IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 30TH MARCH 2011 / 9TH CHAITHRA 1933 WP(C).No. 25603 of 2007(W) ---------------------------------------- PETITIONER(S): ------------------------ 1. K.K.PAILO, LABORATORY ASSISTANT (HIGHER GRADE),NATIONAL INSTITUTE OF TECHNOLOGY CALICUT,CALICUT-1. 2. K.ASOKAN, LABORATORY ASSISTANT (HIGHER GRADE),NATIONAL INSTITUTE OF TECHNOLOGY CALICUT,CACLICUT-1. BY ADV. SRI.P.K.MADHUSOODHANAN RESPONDENT(S): --------------------------- 1. THE DIRECTOR, NATIONAL INSTITUTE OF TECHNOLOGY,CALICUT,CALICUT-1. 2. GOVERNMENT OF INDIA,REPRESENTED BY ITS SECRETARY,MINISTRY OF HUMAN RESOURCE DEVELOPMENT, DEPARTMENT OF SECONDARY & HIGHER EDUCATION, NEW DELHI. R1 BY ADV. SRI.MILLU DANDAPANI FOR R1 R2 BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR SRI.P.M.M.NAJEEB KHAN, ADDL.CGSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.25603/2007 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE VIDE NOTIFICATION DATED 14/5/2003 OF THE 2ND RESPONDENT. P2 COPY OF THE MEMORANDUM OF THE 2ND RESPONDENT DATED 7/6/2004. P3 COPY OF THE REPRESENTATION DATED 15/6/05 SUBMITTED BY THE 2ND PETITIONER. P4 COPY OF THE PROCEEDINGS DATED 20/7/2006 BY THE REGISTRAR OF N.I.T.C. P5 COPY OF THE REPRESENTATION BEFORE THE RESPONDENTS DATED 1/8/2006 BY THE PETITIONERS. P6 COPY OF THE REPRESENTATION SUBMITTEDBY FIRST PETITIONER , DATED 15/9/2006. P7 COPY OF THE RATIONALISED CENTRAL PAY SCALE GRANTED TO LAB ASSISTANTS IN NIT, KARATAKA. P8 COPY OF THE LETTER DATED 30/10/2006 TO THE PETITIONERS. P9 COPY OF THE REPRESENTATION DATED 17/7/2007 SUBMITTED BY THE PETITIONERS AND ONE OTHER LAB ASSISTANT IN NITC. P10 COPY OF THE NEWS ITEM APPEARED IN THE MATHRUBHUMI DAILY DATED 30/8/2007. P11 COPY OF THE PROCEEDINGS DATED 23/8/2006 ISSUED BY REGISTRAR, NIT, CALICUT. P11(A) COPY OF THE STATEMENT OF FIXATION OF PAY IN THE RATIONALISED CENTRAL PAY SCALE. P12 COPY OF THE PROCEEDINGS DATED 20/4/2006 ISSUED BY REGISTRAR, NIT CALICUT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts S. SIRI JAGAN, J. ----------------------------------- W.P.(C) No.25603 OF 2007 --------------------------------------- Dated this the 30th day of March, 2011 JUDGMENT The petitioners joined the service of the erstwhile Regional Engineering College, Calicut under the Government of Kerala as Laboratory Attenders on 24.6.1975. Subsequently by proceedings dated 17.8.2000, the Regional Engineering College, Calicut was converted as National Institute of Technology, Calicut and was brought under the administrative control of the 2nd respondent, Government of India. The post, the petitioners were holding, was re-designated as Laboratory Assistant. At the time of such take over, the petitioners were drawing pay in the scale of pay of Rs.3350-80-3830-865-5275. After taking over, in the name of rationalisation of pay, the scale of pay of the petitioners was reduced to Rs.3200-85-4900 and pay of the petitioners was protected in that scale of pay, but without any reduction in total emoluments which they were then actually drawing. The petitioners have complained against the reduction of scale of pay on the ground that their scale of pay of Rs.3350--5275 was W.P.(C)No.25603/07 2 reduced to Rs.3200-4900 to their detriment which is arbitrary and discriminatory. But, the representations filed by the petitioners in that regard were not taken seriously. But, subsequently, by Ext.P8, the petitioners were informed that the standing committee constituted by the Board for considering the individual grievances of the employees of the institute would consider the grievances of the petitioners on 4th November 2006. The petitioners appeared on that day and presented their grievances before the standing committee. But, no decision was taken. The petitioners again submitted Ext.P9 representation, which also remains unanswered. The petitioners submit that they have already put in more than 32 years of service at the time of filing the writ petition and in NIT, Karnataka, which is also under the administrative control of the 2nd respondent, a Lab Attender, who has put in 24 years of service, would get the scale of pay of Rs.4000-6000, insofar as the work put in by Laboratory Attenders/Laboratory Assistants in NITs all over India is the same, applying the principles of 'equal pay for equal work'. The petitioners should at least be given the very same scale of pay given by W.P.(C)No.25603/07 3 NIT in Karnataka to a Laboratory Attender, who has put in more than 24 years of service, is the contention raised. The petitioners, therefore, seek the following reliefs: “i) Writ of mandamus or any other appropriate writ , order or direction, declaring that the petitioners are eligible an entitled to have their fixation of pay in scale Rs.4000-6000 with effect from 1.4.2004, as done in the case of similarly situated Lab Assistants in the N.I.T's and other NIT institution under the 2nd respondent and grant all benefits arising there from to them and disburse all monetary benefits arising therefrom to the petitioners. ii) A writ of mandamus or any other appropriate writ, order or direction, directing the Respondents to fix the pay of the petitioners in scale Rs.4000-6000 w.e.f. 1.4.2004, untrammeled by the fixation in Ext.P4 and identical fixation in the case of the first petitioner, and grant them all consequential benefits arising there from and also disburse the monetary arrears arising therefrom to them w.e.f. 1.4.2004; iii) A writ of mandamus or any other appropriate writ, order or direction, directing the respondents to fix the retiral benefits of the petitioners considering their pay in scale of Rs.4000-6000 in the even of their superannuation from service” 2. The 1st respondent would take the contention that they have done only in accordance with the guidelines issued by the 2nd respondent in the matter, which is Ext.P2. Fixation of pay, as per Ext.P4, in the scale of pay of Rs.3200-85-4900 is in accordance with the Ext.P2 guidelines. The scale of pay W.P.(C)No.25603/07 4 has been selected as the nearest best scale of pay prescribed by the Central Government to the scale of pay the petitioners were holding at the time of take over by the 2nd respondent, is their contention. According to the 1st respondent, they are not bound to follow what the NIT Karnataka is doing insofar as the 1st respondent is bound only by the guidelines issued by the 2nd respondent. They would further submit that insofar as the petitioners' pay has not been reduced and at the time of take over, their pay has been fixed without reducing what they were getting at the time of take over, there cannot be any arbitrariness or discrimination in the matter. 3. The 2nd respondent would submit that their responsibility is only to issue minimum guidelines and how the NITs should administer their institutions is their responsibility. Therefore it is for them to fix the scales of pay of their employees subject to the minimum guidelines issued by the 1st respondent, which is Ext.P2, is their contention. 4. I have considered the rival contentions in detail. The Rule for pay fixation on take over is contained in Clause 4 of Ext.P2, which reads thus: W.P.(C)No.25603/07 5 “Pay Fixation:- The pay of an employee would be fixed at the same stage in the new scale of pay as was being drawn by him before introduction of this new pay scale. If there is no such stage in the new scale of pay, the pay may be fixed at a stage just next above his existing pay where the stage of basic pay of an existing employee is lower than the minimum of the newly introduced scale of pay, then higher pay shall be fixed at the minimum of such pay scale and similarly where existing basic pay of an employee is more than the maximum of the scale of pay adopted for that post, then the pay of that employee shall be fixed at the maximum of the scale of pay of his post and the difference between his existing pay and the pay fixed shall be protected as personal pay for that particular employee(s) which would be adjusted against future increments including stagnation increments. If the pay of an employee is fixed at the same stage, then his date of increment shall not change and where pay is fixed just at the next higher stage, then that employee would draw his next increment after completion of 12 months qualifying service. Admittedly, the scale of pay which the petitioners were enjoying immediately prior to the take over by the 1st respondent was Rs.3350-5275. Admittedly, on take over, their pay has been fixed in the scale of pay of Rs. 3200-4900, of course, protecting their pay which they were enjoying. But, that does not mean that the petitioners are not prejudiced in the matter. Since the maximum in the new scale of pay is only Rs.4900/-, after reaching basic pay of Rs.4900, they would not get any further increments, whereas in the earlier scale of pay they would have drawn increments upto the basic W.P.(C)No.25603/07 6 pay of Rs.5,275/-. Therefore, although immediately they may not suffer any reduction in pay as their service increases beyond the basic pay of Rs.4900/-, they would certainly be prejudiced insofar as after reaching the basic pay to Rs.4900/- they would cease to get any further increments. That would certainly amount to arbitrariness and discrimination. Therefore, I am of opinion that the respondents could not have validly reduced the scale of pay of the petitioners from Rs.3350-5275 to Rs.3200-4900. The tenor of clause 4 of Ext.P4 is that the existing pay should not be reduced in any manner, which, according to me, should be extended to the scale of pay itself. Clause 4 can be interpreted to mean that the pay of the employees should be fixed in the next higher scale of pay. 5. The petitioners' next contention is that since as evidenced by Ext.P7, a Lab Attender in NIT Karnataka who has put in 24 years of service gets the scale of pay of Rs.4000- 6000 and the NITs in all over India are administered by the Government of India, persons doing the same job in different NITs should not be discriminated in the matter of scales of W.P.(C)No.25603/07 7 pay. The 1st respondent would argue that, that depends on the qualifications prescribed, conditions of service etc. of each NIT. But, it is not disputed before me that at the time of appointment in the erstwhile Regional Engineering College, Calicut as Laboratory Attender, the petitioners did have the prescribed qualifications . Therefore, when the 2nd respondent took over the Institute from the State Government, they were working as duly qualified Laboratory Assistant. Therefore, according to the petitioners, it cannot be said that the petitioners were not duly qualified. Of course, the learned counsel for the petitioners would contend that the qualifications prescribed for Laboratory Attenders in NIT Karnataka may be higher. But no materials are placed before me in support of that contention. The 2nd respondent washes their hands by saying that it is not their responsibility to fix the scale of pay of employees of individual NITs and it is left to the concerned NIT and the 2nd respondent only issues broad minimum guidelines. The learned counsel for the 1st respondent submits that the scale of pay so fixed has to be approved by the 2nd respondent and the scale of pay were fixed W.P.(C)No.25603/07 8 on the basis of the general central scales of pay recommended by the 2nd repsondent. 6. NITs in all over India are administered by the 2nd respondent. The function of NITs in all over India are the same namely, to educate students and award degrees. There is no difference in the duties and functions of employees of various NITs. A Lab Attender in NIT Karnataka would be doing the same job of corresponding category in NIT Calicut. As such, I do not find any logic in giving different scales of pay for Lab Attenders of NIT Karnataka that of their corresponding category in NIT Calicut. As per Ext.P7, a Lab Attender, who has put in 24 years of service in NIT, Karnataka, has been given the scale of pay of Rs.4000-6000. If that be so, I do not find any justification for denying similar benefit to the Lab Attenders having 24 years of service of NIT Calicut. Therefore, I am of opinion that on completion of 24 years of service, the petitioners should also be given the scale of pay of Rs.4000- 6000 corresponding to the scale of pay given to corresponding category in NIT Karnataka. But, insofar as the 1st respondent would contend that the governing body of the 1st respondent is W.P.(C)No.25603/07 9 considering the matter, I am inclined to direct the 1st respondent to take a decision in accordance with the findings entered herein above. 7. Accordingly, this writ petition is disposed of with the following directions: Ext.P4 is quashed to the extent of fixing the scale of pay of the petitioners as Rs.3200-4900. It is declared that the scale of pay Rs.3350-5275 which the petitioners were enjoying at the time of take over by the first respondent cannot be reduced to Rs.3200-4900 as done in Ext.P4. Therefore I direct that their scale of pay shall continue to be Rs.3350-5275/- and not Rs.3200-4900/-. The 1st respondent shall take a decision on the question of giving the petitioners the scale of pay applicable to Lab Attenders of NIT Karnataka on completion of 24 years of service, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. Needless to say, if subsequently the scales of pay of the employees of the 1st respondent have been revised corresponding to revision of the central scales of pay, the petitioners would be entitled to corresponding scales of pay. W.P.(C)No.25603/07 10 The petitioners would be entitled to all consequential monetary benefits also, which shall also be paid within the above said period. S. SIRI JAGAN, JUDGE acd W.P.(C)No.25603/07 11