepted by the Board in its order dated 2nd December 1978. It was agreed therein that there would be no request for rectification of anomaly of juniors drawing more pay than that of seniors arising out of the grade promotion and subsequent regular promotion on implementation of the settlement. 4. The invocation of R.28A for the purpose of claiming higher pay than a junior who obtained the benefit of grade promotion appears to me to fly on the face of the above clause in the memorandum of settlement. It is clear from S.18 of the Industrial Disputes Act that the terms of the settlement bind the petitioners as well. 4. The invocation of R.28A for the purpose of claiming higher pay than a junior who obtained the benefit of grade promotion appears to me to fly on the face of the above clause in the memorandum of settlement. It is clear from S.18 of the Industrial Disputes Act that the terms of the settlement bind the petitioners as well. If that be so, they are not entitled to lay claim for rectification of an alleged anomaly resulting from grade promotion and subsequent regular promotion on implementation of the settlement. The grade promotion itself is a term of the settlement. It was provided that any person who completes 11 years of service in the category of First Grade Overseers will be entitled to fixation of pay in a higher grade. The petitioners were promoted as Assistant Engineers before they could complete the requisite period of 11 years, whereas their junior completed 11 years before he was promoted as Assistant Engineer in May 1980. The petitioners who had not completed the obligatory period of 11 years in the post of First Grade Overseers, could not have been granted that benefit. If that be so, they are not entitled to claim the benefit of such higher fixation in terms of R.28A, Part I of KSR. The relief which the petitioners seek was therefore rightly rejected in Ext. P-3 order. 5. It also appears to me that the respondents are fully justified in submitting that the consequence of the grade promotion as per the industrial agreement is not covered by R.28A Part I of KSR which provides that: "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 nationally 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 re-fixation of pay will be allowed whenever there is a change of pay in the lower time-scale." The benefit given to a junior of grade promotion by completion of the obligatory period of service does not entitle a senior who has been promoted before completing the obligatory period to claim the benefit of re-fixation of pay in terms of R.28A. Obviously therefore, neither R.28A, nor the Ruling No. 1 will apply to the present case. Even assuming that the rule applies and ruling No. 1 comprehends the case of the petitioners, they may not be entitled to the relief which they claim now, because it is stated that the re-fixation of pay will be subject to certain conditions one of which is that the anomaly should be directly as a result of the application of R.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 of any advance increment granted to him, the provision contained in this ruling should not be invoked to step up the pay of the senior officer. It is beyond dispute that what the junior is getting by way of grade promotion was a higher rate of pay under the normal rules or at least an advance increment. In either of these two cases, Ruling No. 1 of R.28A cannot be called in aid to step up the pay of the senior officer, even assuming that R.28A Part I of KSR applies to their cases. In this view of the matter, the Original Petition is only to be dismissed and I do so. In the circumstances of the case, there will be no order as to costs.