IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 31ST MARCH 2010 / 10TH CHAITHRA 1932 WA.No. 1971 of 2007 ------------------------------------ AGAINST THE JUDGEMENT IN WPC.40155/2003 Dated 06/10/2006 .................... APPELLANT(S): ----------------------- THE LIC OF INDIA STAFF CO-OPERATIVE BANK LTD., (NO.3314),JEEVAN PRAKASH, PATTOM, THIRUVANANTHAPURAM-4, REPRESENTED BY ITS SECRETARY BY ADV. SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. RESPONDENT(S): ------------------------- 1. KERALA STATE CO-OPERATIVE EMPLOYEE'S PENSION BOARD, P.B.NO. 85,KALA NIVAS, T.C. NO. 27/156,157,CHINMAYA LANE, KUNNUMPURAM, NEAR AYURVEDA COLLEGE, THIRUVANANTHAPURAM-1,REPRESENTED BY ITS SECRETARY. 2. N.KRISHNAN, NARAYANASADANAM,. T.C. 7/184 KANJIRAMPARA P.O.,THIRUVANANTHAPURAM. ADV. SRI.P.V.MOHANAN,SC,K.ST.CO.OP.EMP.PENSI FOR R1 SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE FOR R2 SRI.BINDU SREEKUMAR FOR R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18.3.2010 ALONG WITH WA NO. 2001 OF 2007, THE COURT ON 31.3.2010 DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. -------------------------------------------------- W.A.NOS. 1971 OF 2007 & 2001 OF 2007 --------------------------------------------------- Dated this the 31st March, 2010 JUDGMENT K.M. Joseph, J. These Writ Appeals being connected, they are disposed of by this common Judgment. Writ Appeal No.2001 of 2007 2. The third respondent was appointed as a Junior Clerk on 24.6.1968. The fourth respondent was appointed as Manager in the appellant Bank by direct recruitment on 29.6.1976. No doubt, he had been appointed earlier as a temporary Clerk in 1972. The appellant Bank had proceeded with inviting applications for the post of Manager, and though the third respondent was made to understand that he too could apply, he did not apply. When the proceedings for direct recruitment was continuing, he approached the Arbitrator under Section 69 of the Co-operative Societies Act. However, he failed. He was equally unsuccessful before the Tribunal. Then he filed WA.NOS.1971 & 2001 OF 2007 2 O.P.No.3490/76 and a learned Single Judge of this Court dismissed the Writ Petition on the reasoning that the third respondent did not fall within the ambit of Rule 185(1) of the Co-Operative Societies Rules for the purpose of promotion to the post of Manager. Thereafter, the third respondent was promoted as Senior Clerk on 21.2.1977. He was subsequently promoted as Accountant on 7.7.1978 and still later, he was promoted as Assistant Secretary on 22.1.1980. On the basis of orders passed for grant of higher grade, the second respondent Registrar permitted grant of higher grades, two in number, to the fourth respondent. The third respondent submitted Ext.P5 application to the second respondent claiming higher grade. The second respondent by Ext.P6, rejected the request of the third respondent. By Ext.P7, the Government confirmed the rejection of the request for higher grade made by the third respondent. Though the same was challenged before the High Court, a learned Single Judge of this Court dismissed the same and it was still further affirmed by a Division Bench in Writ Appeal. The WA.NOS.1971 & 2001 OF 2007 3 third respondent filed Ext.P8 representation before the second respondent claiming revision of pay and benefits. To the same, the appellant filed Ext.P9 objections. In Ext.P10 Judgment rendered in a Writ Petition filed by the third respondent, a learned Single Judge of this Court, taking note of the submission of the counsel for the third respondent that there is some dispute regarding pay fixation and stating that since it was not gone into either by the appellant or this Court, the said issue was left open. Ext.P11 is the order passed by the second respondent on Ext.P8 representation. By Ext.P11, the Joint Registrar allowed the benefit of pay fixation in the following manner: It was found that the third respondent was entitled to parity of pay scales and allowances with that of his junior, namely the fourth respondent, with all back arrears from 1.4.1993 in the scale of pay of Rs.2035 - 4100 after giving notional fixation in the scale of Rs.1915-3740. This was done, inter alia, by finding that the third respondent being the Assistant Secretary, is naturally above the cadre of Branch Manager and he is the WA.NOS.1971 & 2001 OF 2007 4 senior-most employee. It was further found that the pay of a senior employee should invariably be protected when a higher pay scale is granted to his junior as per the accepted principles of service law. The appellant preferred Ext.P12 statutory appeal before the Government. Ext.P14 is the order passed by the Government. It is challenging Exts.P11 and P14 that the appellant filed Writ Petition No.28321 of 2003. The appellant also sought declaration that the third respondent is not entitled to any further service benefits than what has already been granted to him by the appellant. Counter Affidavit was filed. The learned Single Judge has dismissed the Writ Petition. 3. We heard Shri P.B. Suresh Kumar, learned counsel for the appellant and Shri V.N. Achutha Kurup, learned senior counsel appearing on behalf of the third respondent. 3. Learned counsel for the appellant would reiterate the facts and submit that the third respondent is bound by Ext.P1 Judgment as also Exts.P6 and P7 orders which have been affirmed by this Court and they are final. In other words, this is WA.NOS.1971 & 2001 OF 2007 5 a case where though the third respondent was appointed in 1968 as a Junior Clerk, and the fourth respondent was appointed by direct recruitment as Manager in the year 1976, the challenge to the appointment of the fourth respondent was repelled by this Court. It is submitted that later the third respondent was promoted as Junior Clerk in 1977 as Accountant in 1978 and in 1980 as Assistant Secretary. He would submit that Assistant Secretary and Manager were to be treated as equivalent categories (they were drawing the same scale of pay) and the fourth respondent having been appointed as Manager in 1976, while the third respondent was appointed as Assistant Secretary only in 1980, necessarily the third respondent is to be treated as junior to the fourth respondent. Still further, he would submit that in terms of the Government Order, the fourth respondent was found entitled to two grade promotions. The third respondent sought the benefit of grade promotion as was given to the fourth respondent. That stood repelled by Exts.P6 and P7, which in turn have been affirmed by this Court. He would WA.NOS.1971 & 2001 OF 2007 6 submit that matters which are concluded by the aforesaid decisions could not be re-agitated by the third respondent and it is not open to the first and second respondents to proceed on a basis contrary to the findings of this Court. No doubt, he would point out that the pay scales in respect of Urban Co-operative Banks have been revised with effect from 1.4.1993 (This was done by G.O.(P). No.28/95/Co-Op. dated 28.2.1995). Still later, Ext.R3(c) order was issued dated 10.7.1996. He would point out that though by Ext.R3(c) Government ordered that the post of Assistant Secretary will fall in between the posts of Branch Manager and the Secretary in Special Grade Urban Banks and Class I, Class II and Class III Urban Banks and a higher time scale of pay is vouchsafed for the Assistant Secretary, it was not legal on the part of the second respondent Registrar to find that the third respondent has become senior to the fourth respondent. In other words, it is his contention that even proceeding on the basis of the orders of pay revision and the order passed in 1996 (Ext.R3(c)), it only meant that the third respondent being an WA.NOS.1971 & 2001 OF 2007 7 Assistant Secretary, was entitled to a higher scale of pay. It is contended that the third respondent could not, on the aforesaid basis, become senior to the fourth respondent who, by virtue of his appointment as Manager in the year 1976, when the third respondent was working as Junior Clerk, had become senior to the third respondent. Still further, he would submit that even assuming that the third respondent was senior to the fourth respondent on the reasoning aforesaid, the claim for getting the benefit of the two higher grades which were granted to the fourth respondent, was misconceived. In this regard, he relied on the following Judgments: 1) State of Andhra Pradesh & Others v. G. Sreenivasa Rao & Others (1989 (2) SCC 290). 2) GCDA v. Shanavas (2010 (1) KLT 598). 4. Per contra, Shri V. N. Achutha Kurup, learned senior counsel appearing for the third respondent would submit that by Ext.P1 Judgment, it could not be said that this Court has upheld the appointment of the fourth respondent. He would further submit that while it is true that his claim for higher grade as was WA.NOS.1971 & 2001 OF 2007 8 granted to the fourth respondent was rejected by Exts.P6 and P7 and affirmed by this Court, the impugned orders in these cases are passed on Ext.P8 representation wherein the reasoning given by the Authorities are invulnerable. He would submit that the post of Assistant Secretary is above the post of Branch Manager. It is the highest post after the post of Secretary in the appellant Bank. The Assistant Secretary is entitled to higher scale of pay. Appointment to the post of Secretary is to be made from the post of Assistant Secretary. But, the third respondent is denied the benefits which he was entitled to and the impugned orders only afford him what is due to him. Findings. 5. The issue raised in Exts.P5 and P6 and the Writ Petition and Appeal there-from, obviously was not concerned with the question as to whether the third respondent was entitled to the higher grades. At any rate, they do not deal with the exact scale of pay to be allowed by way of higher grades. In Ext.P3, in respect of employees who are not qualified for regular WA.NOS.1971 & 2001 OF 2007 9 promotion posts or for whom there are promotion posts as per the feeder category rules, the pay scales in the standard scales of pay revision in respect of Primary Societies, which is immediately higher to the scale in which he is/was drawing salary, should be allowed as the higher grades. Though Ext.P3 refers to an Appendix, it is not seen produced. In Ext.P14 order, Government have found that the second higher grade granted to the fourth respondent was in the scale of pay of Rs.2035 - 4100. It was found to be the scale applicable for the post of Secretary of a Special Grade Urban Co-operative Society. It was further found that the fourth respondent when he was given the second higher grade, could have been given only the higher grade in the scale of pay of Rs.1915 - 3940 and not Rs.2035-4100. Apparently, Government proceeds on the basis that the fourth respondent was sanctioned the higher grade which is the pay scale applicable to the post of Secretary (ie.2035-4100) by an error. The fourth respondent has not challenged the said reasoning and finding or orders. Thus, he has accepted that WA.NOS.1971 & 2001 OF 2007 10 position that he is not entitled to get the second higher grade fixed as Rs.2035-4100. The appellant has also not been able to make out a case that the finding about the scale of pay the fourth respondent was entitled to as the second higher grade is in any way erroneous. In fact, if we were to allow this Appeal in this regard and hold that the scale of pay granted by way of second higher grade to the fourth respondent vide Ext.P4 is to be restored, we would end up reviving the said order which we must hold, cannot stand side by side with Ext.P14 and what is more, stands accepted by the fourth respondent himself. The post of Branch Manager was specifically incorporated by the pay revision order in 1995 as modified by Ext.R2(c). No attempt was made by the appellant Bank to get clarifications or to have the post of Manager held by the fourth respondent re- designated or approval sought for the post of Manager. In such circumstances, we do not find any merit in the challenge to Ext.P14 in regard to the findings rendered about the scale of pay. WA.NOS.1971 & 2001 OF 2007 11 6. We, of course, agree with the appellant that the matter concluded by Ext.P1 Judgment, could not have been re-agitated or decided. However, the issues which really arise for our consideration are as already indicated and, of course, the further questions on the basis of the third respondent being in the cadre of Assistant Secretary, being the highest post after the post of Secretary and entitled to draw a higher scale of pay than drawn by a Branch Manager, in view of Ext.R2(c). Here, in this regard, however, we must take the view that the Government acted illegally in directing that the appellant must pay the fourth respondent the same pay as was vouch-safed for the fourth respondent, namely Rs.1915-3740/=. Here, we must think that the appellant is justified in drawing support from the decision of this Court in G.C.D.A. v. Shanavas (2010(1) KLT 598) wherein a Division Bench of this Court held as follows: “In fact, in this case, the anomaly of the junior drawing higher pay did not arise out of fixation under R.28A of Part I of the Kerala Service Rules or by reason of fixation of pay pursuant to WA.NOS.1971 & 2001 OF 2007 12 pay revision order............The same arises out of the scheme of time bound higher grade promotion. By pressing into service the abstract principle of equal pay for equal work arising from Art.14 of the Constitution of India, the first respondent cannot claim pay at the rate drawn by his junior. We cannot rewrite the time bound higher grade promotion scheme by saying that whenever a junior gets grade promotion, the senior should also be given the higher grade to satisfy the principle of equality.” 7. The Government itself reasons that the fourth respondent would be entitled to the second higher grade in the scale of pay of Rs.1915-3740. Here, we must interpolate the reasoning found in Exts.P5 and P6 as affirmed by this Court, that is to say, in so far as the third respondent was given three promotions, he was not entitled to the benefit of grade promotions. Thus, proceeding on the mere ground that the third respondent has become senior as he was holding the post of Assistant Secretary, while the fourth respondent was holding the post of Manager for which incidentally there is no approval WA.NOS.1971 & 2001 OF 2007 13 sought or given and the only post in the aftermath of the pay revision orders as followed by Ext.R2(c), was the post of Branch Manager, he would not be entitled to the scale of pay of Rs.1915-3740/= for the reason that the fourth respondent became entitled to the same because of the reason that he was entitled to the benefit of higher grade. There can be no question of reopening the decision that the third respondent is not entitled to higher grade. We are of the view that the Government was committing an illegality in so ordering and it calls for our interference. However, we must also hasten to observe that if the third respondent in terms of the pay revision order and Ext.R2(c) was entitled to the benefit of the fixation of his pay in the scale of pay of Rs.1915-3740, that cannot be denied by the appellant Bank as that has got nothing to do with the higher grade given to the fourth respondent. In such circumstances, we allow the Appeal and we set aside the Judgment of the learned Single Judge and quash Ext.P14 to the extent that by Ext.P14, the appellant is called upon to pay to the third respondent, his WA.NOS.1971 & 2001 OF 2007 14 pay in the scale of pay of Rs.1915-3740 from the date on which the fourth respondent was allowed to draw the said amount. We, however, make it abundantly clear that if the third respondent has not been paid the scale of pay of Rs.1915-3740 in terms of the pay revision order, the appellant will be liable to pay the same to him. In view of the long pendency of the matter, a decision shall be taken by the appellant in this regard and communicated to the third respondent within a period of six weeks from the date of receipt of a copy of this Judgment. Therein, the appellant will specifically indicate the amounts due to the third respondent in terms of the Pay Revisions effected from 1993 onwards and the pay scales actually given to the third respondent in terms thereof. If there is any amount remaining to be paid on the basis of the pay scales which the third respondent became entitled to under the Pay Revisions, the appellant shall compute the same and pay the same to the third respondent within a period of one month from the date on which the decision as aforesaid is communicated to the third respondent. WA.NOS.1971 & 2001 OF 2007 15 If there is no amount payable, the same shall be specifically mentioned on the basis of reasons and figures to be furnished in the decision to be taken and communicated to the third respondent as aforesaid. Writ. Appeal. NO.1971 OF 2007 8. In this case, the appellant Bank challenges Ext.P11 and seeks a direction to consider and pass orders on Ext.P7. According to the appellant Bank, it has paid the entire pension contribution in terms of the Kerala Co-Operative Societies Employees Self-Financing Pension Scheme, 1994. There is a demand for a further sum as pension contribution due to Shri N. Krishnan who is the third respondent in the other Writ Appeal which we are disposing of by this common Judgment. There is reference to demand for further contribution by Ext.P6 notice. Appellant filed Ext.P7 objection. There is a demand for further additional amount and accordingly the Writ Petition was filed by the appellant. The learned Single Judge directed the first respondent to consider Ext.P7 after hearing the appellant and the WA.NOS.1971 & 2001 OF 2007 16 second respondent. This was, however, subject to certain conditions. The appellant was to pay Rs.51,626/= made mention of in Ext.R1(a) to the first respondent under protest. The above remittance was made subject to the fresh orders to be passed on Ext.P7. There was a further direction to pay off the benefits due to the additional respondent under Exts.P11 and P14 within two months of receipt of the Judgment. Ext.P7 objection was to be considered and there was a further direction that all the monetary benefits which become due on account of the decision was to be released to him within one month of receiving copy of the Judgment. 9. We have already quashed Ext.P14 as indicated. In such circumstances, Writ Appeal No.1971 of 2007 is disposed of directing the first respondent to consider Ext.P7 after hearing the appellant and third respondent, subject to the condition, however, that the appellant will pay the sum demanded in Ext.R1(a) under protest within a period of one month of the appellant receiving a copy of this Judgment. We make it clear WA.NOS.1971 & 2001 OF 2007 17 that this will be subject to the final orders to be passed on Ext.P7 by the first respondent. The first respondent will dispose of the matter within two months of the appellant paying Rs.51,626/= (Rupees Fiftyone Thousand, Six Hundred & Twentysix) as aforesaid. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge