IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 24TH OCTOBER 2008 / 2ND KARTHIKA 1930 WP(C).No. 30037 of 2005(A) ----------------------------------- PETITIONER(S): ----------------------- N.SREEKANTAN NAIR, ENVIRONMENTAL ENGINEER, KERALA STATE TRANSPORT PROJECT (KSTP), RAJADHANI COMPLEX, KILLIPPALAM, THIRUVANANTHAPURAM. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER (PROJECTS), KERALA STATE TRANSPORT PROJECT, MANAGEMENT TEAM, RAJADHANI COMPLEX, KILLIPPALAM, TRIVANDRUM. BY GOVERNMENT PLEADER SRI. M.R.SABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/10/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 30037 of 2005(A) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY G.O.(MS) NO.64/99/PWD DATED 9.7.1999 ISSUED BY THE 1ST RESPONDENT. EXT.P2 - TRUE COPY OF G.O.(Rt) NO. 984/2001/PWD DATED 27.9.01 ISSUED BY THE 1ST RESPONDENT. EXT.P3 - TRUE COPY OF ORDER NO. 14939/04/PWD DATED 7.7.2005 ISSUED BY THE 1ST RESPONDENT. /TRUE COPY/ PA TO JUDGE rhs S.SIRI JAGAN, J ================== W.P(C)No.30037 of 2005 ================== Dated this the 24th day of October, 2008. J U D G M E N T While the petitioner was working as an Assistant Executive Engineer in the P.W.D., the Government by Ext.P1 order created a post of Environmental Officer/Engineer in the Kerala State Transport Project (K.S.T.P.), which post carried the scale of pay of Rs. 12,600 - 15,600. The petitioner was posted as Environmental Engineer and accommodated in the said post by Ext.P2 order. However, in Ext.P2, it was specifically directed that the petitioner would draw pay and allowance for which he is entitled to in the cadre of Assistant Executive Engineer. The petitioner raised a claim for payment of salary in the scale of pay fixed as per Ext.P1 for the post of Environmental Engineer in which post he was accommodated. The same was ultimately rejected by Ext.P3 order. The petitioner is challenging Ext.P3 order and that part of Ext.P2 whereby it was stated that he is entitled to pay and allowances only in the cadre of Assistant Executive W.P(C)No.30037 of 2005 - 2 - engineer. The contention of the petitioner is that having been appointed to a permanent post of Environmental Engineer which post carries a scale of pay of Rs.12,600-15,600, there is absolutely no justification for denial of salary attached to that post to him. He would point out that in Ext.P2 there is not even any mention that his appointment was ad hoc or temporary or officiating. When the post created is a permanent post to which the petitioner has been posted, there was no rationale in denying the emoluments attached to that post to the petitioner, is the contention raised by the petitioner. The petitioner also relies on a decision of a Division Bench of this Court in Union of India & another vs. P. Sathikumaran Nair & others (1984 KLJ 733) in which in somewhat similar circumstances the Division Bench directed that a similarly posted employee is entitled to emoluments attached to that post. 2. A counter affidavit has been filed by the 1st respondent disputing the claim of the petitioner. In the same it is stated that Special Rules have not been framed for the post and qualifications and method of appointment has not been W.P(C)No.30037 of 2005 - 3 - prescribed for the post created by Ext.P1. It is stated that the scale of pay of Environmental Engineer is the scale equivalent to that of Executive Engineer (Higher Grade) and since the petitioner was working as Assistant Executive Engineer he is entitled to pay as applicable to that post only despite his posting as Environmental Engineer. 3. I have considered the rival contentions in detail. 4. Admittedly the petitioner was accommodated to the post of Environmental Engineer and he was discharging duties attached to that post. The scale of pay of the post of Environmental Engineer has been fixed by the Government itself by Ext.P1 order as Rs.12,600 - 15,600. When the petitioner was discharging the duties of Environmental Engineer, I am of opinion that he could not have been denied the emoluments attached to that post in accordance with the scale of pay fixed as per Ext.P1. 5. I am supported in this view by the judgment relied upon by the petitioner. In that case, the teacher of a school was posted as a lecturer in a college. The question arose as to whether the petitioner in that writ petition was eligible for W.P(C)No.30037 of 2005 - 4 - salary attached to the post of lecturer or whether he is entitled only to the salary of school teacher. In that judgment, the Division Bench held as follows: “.........The stand taken in Ext.P6 by the Government is that for the purpose of salary the petitioners would continue to be teachers in Government schools which certainly is opposed to all principles of fairplay and justice. In the decision in Ramachandran v. The Administrator, Union Territory of Leccadives, Kavaratti and others (1984 KLJ 568) a Division Bench of this Court had held that the length of service in the college alone need be considered for the purpose of determining seniority between two persons who entered service on one and the same day. In other words, even though they might have been teachers in the school and even if their entering the College service was by what is known as the process of redesignation, the character entirely changes once they enter the college service, and they necessarily have to be treated as Lecturers, not as teachers of the school. There is no case that they are less qualified and so they are not capable of shouldering all the responsibilities and duties which their counterparts in the full-fledged colleges are shouldering. That would mean that persons having equal minimum qualifications are doing equal work, qualitatively and quantitatively, could not be denied equal pay.” The ratio of that decision applies squarely to the facts of this case. That being so, as long as the petitioner holds the post of Environmental Engineer he could not be denied emoluments attached to that post since he was exercising the duties and functions of an Environmental Engineer, for which post a specific scale of pay has been prescribed in Ext.P1. Accordingly, I hold that the petitioner is entitled to be paid W.P(C)No.30037 of 2005 - 5 - emoluments in the scale of pay of Rs.12,600 - 15,600, as long as the petitioner holds the post of Environmental Engineer. Arrears of pay to which the petitioner is entitled shall be disbursed within a period of two months from the date of receipt of a copy of this judgment and the petitioner shall be continued to be paid salary in the scale of pay of Rs.12,600 - 15,600 as long as he holds of the post of Environmental Engineer. The writ petition is allowed as above. S.SIRI JAGAN, JUDGE rhs