IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 17TH NOVEMBER 2008 / 26TH KARTHIKA 1930 OP.No. 19344 of 1998(C) ------------------------------ PETITIONER(S): --------------- V.SATHIKUMARAN NAIR, T.C. 48/423-1, AMBALATHARA, TRIVANDRUM. BY ADV. SRI.P.RAMAKRISHNAN SMT.A.K.PREETHA SRI.P.RAMAKRISHNAN RESPONDENT(S): -------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION (H) DEPARTMENT, TRIVANDRUM. 2. DIRECTOR, PRINTING DEPARTMENT, GOVERNMENT CENTRAL PRESS, TRIVANDRUM. 3. ACCOUNTANT GENERAL (A&E) KERALA, TRIVANDRUM. GOVERNMENT PLEADER SMT. K.R. DEEPA. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 17/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 19344 of 1998 ORDER ON C.M.P.NO.34070 OF 1998 IN O.P.NO.19344 OF 1998 CLOSED. 17.11.2008 SD/- S. SIRI JAGAN, JUDGE. EXT.P1: COPY OF LETTER FROM R2 PROPOSING RECOVERY OF PAY, DT. 1.8.98. EXT.P2: COPY OF PROCEEDINGS OF R1 REJECTING THE CLAIMS FOR SPECIAL PAY DT. 2.7.98. EXT.P3: COPY OF POSTING ORDER ISSUED TO PETITIONER DT. 13.11.91. EXT.P4; -DO- DT. 6.11.93. EXT.P5: ORDER DT. 9.4.75 SANCTIONING SPECIAL PAY TO STAFF. EXT.P6: -DO- DT. 14.2.1979. EXT.P7; -DO- DT. 11.10.91. EXT.P8: PROMOTION ORDER ISSUED TO V. RAMACHANDRAN NAIR DT. 4.6.97. EXT.P9; EMPLOYMENT CERTIFICATE ISSUED TO RAMACHANDRAN NAIR DT. 13.11.98. EXT.P10; COPY OF G.O.(P) NO.220/96 DT. 28.2.96. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P. No.19344 OF 1998 ---------------------------------------- Dated this the 17th day of November, 2008 JUDGMENT The petitioner retired from the service of the Government of Kerala as a Junior Foreman in the Government Printing Press, Thiruvananthapuram on 31.5.1997. While in service, by Ext.P3 dated, 13.11.1991, the petitioner was transferred and posted to the confidential section of the Government Press, as Assistant Foreman in the vacancy caused by retirement of the incumbent Sri. V. Krishnankutty Nair. Thereafter, when the Junior Foreman, which is the next higher post of Assistant Foreman, namely Sri. D. Stuart was relieved of his duties, the petitioner was put in charge of the post of Junior Foreman in the confidential section itself. Subsequently, the petitioner was promoted as Junior Foreman on 18.7.1996. The petitioner retired from that post on 31.5.1997. While he was working in the confidential section, he was being paid special pay payable to the employees of confidential section of Government Presses as per Exts.P2, P5, P6, P7 and P10. However, by Ext.P1 order dated, 1.8.1998, O.P.No.19344/1998 2 after retirement of the petitioner, he was informed that as Junior Foreman the petitioner was not entitled to special pay and the special pay drawn by the petitioner is liable to be recovered from him, for which appropriate proceedings are in progress in consultation with the Accountant General. His representation in this regard was also rejected by Ext.P2 order dated, 2.7.1998. The petitioner is challenging Exts.P1 and P2 orders in this original petition. 2. According to the petitioner, as is evidenced by Exts.P5, P6, P7 and P10, all employees of the confidential section are entitled to special pay because of the very fact of they being employed in the confidential section. He points out that in Ext.P10 dated 28.2.96, the Junior Foreman was included, but Assistant Foreman was not. In Ext.P7 dated, 11.10.1991, the special pay was regulated on the basis of scale of pay. When it came to Ext.P10, the Junior Foreman was replaced by the Assistant Foreman. The petitioner would contend that this is discriminatory. When the special pay is for duties in the confidential section and not because of the duties assigned to a particular post in confidential section, there cannot be any discrimination among employees in the O.P.No.19344/1998 3 matter of payment of special pay. He points out that when the Deputy Superintendent, Assistant Foreman/Senior Reader (Higher Grade), Printer (Senior Grade/Grade I), Printer Grade II, Compositor (Senior Grade/Grade I), Compositor Grade II, Binder (Senior Grade/Grade I), Binder Grade II, Copy Holder/Rota Printer Typist/Rota Print Operator and Counter/Imposer are all entitled to special pay for working in the confidential section, there is no logic or reason behind excluding the Junior Foreman from eligibility for special pay, especially when in the earlier orders the Junior Foreman was also included for the purpose of grant of special pay. Further the petitioner points out that when he retired from service, he was replaced by Sri. V. Ramachandran Nair as evidenced by Ext.P9 dated 13.11.1998. The said Sri.V. Ramachandran Nair was paid special pay as Junior Foreman from whom the same has not been recovered. The petitioner, therefore, submits that the move to recover the special pay paid to him as Junior Foreman as per Exts.P1 and P2 is clearly arbitrary, unreasonable and unsustainable. 3. A counter affidavit has been filed on behalf of the first respondent in which they support the impugned orders. O.P.No.19344/1998 4 According to them, as is evident from Ext.P2, the special pay was sanctioned on the basis of the duties attached to the post. As per order dated, 1.11.1989 for the posts like Junior Foreman, Reader, Galley Pressman and Lascar etc., special pay was not sanctioned and therefore the petitioner was paid special pay wrongly, which only is sought to be recovered as per the impugned orders. 4. I have considered the rival contentions in detail. 5. In Ext.P5, all staff working in the confidential section of the Government Central Press, Thiruvananthapuram was sanctioned monthly special pay at the rate of 10% of their basic pay. From the very orders revising special pay from time to time, I note that the Government was never consistent in the matter of sanctioning of special pay. In Ext.P6, the Junior Foreman is included for sanctioning special pay. In Ext.P7, without reference to any category or post, special pay was sanctioned on the basis of scale of pay. Again in Ext.P10, the Junior Foreman and some other posts were excluded for the purpose of grant of special pay. As such, I do not find any consistent criterion for sanctioning of special pay. From the Exhibits before me, the impression one gets is that the special O.P.No.19344/1998 5 pay is sanctioned for being posted in the confidential section itself and not because of the duties and functions attached to any particular post in the confidential section. In fact in the counter affidavit, it is admitted that Sri. V. Ramachandran Nair, who replaced the petitioner after the petitioner retired from service, was also paid special pay at the rate of Rs.70/- per month, till he was transferred on promotion as Senior Foreman. There is no statement in the counter affidavit that proceedings have been initiated for recovery of special pay paid to Sri. V. Ramachandran Nair. Again in paragraphs 14 and 15 of the counter affidavit, it is stated thus: “14. It is submitted that Sri. V. Ramachandran Nair was paid special pay till 4-6-99, though he was not eligible as per Government Order dated, 28-2-96. The practice of payment of special pay to the employees belonging to Junior Foreman, Lascar and Reader was already dispensed with. It is also submitted that the special pay has been converted as Special Allowance with effect from 1-11-98 as per G.O.(P) No.3000/98/Fin. Dated, 25-11-98. The special allowance will not count for D.A., H.R.A., Pension etc. Further, government in G.O.(P) No.789/2000/(65/Fin. Dated, 3-4-2000 have since ordered that the staff in the Confidential Section shall be categorised on the basis of scale of pay for the payment of special allowance. There is, therefore, nothing illegal in the payment of Special Allowance to all the staff working in the confidential section at present as per G.O. dated, 3-4-2000. O.P.No.19344/1998 6 15. Ext.P1 and P2 are legal as per G.O.(P) No.220/96/88/Fin. Dated, 28-2-96 which was then in force. Special pay was allowed to the Junior Foreman as per 1983, 1988, 1992, 1997 pay revision orders. However, during the period from 11-10-91 to 31-8-95 the special pay was allowed in accordance with the scale of pay of the employees as per Ext.P7. The petitioner was eligible for special pay while he was holding the post or Assistant Foreman in the Confidential Section till 17-7-96. During the past few years, employees belonging to the categories of Junior Foreman, Reader, Lascar were also posted in the Confidential Section and they were paid special allowance. Smt. P.P. Lakshmi, Junior Foreman and Sri. N.R. Mohanan, Reader, who were posted in the Confidential Section were paid special allowance till 8/99. One Shri. J. Francis, Lascar, who retired from service on 3-9-96, while working in the confidential section was paid the special pay and benefited the pension and gratuity that accrued on account of the special pay. The special pay was not permissible to the Junior Foreman while the petitioner was in the confidential section as per rules then in force. Hence the O.P. is devoid of any merit and liable to be dismissed”. As such, the Government never had any consistent practice in this regard. Although they state in Ext.P2 that the special pay was sanctioned on the basis of the duties and functions of a particular post, the same is not supported by the orders granting special pay. They also do not explain the logic behind excluding the post of Junior Foreman for the purpose of special pay. Originally, the special pay was granted to all O.P.No.19344/1998 7 employees of the confidential section uniformly at the rate of 10%. At one time, the Junior Foreman was paid special pay. Later on, the Junior Foreman was deleted and Assistant Foreman was included who was not earlier sanctioned special pay. At the same time, in the counter affidavit, it is admitted that the other Junior Foremen were given special pay, but nothing is stated in the counter affidavit about proceedings initiated to recover the special pay paid to them. Therefore, I am satisfied that the special pay was sanctioned not to any particular post in the confidential section but for having worked in the confidential section itself irrespective of the post in which the incumbent was working, but of course at the rates for each category of employee. As such, I am satisfied that the special pay paid to the petitioner in his post as Junior Foreman is regular and the same is not liable to be recovered. Accordingly, Exts.P1 and P2 are quashed with consequential reliefs to the petitioner both in the matter of recovery as well as the fixation of retirement benefits. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE Acd O.P.No.19344/1998 8