IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 WA.No. 2788 of 2009() --------------------- AGAINST THE JUDGEMENT IN WPC.29356/2008 Dated 10/11/2009 .................... APPELLANT/1ST RESPONDENT: -------------- THE BAR COUNCIL OF KERALA REPRESENTED BY ITS SECRETARY, BAR COUNCIL BHAVAN, HIGH COURT CAMPUS, KOCHI-682031. BY ADVS. MR. P.RAVINDRAN, SENIOR ADVOCATE MR. P.DEEPAK MS. APARNA RAJAN RESPONDENTS/PETITIONER/RESPONDENT: --------------- 1. T.D. PARAMESWARAN UNNI, ADVOCATE, FORMERLY, SECRETARY, BAR COUNCIL OF KERALA, RESIDING AT VEERAMANGALATHU MADOM, UDAYAMPEROOR, ERNAKULAM-682307. 2. THE STATE OF KERALA REP. BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. ADVS. MR. T.P.KELU NAMBIAR, SENIOR ADVOCATE FOR R1 MR. P.G.RAJAGOPALAN FOR R1 MR. M.GOPIKRISHNAN NAMBIAR FOR R1 GOVT. PLEADER MR.V.T.K.MOHANAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CR PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- Writ Appeal No.2788 OF 2009 ---------------------------------- Dated this the 23rd day of March, 2010 J U D G M E N T ---------------------- Abdul Rehim,J. The appellant is the Bar Council of Kerala, the 1st respondent in the writ petition. The writ petition is filed by the 1st respondent herein, who is the former Secretary of the Bar Council, whose tenure of service was from 6.4.1981 to 30.11.1998. Writ petition is filed seeking to quash Exts.P4 & Ext.P5, through which claim of the petitioner for enhanced salary with effect from 1.7.1996 till his date of retirement based on G.O.(MS) No:231/01/Home dt:12.12.2001 (hereinafter referred to as G.O.No:231/01) was rejected. In support of such claim the petitioner had placed reliance on decision of the Bar Council, Resolution No:106/1995 dt:27.8.1995 (hereinafter referred to as Resolution No.106/1995) wherein it is resolved that the Secretary of the Bar Council will be paid the scale of pay of District Judge with admissible allowances applicable to the post from time to time, with effect from 1.1.1995. 2. Narration of brief facts of the case will be beneficial in the context. The petitioner was appointed on the scale of pay of Rs.800-25-900-30-1200. By Resolution W.A.2788/09 2 No:57/91 dt:7.4.1991 (hereinafter referred to as Resolution No:57/91) in the scale of pay was enhanced to Rs.2640-85- 2725-100-2925-125-3675-140-3815, with effect from 1.4.1990. This, according to the petitioner, is by way of equating the post of Secretary with that of the Subordinate Judge in the judicial service. The scale of pay of the Secretary was again refixed through Resolution No:106/95, which is extracted as follows:- “Resolved that the Secretary be paid the scale of pay of District Judge of Rs.5100-150-5700 with admissible DA, HRA, CCA applicable to the post from time to time, with effect from 1.1.1995.” Thereafter State Government ordered hike in pay scale of Government servants, through G.O(P) No:3000/98/Fin. Dt:25.11.1998, based on which Bar Council had resolved to adopt the pay revision to its staff, except to the post of the Secretary. According to the petitioner, the hike in the pay scale was not given to the Secretary because there was no hike declared by the Government with respect to the Judicial officers. Thereafter by G.O.(MS)No:116/98/Home dt:30.5.1998 the judicial officers in the State were granted interim relief at the rate of 35% of Basic Pay plus DA as on 1.1.1996, with effect from 1.7.1996, which was based on W.A.2788/09 3 recommendation of the 'judicial pay commission' chaired by Hon’ble Mr. Justice K. Jagannatha Shetty (hereinafter referred for short as ‘shetty commission recommendations’). While in service, the petitioner represented through Ext.P1 for getting benefit of the interim relief declared through the above said Government Order. A special committee constituted under Section 8A of the Advocates Act, 1961, which was functioning as the Bar Council at the relevant time, resolved on 12.8.1999 to grant the interim reliefs as requested, for a period of 29 months from 1.7.1996 till 30.11.1998. During the year 2001 the State Government issued G.O(MS).No:231/2001/Home dt.12.12.2001 revising pay scale of judicial officers, in the light of ‘shetty commission recommendations’ with effect from 1.7.1996. After retirement, the petitioner submitted Ext.P3 representations claiming benefits of the said Government Order for enhanced pay scale of Rs.16750-400-19150-450-20500, with effect from 1.7.1996 till his date of retirement along with arrears of DA, HRA and CCA, as admissible to the post of District Judges. The benefits claimed by the petitioner worked out to Rs.2,94,535/-. The interim relief sanctioned by the special committee on the basis of G.O.No:116/98 was pointed out in W.A.2788/09 4 support of his claims. By the time the newly elected Bar Council had assumed office, a sub committee was constituted in order to consider the petitioner’s representation. The sub committee after consideration of Ext.P3 representation and after hearing the petitioner had decided to reject the claim holding that he is not eligible for the arrears as claimed. It considered the fact that pay scale of the successor in office of the petitioner was refixed by a resolution of the Bar Council dt:19.8.2001 at Rs.12600-375-15000 with DA at 32% of the basic pay along with HRA and CCA, on 1.9.2001. One of the members of the sub committee had specifically pointed out that the words ‘from time to time’ appearing in Resolution No.106/95 qualifies only to the admissible DA, HRA and CCA applicable to the post, and not to the pay scale applicable to the post of District Judge. It is held that Resolution No.106/95 can only be interpreted in the manner as, the pay scale will remain static till revised by the Bar Council. The Bar Council which met on 11.9.2004 and 9.10.2004 had approved the report of the sub committee and rejected claim of the petitioner. The decision was intimated to the petitioner through Ext.P4. A subsequent representation to review the decision was also declined through Ext.P5. It is against W.A.2788/09 5 rejection of the claim that the writ petition is filed. 3. In the writ petition, the Bar Council contended that the benefit arising out of G.O.231/01 will be applicable to the post of its Secretary, only if it is approved by the Bar Council and since a different pay scale was fixed for the successor in office of the petitioner, it is a clear indication that the Bar Council has not adopted pay revision as enumerated in G.O.No:231/01. Hence it is contended that the decision of the Sub Committee as approved by the Bar Council does not suffer from any illegality or infirmity. 4. The learned Single Judge had compared Resolution No.106/95 with Resolution No:57/91. It is observed that eventhough pay scale as that of the Subordinate Judge was fixed through Resolution No:57/91, it is not stated therein that the post of Secretary was equated with that of the Subordinate Judge. But in Resolution No.106/95 it is specifically resolved that the Secretary be paid the scale of pay of District Judge with admissible DA, HRA and CCA applicable to the post from time to time. Finding that, the word ‘from time to time’, which is conspicuously missing in the 1991 resolution, finds a place in the 1995 resolution, it is observed that intention of the Bar W.A.2788/09 6 Council to place post of Secretary in the scale of pay of the District Judge with admissible allowances, is clearly explicit. It is held that, from the wordings of Resolution No.106/95 it is clear and evident that whenever the scale of pay of District Judges is revised, the Secretary of the Bar Council will be entitled for such revision. The resolution adopted by the special committee granting interim reliefs based on G.O:116/98, was taken note of in support of such conclusions. It is also noted that the Secretary was not allowed pay revision based on G.O:3000/98 since there was no revision in the pay scale of the judicial officers. Holding that, the wording, “applicable to the post from time to time” appearing in Resolution No.106/95 is not only qualifying the allowances but also the scale of pay, it is held that the petitioner is entitled to be placed in the revised scale of pay which came into effect by virtue of G.O.No.231/01. The learned Single Judge observed that refixation of pay scale of the successor in office cannot be held out against the petitioner for the reason that the petitioner had ceased to be in service long before the date of such resolution. Accordingly, the writ petition was allowed quashing Exts.P4 & P5 and declaring that the petitioner is entitled for arrears based on the revised pay W.A.2788/09 7 scale introduced by virtue of G.O.231/01, for the periods from 1.7.1996 to 30.11.1998. The benefits thereon was directed to be paid within one month from the date of receipt of a copy of the judgment. 5. Heard, Sri. P. Ravindran , learned senior counsel for the appellant, the Bar Council and Sri. T.P. Kelu Nambiar, learned senior counsel for the respondent. Our attention was drawn by Sri. Ravindran to the relevant provisions of the Advocates Act, 1961 and the Bar Council of Kerala Rules, 1979. Section 15 of the Advocates Act deals with power of the Bar Council to make Rules. As per Section 15(2)(k) the Bar Council is entitled to formulate Rules providing qualifications and conditions of service of the Secretary, Accountant, and the other employees of the Bar Council. Chapter VII of the Bar Council of Kerala Rules, 1979 deals with the Service Rules. Rule (1) of Chapter VII reads as follows:- “(1). The Council shall have on its establishment a Secretary who may be full time or part time as the Council may decide. The Council may also appoint such staff as may be decided from time to time. Scale of pay for the staff shall be decided by the Council from time to time.” Rules 3 to 6 of the Bar Council of Kerala Rules, 1979 deals W.A.2788/09 8 with the qualifications, tenure of office, remuneration, duties and powers of the Secretary of the Bar Council. Rule 4 of the said Rule is extracted below: “(4). Tenure of Office and Remuneration The Secretary shall be entitled to such salary or honorarium as may be determined by the Bar Council from time to time. The part time Secretary shall hold office for a period of five years. When a full time Secretary is appointed, he shall hold office till he attains the age of 60”. (emphasis supplied) Relying on the above provisions, Sri. P. Ravindran, contended that the power to fix salary payable to the Secretary is vested absolutely with the Bar Council and it depends purely on the decision of the Bar Council, as adopted from time to time. Unless and until the Bar Council takes any resolution adopting any pay revision introduced by the Government, the same shall not be applicable to the post of Secretary and staff of the Bar Council. Based on the wordings of the Rule (1) of Chapter VII it is specifically contended that the right to decide the scale of pay is vested with the Council and the pay scale will not get automatically revised without there being any decision of the Council taken in that respect. 6. The learned senior counsel appearing for the appellant had also drawn our attention to Rule 12(23) of part W.A.2788/09 9 I of Kerala Service Rules, which defines the term, ‘pay’. It is mentioned therein that ‘pay’ is the amount drawn monthly by an officer as the pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity or to which he is entitled by reason of his position in a cadre, and it includes personal pay and special pay and any other emoluments which may be specially classed as pay by the Government. The terms ‘personal pay’ and ‘special pay’ are also defined under sub-rule (26) and (31) of Rule 12. But Rule 12(35) deals with ‘time-scale of pay’, which means pay which rises by periodical increments from a minimum to a maximum and it includes a class of pay hitherto known as progressive. 7. Based on the above quoted provisions in Part I of KSR it was contended that none of the allowances will form part of ‘pay’ or ‘pay scale’. Since the right to decide pay scale of the Secretary and staff of the Bar Council is vested with the Bar Council, by virtue of Rules contained in Chapter VII of the Bar Council of Kerala Rules, 1979, neither the Secretary nor the staff of the Bar Council will be entitled for any revision of the pay scale, unless and until the Bar Council W.A.2788/09 10 specifically decides such revision, is the contention. Therefore the learned senior counsel strongly assailed findings of the learned Single Judge to the extent of it holding that the petitioner is entitled for arrears based on revision of pay scale brought in through G.O.No:231/01. It was strongly contended that the wordings of Resolution No.106/95 cannot be interpreted in any manner as to having any effect of permanent fixation of the pay scale of the Secretary of the Bar Council as that of the District Judge, which will be subject to revision from time to time. On the other hand it is contended that equating of the pay scale of the District Judge by Resolution No.106/95 was only intended for the purpose of fixing pay scale of the Secretary at that time. Or in other words it is adopted only as criteria to arrive at a particular scale of pay at that time. It was contended that the wording 'from time to time' will qualify only the allowances such as DA, HRA and CCA and will not qualify the ‘pay scale’ fixed through that resolution. It was also contended that even assuming, without admitting, that there is any equation of the pay scale, the revision of pay scale effected by the Government will not be binding on the Bar Council as a matter of course, unless and until it is further adopted W.A.2788/09 11 through decision of the Bar Council. Merely because the special committee of the Bar Council had adopted the interim reliefs as declared by the Government for sanctioning such reliefs to the petitioner, he is not entitled for an automatic refixation of the pay scale, is the contention. 8. Sri. P. Ravindran had placed reliance on various legal precedents of the Hon’ble Apex court and this court in order to substantiate his contentions. In S.C. Chandra and others v. State of Jharkhand and others ((2007) 8 SCC 279) it is held as follows:- “Two groups of employees may be doing the same work, yet they may be given different pay scales if the educational qualifications are different. Also, pay scale can be different if the nature of jobs, responsibilities, experience, method of recruitment, etc. are different. Thus, in State of Haryana v. Tilak Raj it was held that the principle can only apply if there is complete and wholesale identity between the two groups. Even if the employees in the two groups are doing identical work they cannot be granted equal pay if there is no complete and wholesale identity e.g. a daily-rated employee may be doing the same work as a regular employee, yet he cannot be granted the same pay scale. It is well settled by the Supreme Court that only because nature of work is same, irrespective of educational qualification, mode of appointment, experience & other relevant factors, W.A.2788/09 12 the principle of equal pay for equal work cannot apply.” In State of Punjab and Another v. Surjit Singh and others ((2009) 9 SCC 514) it is held that the grant of benefit of doctrine of equal pay for equal work depends upon a large number of factors including equal work, equal value, source and manner of appointment, equal identity of group and wholesale or complete identity. How the principle is to be applied depends on different factual situations and therefore the said doctrine cannot be adopted as having application in all circumstances. In a decision of a Division Bench of this Court in Muraleedharan Nair v. State of Kerala (2010 (1) KLT 161) it is held that the contention regarding discrimination can be raised, if only equals are treated unequally. The service conditions of employees of the Government ad that of various Government companies, statutory Boards etc., are different. There cannot be any comparison of service benefits granted to the employees working under various employers for considering violation of Article 14 of the Constitution. Based on the above principle it was argued that the petitioner is not entitled for any benefit merely because Government have revised pay scale of the judicial officers. W.A.2788/09 13 9. Lastly, the learned senior counsel for the appellant argued that the writ petition itself is not maintainable, because the relief claimed pertains purely with respect to a personal benefit for which there is no statutory backing. It was contended that no infringement of fundamental rights of the petitioner nor any violation of statutory provision is alleged in the writ petition, and therefore invoking powers under Article 226 of the Constitution is not permissible on the factual matrix of the case. 10. Sri. T.P. Kelu Nambiar, learned senior counsel appearing for the 1st respondent/writ petitioner contended that the entire claim is based on Resolution No.106/95 adopted by the Bar Council. Going by the wordings of that resolution it is crystal clear that the Bar Council had adopted to fix pay scale attached to the post of Secretary as that of the District Judge, with admissible allowances attached to that post as revised from time to time. Since the pay scale of the District Judge has been revised, the Secretary is entitled to be placed under the revised pay scale in accordance with the Government decision. There is no need for any further resolution of the Bar Council in this regard, is the contention. It was specifically pointed out that, resolution adopted by the W.A.2788/09 14 special committee to grant interim relief based on G.O.No:116/98 is a clear indication that the pay scale of the Secretary was fixed in par with the pay scale of District Judges, which is liable for revision from time to time. Merely because that resolution was taken by the special committee, the subsequent elected committee of the Bar Council has no authority to discard such decision. It is pointed out that the special committee was constituted under Section 8A of the Advocates Act and hence was as good as the Council itself. Hence it is contended that the findings arrived by the learned Single Judge does not deserve any reconsideration. 11. The learned senior counsel for the respondent also contended that the entire question revolves around the interpretation of Resolution No.106/95, and if the learned Single Judge had adopted any plausible interpretation on which a different view is possible, this court may not interfere with the view already adopted. But we will at once notice that the matter is being considered in the appellate jurisdiction vested under Section 5 of the Kerala High Court Act, and the powers vested on this court is co-extensive. 12. Sri. T.P. Kelu Nambiar pointed out that, the W.A.2788/09 15 arguments now advanced on behalf of the appellant based on the provisions of the Advocates Act and Bar Council Rules, were not raised before the Single Bench and such contentions were not in issue when the writ petition was decided. But we notice from the counter affidavit filed on behalf of the Bar Council hat there is specific contention raised to the effect that the pay scale revised by the Government will not be applicable unless the Bar Council takes specific resolution to adopt the same. Moreover we are of the opinion that contentions raised on behalf of the appellant are legal in nature based on provisions of the relevant statutes, can always be permitted to be raised in appellate jurisdiction. 13. With respect to the contention regarding maintainability of the writ petition, we are not impressed upon by arguments of Sri.P. Ravindran. Claim of the petitioner is based on Resolution No:106/95. According to him by virtue of the said resolution the Bar Council had adopted pay scale as that of the District Judges, and it is liable for automatic revision from time to time. So the claim for revision is raised as a matter of right on the support of a resolution adopted as prescribed under the statute. So it could not be held that the claim in the writ petition is not W.A.2788/09 16 based on any statutory rights. Hence we are inclined to examine merits of the case based on the disputed contentions regarding claim of the petitioner. 14. Having considered the rival submissions, we are of the view that crux of the dispute is the statutory entitlement of the petitioner for the benefit claimed by him. It is evident that the qualification, tenure of office, remuneration, duties and powers etc. attached to the post of the Secretary are governed by provisions contained in the Advocates Act and the Rules framed thereunder by the Bar Council. Going by those provisions it is evident that Bar Council is the absolute and ultimate authority vested with powers of fixing pay scale of the Secretary. Merely because the Bar Council had once adopted pay scale of the District Judges as basis for fixing pay scale of the Secretary, it could not be held that any revision in the scale of pay of the District Judges will become automatically applicable in the case of the post of Secretary of the Bar Council also. In respectful disagreement with the view taken by the learned Single Judge we are of the opinion that the words ‘time to time’ used in Resolution No.106/95 could not be made use of for declaring such an entitlement and for granting consequential benefits. Even if the word W.A.2788/09 17 'time to time' used in Resolution No:106/95 is interpreted as one equating pay scale of the Secretary as that of the District Judges, going by the relevant provisions in the statute, periodical revision of the pay scale will not be applicable to the post of the Secretary, unless the same is specifically adopted by the Bar Council. It is evident that, even the interim reliefs declared by the Government was sanctioned to the petitioner only after the special committee of the Bar Council took specific resolution to grant such reliefs. It is further evident that the Bar Council had subsequently refixed the scale of pay of the successor in office of the petitioner, without any advertence to pay scale of the District Judges or that of any other judicial officers. It is also evident that before 1995, the pay scale of the Secretary was fixed not on the basis of the pay scale of any post of judicial officers. The resolution which held the field regarding fixation of pay scale of the Secretary, at the time when petitioner was officiating the post, will not permit automatic entitlement for any revision of pay scale based on the Government Orders. There is no evidence to the effect that the Bar Council had taken any subsequent resolution after retirement of the petitioner to adopt the revised pay scale introduced by the Government. W.A.2788/09 18 Therefore we have no hesitation to hold that the petitioner is not entitled for the benefits claimed in Ext.P3 representation. Since the decision taken by the special committee has been approved and adopted by the Bar Council, we find no infirmity, illegality or error in the decision taken as evidenced from Ext.P4 and P5. Since the petitioner could not claim the benefits demanded as a matter of right, statutory or otherwise the Bar Council was perfectly justified in its domain of powers to decline such benefits. Hence we are unable to agree with the findings rendered by the learned Single Judge. 15. In the result the Writ Appeal is allowed. The impugned Judgment