Kerala High Court
K.Ramachandran Pillai vs Kerala State Electricity Board
Author: A. Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
MONDAY,THE 27TH DAY OF NOVEMBER 2017/6TH AGRAHAYANA, 1939
WP(C).No. 18670 of 2009 (C)
----------------------------
PETITIONER(S):
-------------------------
1. K.RAMACHANDRAN PILLAI,
RETD. ASST. ENGINEER (C) KSE BOARD,
KAIPPALLIL PADEETTATHIL, ERAZHA SOUTH,
CHETTIKULANGARA P.O., MAVELIKKARA.
2. P.K. PRABHAKARAN, RETD.ASST.
ENGINEER (C) KSE BOARD,, SMITHA GARDENS,
KIZHAKKUMMURI,, KAVUMBHAGAM P.O.,
THIRUVALLA.
BY ADVS.SRI.ELVIN PETER P.J.
SRI.S.RAMESH
RESPONDENT(S):
-----------------------------
1. KERALA STATE ELECTRICITY BOARD,
REP. BY ITS SECRETARY VYDYUTHI, BHAVAN, PATTOM,,
THIRUVANANTHAPURAM.
2. THE CHIEF ENGINEER (HRM),
KERALA STATE ELECTRICITY BOARD,
VYDYUTHI BHAVAN,, PATTOM,
THIRUVANANTHAPURAM.
R1 & R2 BY ADVS. SRI. ASOK M.CHERIYAN, SC,
SRI.K.S.ANIL, SC,
SRI.PULIKOOL ABUBACKER, SC,
SRI.M.K.THANKAPPAN, SC,
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 27-11-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
sdr/-
WP(C).No. 18670 of 2009 (C)
------------------------------------------
APPENDIX
-------------------
PETITIONERS EXHIBITS
----------------------------------
EXT. P1 TRUE COPY OF THE CIRCULAR DATED 5-1-96 ISSUED BY THE KSE BOARD
EXT.P2 TRUE COPY OF THE LIST OF SUB ENGINEERS (CIVIL) PUBLISHED
BY THE KSE BOARD.
EXT.P3 TRUE COPY OF THE MINUETS OF THE MEETING HELD ON 31.05.1996
EXT.P4 TRUE COPY OF THE REPRESENTATION DT.8.4.1996 FIELD BY THE 1ST
PETITIONER BEFORE THE CHIEF ENGINEER
EXT.P5 TRUE COPY OF THE JUDGMENT DT. 23.08.06 IN O.P. NO. 12329/2003
OF THIS HON. COURT
EXT.P6 TRUE COPY OF THE JUDGMENT DT. 19.10.2007 IN W.A. NO. 2456/2007 OF
THIS HON. COURT
EXT.P7 TRUE COPY OF THE ORDER DATED 22.1.2008 ISSUED BY THE K.S.E.B.
BOARD
EXT.P8 TRUE COPY OF THE JUDGMENT DT. 25.1.2008 IN C.C.C. NO. 1238/2007
OF THIS HON.COURT
EXT.P9 TRUE COPY OF THE ORDER DATED 18.03.2008 ISSUED BY THE KSE BOARD
EXT.P10TRUE COPY OF THE INFORMATION RECEIVED UNDER THE R.T.I. ACT
AS PER COMMUNICATION DATED 23.1.2009 ISSUED BY THE KSE BOARD
EXT.P11 TRUE COPY OF THE INFORMATION RECEIVED UNDER THE R.T.I. ACT
AS PER COMMUNICATION DATED 3.6.3009 ISSUED BY THE KSE BOARD
EXT.P12TRUE COPY OF THE REPRESENTATION DT.29.03.2008 SUBMITTED
BY THE PETITIONERS BEFORE THE 2ND RESPONDENT
RESPONDENTS EXHIBITS
----------------------------------------
/TRUE COPY/
PA TO JUDGE
sdr/-
A. MUHAMED MUSTAQUE, J.
------------------------------------
W.P. (C) No.18670 of 2009
------------------------------------
Dated this the 27th day of November, 2017
J U D G M E N T
The petitioners retired from the service of the Kerala State Electricity Board (KSEB) while working in the cadre of Assistant Engineer (Civil) on 31.12.1996 and 31.08.1996 respectively. They were promoted to the cadre of Assistant Engineer in May 1993 and March 1993 respectively.
2. The present controversy arises out of a long term settlement entered into between the KSEB and its employees. Clause 23 of Article 10 of the settlement provides as follows:
"A minimum number of 20 percent of the posts in each cadre in Civil Branch based on the sanctioned strength as on 01.08.1995 will be placed in the pay scale of the 3rd Higher Grade. Grade promotion to this post will be based on seniority from the 2nd Higher Grade".
The above benefit was given to some of the juniors who were working in the cadre of Sub Engineer (Civil). This resulted in pushing up of their scale of pay. Pointing out the anomalies in W.P.(C) No.18670/2009 2 the junior-senior fixation, the petitioners had approached this Court. This Court, by Ext.P5 judgment, disposed the writ petition after observing as follows:
"3. Heard. The petitioners are aggrieved by the non-implementation of senior-junior fixation, taken in the conference, by Ext.P3 minutes. The petitioners and their juniors are similarly placed persons in all respects. Further, the petitioners are seniors and therefore, they should not be discriminated in the matter of payment of salary. If the juniors are allowed to draw higher pay than the petitioners, the same will offend their fundamental rights guaranteed by Articles 14 and 16 of the Constitution. So, the stand taken in Ext.P12 is unsustainable. This view is supported by the decision of a Division Bench of this Court in Kamala Devi vs. K.S.F.E Ltd. (2002 (1) K.L.T 157).
4. In the result, Ext.P12 is quashed. It is declared that the petitioners entitled to get re-fixation of their pay, so that they can draw, at least, the pay drawn by their juniors with effect from the date, their juniors were drawing higher pay than them. K.S.E.B is directed to pass consequential orders in the light of above declaration and grant them the monetary benefits, including the revision pensionary benefits, within four months from the date of production of a copy of this judgment". W.P.(C) No.18670/2009 3
3. It appears that the matter was taken up before the Division Bench and the Division Bench did not interfere with the order. The Apex Court also did not entertain the Special Leave Petition. Pursuant to the directions of this Court, Ext.P9 order has been passed by the KSEB. The relevant portion of the said order reads as follows:
"In the above circumstances and in view of the remarks read as (3) above, the petitioners in the OP No.12329/03 Sri.K.Ramachandran Pillai and Sri.P.K.Prabhakaran Assistant Engineers (Civil) (retired) are granted step up of pay on par with that of their pointed junior Sri.T.N.Vasudevan Nair with effect from 1.10.1995, raising their pay to Rs.5495/- in the scale of pay of Rs.3225-4805, with next increment on 1.10.1996 and monetary benefit with effect from 1.10.1995. The stepped up pay of the incumbents, consequent on the junior senior fixation now sanctioned should be got approved by the Accounts Officer, Pay Fixation, O/o the Chief Internal Auditor, KSE Board before preferring the claims".
4. As rightly pointed out by the learned counsel for the petitioners, the anomaly in the pay in fact arose on account of the fact that the employees like the petitioners were not given the third higher grade, in the light of Clause 23 of Article 10 of W.P.(C) No.18670/2009 4 the settlement. The different scale of pay existed in the cadre of Assistant Engineer and Sub Engineer got an impact based on the third higher grade to some of the employees in the cadre of Sub Engineer. If the petitioners cannot claim the third higher grade as per the settlement, does it mean that the petitioners cannot draw higher pay than the juniors?
5. In paragraph 5 of the counter affidavit filed by the KSEB, it is stated as follows:
"The petitioners, Sri.Ramachandran Pillai and Sri.P.K.Prabhakaran, were promoted as Assistant Engineer on 17.05.1993 and 25.03.1993 respectively, i.e before 01.08.1995 and thus they are not eligible for getting the 3rd Higher Grade as stipulated in Clause 23 of Article 10 of the Long Term Settlement 1993".
What was done is stepping up of the pay at par with the juniors. On a close scrutiny, it can be found that justice has been denied to the petitioners. If the component 'third higher grade' could have an impact upon the scale of pay being enjoyed by the seniors, certainly, that ought to have been taken note in the settlement itself. However, the settlement does not envisage any such contingency having impact on scale of pay. The juniors W.P.(C) No.18670/2009 5 being pushed up by the third higher grade, certainly, as per the same component, the scale of pay of the seniors also should be pushed up. Otherwise, it would offend the very underlying principles flowing out of Article 14 of the Constitution of India.
6. The Board cannot re-write the terms of settlement. But the Board cannot close its eyes when inequality arises in the scale of pay consequent upon the implementation of the terms of settlement. In fact, while adverting to the directions of this Court, the Board failed to note that this Court directed the Board to refix the pay of the petitioners, after adverting to the principles flowing out of Articles 14 and 16 of the Constitution of India. If scaling up of the pay has to be done to rectify the anomaly between juniors and seniors, that scaling up should be based on the component on which the scale of pay of the juniors has been fixed and it should not be by artificial fixation by stepping up of pay of the seniors with the juniors. The real component in this matter was based on the third higher grade given to the juniors. If that be so, the petitioners also should be given such a component to step up the fixation so as to ensure that equality become real between senior and junior. W.P.(C) No.18670/2009 6
Accordingly, the impugned order is set aside. The K.S.E.B is directed to pass fresh orders after adverting to the component on which the scale of pay of the juniors had been pushed up to higher pay than the seniors. That component, certainly, should be a decisive factor to fix up the scale of pay of the seniors. Needful shall be done within a period of three months.
This writ petition is disposed of as above.
Sd/-
A. MUHAMED MUSTAQUE JUDGE smp