IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 11TH MARCH 2010 / 20TH PHALGUNA 1931 OP.No. 32109 of 2002(V) ----------------------------------- PETITIONER(S): ----------------------- 1. A. RAVEENDRAN, DISTRICT REGISTRAR (RETIRED), RESIDING AT PALATHARA HOUSE, KOLAZHI PO., THRISSUR. 2. K.P. GOPALAKRISHNAN ACHARI, SUB REGISTRAR (RETIRED), MALA, THRISSUR. BY ADV. MR.N.SUGATHAN, SMT.R.SEEMA. RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE INSPECTOR GENERAL OF REGISTRATION, THIRUVANANTHAPURAM. 3. THE DISTRICT REGISTRAR (GENERAL), THRISSUR. 4. THE ACCOUNTANT GENERAL (A & E) KERALA, THIRUVANANTHAPURAM. R1 TO R4 BY GOVERNMENT PLEADER SMT.M.R. SREELATHA. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 11/03/2010, ALONG WITH O.P. NO. 35776 OF 2002 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 32109/2002-V APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE G.O.(MS)NO.404/96(90)/FIN. DATED 20/05/1996. EXT.P2: COPY OF THE ORDER NO.E1-6101/96 DATED 02/07/1996 OF THE 2ND RESPONDENT. EXT.P3: COPY OF THE PAY FIXATION ORDER DATED 25/05/1999 OF THE 3RD RESPONDENT. EXT.P4: COPY OF THE PAY FIXATION ORDER DATED 30/04/1999 OF THE 3RD RESPONDENT. EXT.P5: COPY OF THE LETTER DATED 07/11/2001 OF THE 4TH RESPONDENT TO THE 2ND RESPONDENT. EXT.P6: COPY OF THE ORDER NO.E1-5344/2001 DATED 10/09/2002 OF THE 3RD RESPONDENT. EXT.P6(a): COPY OF THE REVISED FIXATION STATEMENT IN RESPECT OF THE 1ST PETITIONER. EXT.P6(b): COPY OF THE REVISED FIXATION STATEMENT IN RESPECT OF THE 2ND PETITIONER. EXT.P7: COPY OF THE LETTER DATED 17/09/2002 OF THE 3RD RESPONDENT TO THE 1ST PETITIONER'S EXT.P7(a): COPY OF THE LETTER DATED 17/09/2002 OF THE 3RD RESPONDENT TO THE 2ND PETITIONER. EXT.P8: COPY OF THE GOVT. LETTER NO.66743A/PRU.3/2001/FIN. DATED 18/01/2001. EXT.P9: COPY OF THE JUDGMENT DATED 20/02/2003 IN O.P. NO. 32029/2001. EXT.P10: COPY OF THE G.O.(MS)NO.177/2003/TD DATED 12/11/2003. EXT.P11: COPY OF THE ORDER NO.E2-1573/05 DATED 20/07/2005 OF 3RD RESPONDENT. EXT.P12: COPY OF THE STATEMENT OF FIXATION OF PAY DATED 22/11/2006. EXT.P13: COPY OF THE LETTER NO.GE25/C/REGN/1563 DATED 06/12/2007 OF THE 4TH RESPONDENT TO 2ND RESPONDENT. EXT.P14: COPY OF THE GOVT. LETTER NO.644/E1/2004/TD DATED 01/07/2004. EXT.P15: COPY OF THE LETTER DATED 27/05/2005 OF THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S. SIRI JAGAN, J ---------------------- O. P. No.32109, 35776 of 2002 & W.P.(C) No.19235, 23810, 31213 of 2005 & W.P.(C) No.15732 of 2006 --------------------------------- Dated this the 11th day of March 2010 J U D G M E N T Since these cases raise the same issues, they are disposed of by this common Judgment. For convenience, I shall refer to the Exhibits as obtaining in O.P.No.32109 of 2002 unless indicated otherwise. 2. The petitioners in this original petition were originally Junior Superintendents of the Registration Department of the Government of Kerala. At the time relevant for this judgment, the post of Junior Superintendents and Sub Registrars carried the same scale of pay of Rs.1520-2660/-. Therefore, the practice followed was that the seniors among the Junior Superintendents would be posted as Sub Registrars. The next higher post in the hierarchy was Senior Grade Sub Registrar, in the scale of pay Rs.2000-3200/-. In view of the fact that, Junior O.P.No.32109 of 2002 -2- Superintendents and Sub Registrars carried the same scale of pay and in view of the fact that the duties and functions of Sub Registrars were superior to those of Junior Superintendents, it became difficult for the Sub Registrars to manage the Junior Superintendents. The Government wanted to find a solution to this difficulty. Therefore, the Government decided to integrate the posts of Sub Registrar, Senior Grade Sub Registrar, Chitty Auditor and Cashier into one post by name Sub Registrar. Accordingly by Ext.P1 order dated 20.5.1996 those posts were unified into one post of Sub Registrar with the scale of pay of Rs.2000-3200/-. Pursuant thereto, by Ext.P2 order dated 2.7.1996, 270 Sub Registrars, Chitty Auditors and Cashiers were given placement as Sub Registrar in the scale of pay of Rs.2000- 3200/-. On coming over to the higher scale of pay of Rs.2000- 3200/-, they were given a fixation under Rule 28A of Part I of KSR and their pay was fixed accordingly. But the Accountant General by Ext.P5 raised an objection to the same, to the effect that the fixation could not have been under Rule 28A but should have been as per Ruling 2 under Rule 30 Part I of KSR applying the provisions of Rule 37(a). Pursuant thereto, by Ext.P6, the O.P.No.32109 of 2002 -3- pay of the petitioners were refixed and petitioners were directed to refund the excess amounts drawn by them consequent to the earlier refixation under Rule 28A. The representation filed by the Association espousing the cause of the petitioners met with Ext.P8 rejection. Therefore, the Association and the 6th petitioner in W.P.(C) No.31213 of 2009 filed O.P.No.32029 of 2001 before this Court, in which by Ext.P1 judgment, this Court directed the Government to reconsider their claim for fixation under Rule 28A. Accordingly the Government reconsidered the matter and passed Ext.P10 order. The operative portion of the same reads thus :- “Government have therefore reconsidered the matter in the light of the report of the Inspector General of Registration and the direction of Hon'ble High Court and are pleased to order that the Sub Registrars who were placed in the scale of Rs.2000-3200/- consequent on the unification of the scales will also be given the benefit of fixation under Rule 28A part I Kerala Service Rules.” 3. Subsequently the Government issued Ext.P14 clarification to the Accountant General clarifying that by Ext.P10 the Government intended to give only the fixation as provided under Rule 28A and not the refixation contemplated by the last O.P.No.32109 of 2002 -4- sentence of Rule 28A. It is aggrieved by the same that the petitioners have approached this Court seeking the following reliefs :- “i) to issue a writ of certiorari or any other appropriate writ or order quashing Ext.P5 in so far as it directed to refix the pay of the petitioners; ii) to issue a writ of certiorari or any other appropriate writ or order quashing Exts.P6, P6(a), P6(b), P7 and P7 (a); iii) to issue an appropriate writ or order declaring that the petitioners are entitled to draw pay and allowances on the basis of Exts.P3 and P4 pay fixation orders; iv) to say all proceedings pursuant to Exts.P6, P6(a), P6 (b), P7 and P7(a) for recovery of excess pay and allowances already disbursed to the petitioners; v) to issue a writ of certiorari or any other appropriate writ or order quashing Ext.P14; vi) to issue a writ of mandamus or any other appropriate writ or order directing the 3rd respondent to refix the pay of the 1st petitioner with effect from 1.2.2003 and 1.7.2004 on the basis of the pay fixed in Ext.P3 and to grant the 1st petitioner all the consequential benefits; vii) to issue a writ of mandamus or any other appropriate writ or order directing the 4th respondent to fix the pay of the petitioner in the revised scale of pay of the post of District Registrar with effect from 25.4.2005 and to issue pay slip so as to enable the petitioner to draw the salary in the post of District Registrar; viii) to issue a writ of mandamus or any other O.P.No.32109 of 2002 -5- appropriate writ or order directing respondents 2 and 4 to revise the pensionary benefits admitted and sanctioned to the 1st petitioner as per Ext.P11 and to grant him all consequential benefits : 4. Counter affidavits have been filed by the respondents supporting Ext.P14. According to the learned Government Pleader, actually the petitioners got a windfall, in so far as by this unification process, the petitioners actually attained what in normal course would have taken them years to attain. In other words, had they continued as Sub Registrars without the unification, it would have taken years for them to get promoted as Senior Grade Sub Registrars. According to the learned Government Pleader, Rule 28A as such is not applicable to the petitioners in these cases since the process of unification by Ext.P1 was not a situation contemplated in Rule 28A. It was neither a promotion nor an appointment to a post carrying a higher scale of pay. It was only a unification of two posts having two scales of pay into one post bearing one scale of pay, which cannot be treated as an appointment or promotion to a post carrying a higher time scale of pay contemplated in Rule 28A. Therefore, the petitioners are not as of right entitled to a fixation O.P.No.32109 of 2002 -6- of under Rule 28A. But taking into account the peculiar facts and circumstances of the case, as directed by this Court in Ext.P9 judgment the Government reconsidered the matter and decided to confer the benefit of Rule 28A on the petitioners, which they were not actually entitled too. In that process the Government decided to grant them only fixation under Rule 28A, but not the refixation under that Rule, is the contention raised. The reasoning put forward by the Government is that, once the post of Sub Registrar is abolished to make Sub Registrar and Senior Sub Registrar into one unified post, there is no post carrying a lower scale of pay for the petitioners for enabling them to get a refixation of pay as contemplated in the latter part of Rule 28A. Therefore according to the learned Government Pleader, the petitioners are not entitled to the reliefs prayed for. 5. The petitioner in W.P.(C) No.31213 of 2005 pointed out that, in that writ petition, in paragraph 14, cases of Sri. C. Raveendran, Sri. Sasankan P.K., Smt. Ammini G., Sri. Johnson P.J., Smt. V. Radhamony and Sri. A. Raveendran who were similarly placed like the petitioners and were given both the fixation and refixation under Rule 28A have been quoted and in O.P.No.32109 of 2002 -7- paragraph 25 of the counter affidavit filed in that writ petition, the Government had admitted that they had been given both the benefits and that they were situated identically like the petitioners. 6. The explanation by the learned Government Pleader for the same is that although the same is true, it escaped the notice of the Government and only when the case of the petitioners were pointed out by the Accountant General the Government realized the mistake and decided to take corrective action. According to the learned Government Pleader, the grant of such benefits wrongly to some persons cannot be a ground for the petitioners to claim the same benefit as of right on the ground of negative discrimination. 7. I have considered the rival contentions in detail. 8. I will consider the question as to whether the reasoning given in Exts.P1 and P14, for limiting the benefit of the petitioners to fixation under Rule 28A and deny refixation under that Rule is sustainable. 9. The reasoning given in Ext.P14 is that as per Rule 28A, such refixation benefit is applicable only when there is a O.P.No.32109 of 2002 -8- lower post and in the case of the petitioners, there is no lower post in so far as the post of Sub Registrar ceased to exist. I am of the opinion that this reasoning is based on a fallacious understanding of Rule 28A. The said Rule reads thus :- “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 notionally 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 refixation of pay will be allowed whenever there is a change of pay in the lower time- scale.] * On a reading of that Rule, I do not find any reference to a lower post therein. On the other hand, what is contemplated in the Rule is only a lower time-scale. That lower time-scale is relating to the Officer who claims fixation under Rule 28A. In these cases, the petitioners had a lower-time scale of pay and continues to have a lower time-scale of pay, notwithstanding the fact that the post in which they held that lower-time scale of pay ceased to exist. What is contemplated in Rule 28A is only change from a lower-time scale of pay into higher time-scale of pay. O.P.No.32109 of 2002 -9- Here nobody can dispute the fact that the petitioners had gone over to a higher time-scale of pay from a lower-time scale of pay. Therefore, as far as the petitioners are concerned, notwithstanding the abolition of post of Sub Registrar, which they held earlier, they continue to have both a lower time-scale of pay and a higher time-scale of pay for the purpose of Rule 28A. Therefore, I do not think that on the reasoning given in Ext.P14, the refixation contemplated in Rule 28A can be denied to the petitioner. 10. The learned Government Pleader would submit that the benefits under Rule 28A was not given to the petitioners as of right. She points out that the original fixation under Rule 28A granted to the petitioners was objected to by the Accountant General on the ground that the fixation should have been under Rule 30 and 37(a). Therefore, according to her, Ext.P10 should be construed in such a way as to limit the benefit under Rule 28A to the petitioners only to the extent of fixation and not refixation. I do not think that the Government can put such a restriction for the benefit of Rule 28A. After having decided to give the petitioners benefit under Rule 28A they cannot now hold O.P.No.32109 of 2002 -10- that they will give only benefit of the 1st part of the fixation and would not give the benefit of the refixation in the 2nd part. In fact in the case of similarly placed Sub Registrars, in O.P.No.2071 of 2003, I had directed that similarly placed persons whose fixation was sought to be changed should be given restoration of the original fixation benefits under Rule 28A. That means the benefit of whole Rule 28A. In that case, both benefits under Rule 28A were given to the petitioners. 11. In view of my above finding I do not think it necessary to go into the other questions involved because the above finding would conclusively decide the lis between the parties. Accordingly, I hold that as per Ext.P10 the petitioners are entitled to the whole benefit of Rule 28A including the refixation benefit in the latter part of the Rule. The petitioners' pay shall be refixed accordingly in all stages and their retirement benefits shall be recomputed consequently since they have retired from service. Orders in this regard shall be passed as expeditiously as possible at any rate within three months from the date of receipt of a copy of this judgment. Arrears payable consequent thereto shall be disbursed within another one month. Needless to say, O.P.No.32109 of 2002 -11- those of the petitioners who have obtained further promotion would be entitled to normal refixation of pay in the promoted post also consequent to the refixation under Rule 28A as directed above. 12. The petitioners have got another case that they were not given the benefit of fixation of pay consequent to the general pay revision order issued under G.O.(P) 145/06/Fin dated 28.03.2006 with effect from 01.07.2004. If any of the petitioners have been denied the benefit of that pay revision order/orders in respect of the same shall also be passed and arrears disbursed within the periods as directed above. Consequently the impugned orders in all the writ petitions are quashed. The Original Petitions/Writ Petitions are disposed of as above. S. SIRI JAGAN, JUDGE Jvt