IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 W.P(C).No. 31590 of 2006(I) -------------------------- PETITIONERS: -------------------- 1. K.V.SREEKUMAR, SENIOR FINANCE OFFICER, OFFICE OF THE CHIEF ENGINEER, PWD(BUILDINGS AND LOCAL WORKS), THIRUVANANTHAPURAM. 2. P.K.JAYARAJAN, SENIOR FINANCE OFFICER, (ON DEPUTATION TO LBS CENTRE FOR SCIENCE AND TECHNOLOGY), THIRUVANANTHAPURAM. 3. K.A.ABRAHAM, SENIOR FINANCE OFFICER, IRRIGATION DEPARTMENT, PUBLIC OFFICER, THIRUVANANTHAPURAM. 4. N.PADMAKUMAR, SENIOR FINANCE OFFICER, OFFICE OF THE CHEIF ENGINEER, PWD(ROADS AND BUILDINGS), THIRUVANANTHAPURAM. 5. K.M.MOHANAN, SENIOR FINANCE OFFICER (ON DEPUTATION), SECRETARY, DISTRICT PANCHAYATH, KOTTAYAM. BY ADV. MR. .N.NANDAKUMARA MENON, SENIOR ADVOCATE ADV. MR. P.K.MANOJKUMAR RESPONDENTS: ----------------------- 1. THE STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. R1 AND R2 BY SPL. GOVERNMENT PLEADER (FINANCE) MR. N. MANJOJ KUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/04/2009, THE COURT ON 21/05/2009 DELIVERED THE FOLLOWING: W.P(C).No. 31590 of 2006(I) APPENDIX PETITIONERS' EXHIBITS: EXT.P1 : THE PHOTOSTAT COPY OF THE SPECIAL RULEW ISSUED BY THE STATE GOVERNMENT G.O.(P)NO.327/91/FIN DATED 01.04.1991. EXT.P2: : THE PHOTOSTAT COPY OF THE REPRESENTATION DATED 03.03.2006 SUBMITTED BY THE PETITIONERS TO THE HONOURABLE CHIEF MINISTER, GOVERNMENT OF KERALA. EXT.P3 : THE PHOTOSTAT COPY OF THE REPRESENTATION DATED 03.03.2006 SUBMITTED BY THE PETITIONERS TO THE PRINCIPAL SECRETARY TO GOVERNMENT, FINANCE DEPT., GOVERNMENT OF KERALA, TRIVANDRUM. EXT.P4 : THE PHOTOSTAT COPY OF THE JUDGMENT DATED 12.08.1987 IN W.A.NO.551/1984 PASSED BY THE HON'BLE HIGH COURT OF KERALA AT EKM. EXT.P5 : THE PHOTOSTAT COPY OF THE JUDGMENT DATED 23.06.2006 IN W.P.(C) 10420 OF 2006 (M) PASSED BY THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM. EXT.P6 : THE PHOTOSTAT COPY OF THE REPRESENTATION DATED 06.07.2006 SUBMITTED BY THE SECOND PETITIONER TO THE PRINCIPAL SECRETARY TO GOVERNMENT. EXT.P7 : THE PHOTOSTAT COPY OF THE GOVERNMENT ORDER NO. 30080/ESTT.B3/2006/FIN DATED 11.10.2006 ISSUED BY THE GOVERNMENT TO THE SECOND PETITIONER. EXT.P8 : THE PHOTOSTAT COPY OF THE REPORT - THE PAY EQUALIZATION ORDER ISSUED IN THE YEAR 1992 -THE EQUALIZATION COMMITTEE CONSTITUTED BY THE GOVERNMENT. EXT.P9 : THE PHOTOSTAT COPY OF THE LETTER NO. 38888/ESTT. B2/2000/ FIN DATED 01.08.2000 ISSUED BY THE GOVERNMENT. EXT.P10 : THE PHOTOSTAT COPT OF THE GOVERNMENT ORDER G.O.(P) NO. 3/08/H.Edn. DATED 05.01.2008 ISSUED BY THE GOVERNMENT. EXT.P11 : THE PHOTOSTAT COPY OF THE APPLICATION DATED 23.09.2008 SUBMITTED BY THE 4TH PETITIONER TO THE PUBLIC INFORMATION OFFICER, TRIVANDRUM. EXT.P12 : THE PHOTOSTAT COPY OF THE LETTER NO. 74546/INFORMATION 2008/FIN DATED 23.10.2008 ISSUED BY THE ADDITIONAL SECRETARY, TRIVANDRUM TO THE 4TH PETITIONER. EXT.P13 : THE PHOTOSTAT COPY OF THE CHART SHOWING THE RESPECTIVE PAY SCALES OF THE POSTS BY THE 8TH PAY REVISION- ANNEXURE-1. W.P(C).No. 31590 of 2006(I) EXT.P14 : THE PHOTOSTAT COPY OF THE CHART SHOWING THE PRESENT SITUATION OF THE PAY SCALES IN THE VARIOUS POSTS OF THE GENERAL SERVICE AND THE FINANCE SECRETARIAT SERVICE, ANNEXURE -II. EXT.P15 : THE PHOTOSTAT COPY OF THE APPLI ATION DATED 30.08.2008 SUBMITTIED BY THE 4TH PETITIONER TO THE PUBLIC INFORMATION OFFICER, TRIVANDRUM. EXT.P16 : THE PHOTOSTAT COPY OF THE REMINDER SENT BY THE 4TH PETITIONER TO EXT.P15 DATED 13..10.2008. EXT.P17 : THE PHOTOSTAT COPY OF THE LETTER NO. 78981/INFORMATION/ 2008/FIN DATED 14.10.2008 ISSUED BY THE ADDITIONAL SECRETARY, FINANCE DEPARTMENT, TRIVANDRUM TO THE 4TH PETITIONER. EXT.P18 : THE PHOTOSTAT COPY OF THE LETTER NO.55331/ESTT.B3/2006/ FIN. DATED 31.07.2006 ISSUED BY THE GOVERNMENT. EXT.P19 : THE PHOTOSTAT COPY OF THE GOVERNMENT ORDER G.O.(RT) NO. 3587/06/FIN. DATED 11.05.2006 ISSUED BY THE GOVERNMENT. EXT.P20 : THE PHOTOSTAT COPY OF THE RELEVANT PORTIONS OF THE NOTE FILE OF THE PAY REVISION ANOMALY RECTIFICATION CELL. /TRUE COPY/ P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C)No.31590 OF 2006 ......................................................................... Dated this the 21st May, 2009 J U D G M E N T Refusal to place the petitioners, who were working as 'Senior Finance Officers' in the Kerala General Service, having the pre-Revised Pay Scale of Rs.12600-15600/- (as also drawn by the 'Joint Secretaries' in the Finance Department of the Secretariat) in the revised scale of pay provided by the 8th Pay Revision Commission to the Joint Secretaries of the Finance Department in the Secretariat, is the basic issue involved herein. 2. The case of the petitioners is that the post of 'Sr. Finance Officer' under the Kerala General Service is analogous to the post of 'Joint Secretary' of the Finance Department in the Secretariat and that their duties and responsibilities are the same. According to the petitioners both the above categories of posts were having the same pre-revised pay scale of Rs.3900- 5075/-, which was revised as Rs.12600-15600/- on accepting the report of the 7th Pay Revision Commission, and was subsequently W.P.(C)No.31590 OF 2006 2 revised on accepting the recommendations of the 8th Pay Revision Commission. According to the petitioners, the 8th Pay Revision Commission, though revised the Pay Scale attached to the post of Senior Finance Officer (after merging the posts of Finance Officer Gr.I and Sr. Finance Officer as a common category) providing a hike to the pay scale of Rs.20700-26600 (revised pay scale of 'Deputy Secretaries' in the Finance Department, who were actually placed below the pay scale of 'Sr. Finance Officer' till such time), the Joint Secretaries in the Finance Department, were provided with a still higher pay scale, ie. Rs.23200-31150/-. The grievance of the petitioners is that similarly situated persons have been treated unequally and hence that there is violation of the principle of equal pay for equal work as envisaged under Article 39(d) of the Constitution of India. This was sought to be redressed, by providing the pay scale of Rs.23200-31150/- (as payable to the Joint Secretaries of the Finance Department), which request has been turned down as per Ext. P7 order and hence is under challenge in the present W.P.(C)No.31590 OF 2006 3 Writ Petition. 3. The Petitioners No.1 to 4 had earlier approached this Court by filing W.P.(C)10420 of 2006, which led to Ext. P5 judgment, directing the first respondent to cause the grievance of the petitioners raised in the representations considered by the “Pay Revision Anomaly Cell” to be constituted, as submitted from the part of the Government and to pass appropriate orders in accordance with law within the time specified. Pursuant to the said verdict, the second petitioner filed Ext. P6 representation before the second respondent and after considering the relevant facts and figures, the second respondent passed Ext. P7 order, turning down the request, stating that there was absolutely no anomaly in the Pay Revision recommended by the 8th Pay Revision Commission and implemented by the Government, simultaneously pointing out that the pay scales of the 'Sr. Finance Officers' and that of the 'Joint Secretaries' of the Finance Department were never the same even before acceptance of the report of the 8th Pay Revision Commission and further that the W.P.(C)No.31590 OF 2006 4 apprehension of the petitioners that they would be reverted to the lower grade of Finance Officer Gr.I, was quite wrong and unfounded, particularly in view of the fact that the posts of Finance Officer Gr.I and Sr. Finance Officer were merged into a common category, providing appropriate higher scale of pay. It is also mentioned therein that necessary amendment to the Special Rules (Ext.P1 sought to be relied on by the petitioners to sustain their case) would also be made in the due course; besides pointing out that a large number of posts as shown at Page 4 of Ext. P7 having the same Scale of Pay as enjoyed by the petitioners have also been provided with exactly similar revision of pay as given to the petitioners and not that of the post of Joint Secretary of the Finance Department. 4. The petitioners submit that there are four categories of posts in the Kerala General Service as provided under Rule 2 of Ext.P1 Special Rules, such as : i) Financial Assistant; ii) Finance Officer Gr.II; W.P.(C)No.31590 OF 2006 5 iii) Finance Officer Gr..I, iv) Sr. Finance Officer. According to the petitioners, the analogous posts in the Finance Department of the Secretariat are : i) Accounts Officer, ii) Under Secretary; iii) Deputy Secretary; and iv) Joint Secretary. The petitioners contend that the posts in the Kerala General Service could be filled up 'by transfer' from the Officers of the Finance Department in the respective cadres. The petitioners also place reliance on Ext.P4 verdict passed by a Division Bench of this Court, to contend that, since the employees coming from different service are fused into a single unit, there cannot be any discrimination with regard to the salary to the members of the same consolidated group violating the principle of equal pay for equal work. 5. The second respondent has filed a counter affidavit W.P.(C)No.31590 OF 2006 6 seeking to sustain Ext.P7 order, asserting that the idea and understanding of the petitioners as to the alleged analogous status of the posts held by the petitioners as Sr. Finance Officers in the Kerala General Service and that of the Joint Secretaries in the Finance Department are quite wrong and misconceived. The petitioners have filed a reply affidavit, almost reiterating the contentions in the Writ Petition, simultaneously adding in paragraph 4A that the merger of the two posts of Finance Officer Gr.I and Sr. Finance Officer, as suggested by the 8th Pay Revision Commission and its acceptance by the Government is beyond the scope of reference made to the Commission and hence is illegal, arbitrary and unsustainable, being contrary to the Special Rules . However, the fact remains that the said Government Order, G.O(P)No.145/06/Fin dated 25.03.2006 (providing for merger), stated as illegal and unsustainable, is not sought to be challenged in the present Writ Petition. 6. During the course of hearing, the learned Sr. Counsel W.P.(C)No.31590 OF 2006 7 appearing for the petitioners referring to the pre-revised scales of the concerned posts in the Kerala General Service and the concerned posts in the Finance Department of the Secretariat, asserted that the duties and responsibilities being the same, there was no rhyme or reason in denying the revised pay scale of the Joint Secretaries of the Finance Department in the Secretariat to the petitioners, who were drawing pay in the identical pre-revised scale as drawn by the Joint Secretaries in the Finance Department of the Secretariat. The learned counsel also placed reliance on the decisions rendered by the Apex Court in K.T. Veerappa and others vs. State of Karnataka and others [(2006)9 SCC 406] , Union of India vs. Dineshan K.K. [(2008) 1 SCC 586] and in State of Kerala vs. Renjit Kumar ([2008(3) KLT 33 (SC)] in support of the contentions of the petitioners. 7. The learned Special Government Pleader (Finance) appearing on behalf of the respondents, with specific reference to the contents of Ext.P7 and the counter affidavit filed asserts W.P.(C)No.31590 OF 2006 8 that the plea of the petitioners that they were enjoying the “same pre-revised scale of pay” as that of the Joint Secretaries of the Finance Department, is not at all correct or proper. It is further stated that there was substantial difference between the scales of pay applicable to the post of Sr. Finance Officers like the petitioners in the Kerala General Service and that of the Joint Secretaries in the Finance Department of the Secretariat even before the 8th Pay Revision Commission (paragraph No.4) and that the posts of Senior Finance Officer and Joint Secretary cannot be equated for having distinct duties and responsibilities (paragraph Nos. 4,8,10,11,12 and 13 and elsewhere). It is also stated that Ext.P4 judgment sought to be relied on by the petitioners is not at all applicable to the case in hand, in view of the black and white difference with regard to the facts involved. 8. Referring to the subsequent proceedings filed by the petitioners by way of different I.As, the learned Sr. Counsel for the petitioners submits that the second respondent has not applied his mind while passing Ext.P7 order, particularly for the W.P.(C)No.31590 OF 2006 9 reason that the materials relied on by the Pay Revision Commission were not forwarded to be considered by the second respondent while passing the impugned order. Reliance is also placed on some information, stated as obtained by the petitioners on filing necessary applications before the concerned authorities under the Right to Information Act (Exts.P12, P15, P19, P20 etc.). 9. The learned Spl. Government Pleader(Finance), referring to relevant file, submits that Ext.P7 order has been passed by the second respondent after taking note of all the relevant facts and figures, which were available from the report of the 8th Pay Revision Commission, accepted and implemented as per the Government Order, G.O.(P)No. 145/06/Fin dated 25.03.2006 and that the representations submitted by the persons aggrieved were considered, analysed and appreciated in the light of relevant materials on record. The learned Spl. Government Pleader also placed a full text of the Report of the 8th Pay Revision Commission, Government Order-G.O(P)No.145/2006/Fin W.P.(C)No.31590 OF 2006 10 dated 25.03.2006 and also the relevant File for perusal of this Court. 10. The first question to be considered is whether the statement made by the petitioners that the 'Sr. Finance Officers' in the Kerala General Service and 'Joint Secretaries' in the Finance Department of the Secretariat were having identical scales of pay and that their duties and responsibilities were the same, is correct or not. The petitioners have given a 'Flow Chart' of the concerned posts in the Kerala General Service and Finance Department of the Secretariat, showing the scales of pay before the 8th Pay Revision Commission as Ext.'P13' and the posts available after the 8th Pay Revision Commission as Ext. 'P14'. In Ext.P13, the pre-revised scales of pay of both the posts of Sr. Finance Officer and that of the Joint Secretary is shown as one and the same, i.e., Rs.12600-15600 and that of the immediate lower post of Finance Officer Gr.I and that of the Deputy Secretary having the identical scale of pay as Rs.10,000- 15150. It is for this reason that the petitioners contend that, W.P.(C)No.31590 OF 2006 11 after the 8th Pay Revision Commission, the similar hike as given to the Joint Secretary providing the Scale of Pay of Rs.23200- 31150/- should have been given to the petitioners as well, instead of merging the lower post of Finance Officer Gr.I with that of Sr. Finance Officer and providing a scale of pay of Rs. 20,700-26,600/- as in the case of the Deputy Secretary of the Finance Department. 11. Even though the contention of the petitioners may, at first blush, appear to be of some force, when analysed using a magnifying glass, there is no difficulty to note that the scale of pay of the post of 'Joint Secretary' in the Finance Department was never the same as in the case of the Sr. Finance Officer. When the 'Sr. Finance Officers' like the petitioners were having the pre-revised scale of pay of Rs.12600-15600/-, the pay scale of the 'Joint Secretary' in the Finance Department of the Secretariat was Rs. 12600-15600 + “Rs.200/- in lieu of higher time scale”. The above figures and words, i.e., “ +Rs. 200 in lieu of higher time scale” are seen omitted in Ext.P13 Flow W.P.(C)No.31590 OF 2006 12 Chart given by the petitioners. 12. It is very much relevant to note that the additional sum of Rs.200/-, admittedly being provided to the Joint Secretaries in the Finance Department of the Secretariat even in the pre-revised scale was “in lieu of higher time scale”. In other words, even before the 8th Pay Revision Commission, the authorities were well aware that the post of Joint Secretary deserved to be granted a still higher scale and it was in that circumstance, an additional sum of Rs.200/- was provided for the time being, as an interim/substituted arrangement. The provision for granting such additional amount of R.200/- ' in lieu of higher time scale' to the post of Joint Secretary, had never been questioned by the petitioners at any point of time, nor had they put forth any such claim stating that they were doing the very same job with the same responsibilities and financial powers as in the case of the Joint Secretaries. When the petitioners contend that Ext.P4 judgment is applicable to them, it has also to be noted that no such case was ever mooted by W.P.(C)No.31590 OF 2006 13 the petitioners claiming for the above special pay of Rs.200/- as payable exclusively to the post of Joint Secretary (in lieu higher time scale), which clearly shows that the petitioners were very well aware that the post of Joint Secretary was being treated as placed on a different pedestal. 13. The statement of the petitioners under Ground 'H' of the Writ Petition that the duties and responsibilities and powers of the Finance Officers in the Kerala General Service are the same as that of the Officers of the Finance Department, has been specifically rebutted by the respondents at more than one place in the counter affidavit (paragraph Nos. 4, 8,11,12 and 13) reiterating that the duties, responsibilities and powers of the Finance Officers of the Kerala General Service and those of the Joint Secretaries in the Finance Department are different and distinct and that the posts cannot be equated with each other under any circumstances. Referring to the circumstances under which the additional sum of Rs.200/- was being granted as 'special pay' to the Joint Secretaries in the Finance W.P.(C)No.31590 OF 2006 14 Department, in lieu of higher time scale, even in the pre-revised pay scale of Rs.12600-15600/-, it has been pointed out in the counter affidavit of the second respondent that in the present Pay Revision Order after the 8 th Pay Revision Commission, the payment of Special Pay, “in lieu of higher time scale” to the post of Joint Secretary in the Finance Department has been dispensed with and instead of, they have been allowed proper higher time scale of pay, taking into account their status and nature of work in the parent department and hence that there is no anomaly at all. In so far as the petitioners do not have a case that the Joint Secretaries of the Finance Department were not entitled to have the benefit of Rs.200/- as 'Special Pay' in lieu of higher time scale in the pre-revised scale, they cannot be heard to say that granting of proper higher time scale, dispensing with the Special Pay, as recommended by the 8th Pay Revision Commission, is not correct or sustainable. 14. The second respondent has pointed out in paragraph No.5 of the counter affidavit that the posts in the Secretariat W.P.(C)No.31590 OF 2006 15 hierarchy do not come under the “Common Category” included in the “Schedule of Posts and Scale of Pay” of the Pay Revision Orders issued in G.O(P) NO.145/2006/Fin dated 25.03.2006 and hence that in the “Schedule of Posts and Scales of Pay” of line departments, the scale of pay of the posts of Finance Officer and Administrative Officer of the particular department is not specifically indicated and instead of the scale, the expression “As in PD” is shown, which means , the incumbent holding the post will be eligible for the scale he is enjoying in his Parent Department . This being the position, when a Joint Secretary is posted as Finance Officer/Administrative Officer, he will be eligible for what he would have drawn, had he continued in the Secretariat service, i.e., Parent Department and similarly, if a Sr .Finance Officer belonging to the General Service is posted, he will draw what he is eligible under the 'Common Category'. As it stands so, there is absolutely no pith or substance in the contention raised by the petitioners, seeking for similar scale as payable to the post of Joint Secretary, merely for the fact that W.P.(C)No.31590 OF 2006 16 the post of Sr. Finance Officer (now re-designated as Finance Officer after the merger) in the Kerala General Service can be filled up 'by transfer' from the cadre of Joint Secretary of the Finance Department. 15. It has been explained by the second respondent in the counter affidavit that there is absolutely no basis for the allegation raised by the petitioners that steps are being taken to post them as Finance Officer Gr.I, particularly in view of the fact that the post of Finance Officer Gr.I does not exist after 01.07.2004 and that all the ten posts of Finance Officer Gr.I stand re-designated as the post of Senior Finance Officer w.e.f. 01.07.2004 (paragraph No.7). It is the case of the respondents that even prior to the Pay Revision, 2004, 1/3rd of the post of Finance Officer Gr. I, belonging to the General Service were placed in the Higher Grade of Sr. Finance Officer as introduced w.e.f. 16.09.1985. The 8th Pay Revision Commission, after considering all the related aspects, has consciously recommended some improvements for the over all promotional aspects of the W.P.(C)No.31590 OF 2006 17 Finance Officers and accordingly, the remaining 2/3rd Finance Officers Gr.I were also upgraded and merged to the Higher Grade, viz., the Sr. Finance Officer and hence that there is no question of any down-gradation of the Sr. Finance Officer, but for change in the name as Finance Officer (after the merger of the Finance Officer Gr.I and the Sr. Finance Officer pursuant to the upgradation of the remaining 2/3rd of the former posts) and the net result is only that all the Finance Officers Grade I could reach the level of Sr. Finance Officers who altogether have been placed in appropriate higher scale of pay. 16. Even though the claim put forth by the petitioners can be negated on the basis of black and white difference in the factual position with regard to the actual scale of pay payable to the cadre of Finance Officer and that of the Joint Secretary of the Finance Department, as discussed above, this Court has considered Ext.P4 verdict passed by a Division Bench of this Court and also the decisions rendered by the Apex Court cited and relied on by the petitioners. Ext.P4 verdict shows W.P.(C)No.31590 OF 2006 18 that in the case of the petitioners/appellants therein they were denied the benefit of Special Pay as given to their counter parts drawn from the Secretariat service. The justification stated by the Government/Department was that in the case of the latter, who came from the Secretariat were not having any independent charge or decision making power and that when they were transferred to the Kerala General Service, they had to en- shoulder the additional duties and responsibilities, which was sought to be compensated by giving Special Pay. At the same time, it was admitted that there was absolutely no difference with regard to the nature of the duties, functions and responsibilities being undertaken and performed by such category of people brought in from the Secretariat, under which circumstance, it was held by the Division Bench of this Court, as per Ext.P4 verdict that there was no justification in denying the benefit of Special Pay to the persons working in the Kerala General Service as payable to the counter parts, who came from the Secretariat service, when it was admitted that both the groups were W.P.(C)No.31590 OF 2006 19 discharging the same duties and responsibilities and hence the State will not be justified in granting Special Pay to a particular group of them, depending on the source from which they were drawn. Quite obviously, it is not the position with respect to the case in hand, where the post of Joint Secretary of the Secretariat Department and the post of Sr. Finance Officer in the Kerala General Service as held by the petitioners, were being dealt with separately, even prior to the 8th Pay Revision Commission, the former having already been provided with the Special Pay of Rs.200/- in lieu of higher pay scale, which was never questioned or claimed by the petitioners all these years. It is only on providing appropriate higher scale to the