IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 WA.No. 2988 of 2007() AGAINST THE JUDGMENT IN WPC.34480/2005 Dated 03/10/2007 APPELLANTS: PETITIONERS: 1. K.MADHUSOODANAN, DRAUGHTSMAN GR.II, SEWERAGE PROJECT DIVISION, KERALA WATER AUTHORITY, OBSERVATORY HILLS, THIRUVANANTHAPURAM. 2. N.RAMESH, DRAUGHTSMAN GR.II, PURCHASE SECTION, HEAD OFFICE, KERALA WATER AUTHORITY,THIRUVANANTHAPURAM. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.PETER JOSE CHRISTO RESPONDENT(S): RESPONDENTS: 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT, WATER RESOURCES DEPARTMENT, SECRETARIAT , THIRUVANANTHAPURAM. 3. KERALA WATER AUTHORITY, REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM. BY SENIOR GOVT. PLEADER SRI. BENNY GERVASIS-R1,R2 SRI. UNNIKRISHNAN, STANDING COUNSEL- K.W.A THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NO. 2988 OF 2007 --------------------------------------------- Dated this the 24th day of July, 2009 JUDGMENT Balakrishnan Nair, J. The writ petitioners are the appellants. They were directly recruited to the post of Draftsmen Grade II in the Kerala Water Authority on the basis of the advice made by the Kerala Public Service Commission in 2001. They were appointed in the scale of pay of Rs.3770-5785/-. The scale of pay of Draftsmen Grade III at the relevant time was Rs.3440- 5385/-. Their next promotion post was Draftsmen Grade II. On completion of ten years' service, Draftsmen Grade III will be granted the scale of pay of Rs.4210-6235/-, which is a scale of pay higher than that of the promotion post. So, the regular promotees from Draftsmen Grade III to Grade II will be in the scale of pay of Rs.3770-5785/-, whereas the Grade promotees who continue in the cadre of Draftsmen Grade III, will draw a scale of pay of Rs.4210-6235/-. That was found to be an anomaly by the Kerala Water Autrhority and the committee appointed by it, as is evident from Exts.P1 to P3. The motion made by the Kerala Water Authority to rectify the aforementioned anomaly was rejected by the Government by W.A. NO. 2988/2007 2 Ext.P5 dated 15.3.2002 and the representation filed by the Association of Water Authority Kerala Engineers seeking rectification of the aforementioned anomaly was rejected by the Managing Director by Ext.P6 order, relying on Ext.P5 communication of the Government. The first appellant and four others challenged Ext.P5 before this Court by filing O.P. No.4417 of 2003. This Court by Ext.P7 judgment quashed Ext.P5 and directed the Government to reconsider the matter, in the light of the observations in that judgment. The Government reconsidered the matter and again by Ext.P8 order dated 13.10.2005 rejected the claim for better scale raised by the directly recruited Draftsmen. The present Writ Petition was filed challenging Ext.P8 and seeking consequential orders. 2. The third respondent filed a counter affidavit pointing out the fact that the Government have already rejected the claim of the writ petitioners. The learned Single Judge, after hearing both sides, dismissed the Writ Petition, holding that essentially the claim of the writ petitioners was for a better scale of pay in the post of Draftsmen Grade II. Feeling aggrieved by the said judgment, this Writ Appeal is filed. 3. Sri. S.P.Aravindakshan Pillay, learned counsel appearing for the appellants pointed out that the anomaly is concerning the drawal of higher W.A. NO. 2988/2007 3 scales of pay by persons working in the cadre of Draftsmen Grade III. The appellants are directly recruited Draftsmen Grade II. While they are continuing in the scale of pay of Rs.3770-5785/-, Draftsmen Grade III who have completed ten years' service and continuing in the lower post are drawing a scale of pay of Rs.4210-6235/-. In fact, the latter's promotion post is Draftsmen Grade II with the scale of pay of Rs.3770-5785/-. So, persons in the lower post drawing pay in the higher scale of pay compared to that of the appellants is a serious anomaly, it is submitted. The same has been so found by the Kerala Water Authority and other expert bodies appointed to look into the matter. There was another anomaly which emerged from the above facts. That was the plight of the promotees to the post of Draftsmen Grade II, who were drawing lower scale of pay than Draftsmen Grade III who completed ten years' service. The said anomaly was taken care of and rectified by Ext.P8. Thus, Draftsmen Grade II who completes ten years' of service in Grade III and Grade II taken together will be granted the scale of pay of Rs.4210-6235/-. As a result, no junior of a promotee Draftsmen Grade II will draw higher scale of pay. But the anomaly with reference to the directly recruited Draftsmen Grade II, vis- a-vis Draftsmen Grade III who got grade promotion was not rectified. Persons in the inferior post which require only inferior qualification have been given better treatment and the same will offend the right of equality W.A. NO. 2988/2007 4 guaranteed under Article 14 of the Constitution of India, it is submitted. 4. Sri. Benny Gervasis, the learned senior Government Pleader submitted that the appellants, pursuant to the advice of the Kerala Public Service Commission, were appointed as Draftsmen Grade II in the scale of pay of Rs. 3770-5785. On completion of ten years' service or on getting promotion, they will get the scale of pay of Draftsmen Grade I, which is higher than the scale of pay of Rs.4210-6235/-. According to him, the grievance of the appellants is imaginary. They were appointed to the post with a particular scale of pay and they are being paid the scale of pay offered at the time of appointment. Cases of grade promotees drawing higher scale of pay than the qualified regular promotees is not a new phenomenon, it is submitted. Every pay revision order speaks about such irregularities and such irregularities are rectified by providing the same scale of pay to grade promotees and regular promotees on completion of total ten years' service. That method was adopted in this case also to rectify the anomaly. The learned senior Government Pleader referred to clause (viii) of G.O.(P) 480/89/Fin dated 1.11.1989, the 1988 pay revision order. The said clause reads as follows: “(viii) If there is a promotion post in any case, and its scale of pay is higher than the time W.A. NO. 2988/2007 5 bound grade proposed above, then the qualified incumbent will be given the scale of pay of the next promotion post in the direct line of promotion as time bound higher grade. If the scale of pay of the promotion post is lower than the time bound higher grade proposed, the total service in both the lower posts will be taken together for the time bound higher grade specified above. In such cases the fixation under Rule 28A, Part I, KSRs, for the 10 year grade will be based on the basic pay of the lowest grade.” (emphasis supplied) Learned senior Government Pleader also referred to paragraph 3(b)2(vii) of G.O.(P)930/(2)/Fin dated 8.12.1993 (1992 pay revision order). The said clause reads as follows: “(vii) If there is a promotion post in respect of the categories of posts (entry) coming under pay range from Rs.775-1065 to 1640-2900 and its scale of pay is higher than the time bound grade proposed above, then the qualified incumbent will be given the scale of pay of the promotion post in the direct line of promotion as the time bound higher grade. ...................... If the scale of pay of the promotion post is lower than the time-bound higher grade proposed, the total service in both the lower posts will be taken together for the time-bound higher grade specified above.” (emphasis supplied) There is a similar provision in paragraph (6) of G.O.(P)3000/98/Fin dated W.A. NO. 2988/2007 6 25.11.1998 (1997 pay revision order), which reads as follows: “(6) .......................... If the scale of pay of the promotion post is lower than the time bound higher grade proposed in the table, the time-bound higher grade specified above will be given by reckoning the total service in both the lower post and promotion post together. ........” (emphasis supplied) 5. So, the learned senior Government Pleader pointed out that it is not unusual if a higher scale of pay is given to grade promotees when compared to the scale of pay of regular promotion post. So, the direct recruits cannot make any grievance of that. But, in the case of promotees, it may happen that their erstwhile junior in the post may draw higher scale. That anomaly is rectified by awarding higher grade taking into account the service in the higher post also for the completion of ten years' service. The learned senor Government Pleader submitted that the grievance raised by the appellants is imaginary. 6. In answer, the learned counsel for the appellants submitted that the Government failed to consider the matter as directed in Ext.P7 judgment. The Government have only considered the grievance of the promotees to the post of Draftsmen Grade II and overlooked the grievance W.A. NO. 2988/2007 7 of the direct recruits. 7. What should be the scale of pay of a post is essentially a matter for the Government to decide. Courts are not supposed to meddle in that. It is impossible to attain an ideal situation of granting appropriate scale of pay for appropriate posts in all cases. The Pay Commission takes into account various relevant matters and materials placed before it and submits the report. The Government, having regard to its financial position, accepts the same with or without modification. In the case of the Kerala Water Authority, the pay revision has been implemented with the sanction of the Government. Normally, there will always be some inequities from the point of view of certain persons in the pay revision order with reference to the scale of pay granted to them and others. The appellants were appointed to the post informing them about their scale of pay. Later, they realised that some persons working in the lower post, on completion of ten years' service, was getting a better scale of pay and they started demurring. The appellants, on completion of ten years' service or on getting promotion, will definitely get the scale of pay of Draftsmen Grade I, which is higher than the two scales of pay involved in this case. In fact, going by the materials on record, Draftsmen Grade III, on completion of ten years' service, is given a favourable treatment. W.A. NO. 2988/2007 8 Normally, they should have been granted only the scale of pay of the promotion post. It was an anomaly. The undue advantage given to a section of employees cannot be the foundation for the claim of others. In this case, we notice that the said anomaly has already been rectified by the Government with effect from 3.7.2007. Now, the scale of pay of the promotion post and higher grade post of Draftsmen Grade III is one and the same. The directly recruited Draftsmen Grade II and the grade promotees to that post also draw the same scale of pay. So, we feel that no injustice has been done to the appellants and no discrimination has been shown to them. Only an unmerited favour was done to the grade promotees working in the cadre of Draftsmen Grade III. The same is also now done away with. Therefore, we find that the claim put forward by the appellants/writ petitioners was untenable and the same was rightly rejected by the learned Single Judge. The Writ Appeal, therefore, fails and it is dismissed. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. NO. 2988/2007 9 K.BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.A. NO.2988/2007 JUDGMENT 24th July, 2009 W.A. NO. 2988/2007 10