IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 30TH JULY 2010 / 8TH SRAVANA 1932 WA.No. 1580 of 2006() --------------------- AGAINST THE JUDGEMENT/ORDER IN OP.21603/2001 Dated 23/02/2006 .................... APPELLANT(S): RESPONDENTS 1 TO 3 IN THE O.P: -------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF TREASURIES, KRISHNA BUILDINGS, POWER HOUSE JUNCTION, THIRUVANANTHAPURAM. 3. THE DISTRICT TREASURY OFFICER, RURAL DISTRICT TREASURY, THAMARASSERY. BY SPL. GOVERNMENT PLEADER SRI.N.MANOJ KUMAR RESPONDENT(S): PETITIONER IN THE O.P: ------------------------------------- JAMES N.J., JUNIOR SUPERINTENDENT, RURAL DISTRICT TREASURY, THAMARASSERY. ADV. SRI.P.C.SASIDHARAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2010, THE COURT ON 30/07/2010 DELIVERED THE FOLLOWING: J.CHELAMESWAR, C.J. & P.N.RAVINDRAN, J. ----------------------------------------- W.A.No.1580 of 2006 ----------------------------------------- Dated this the 30th day of July, 2010 JUDGMENT Ravindran. J. The appellants are the respondents in O.P.No.21603 of 2001. The sole respondent is the petitioner therein. The brief facts of the case are as follows. 2. The respondent entered service as Junior Accountant in the Treasury Department on 22.4.1976. He was promoted as Treasurer (equivalent to Senior Accountant) in May 1981 and as Senior Accountant (Higher Grade) on 2-5-1991 in the scale of pay of Rs.1050-1830. On promotion as Senior Accountant (Higher Grade) his pay was fixed at Rs.1410/-. By G.O.(P)No.600/93/Fin. dated 25.9.1993, the scales of pay of State Government employees were revised with effect from 1.3.1992. By the said Government order, the scale of pay of Rs.1050-1830 stood revised to Rs.1400-2300. The respondent opted to come over to the revised scale of pay with effect from that date. Accordingly his pay was revised and re-fixed at Rs.1520/- as on 1.3.1992. He was also granted increments thereafter and as on 1.5.1996 he was drawing a basic pay of Rs.1720/-. W.A.No.1580 of 2006 -:2:- 3. Sri.V.Sreedharan, who is admittedly the respondent's junior in service, entered service as Stenographer Grade II in the Revenue Department on 11-10-1976. He was rendered surplus in the Revenue Department and was absorbed as Junior Accountant in the Treasury Department with effect from 5.3.1979. At that point of time he was drawing a pay of Rs.380 in the scale of pay of Rs.350-580. On absorption as Junior Accountant in the Treasury Department in the scale of pay of Rs.330-515, his pay was fixed at the stage of Rs.378/-. The difference of Rs.2/- was protected as personal pay and it was absorbed in the next increment which fell due on 1.8.1979. He was promoted as Senior Accountant in June 1986. He was also granted higher grade in the category of Senior Accountant after the 1992 pay revision order was issued. As noticed above, when the 1992 pay revision was implemented, the respondent opted to come over to the revised scale of pay of Rs.1400-2300 with effect from 1-3-1992 and his pay was fixed at Rs.1520. At that point of time his junior Sri.V.Sreedharan was drawing a lesser pay of Rs.1410. Sri.V.Sreedharan became entitled to an increment on 1.8.1992 and his pay was fixed at Rs.1450/- as on that date, at Rs.1490 as on 1-8- 1993, Rs.1530 as on 1.8.1994 and Rs.1590 as on 1.8.1995. During the relevant period the pay of the respondent and his junior W.A.No.1580 of 2006 -:3:- Sri.V.Sreedharan was as follows:- Respondent. Sri.V.Sreedharan 1.3.1992 Rs.1520 1.5.1992 Rs.1560 1-8-1992 Rs.1450 1.5.1993 Rs.1600 1-8-1993 Rs.1490 1.5.1994 Rs.1640 1-8-1994 Rs.1530 1.5.1995 Rs.1680 1-8-1995 Rs.1590 4. The respondent's junior Sri.V.Sreedharan opted to come over to the revised scale of Rs.1400-2300 introduced as per the 1992 pay revision order only with effect from 19-9-1995 as a result of which his pay was fixed at Rs.1850 as on 19-9-1995. As a result thereof the respondent's junior started drawing a higher pay. The respondent thereupon moved the Director of Treasuries seeking rectification of the anomaly. The said request was rejected by the Director of Treasuries and the decision communicated to the respondent by Ext.P3 letter dated 15.5.2001. The instant writ petition was thereupon filed challenging Ext.P3 and seeking the following reliefs:- (i) to issue a writ of certiorari quashing Ext.P3 and the letter of the Government referred to therein; (ii) to issue a writ of mandamus, order or direction directing the respondents to permit the respondent to exercise his re-option and to step up the scale of pay to that of his junior and grant him all consequential and monetary benefits. W.A.No.1580 of 2006 -:4:- 5. The respondents resisted the writ petition by filing a counter affidavit. It was contended that the difference in pay arose as a result of judicious exercise of option by the respondent's junior and in such circumstances, the respondent who had opted to come over to the revised scale of pay with effect from 1-3-1992 cannot seek another opportunity to exercise a fresh option. The appellants contended that the option was with the employee to choose a pay which is more advantageous to him, that the respondent who had made a choice within the prescribed time cannot later turn round and contend that he should be afforded another opportunity to exercise a fresh option. It was also contended that though opportunities were later available for exercising a re-option, the respondent did not avail the said opportunities. The learned single Judge considered the rival contentions and held that the issue raised in the case on hand is covered by the decision of this Court in O.P.No.34760 of 2001. The writ petition was accordingly allowed, Ext.P3 was quashed and the appellants were directed to take fresh steps to set right the anomaly. Hence this writ appeal. 6. We heard Sri.N.Manoj Kumar, learned Special Government Pleader appearing for the appellants and Sri.P.C.Sasidharan, learned counsel appearing for the respondent. We have also gone through the W.A.No.1580 of 2006 -:5:- pleadings and the materials on record. The learned single Judge has in the judgment under challenge relied on the decision of another learned single Judge of this Court in O.P.No.34760 of 2001. The relevant portion of the said judgment is extracted below:- “5. The respondent is far senior to his junior, P.U.James. Going by the mandate of Articles 14 and 16 of the Constitution of India, there is no justification for denying equal pay for equal work, if higher pay could not be paid. Therefore, the denial of equal pay to the respondent when compared to his junior will be plainly hit by the equality clauses contained in the Constitution. Apart from that, Clause 7 of Annexure III to Ext.P1 Government Order plainly covers this position. The respondent was promoted as Section Officer before 1.3.1992. His junior P.U.James was promoted after 1.2.1995. Because of the special benefits conferred by the 1992 Pay Revision Order, the junior happened to draw higher scale of pay. This anomaly is liable to be rectified under Clause 7 of Annexure III to Ext.P1. It is declared so. Exhibit P16 is quashed. The matter is remitted to the 1st respondent to pass fresh consequential orders in the light of the observations contained herein-above, within three months from the date of receipt of a copy of this judgment. The respondent is entitled to all consequential benefits.” (emphasis supplied) 7. It is evident from the judgment in O.P.No.34760 of 2001 that W.A.No.1580 of 2006 -:6:- the junior started drawing a higher pay than the senior because of the fact that he was promoted after the 1992 pay revision came into force and was given an advance increment for the reason that the scale of pay of the promotion post and the feeder category post were the same. Such advance increment was given in view of the stipulation in Clause 24 of the pay revision order. It was in such circumstances that the learned single Judge held relying on clause 7 of Annexure III to the 1992 pay revision order that the anomaly should be rectified. Clause 24 of G.O(P)No.600/93/Fin. dated 25.9.1993 reads as follows:- “24. Where promotion posts happen to have the scale of pay of feeder category posts, one advance increment will be granted to the incumbents appointed in posts carrying the scale of pay of feeder category posts.” Clause 7 of Annexure III to the 1992 pay revision order reads as follows:- “In cases where a senior employee promoted to a higher post before 1 st March 1992 draws less pay in the revised scale than his junior who is promoted to the higher post on or after 1 st March, 1992 the pay of the senior employees will be stepped upto that of the junior with effect from the date on which the junior draws more pay, provided that: i) the senior and the junior employees should W.A.No.1580 of 2006 -:7:- belong to the same category and should have been promoted to the same category of post; ii) the pre-revised and revised scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical; and iii) the anomaly should have arisen directly as a result of the introduction of the revised scale of pay. Note: If in the lower post, the junior employee was drawing more pay in the pre-revised scale than the senior by virtue of any advance increment granted to him, the senior to such junior have no claim over the pay of the junior.” (emphasis supplied) 8. From the judgment in O.P.No.34760 of 2001 it is clear that the petitioner therein was promoted as Section Officer on 8.11.1990 and was admittedly senior to Sri.P.U.James, who was promoted as Accountant only on 22.11.1990 and as Section Officer on 1.2.1995. However, when the junior was promoted as Section Officer on 1.2.1995, by virtue of the stipulations in clause 24 quoted above, the junior was given an advance increment as a result of which the pay of the junior stood increased. It was in such circumstances that the learned Judge held in O.P.No.34760 of 2001 that the said case is governed by clause 7 of Annexure III to the 1992 pay revision order. W.A.No.1580 of 2006 -:8:- A reading of clause 7 extracted above indicates that the said provision applies only to a case where a senior employee promoted to the higher post before 1.3.1992 draws lesser pay in the revised scale than his junior who is promoted to the higher post on or after 1.3.1992. In such a case it is stipulated that the pay of the senior employee will be stepped upto that of the junior with effect from the date on which the junior draws more pay subject to the condition that the senior and junior both belonged to the same category and have been promoted to the same category of post. This stipulation is subject to the further condition that the anomaly should have arisen directly as a result of the introduction of the revised scale of pay. 9. From the pleadings and materials on record it is evident that the situation in the case on hand is not similar to the situation obtaining in O.P.No.34760 of 2001. In the instant case the respondent and his junior V.Sreedharan were both promoted to the category of Senior Accountant before the 1992 pay revision order was issued. After the 1992 pay revision order was issued, the respondent opted to come over to the revised scale of pay from 1.3.1992. Such a choice was voluntarily made by him. His junior Sri.V.Sreedharan, on the other hand, chose to come over to the revised scale of pay only with effect from 19.9.1995. It was because of the option thus exercised by W.A.No.1580 of 2006 -:9:- his junior that the disparity in the pay arose. Therefore, the disparity in pay between the senior and the junior did not arise as a result of the junior being promoted after the 1992 pay revision order was implemented and on being granted an advance increment. As per rule 8(b) of Annexure III to G.O(P)No.600/93/Fin. dated 25.9.1993, a period of six months from 25.9.1993 had been allowed to exercise option to come over to the revised scale of pay or to remain in the pre- revised scale of pay. The said period of six months expired on 24.3.1994. The respondent opted within the said period to come over to the revised scale of pay with effect from 1.3.1992 itself. Later by G.O(P)No.315/94/Fin. dated 8.4.1994 the time limit for exercising option/re-option was extended upto 30.6.1994. Still later, by G.O(P) No.458/94/Fin. dated 3.8.1994, the time limit for exercising options or revised options in respect of the 1992 pay revision was extended upto 31.10.1994. The Government order, GO(P)No.458/94/Fin. dated 3.8.1994 is extracted below: “FINANCE (PRU) DEPARTMENT G.O(P)458/94/Fin. Dated, Thiruvananthapuram, 3rd August,1994 Abstract:- Pay Revision 1992 – Exercise of Option/Re-option - Extension of time limit – Orders issued. Read:- 1. G.O(P)600/93/Fin. dated 25.9.1993 2. G.O(P) 315/94/Fin. dated 8.4.1994. W.A.No.1580 of 2006 -:10:- ORDER According to rule 8(b) of the rules for fixation of pay prescribed in Annexure III of the Government Order read as 1st paper above, a period of six months from 25.9.1993 has been allowed to exercise option to change over to the revised scales or to remain in pre-revised scale of pay. The time so allowed for exercising option expired on 24.3.1994. 2. In the Government Order read as 2nd paper above Government have extended the time limit for exercising option/re-option upto 30.6.1994. 3. In consideration of the representations from employees for extension of time, Government are pleased to order that exercise of option/revised option in respect of the pay revision ordered with effect from 1.3.1992 will be allowed till 31.10.1994 (including) subject to the condition that refund, if any, on account of the revision of option will be made in lump. Employees retired on or after 1.3.1992 will also be eligible for option/re-option. Government also order that no further extension of time will be allowed.” The respondent did not avail the benefit of the aforesaid Government order and submit a revised option in respect of the 1992 pay revision. The Government thereafter issued G.O(P)No.855/95/Fin. dated 21.11.1995 extending the time for re-option by a further period of six months from 1.12.1995 subject to the condition that no further extension of time would be granted. The said Government order reads as follows:- W.A.No.1580 of 2006 -:11:- “FINANCE (PRU) DEPARTMENT G.O(P)855/95/Fin. Dated, Thiruvananthapuram, 21st November,1995 Abstract:- Pay Revision 1992 – Exercise of Option/Re-option - Extension of time limit – Orders issued. Read:- 1. G.O(P)600/93/Fin. dated 25.9.1993 2. G.O(P) 458/94/Fin. dated 3-8-1994. ORDER In the G.O. read as 2nd paper above, Government have extended the time limit for exercising option/re-option in respect of 1992 Pay Revision upto 31.10.1994. 2. In consideration of the representations from employees for extension of time, Government are pleased to order that exercise of option/re-option in respect of Pay Revision ordered with effect from 1.3.1992 will be extended for a further period of six months from 1.12.1995, subject to the condition that no further extension of time will be allowed. 3. Employees retired after 1.3.1992 will also be eligible for option/re-option. Government also order that no re-option will be allowed in respect of previous Pay Revisions, except on the grounds specified in G.O(P)101/80/(167)/Fin. dated 30.1.1980. 4. The benefit granted in this order will be subject to the usual terms and conditions as laid down in Circular No.46/90/Fin. dated 22.6.1990.” Still later, the Government issued G.O(P)No.615/96/Fin. dated 3.10.1996 granting further time to exercise a re-option. The said Government order reads as follows:- W.A.No.1580 of 2006 -:12:- “FINANCE (PRU) DEPARTMENT G.O(P)615/96/Fin. Dated, Thiruvananthapuram, 3rd October,1996 Abstract:- Pay Revision 1988 and 1992 – Exercise of Option/Revised option - Extension of time limit – Orders issued. Read:- 1. G.O(P)480/89/Fin. dated 1.11.1989. 2. G.O(P)509/91/Fin. dated 24.9.1991 3. G.O(P)600/93/Fin. dated 25.9.1993 4. G.O(P)855/95/Fin. dated 21.11.1995. ORDER In the Government Order read as second and fourth paper above time upto 31.12.1991, 31.5.1996 respectively, were allowed to employees for exercising re-option in respect of 1988 and 1992 Pay Revisions. Several requests are being received from Service Organisations and individuals seeking permission to exercise re-option in respect of 1988 and 1992 Pay Revisions. Government after considering the matter in detail are pleased to accord sanction to all employees for exercising re-option in respect of 1988 and 1992 Pay Revisions and related service based grade/non-cadre promotions subject to the following conditions:- 1. Arrears on account of such re-option will be payable only from the date of exercise of re- option. 2. Excess amount should be adjusted in the arrear due and balance, if any, will be refunded in lump. 3. Only serving employees will be permitted to W.A.No.1580 of 2006 -:13:- exercise re-option as per this order. Re- option should be exercised within three months from the date of this order.” 10. The respondent did not admittedly avail the said opportunities also. Though he had initially exercised an option to be governed by the 1992 pay revision with effect from 1.3.1992, his junior opted to come over to the revised pay scale only with effect from September, 1995, as a result of which he started drawing higher pay. This happened in the year 1995. Thereafter also, the respondent had two opportunities to exercise a re-option. He did not do so. instead, he moved for permission to exercise a re-option only long after the last date stipulated by the Government in G.O(P) No.615/96/Fin. dated 3.10.1996. The respondent who had opted to come over to the 1992 pay revision with effect from 1.3.1992, way back in the year 1993, had time till 3.1.1997 to exercise a fresh option. He did not however, do so. 11. The respondent however relies on Exts.P4 and P5 Government orders to contend that he is entitled to have his pay stepped up and equated with the pay of the junior. Ext.P4 Government order dated 22-2-1995 directs stepping up of the pay of the senior officer when the senior officer who was drawing higher pay or the same pay as the junior officer, gets promotion after 1.3.1992, W.A.No.1580 of 2006 -:14:- but before the date of increment in the lower post and opted the date of promotion as the date for coming over to the revised scale of pay, draws less pay than the junior officer who was promoted after the normal date of increment in the lower post in the pre-revised scale of pay. Ext.P4 Government order does not have application to the instant case since the petitioner was promoted to the category of Senior Accountant before 1.3.1992. By Ext.P5 Government order dated 14.11.1995, Ext.P4 was partially modified and the Government directed that the benefit of Ext.P4 order will be extended to those senior officers who got promotion after 1.3.1992, but opted for the lower post to come over to the revised scale of pay. Ext.P5 Government order also does not govern the case on hand for the reason that the petitioner was promoted before 1.3.1992. 12. It is not in dispute that in view of the stipulations in rule 4 of Annexure III to G.O(P)No.600/93/Fin. dated 25.9.1995 the pay of the respondent's junior Sri.V.Sreedharan was fixed applying rule 28A of Part I KSR when he opted to come over to the revised scale of pay of Senior Accountant with effect from 19.9.1995. He was also granted higher grade in the category of Senior Accountant with effect from that date as a result of which he started drawing higher pay than the respondent. Then the short question is whether by virtue of the W.A.No.1580 of 2006 -:15:- provisions contained in rule 28A of Part I of the KSR, the respondent is entitled to have his pay stepped up and equated with the pay of his junior. The concept of junior-senior fixation finds statutory recognition in 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 refixed 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 refixing the pay of the senior officer at the stage equal to that fixed for the junior officer in the higher post, the orders of refixation being issued by the Competent Authority under Rule 34, Part I, Kerala Service Rules. The refixation 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 W.A.No.1580 of 2006 -:16:- 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 refixation of pay of the senior officer should be done with effect from the date of refixation 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 refixation of pay.” (emphasis supplied) 13. In the instant case, the anomaly in the pay arose when the pay of Sri.V.Sreedharan, the respondent's junior, was fixed pursuant to the 1992 pay revision applying rule 28A of Part I KSR with effect from 19.9.1995 in the category of Senior Accountant and Senior Accountant (Higher Grade). Though Sri.V.Sreedharan had been promoted to the category of Senior Accountant in June 1986 he chose to come over to the revised scale of pay of Senior Accountant only with effect from 19.9.1995. It was as a result of the fixation of the pay of the junior applying rule 28A of Part I KSR that the anomaly in the pay of the senior arose. On the terms of ruling No.1 under rule 28A of Part I KSR, the respondent is therefore, entitled to have his pay stepped up and equated with the pay of his junior with effect from 19.9.1995. The respondent's junior did not start drawing higher pay by virtue of the fixation of pay under the normal rules or on advance W.A.No.1580 of 2006 -:17:- increments being granted to him. In such circumstances though for a reason other than the one given by the learned single Judge, we are of the considered opinion that the decision under challenge does not merit interference. We accordingly hold that there is no merit in the writ appeal. The writ appeal fails and is dismissed. No costs. J.CHELAMESWAR, Chief Justice P.N.RAVINDRAN, Judge. ahg. J.CHELAMESWAR, C.J. & P.N.RAVINDRAN, J. --------------------------- W.A.No.1580 of 2006 ---------------------------- JUDGMENT 30th July, 2010