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2019 DIGILAW 127 (KER)

Jiji Thomas v. State of Kerala

2019-02-07

N.NAGARESH

body2019
JUDGMENT : 1. Petitioner, who is a Higher Secondary School Teacher (Zoology) in the Chemnad Jama Ath Higher Secondary School, has filed this writ petition seeking to set aside Ext.P13 order and to direct respondents 1 and 2 to allow stepping up of pay of the petitioner at par with pay of his junior Sunil V.M. at Rs. 68,700/- on 06.12.2014. The petitioner also seeks a declaration that he is legally entitled for stepping up of his pay at par with his junior. 2. The petitioner states that he was appointed as Higher Secondary School Teacher (Junior) Zoology on 12.07.1999 in Chemnad Jama Ath Higher Secondary School and has been working there with effect from 15.07.1999. The petitioner's appointment was approved. The petitioner opted for pay revision 2004 on 01.07.2004 and his pay was accordingly fixed at Rs. 12,930/- in the scale of Rs. 11070-18450, as per Ext.P1. On completion of eight years of service, the petitioner was granted a Higher Grade with effect from 15.07.2007 and he was placed at Rs. 14,750/- in the scale of pay of 11910-19350, as per Ext.P2. When the 2009 pay revision came, the petitioner's pay was fixed at Rs. 29,180/- in the scale of pay of 20740-36140 with effect from 12.07.2010, as per Ext.P3. 3. The Government issued G.O.(P) No.7/2016/Fin. dated 20.01.2016 revising the pay and allowance of State Government Employees and Teachers again, with effect from 01.07.2014. Consequent to the said pay revision, the petitioner's pay was fixed at Rs. 63,900/- in the scale of pay of 40500-85000 with effect from 01.07.2014, as per Ext.P4. The petitioner's pay was further fixed at Rs. 67,050/- with effect from 15.07.2014 consequent to the grant of second time bound Higher Grade. 4. The petitioner contends that one Sunil V.M., who also entered service in the same school as HSST (English), was actually appointed only with effect from 06.12.1999 and is therefore, junior to the petitioner. In the pay revision of 2004, the pay of the said Sunil V.M. was fixed at Rs. 12,930/-, as per Ext.P5. On getting the first time bound Higher Grade, his pay was fixed at Rs. 14,750/- in the scale of pay of 11910-19350. After the 2009 pay revision, the pay of the said Sunil V.M. was fixed at Rs. 29,180/- in the scale of pay of 20740-36140, as per Ext.P7. 12,930/-, as per Ext.P5. On getting the first time bound Higher Grade, his pay was fixed at Rs. 14,750/- in the scale of pay of 11910-19350. After the 2009 pay revision, the pay of the said Sunil V.M. was fixed at Rs. 29,180/- in the scale of pay of 20740-36140, as per Ext.P7. After the 2014 pay revision, the pay of Sunil V.M. was fixed at Rs. 63,900/- in the scale of pay of 42500-87000 with effect from 01.07.2014, as per Ext.P8. The pay of the said Sunil V.M. was further fixed at Rs. 68,700/- consequent to grant of second time bound Higher Grade. Due to this grant, the said Sunil V.M., who is junior to the petitioner, is now drawing a higher pay than that of the petitioner. According to the petitioner, the said anomaly has arisen on erroneous implementation of 2014 pay revision. The petitioner argues that such anomaly has to be rectified invoking Ruling No.1 under Rule 28A of Part I KSR. 5. Aggrieved by the lower pay received by the petitioner, he submitted Exts.P9 and P11 representations. As no steps were taken on his representations, the petitioner filed W.P.(C) No.33521/2016 and this Court on 20.10.2016, disposed of the said writ petition directing the 1st respondent to consider and pass orders on the representations. Consequently, the 1st respondent has passed Ext.P13 order. In Ext.P13 order, the 1st respondent has elaborated the service particulars of the petitioner and held that the said Sunil V.M. was getting higher salary than the petitioner before the pay revision order. Hence, though the said Sunil is junior and the scale of pay is fixed in the same stage as per the pay revision order, the salary of the petitioner cannot be enhanced by treating the case under the purview of junior-senior anomaly. According to the petitioner, this is clearly an erroneous finding since the said Sunil V.M. was not getting higher salary than the petitioner before the pay revision order. The petitioner therefore, seeks to set aside Ext.P13 and to declare that he is legally entitled for stepping up of his pay at par with his junior with effect from 06.12.2014. 6. The 4th respondent-Regional Deputy Director, Higher Secondary Education Department, appeared in the case and opposed the prayers of the writ petitioner. The petitioner therefore, seeks to set aside Ext.P13 and to declare that he is legally entitled for stepping up of his pay at par with his junior with effect from 06.12.2014. 6. The 4th respondent-Regional Deputy Director, Higher Secondary Education Department, appeared in the case and opposed the prayers of the writ petitioner. In the counter affidavit filed by the 4th respondent, it has been stated that consequent to 2014 pay revision, the petitioner is eligible to draw the basic pay of Rs. 63,900/- only on 01.07.2014 with date of next increment 01.07.2015, whereas his junior could draw the pay of Rs. 63,900/- as on 01.07.2014 with date of next increment 01.12.2014. Before the 2014 pay revision, the petitioner who was the senior was drawing pay of Rs. 31,360/- from 01.07.2013, whereas his junior was drawing the pay of Rs. 31,360/- from 01.12.2013. According to the 4th respondent, the increase in the pay of the junior is caused as a result of the fixation of pay as per the new pay revision order and it is not due to any erroneous fixation by the Department. 7. The learned counsel for the petitioner submitted that the petitioner and his junior Sunil V.M. were working in the same cadre in the same school. Admittedly, the said Sunil V.M. was junior to the petitioner. After the 2004 pay revision, the petitioner's pay was fixed at Rs. 12,930/- with effect from 01.07.2004, whereas the pay of his junior was Rs. 12,930/-, only with effect from 01.12.2004. Similarly, though the petitioner and his junior drew Rs. 14,750/- after the Higher Grade granted to them in 2007, the petitioner was drawing Rs. 14,750/- from 15.07.2007, whereas the junior was drawing that amount only with effect from 06.12.2007. Thus, though the petitioner and his junior were drawing almost equal pay, the date of increment of the petitioner was in July of every year and therefore, the petitioner was always drawing higher pay. It is only after the 2014 pay revision and grant of Selection Grade in the revised scale that his junior happened to draw a higher pay from a date earlier than the petitioner. This is a clear anomaly according to the counsel for the petitioner. 8. It is only after the 2014 pay revision and grant of Selection Grade in the revised scale that his junior happened to draw a higher pay from a date earlier than the petitioner. This is a clear anomaly according to the counsel for the petitioner. 8. According to the counsel for the petitioner, orders relating to earlier pay revisions produced as Exts.P15 and P16 took into account the possibility of such anomaly and made provisions for non-occurrence of such anomaly. However, in Ext.P15 Government Order relating to the recommendations to the 2004 pay revision, provision for avoiding such anomalies was not made. According to the learned counsel for the petitioner, dehors the Government Orders, he is eligible to stepping up of pay in view of the specific provision made in Ruling No.1 under Rule 28A of Part I KSR. The respondents have erred in deciding the issue. 9. According to the learned Government Pleader, there is no error in fixing the pay of the petitioner. The petitioner's pay has been fixed strictly as per Ext.P15 Government Order regulating the promotions and time bound Higher Grades. The petitioner has no case that any of the provisions of Ext.P15 Government Order has been violated. According to the Government Pleader, the case of the petitioner will not fall under Rule 28A Part I KSR. The reliefs prayed for are not liable to be granted, contends the Government Pleader. 10. I have considered the pleadings in the case and heard the arguments of the counsel on either side. It is not disputed that the petitioner and his junior Sunil V.M. are working in the same cadre in the same school. It is also not disputed that the petitioner was drawing a higher salary than his junior Sunil V.M. from 1999 to 2014. It is only after the 2014 pay revision and after grant of Selection Grade that the said junior Sunil V.M. happened to draw a higher pay than the petitioner. This is not a case of grant of any advance increments to the junior, nor this a case of withholding any increment of the petitioner. Therefore, evidently, the anomaly has arisen as a result of fixation of pay consequent to pay revision. This is not a case of grant of any advance increments to the junior, nor this a case of withholding any increment of the petitioner. Therefore, evidently, the anomaly has arisen as a result of fixation of pay consequent to pay revision. A perusal of Ext.P15 Government Order relating to his 2004 pay revision and Ext.P16 Government Order would show that the Government had taken into consideration the possibility of such anomaly and had decided to step up the pay scales of seniors in which anomaly have crept up from the cut of date of pay revision till the issuance of pay revision orders. However, similar provision is absent in Ext.P14. 11. The petitioner also claims under Ruling No.1 under Rule 28A of Part I KSR. Ruling No.1 under Rule 28A of Part I KSR 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 re-fixed 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 re-fixing the pay of the senior officer at the stage equal to that fixed for the junior officer in the higher post, the orders of re-fixation being issued by the Competent Authority under Rule 34, Part I, Kerala Service Rules. The re-fixation 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 provision contained in this ruling should not be invoked to step up the pay of the senior officer. 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 provision contained in this ruling should not be invoked to step up the pay of the senior officer. (d) The re-fixation of pay of the senior officer should be done with effect from the date of re-fixation 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 re-fixation of pay.” Therefore, I am of the opinion that the petitioner is eligible for stepping up of his pay, following the principle contained in Ruling No.1 under Rule 28A of Part I KSR. 12. In the judgment in Kamala Devi v. Keral State Financial Enterprises Ltd. [ 2002 (1) KLT 157 ], this Court held as follows: “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 and Others v. P. Jagdish and Others, 1997 (3) SCC 176 and in Calcutta Municipal Corn. and Another v. Sujit Baran Mukherjee and Others, 1997 (11) SCC 463 . In the first decision, the Supreme Court has held as follows: 'This principle becomes applicable when the junior 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. In the first decision, the Supreme Court has held as follows: 'This principle becomes applicable when the junior 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 is being the principle of stepping up contained in the Fundamental Rules and admittedly the respondents being 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....” A Division Bench of this Court in the judgment in Government of Kerala and another v. Dr. Anitha and others [ 2018 KHC 108 ] held that implementation of a subsequent scheme shall not result in a situation where the juniors were permitted to draw more salary than them. If such a situation is created, it is only appropriate that the said anomaly is corrected by having the pay of the senior stepped up to that of his junior. In view of the law laid down by the Apex Court as also by this Court, the reasons advanced by the respondents for denying stepping up of pay of the petitioner, are unsustainable. 13. In the circumstances, I find no reason to sustain Ext.P13 order passed by the 1st respondent. Ext.P13 order is therefore set aside. In view of the law laid down by the Apex Court as also by this Court, the reasons advanced by the respondents for denying stepping up of pay of the petitioner, are unsustainable. 13. In the circumstances, I find no reason to sustain Ext.P13 order passed by the 1st respondent. Ext.P13 order is therefore set aside. It is declared that the petitioner is eligible for getting his pay stepped up at par with his junior Sunil V.M. Respondents 1 and 2 are directed to pass fresh orders granting the petitioner stepped up pay within a period of two months from the date of receipt of a copy of this judgment. Writ petition is disposed of as above.