IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 WP(C).No. 19131 of 2007(C) -------------------------------------- PETITIONER(S): ----------------------- 1. K.BHASKARAN, S/O. THE LATE APPUNNY, AGED 48 YEARS, ASSISTANT PROJECT ENGINEER, KERALA LAND DEVELOPMENT CORPORATION LIMITED, ALAPPUZHA. 2. MOHAMMED BASHEER M.K., S/O. THE LATE KOCHAHAMMED, AGED 49 YEARS, ASSISTANT PROJECT ENGINEER, KERALA LAND DEVELOPMENT CORPORATION. LTD., THRISSUR. 3. MOHANAN V., S/O. SRI. VELAYUDHAN, AGED 48 YEARS, ASSISTANT PROJECT ENGINEER, KERALA LAND DEVELOPMENT CORPORATION LIMITED, ALAPPUZHA. 4. SREEDEVI J., D/O. SRI. R.KRISHNAN NAIR, AGED 53 YEARS, ASSISTANT PROJECT ENGINEER, KERALA LAND DEVELOPMENT CORPORATION LIMITED, THIRUVANANTHAPURAM. 5. RAVINDRAN P., S/O. SRI. APPUKUTTY P., AGED 49 YEARS, ASSISTANT PROJECT ENGINEER, KERALA LAND DEVELOPMENT CORPORATION LIMITED, THRISSUR. 6. K.CHANDRAN, S/O. THE LATE KUNJANANDAN, AGED 47 YEARS, ASSISTANT PROJECT ENGINEER, KERALA LAND DEVELOPMENT CORPORATION LIMITED, KAYAMKULAM. BY ADV. SRI.O.V.RADHAKRISHNAN (SR.) SMT.K.RADHAMANI AMMA SRI.ANTONY MUKKATH SRI.K.V.JOY SRI.K.RAMACHANDRAN (THYKOODAM) W.P.(C). NO. 19131/2007-C RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE KERALA LAND DEVELOPMENT CORPORATION LIMITED, REPRESENTED BY ITS CHAIRMAN AND ADDITIONAL SECRETARY TO AGRICULTURE, TC 224/594, THYCAUD P.O., THIRUVANANTHAPURAM-14. 3. MANAGING DIRECTOR, KERALA LAND DEVELOPMENT CORPORATION LIMITED, TC 224/594, THYCAUD P.O., THIRUVANANTHAPURAM-14. GOVERNMENT PLEADER SRI.P.NANDAKUMAR FOR R1 ADV. SRI.P.N.MOHANAN FOR R2 & R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/09/2008, THE COURT ON 30/10/2008 DELIVERED THE FOLLOWING: W.P.(C). NO. 19131/2007-C APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SPECIAL SERVICE RULES FOR KERALA LAND DEVELOPMENT CORPORATION LIMITED PUBLISHED AS PER GO(MS)NO.310/86/AD DATED 06/11/1986 OF THE 1ST RESPONDENT. EXT.P2: COPY OF THE GO(P)NO.600/93/FIN DATED 25/09/1993 OF THE 1ST RESPONDENT. EXT.P3: EXTRACT OF THE ABOVE GO(P)3000/98/FIN. DATED 25/11/1998 AND ANNEXURE 1 (PAGE 126 AND 127) OF THE 1ST RESPONDENT. EXT.P4: COPY OF THE GO(MS)NO.36/2001/AD DATED 08/02/2001 OF THE 1ST RESPONDENT ALONGWITH THE ANNEXURE. EXT.P5: COPY OF THE ORDER NO.KLDC/AD1/169/2001/PR DATED 14/02/2001 OF THE 2ND RESPONDENT. EXT.P6: COPY OF THE G.O.MS.NO.79/86/AD DATED 19/05/1986 OF THE 1ST RESPONDENT. EXT.P7: COPY OF THE G.O.MS.NO.106/90/AD DATED 29/03/1990 OF THE 1ST RESPONDENT. EXT.P8: COPY OF THE G.O.MS.NO.9/97/AD. DATED 10/01/1997 OF THE 1ST RESPONDENT. EXT.P9: COPY OF THE JUDGMENT DATED 13/09/2004 IN O.P. NO.19 OF 2002 OF THIS HONOURABLE COURT. EXT.P10: COPY OF THE GO(MS)NO.60/2005/AD DATED 02/04/2005 OF THE 1ST RESPONDENT. EXT.P11: COPY OF THE REPRESENTATION DATED 19/05/2005 OF THE PETITIONERS. EXT.P12: COPY OF THE GO(RT)(NO.651/07/AD DATED 13/04/2007 OF THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE Rs/ P.N.Ravindran, J. ===================== W.P(C).No.19131 of 2007 ===================== Dated this the 30th day of October, 2008. JUDGMENT The petitioners are Assistant Project Engineers in the Kerala Land Development Corporation Limited, hereinafter referred to as the “Corporation” for short. They were promoted to the cadre of Assistant Project Engineer on 19.11.1998, 29.10.1999, 16.5.2001, 16.5.2001, 24.12.2003 and 24.12.2003 respectively. On promotion as Assistant Project Engineer, they were placed in the scale of pay of Rs.5500-9075. The petitioners have successfully completed their probation in the category of Assistant Project Engineer. 2. The Special Rules governing the employees of Corporation were approved by the State Government as per G.O.(MS)No.319/86/AD dated 6.11.1986. Ext.P1 is the Special Rules for the Corporation thus approved by the State Government. As per the Special Rules, the method of appointment to the category of Assistant Project Engineer is (1) By promotion from the immediate lower cadre of 1st Grade Overseer/Draftsman or (2) In the absence of qualified hands for promotion, by direct recruitment. The qualifications prescribed in the Special Rules for direct recruitment to the post of Assistant Project Engineer are (1) Degree in Civil Engineering of a recognised University or equivalent and (2) A pass in Sections A&B of the AMIE of the Institution of WP(C)19131/07 -: 2 :- Engineers in India in Civil Engineering. As per the Special Rules, the qualification prescribed for promotion as Assistant Project Engineer is that the promotee must have put in a total service of 10 years in the Corporation out of which 5 years must be as 1st Grade Overseer/Draftsman in the Corporation. It is however provided that in the case of directly recruited 1st Grade Overseers, the total service of 10 years need not be insisted upon, if they are otherwise qualified. The qualifications prescribed in the Special Rules for promotion to the post of 1st Grade Overseer/Draftsman is experience as IInd Grade Overseer/Draftsman for 5 years in the Corporation. Recruitment to the category of IInd Grade Overseer/ Draftsman is by direct recruitment and the qualification prescribed in Ext.P1 is a Diploma in Civil Engineering recognised by the Government of Kerala or any equivalent qualification. At the time of entry in service, all the petitioners were non-graduates and had only a Diploma in Civil Engineering. The fifth petitioner acquired the B.Tech. degree in Civil Engineering in the year 2004, shortly after he entered service. 3. The post of Assistant Project Engineer in the Corporation is equivalent to the post of Assistant Engineer in the State Civil Service. The scales of pay of State Government employees including the teaching and non-teaching staff of aided educational institutions were revised pursuant to the recommendations of the Pay Equalisation Committee. Ext.P2 dated 25.9.1993 is the order issued in that regard. The revised WP(C)19131/07 -: 3 :- scales of pay as per Ext.P2 came into force on 1.3.1992. As per Ext.P2, the scale of pay of Assistant Engineer in the Public Works Department was revised from 1450-2825 to Rs.2060-3200. In Ext.P2 it is stated that non-graduate direct recruitees other than those recruited under Special Recruitment Scheme will be given the scale of pay of Rs.1640-2900 only in the place of Rs.2060-3200. According to the petitioners, the said stipulation in Ext.P2 cannot apply to Assistant Project Engineers in the Corporation for the reason that as per Ext.P1 Special Rules, direct recruitment to the post of Assistant Project Engineer can be made only in the absence of qualified hands eligible for promotion and the regular method of appointment to the post of Assistant Project Engineer is by promotion from the category of 1st Grade Overseer/Draftsman. According to the petitioners, as the Special Rules do not contemplate direct recruitment of non-graduates, the stipulation in Ext.P2 that non- graduate direct recruitees other than those recruited under Special Recruitment Scheme will be given the scale of pay of Rs.1640-2900 only, cannot apply to the Corporation. 4. The scale of pay of State Government employees was again revised as per Ext.P3 government order dated 25.11.1998. By the said pay revision order, the scale of pay of Assistant Engineers in the Public Works Department stood revised from Rs.2060-3200 to Rs.6675-10550. The intermediary scale of pay of Rs.1640-2900 was abolished when Ext.P3 was issued. After Ext.P3 was issued, the Managing Director of the WP(C)19131/07 -: 4 :- Corporation moved the State Government to revise the scales of pay of the employees of the Corporation in tune with the revision effected as per Ext.P3. The pay revision ordered as per Ext.P3 came into force on 1.3.1997. However, in respect of the employees of the Corporation, it was implemented only with effect from 1.7.1998 as per Ext.P4 order dated 8.2.2001. As per Ext.P4, non-graduate Assistant Project Engineers were given the scale of pay of Rs.5500-9075 and graduate Assistant Project Engineers were given the scale of pay of Rs.6675-10550. According to the petitioners, while issuing Ext.P4 the State Government proceeded on the misconception that the stipulation in Ext.P2 as regards non-graduate direct recruits to the post of Assistant Engineer applies to the Corporation and that was the reason why non-graduate Assistant Project Engineers were given the scale of pay of Rs.5500-9075 instead of Rs.6675-10550. The petitioners submit that the scale of pay of Rs.1640- 2900, sanctioned as per Ext.P2 to non-graduate Assistant Project Engineers appointed by direct recruitment otherwise under the Special Recruitment Scheme, does not apply to the Corporation for the reason that there are no directly recruited non graduate Assistant Project Engineers in the service of the Corporation. Though the employees objected to the scale of pay sanctioned to non graduate Assistant Project Engineers as per Ext.P4, by Ext.P5 proceedings dated 14.2.2001, the third respondent ordered that the scale of pay sanctioned as per Ext.P4 alone is admissible in the Corporation. WP(C)19131/07 -: 5 :- 5. Aggrieved by Exts.P4 and P5, six employees of the Corporation filed O.P.6484 of 2001 in this Court praying for a direction to respondents 2 and 3 to grant them the revised scale of pay of Rs.6675- 10550 corresponding to pre-revised scale of pay of Rs.2060-3200 in which they were drawing pay in terms of Ext.P2 government order dated 25.9.1993. The petitioners therein also sought a direction to respondents 2 and 3 not to place them in the lower scale of pay of Rs.1640-2900 or in the revised scale of pay of Rs.5500-9075 in implementation of Ext.P4 government order. O.P.No.6484 of 2001 was disposed of by judgment delivered on 14.3.2001 with a direction to the first respondent to consider the representation filed by the petitioners therein and to pass orders thereon after affording them an opportunity of being heard. It was further directed that till orders are passed as directed by this Court, salary at the existing rates shall be paid to the petitioners. The claim of the petitioners in O.P.No.6484 of 2001 was rejected by the Government in letter dated 3.8.2001 wherein the Government took the stand that the scale of pay of Government employees and other service benefits cannot be made applicable to employees of the Corporation. 6. Aggrieved by the stand taken by the Government in their letter dated 3.8.2001, the petitioners in O.P.No.6484 of 2001 filed O.P.No.19 of 2002 in this Court. By Ext.P9 judgment delivered on 13.9.2004 this Court allowed the Original Petition and held that the petitioners therein WP(C)19131/07 -: 6 :- are entitled to the revised scale of pay of Rs.6670-10550 sanctioned as per Ext.P3 which corresponds to pre-existing scale of pay of Rs.2060- 3200 sanctioned as per Ext.P2. Respondents 2 and 3 were directed to fix the pay of the petitioners in O.P.No.19 of 2002 in the aforesaid scale of pay with effect from the dates on which they were promoted and grant them all consequential benefits. Ext.P9 judgment has become final and the Government have issued Ext.P10 order dated 2.4.2005 giving effect to the directions contained therein. 7. Pursuant to Exts.P9 judgment and P10 Government order, the petitioners herein claimed that they are also entitled to be placed in the scale of pay of Rs.6675-10550 on being promoted to the cadre of Assistant Project Engineer with effect from 19.11.1998, 29.10.1999, 16.5.2001, 16.5.2001, 24.12.2003 and 24.12.2003 respectively. That request was turned down and by Ext.P12 order passed on 13.4.2007 the Government ordered that petitioners will be granted the scale of pay of Rs.6675-10550 in the place of the scale of pay of Rs.5500-9075 without retrospective effect, subject to the condition that such enhancement will be deferred till the revision of pay of State Government employees allowed as per 2004 pay revision is implemented in the Corporation. In this Writ Petition, the petitioners challenge Ext.P12 to the extent it denies them placement in the scale of pay of Rs.6675-10550 with effect from the dates on which they were promoted to the post of Assistant Project Engineer. WP(C)19131/07 -: 7 :- 8. I have heard Sri.O.V.Radhakrishnan, the learned Senior Advocate appearing for the petitioner, Sri. P.Nandakumar, the learned Government Pleader appearing for the first respondent and Sri.P.N.Mohanan, the learned counsel appearing for respondents 2 and 3. Though the Writ Petition was admitted on 22.6.2007, the respondents have not chosen to file a counter affidavit. The learned Senior Advocate appearing for the petitioners submitted relying on Ext.P9 judgment that the petitioners are similarly placed and that they are also entitled to be placed in the scale of pay of Rs.6675-10550 which is the revised scale of pay applicable to Assistant Project Engineers with effect from 1.7.1998. The petitioners contend that their seniors have been given the scale of pay of Rs.6675- 10550 in the category of Assistant Project Engineer and Rs.7200-11400 in the category of Deputy Project Engineer with effect from the dates on which they were promoted to the said posts and that the decision taken by the Government to postpone payment of salary at the said rates to the petitioners till the 2004 pay revision is implemented in the Corporation is arbitrary and discriminatory and violative of Articles 14 and 16(1) of the Constitution of India. 9. It is not in dispute that by Ext.P9 judgment, this Court had held that non graduate Assistant Project Engineers/ Deputy Project Engineers in the Corporation who are senior to the petitioners are entitled to the revised scale of pay of Rs.6675-10550 in the category of Assistant Project Engineer and the revised scale of pay of Rs.7200-11400 in the WP(C)19131/07 -: 8 :- category of Deputy Project Engineer with effect from the dates on which they were promoted to the said posts. The petitioners in O.P.No.19 of 2002 are also non-graduates who had been appointed as Assistant Project Engineers by promotion. In the light of Ext.P9 judgment of this Court in O.P.No.19 of 2002, which has become final and the fact that the State Government have issued Ext.P10 government order in implementation of Ext.P9 judgment, the petitioners are also entitled to similar benefits. Though the Government have in Ext.P12 held that the petitioners are also entitled to similar benefits as were extended to the petitioners in O.P.No.19 of 2002, for no justifiable reason at all, the grant of benefits to the petitioners has been deferred till the 2004 pay revision is implemented in the Corporation. In my considered opinion, the stand taken by the Government in Ext.P12 is arbitrary and discriminatory. By Ext.P12, the petitioners have been denied the benefits which were extended to their seniors who are similarly situated. In the light of the decision of this Court evidenced by Ext.P9 judgment which has become final and Ext.P10 Government order which was issued in implementation of Ext.P9 judgment, the stand taken by the Government in Ext.P12 cannot be sustained. Ext.P12 to the extent it denies salary in the scale of pay of Rs.6675-10550 to the petitioners with effect from the dates on which they were promoted to the post of Assistant Project Engineer is accordingly quashed. It is declared that the petitioners are entitled to the scale of pay of Rs.6675-10550 in the category of Assistant WP(C)19131/07 -: 9 :- Project Engineer with effect from the dates on which they were promoted to the said post. 10. The Writ Petition is allowed as above and the respondents are directed to refix the salary and allowances payable to the petitioners in the category of Assistant Project Engineer from the dates on which they were promoted to the said post in the scale of pay of Rs.6675-175-7550- 200-10550. There will be a further direction to the respondents to disburse the monetary benefits payable to the petitioners consequent on such refixation within a period of three months from the date of receipt of a copy of this judgment. The petitioners will also be entitled to the benefit of further pay revisions implemented in the Corporation and all the benefits flowing from Exts.P9 judgment and P10 Government Order. P.N.Ravindran, Judge. ess 4/10