IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 11TH DECEMBER 2009 / 20TH AGRAHAYANA 1931 WP(C).No. 16033 of 2005(H) -------------------------- PETITIONER(S): ------------------ C.I. ASHOKAN, ASSISTANT ENGINEER (RETD.), CHALIYATH HOUSE, KURKKENCHERRY P.O., THRISSUR. BY ADV. SMT.REKHA VASUDEVAN RESPONDENT(S): -------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY,LOCAL SELF GOVERNMENT (A) DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF URBAN AFFAIRS, THIRUVANANTHAPURAM. 3. THE THRISSUR CORPORATION ELECTRICITY DEPARTMENT, REPRESENTED BY THE ASSISTANT SECRETARY, THRISSUR CORPORATION,THRISSUR ADV. SRI.K.B.MOHANDAS,SC,THRISSUR CORPORATIO FOR R3 SRI.LELLULAL T.G.THUNDATHIL FOR R3 SRI.K.A.SREEJITH FOR R3 GOVERNMENT PLEADER SRI.ANOTNY MUKATH FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO. 16033/05 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF the ORDER DT 19.1.70 ISSUED BY THE 1ST RESPONDENT. EXT.P2: TRUE COPY OF THE ORDER DT 17.6.88 ISSUED BY THE K.S.E.B. EXT.P3: TRUE COPY OF THE ORDER DT 12.4.96 ISSUED BY THE 2ND RESPONDENT. EXT.P4: TRUE COPY OF THE ORDER DT 13.8.97 ISSUED BY THE 2ND RESPONDENT. EXT.P5: TRUE COPY OF THE PETITION DT 22.8.88 BEFORE THE 2ND RESPONDENT. EXT.P6: TRUE COPY OF EMPLOYMENT CERTIFICATE OF P.S.GOPI. EXT.P7: TRUE COPY OF EMPLOYMENT CERTIFICATE OF THE PETITIONER DATED 17.7.2000. EXT.P8: TRUE COPY OF THE ORDER DT 26.8.02 ISSUED BY THE 2ND RESPONDENT. EXT.P9: TRUE COPY OF THE ORDER NO.320/92 DT 31.7.92 ISSUED BY THE KSEB. EXT.P10: TRUE COPY OF THE PETITION DT 6.5.04 FILED BEFORE THE 1ST RESPONDENT. EXT.P11: TRUE COPY OF THE JUDGMENT DATED 18TH JUNE 2004 IN OP 29516 OF 2002. EXT.P12: TRUE COPY OF THE ORDER GO(RT) NO.4672/04/LSGD DT 31.12.04 ISSUED BY THE 1ST RESPONDENT. EXT.P13: TRUE COPY OF THE LETTER NO.L.F.13624/R1/2007 DT 2.1.2008 ISSUED BY THE 2ND RESPONDENT. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 16033 OF 2005 (H) ===================== Dated this the 11th day of December, 2009 J U D G M E N T Petitioner joined service of the 3rd respondent as a First Grade Overseer on 17/8/1972. He was given first grade promotion in 1983. Thereafter, he was promoted as Assistant Engineer in 1985. 2. On 17/6/1988, two juniors of the petitioner viz., Sri.P.S.Gopi and Sri.V.I.Subramanyan who were working in the workmen category were granted grade promotion in the scale of Assistant Engineers. As a result of this, despite the fact that the petitioner had earned promotion to higher post of Assistant Engineer in the Officer category, his juniors who continued in the workmen category started earning higher pay than him. Petitioner sought rectification of the aforesaid anomaly by Ext.P5. There was no response. 3. It is stated that the orders issued by the Kerala State Electricity Board concerning their employees are made applicable to the employees of the 3rd respondent Corporation in its Electrical Wing. While the aforesaid anomaly, the rectification of which was WPC 16033/05 :2 : sought for by the petitioner, was remaining unattended, Ext.P9 Board order was issued by the KSEB rectifying similar anomaly prevailing in the Board. Ext.P9 in so far as it is relevant, reads as under; The Kerala Power Board Engineers' Association has represented that the very first cadre promotion of the Sub Engineer who is directly recruited or appointed to that post by promotion is to the post of Assistant Engineer, which comes under the officers category. The Assistant Engineers thus promoted from the post of Sub Engineer is not entitled to the benefit of liberalised grade promotion scheme applicable to workmen as the rule governing the granting of further grade promotions in their case (after promotion as Assistant Engineers) is the one that pertains to the officers. The Association's contention is that the liberalised grade promotion benefits applicable to Sub Engineer should not be denied after he is promoted to the post of Assistant Engineer on a regular basis on the plea that the Assistant Engineers come under the officers category. As separate grade promotion orders are in existence in the K.S.E.Board for workmen and officers, a peculiar situation of Junior Sub Engineers drawing the scale of pay of Assistant Executive Engineer from an earlier date by virtue of getting 2nd level grade promotions than the date from which the Senior Sub Engineers who happen to get regular promotion as Assistant Engineers and become eligible to draw the scale of pay of Assistant Executive Engineer only from a later date has been brought to the notice of the Board. This is apparently an anomaly because a junior hand will draw higher pay and will continue to occupy position of WPC 16033/05 :3 : lower responsibility, the Board after detailed examination of the matter is pleased to issue the following orders:- Individual cases will be examined and decided on merits and those affected persons whose original recruitment and that to the post of Sub Engineers, will be given the higher scale of pay as personal scale of pay so as to rectify the Senior /Junior pay scale anomaly. The above benefit will not be applicable to the persons who were directly recruited at the level of Assistant Engineers, irrespective of whether such persons are drawing lesser pay than those of their juniors whose original recruitment had been the level of Sub Engineers or below. 4. Petitioner approached the 3rd respondent claiming the benefit of Ext.P9. As no response was forthcoming, he approached this Court by filing OP No.29516/2002. That Original Petition was disposed of by Ext.P11 judgment directing the 1st respondent to consider the claim of the petitioner duly adverting to Ext.P9. Accordingly, the matter was considered and Ext.P12 order was issued. Although the claim of the petitioner for the benefit of second and third higher grades which were applicable only for employees in the workmen category was turned down, it is stated in Ext.P12 that the contention of the petitioner that he was drawing lesser pay than his aforesaid juniors, deserves consideration. On this basis, the 1st respondent passed the WPC 16033/05 :4 : following order: In the circumstances, the Ext.P12 representation dated 6.5.2004 of Shri.Asokan is disposed of rejecting the request for grade promotion for 18 and 25 years of service. The Director of Urban Affairs will examine the contention regarding the Senior/Junior anomaly in pay fixation mentioned in the petition afresh in consultation with Local fund Audit Department and furnish appropriate proposal to Government within 3 months. Since then there has not been any progress in the matter and therefore, the writ petition is filed. 5. Counter affidavit has been filed by the 1st respondent. In the counter affidavit, what they say is that the benefit of second and third higher grades are available only to employees in the workmen category and those in the managerial category are eligible to get only one higher grade, which the petitioner has already been granted way back in 1983. It is stated that there is no anomaly to be rectified. 6. Therefore, in essence, what is contended is that unless there is an anomaly among employees within the managerial category, petitioner cannot seek its rectification and that so long as the aforesaid juniors are in the workmen category, there cannot be a comparison or anomaly to be rectified. Proceeding WPC 16033/05 :5 : further, it is stated that though as directed by the Government in Ext.P12, the matter was taken up with the Deputy Director, Local Audit, it was impossible to rectify the anomaly as per the available Government orders. 7. To put it in a nutshell, the contention of the respondents is that an anomaly can be rectified only if it is vis-a- vis another employee in the managerial category. In my view,this approach is erroneous. A reading of the extracted portion of Ext.P9 Board order itself show that the anomaly noticed therein is between a Sub Engineer in the Workmen category and an Assistant Executive Engineer in the managerial category. It is this anomaly which is sought to be rectified in Ext.P9 by appropriate orders. This precisely is what the petitioner is seeking. There is no case for respondents that Ext.P9 is inapplicable. In such a situation, it is not correct to say that there is no anomaly to be rectified. 8. Similarly, the view taken that there cannot be an anomaly rectification does not appeal to me for the aforesaid reason. This is all the more so for the reason that in Ext.P12, there is a finding by the 1st respondent that there is an anomaly to be WPC 16033/05 :6 : rectified. In view of the above, the petitioner is entitled to succeed. Accordingly, I dispose of this writ petition directing the 2nd respondent to initiate fresh proposal as directed in Ext.P12, in consultation with Local Fund Audit Department and taking into account the observations made herein above. This shall be done, as expeditiously as possible, at any rate within 2 months of production of a copy of this judgment. ANTONY DOMINIC, JUDGE Rp