IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 WP(C).No. 4209 of 2005(A) ------------------------- PETITIONER(S): --------------- K.G.GOPALAKRISHNAN NAIR, ASSISTANT MANAGER, TRAVANCORE DEVASWOM BOARD PRESS, THIRUVANANTHAPURAM. BY ADV. SRI.KRB.KAIMAL (SR.) SRI.B.UNNIKRISHNA KAIMAL RESPONDENT(S): --------------- THE TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY. ADV. SRI.P.G.PARAMESWARA PANICKER,SC, TDB SRI.K.N.VENUGOPALA PANICKER, SC, TDB FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/12/2008, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 4209/2005 ------------------------------------------------------------------- EXT.P1 TRUE COPY OF ANNEXURE-II TO ORDER DT. 1-3-1999. EXT.P2 RELEVANT PORTION OF TRAVANCORE DEVASWOM BOARD MANUAL VOL-I. EXT.P3 REPRESENTATION DT. 5-3-2004. EXT.P4 ORDER DT. 8-2-2002. EXT.P5 ORDER DT. 30-12-2004. EXT.P6 REPRESENTATION DT. 28-12-2007. EXT.P7 RELEVANT PORTION OF ANNEXURE-II DT. 25-11-1998. EXT.P7(a) RELEVANT PORTION OF PARA 63 OF ORDER DT. 25-11-1998. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 4209 of 2005 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 3rd December, 2008. J U D G M E N T Petitioner is the only Assistant Manager of the Devaswom Board Printing Press of the Travancore Devaswom Board at Thiruvananthapuram. Although, the petitioner is designated as Assistant Manager, there is no post of Manager. He is in charge of the Devaswom Board Press at Thiruvananthapuram. There is nobody else above him in the Printing Press. His grievance is that he has been denied eligible scale of pay in the Pay Revision Orders with effect from 1-3-1997 and 1-7-2004. He is a graduate with diploma in Printing Technology. Applications were invited by the Board for direct recruitment to the post of Assistant Manager in 1984. The qualifications prescribed were graduation with diploma in Printing Technology and experience in printing. The petitioner was selected and appointed, pursuant to which he joined duty on 30-5-1984. At the time of joining, his scale of pay was Rs. 520-900. The posts of Junior Superintendent, Special Grade Sub Group Officer and Assistant Public Relations Officer also carried the same scale of pay at that time. In tune with the revision of pay of employees of the Government of Kerala, scales of pay of employees of the Travancore Devaswom Board were also revised with effect from 16-9-1985. The scale of pay of the post of Assistant Manager, Junior Superintendent, Special Grade Sub Group Officer and Assistant P.R.O were revised as Rs. 950-1640. Again, when the scales of pay of State Government employees were revised with effect from 1-7-1988, the scales of pay of the above posts in the Travancore Devaswom Board were also revised as Rs. 1220- 2150. With effect from 1-3-1992, consequent to revision of scales of pay of the Government employees, scales of pay of the above posts in the Travancore Devaswom Board were also revised to Rs. 1520-2660. As such, for about more than 15 years, all these posts were treated as W.P.C. No. 4209/05 -: 2 :- equated categories of posts carrying the same scale of pay. The scales of pay of employees of the Government of Kerala were revised with effect from 1-3-1997. Correspondingly, the scales of pay of employees of the Travancore Devaswom Board were also revised. But in that pay revision, the Devaswom Board sought to differentiate between the Assistant Manager on the one hand and Junior Superintends, Special Grade Sub Group Officer and Assistant Public Relations Officer on the other, in the matter of revision of scales of pay. The Junior Superintendents, Special Grade Sub Group Officer and Assistant Public Relations Officer were granted the scale of pay of Rs. 5500-9075, whereas the scale of pay of Assistant Manager was revised to Rs. 5000-8150. Pointing out this anomaly, the petitioner filed several representations. Ultimately, the petitioner filed Ext. P3 representation dated 5-3-2004, in which he also pointed out that the scale of pay of Draftsman (Architecture Grade I) which was originally revised as Rs. 5000-8150 was later on revised by Ext. P4 special order as Rs. 6675-10550 by Ext. P4. The Board considered Ext. P3 representation filed by the petitioner and rejected the same by Ext. P5 on the basis of remarks of the Finance and Accounts Officer to the effect that Junior Superintendent was given a scale of pay of Rs. 5500- 9075 considering their additional responsibility in job and nature of work and that the pay scale sanctioned to Fair Copy Superintendent, Draftsman and Assistant Manager, Devaswom Board Press was revised as Rs. 5000-8150 on the basis of corresponding scale of pay of Rs. 1520-2660 in 1992 Pay Revision Orders. The petitioner is challenging Ext. P5 order in this writ petition. 2. The petitioner raises several contentions. First is that there is no rationale in differentiating between Assistant Manager of the Devaswom Press on the one hand and Junior Superintendent, Special W.P.C. No. 4209/05 -: 3 :- Grade Sub Group Officer and Assistant Public Relations Officer on the other, which were hitherto treated as equivalent posts in the matter of scale of pay. According to the petitioner, the post of Assistant Manager carries more onerous responsibilities than that of the Junior Superintendent. Assistant Manager is the Head of the Printing Press and he is in overall control of all employees of the press. He is directly recruited with higher qualifications, whereas Junior Superintendents in the service of the Travancore Devaswom Board are originally recruited only as Sub Group Officer and get promoted as Junior Superintendents. They are under the control of the Assistant Devaswom Commissioner and they have far less managerial functions than the Assistant Managers. Therefore, even though the Assistant Manager's post is a superior post considering the duties and functions than that of the Junior Superintendent and other posts, the post of Assistant Manager has been given a lesser scale of pay than Junior Superintendent. Further, after decades of parity given to the two posts, suddenly in the pay revision in the year 1997 onwards, a differentiation has been created without support from any acceptable materials. Secondly, the petitioner would contend that the Board has not applied their mind while passing Ext. P5 order. They have not independently considered the question of necessity for equation of the two posts for deciding the scale of pay on revision of pay. Simply on the basis of the remarks made by the Finance and Accounts Officer that the Junior Superintendents have additional responsibility in job and nature of work, they have been given a higher scale of pay, which itself is not supported by any material on record. The petitioner also points out that the reasons stated in the counter affidavit are totally different from those stated in Ext. P5. In the counter affidavit, they simply state that they have only followed the State Government scales W.P.C. No. 4209/05 -: 4 :- of pay in the matter of giving corresponding scales of pay to the employees of the Board, which also is wrong on the face of the pay revision for for State Government employees. 3. Although a counter affidavit has been filed by the Board, the reason mentioned in Ext. P5 is not reflected in the same. The only reason mentioned in the counter affidavit is that the Board has assigned scales of pay on pay revision only in accordance with the pay revision made by the Government. Of course, while advancing arguments, counsel for the Board would further contend that in respect of Fair Copy Superintendent, who also formerly held a scale of pay of Rs. 1520-2660, also had been granted only the scale of pay of Rs. 5000-8150, which is the same as that of the Assistant Manager. 4. I have considered the rival contentions in detail. 5. The power of Court to interfere with the issues relating to pay revision has been recently considered by the Supreme Court in the decision of Union of India v. Dineshan K.K., (2008) 1 SCC 586, in which the Supreme Court held thus in paragraphs 12 and 13: “12. The principle of “equal pay for equal work” has been considered, explained and applied in a catena of decisions of this Court. The doctrine of “equal pay for equal work” was originally propounded as part of the directive principles of the State policy in Article 39(d) of the Constitution. In Randhir Singh v. Union of India, (1982) 1 SCC 630, a Bench of three learned Judges of this Court had observed that principle of equal pay for equal work is not a mere demagogic slogan but a constitutional goal, capable of being attained through constitutional remedies and held that this principle had to be read under Articles 14 and 16 of the Constitution. This decision was affirmed by a Constitution Bench of this Court in D.S. Nakara v. Union of India, (1983) 1 SCC 305. Thus, having regard to the constitutional mandate of equality and inhibition against discrimination in Articles 14 and 16, in service jurisprudence, the doctrine of “equal pay for equal work” has assumed status of a fundamental right. 13. Initially, particularly in the early eighties, the said principle was being applied as an absolute rule but realising its W.P.C. No. 4209/05 -: 5 :- cascading effect on other cadres, in subsequent decisions of this Court , a note of caution was sounded that the principle of equal pay for equal work had no mathematical application in every case of similar work. It has been observed that equation of posts and equation of pay structure being complex matters are generally left to the executive and expert bodies like the Pay Commission, etc. It has been emphasised that a carefully evolved pay structure ought not to be ordinarily disturbed by the court as it may upset the balance and cause avoidable ripples in other cadres as well. (Vide Secy. Finance Deptt. v. W.B. Registration Service Assn., (1993) Supp (1) SCC 153 and State of Haryana v Haryana Civil Secretariat Personal Staff Assn, (2002) 6 SCC 72). Nevertheless, it will not be correct to lay down as an absolute rule that merely because determination and granting of pay scales is the prerogative of the executive, the court has no jurisdiction to examine any pay structure and an aggrieved employee has no remedy if he is unjustly treated by arbitrary State action or inaction, except to go on knocking at the doors of the executive or the legislature, as is sought to be canvassed on behalf of the appellants. Undoubtedly, when there is no dispute with regard to the qualifications, duties and responsibilities of the persons holding identical posts or ranks but they are treated differently merely because they belong to different departments or the basis for classification of posts is ex facie irrational, arbitrary or unjust, it is open to the court to intervene.” (Emphasis supplied) 5. Earlier in the decision of K.T. Veerappa and others v. State of Karnataka and others , (2006) 9 SCC 406, also the Supreme Court considered the jurisdiction of the Courts i such matters. In paragraph 13 of that decision, the Supreme Court held thus: “13. He next contended that fixation of pay and parity in duties is the function of the executive and financial capacity of the Government and the priority given to different types of posts under the prevailing policies of the Government are also relevant factors. In support of this contention, he has placed reliance on State of Haryana v. Haryana Civil Secretariat Personal Staff Assn, (2002) 6 SCC 72 and Union of India v. S.B. Vohra, (2004) 2 SCC 150. There is no dispute nor can there be any to the principle as settled in State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. that fixation of pay and determination of parity in duties is the function of the executive and the scope of judicial W.P.C. No. 4209/05 -: 6 :- review of administrative decision in this regard is very limited. However, it is also equally well settled that the courts should interfere with administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors.” (Emphasis supplied) 6. In view of those decisions, this Court would be justified in considering whether there is any rationale in the matter of differentiating between Assistant Manager and Junior Superintendent, who have all along been considered on par in the matter of scale of pay for more than 15 years. 7. In the extract from Travancore Devaswom Board Manual produced by the petitioner as Ext. P2, the duties and functions of Assistant Manager and Junior Superintendent are separately given. The duties and functions of Assistant Manager of the Devaswom Board Press are as follows: “1. The Assistant Manager shall be responsible for running the press and will be the controlling officer of all the employees of the press. 2. All the employees should work as per his directions and under his supervision. 3. Leave applications and other representations, if any, of any employee should be given to the Assistant Manager and he shall deal with it as per rules. All leave except casual leave has to be forwarded to the Director for Cultural Affairs with the opinion of the Asst. Manager for disposal. 4. The Asst. Manager will maintain an attendance register for the regular employees and another one for casual workers. 5. The salary and allowances of the staff of the press shall be drawn and disbursed by the Director of Cultural Affairs. The bills of the same shall be duly prepared and presented to the Director, Cultural affairs by the Asst. Manager. W.P.C. No. 4209/05 -: 7 :- 6. The printing work will be decided and controlled by the Director, Cultural Affairs.” The duties and functions of Junior Superintendents in Assistant Devaswom Commissioner's Officers are as follows: “1. The junior superintendents shall conduct administrative inspection of all major, minor, petty and PD Devaswoms and also in the other institutions within the jurisdiction of the concerned Assistant Devaswom Commisioner. He shall supervise and arrange to collect and dispose of in auction the coconuts and other usufructs from all the devaswom lands within the groups in time as per the direction of the Assistant Devaswom Commissioner. The Junior Superintendent shall also be responsible for the proper and effective conduct of work in the group office and also shall bring to the notice of the Assistant Commissioner the laxity shown by any member of group office staff. He shall forward monthly statements showing the details of works turned out by him with regard to the inspection conducted by him and also the details regarding the collection and disposal of coconuts and other usufructs, to the Devaswom Commissioner through the Asst. Devaswom Commissioner. 2. It is their duty to see that papers received in the group office are distributed to different sections in his office and that no delay is caused in taking action. Before distributing the Tapal the junior superintendent should go through the papers and make papers on which immediate action has to be taken. He will keep a note in his personnel note book of important communications requiring prompt action or on which action is to be completed by a specific date. He should constantly examine the matters pending with his subordinate officers and will see that they do not delay them. It is his duty to ensure that no delay occurs and that no paper is shelved by his subordinates. 3. In the absence of Assistant Devaswom Commissioner, the junior superintendent will be responsible to manage the office and exercise the duties assigned to the Assistant Devaswom Commissioner. If the junior superintendent is also absent on any account, the head clerk of the Assistant Commissioner's office will attend to all the duties of junior superintendent and Assistant Devaswom Commissioner in the office. 4. However, in major Devaswom where administrative officer is in charge it is the duty of the Assistant Commissioner to collect and dispose of in auction coconuts and other usufructs from the Devaswom lands. W.P.C. No. 4209/05 -: 8 :- 5. The Junior Superintendent of Assistant Devaswom Commissioner's office will also be responsible for preparation and submission of monthly accounts in time. He shall supervise the furnishing of replies to the Audit notes including High Court Audit notes.” From the same, it is clear that the post of Assistant Manager is a singular post and he is the Head of the Devaswom Board Press and he has absolute administrative and supervisory control over the entire staff of the Press. On the other hand, Junior Superintendents in the Devaswom Board Commissioner's Office are not only many in number but are also subordinate officers under the Assistant Devaswom Commissioner. Their administrative and supervisory functions are far less than that of the Assistant Manager. It is also not disputed before me that Assistant Manager's post is filled up by direct recruitment, whereas Junior Superintendents attain the position by promotion from the lowest rank with lesser prescribed qualifications than that for Assistant Manager. That being so, I do not find any justification in the reason mentioned in Ext. P5. Further, ever since 1980's up to 1997, the Devaswom Board themselves found it necessary to equate the post of Assistant Manager with Junior Superintendent. Absolutely, no material whatsoever has been placed before me to take a different view in the matter of parity in scale of pay between the two from 1997 onwards. The contention in the counter affidavit that the Board was simply following the scales of pay granted by the Government to its employees also does not hold water, in so far as although the post of Junior Superintendent is available in Government service, no post of Assistant Manager is available in the Government Presses. On the other hand, in Ext. P7, which is Annexure II in the Pay Revision Order for Junior Superintendent and equated post like Manager whose scale of pay prior to revision was Rs. 1520-2660 was W.P.C. No. 4209/05 -: 9 :- revised as Rs. 5500-9075. As already stated, for more than one and a half decades, the Board considered the post of Assistant Manager on par with that of Junior Superintendent. When for the Government servants, for Junior Superintendent and equated post, scale of pay of Rs. 5500-9075 has been given, it is beyond comprehension as to why the post of Assistant Manager, which the Devaswom Board themselves equated with that the Junior Superintendent till 1997 is suddenly given a lesser scale of pay of Rs. 5000-8150. In Ext. P7(a) which is the extract from the Pay Revision Order of 1997, in Government Presses there is no post of Assistant Manager. There is a post of Assistant Superintendent which carries the scale of pay of Rs. 6675-10550. The Board does not appear to have taken the trouble of considering whether any post prescribed in Ext. P7(a) is equivalent to the post of Assistant Manager in the Travancore Devaswom Board Press. From Ext. P5, it is more than evident that the Board has not independently considered the question of equation of the two posts. The Board has blindly gone by the remarks given by the Finance and Accounts Officer, which is not what is expected of them. The explanation given by the counsel for the Board is that because the Finance and Accounts Officer is more conversant with the matter, the opinion of the Finance and Accounts officer was adopted by the Board. I am of opinion that, that itself shows that the Board has not done it properly. I am also of opinion that the Board themselves should be more conversant with the duties and responsibilities of the various posts under it than the Finance and Accounts Officer.. In fact, going by Section 35 (2e) and Section 122 of the Travancore Cochin Hindu Religious Institutions Act, which governs the Travancore Devaswom Board, the power of deciding the scales of pay of employees lies exclusively with the Board. As such, by Ext. P5, the W.P.C. No. 4209/05 -: 10 :- Board had abdicated their powers by merely adopting the opinion of the Finance and Accounts officer. For all these reasons, I am of opinion that Ext. P5 is liable to be quashed. I do so. 8. In this connection, I also note the Division Bench decision of this Court in O.P.No. 8947/2003. This Court had considered a similar issue in which in the matter of revision of scales of pay, the Industrial Tribunals in the State who were formerly equated with the District Judges in the judiciary was given a lesser scale of pay in the 1997 pay revision. This court, in paragraph 7 of that judgment held thus: “It is the admitted position that the District Judges and the Presiding Officers were placed in identical pay scales till the revision in the year 1998. The fact that the officers in the two cadres were treated at par indicates that they are equal. Even otherwise, it is not disputed that the officers who preside over the Labour Court and those manning the Industrial Tribunals decide disputes under the Industrial Disputes Act 1947. There is no qualitative or quantitative difference in the nature of functions or duties attached to the categories of posts. This parity having been recognised for more than 30 years, the mere fact that the Constitution refers to the appointment of District Judges alone cannot, by itself, be a good ground for treating them differently. Even the presiding Officers of Industrial Tribunals are not outside the ambit of the Constitution. The protection of rules framed under Article 309 as also Article 311 is available to them. The mere fact that they are not appointed on the recommendation of the High Court or that they are not under the control of this Court cannot, by itself, be a good ground for a differential treatment. Having been treated equally, the disparity can be made only for good reason. In any case, the difference between the two, as now pointed out, had existed from the year 1968 to 1998. If this difference did not furnish an adequate ground for treating them differently over a period of 30 years, it cannot be treated as sufficient to uphold the differential treatment at this stage.” I am of opinion that the observations therein are equally applicable to this case also. In the above circumstances, the Board is directed to re-consider the issue of revision of scale of pay of the post of Assistant Manager W.P.C. No. 4209/05 -: 11 :- for the Pay Revisions with effect from 1-3-1997 and 1-7-2004, afresh in accordance with the findings and observations contained herein. Fresh orders in this regard shall be passed, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment.. If, ultimately, the Board decides to give the scale of pay of Rs. 5500-9075 to the post of Assistant Manager also, arrears of pay and other benefits due to the petitioner shall be disbursed within a further period of one month therefrom. The writ petition is allowed as above. S. Siri Jagan, Judge. Tds/