Kerala High Court
P.P.Prabhakaran vs Kerala State Road Transport ...
Author: K.Surendra Mohan
Bench: K.Surendra Mohan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
WEDNESDAY, THE 26TH DAY OF MARCH 2014/5TH CHAITHRA, 1936
WP(C).No. 29966 of 2012 (U)
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PETITIONER(S):
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1. P.P.PRABHAKARAN,
S/O NARAYANAN NAIR, PUTHIAPARAMBATH HOUSE,
KAYAKKODI POST OFFICE, (VIA) KUTTIYADI, KOZHIKODE,
PIN:673 508 (CONDUCTOR-RETIRED, K.S.R.T.C
THOTTILPALAM).
2. V.CHOYIKUTTY,
S/O KUNJIKORU, 'ANIGRAHAM', PULLURPADOM,
WEST NALLUR, FEROKE POST OFFICE, KOZHIKODE,
PIN:673631 (INSPECTOR-RETIRED, K.S.R.T.C., KOZHIKODE).
3. K.NARAYANAN,
S/O CHEKKOTTY, KALLOTH HOUSE, PERAMBRA POST OFFICE,
KOZHIKODE,
PIN:673 508 (INSPECTOR-K.S.R.T.C. THOTTILPALAM).
4. HARIPRASAD B.S.,
S/O BHASKARA PANIKKAR, PAVANAM HOUSE,
EDAKKARA POST OFFICE, CHELANNUR (VIA), KOZHIKODE,
PIN:673 616 (INSPECTOR-K.S.R.T.C, KOZHIKODE).
5. V.G.JOSE,
S/O V.J. GEORGE, VILLANTHANUTHU, VELIMUKKU POST OFFICE,
PADIKAL, MALAPPURAM DISTRICT, PIN:676 317 (INSPECTOR
K.S.R.T.C, KOZHIKODE).
6. T.VISWANATHAN,
S/O. APPUTTY, KANHIRAKANDIYIL, KARANATHUR POST OFFICE,
KUNNAMANGALAM (VIA) KOZHIKODE,
PIN:673 571 (INSPECTOR-K.S.R.T.C., KOZHIKODE).
BY ADV. SRI.C.V.MILTON
PJ
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WP(C).No. 29966 of 2012 (U)
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RESPONDENT(S):
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1. KERALA STATE ROAD TRANSPORT CORPORATION,
REPRESENTED BY ITS MANAGING DIRECTOR,
TRANSPORT BHAVAN, FORT P.O.
THIRUVANANTHAPURAM-695 023.
2. THE DISTRICT TRANSPORT OFFICER,
KERALA STATE ROAD TRANSPORT CORPORTION,
KOZHIKODE-673 001.
3. THE ASSISTANT TRNSPORT OFFICER,
KERALA STATE ROAD TRANSPORT CORPORATION,
THOTTILPALAM-673 508.
BY ADV. SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-03-2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PJ
WP(C).No. 29966 of 2012 (U)
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APPENDIX
PETITIONER(S) EXHIBITS
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P1(A): COPY OF THE PENSIONERS PASS ISSUED TO THE 1ST PETITIONER
P1(B): COPY OF THE PENSIONERS PASS ISSUED TO THE 2ND PETITIONER
P1(C): COPY OF THE DUTY PASS THROUGHOUT THE SYSTEM ISSUED TO THE 3RD
PETITIONER
P1(D): COPY OF THE DUTY PASS THROUGHOUT THE SYSTEM ISSUED TO THE 4TH
PETITIONER
P1(E): COPY OF THE DUTY PASS THROUGHOUT THE SYSTEM ISSUED TO THE 5TH
PETITIONER
P1(F): COPY OF THE DUTY PASS THROUGHOUT THE SYSTEM ISSUED TO THE 6TH
PETITIONER
P2: COPY OF THE AGREEMENT DT.13/4/99 PAGE NOS.1,3,4,5,9 AND 28,29 & 31
(ANNEXURE VI-PAY FIXATION RULES)
P3: COPY OF THE ORDER NO.PLE4/024747/99 DATED 18/6/99
P4: COPY OF THE PAY SLIP OP THE 3RD PETITIONER IN 7/2000
P5: COPY OF THE PAY SLIP OF THE SRI.K.GANGADHARAN IN 7/2000
P6: COPY OF THE PAY SLIP OF THE 1ST PETITIONER IN 5/2009
P7: COPY OF THE PAY SLIP OF SRI.T.P.PADMADASAN IN 4/2009
P8: COPY OF THE MEMO NO.E4-1090/99/TSR DATED 8/1/2001
P9: COPY OF THE JUDGMENT DATED 3-4-12 IN WPC.NO.10686/2010
P10: COPY OF THE REPRESENTATION OF THE PETITIONERS DATED 16/4/12
P11: COPY OF THE MEMORANDUM NO.PL7/013970/12 DATED 6/7/12
RESPONDENTS' EXHIBITS
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/ TRUE COPY /
P.S. TO JUDGE
PJ
K.SURENDRA MOHAN, J.
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W.P.(C) No.29966 of 2012-U
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Dated this the 26th day of March, 2014
J U D G M E N T
The petitioners complain that, consequent to the implementation of the 1997 pay revision in the Kerala State Road Transport corporation ('KSRTC' for short), an anomalous situation has been created whereby, the juniors of the petitioners are drawing a pay substantially higher than what is drawn by them. It is contended that, the said situation is violative of Article 14 of the Constitution and the dictum laid down by this Court as well as the Honorable Supreme Court in the decisions on the point.
2. The first petitioner was working as a Conductor and has retired from service on 31.03.2010. The second and third petitioners who were working as Inspectors have also retired, respectively on 31.08.2012 and 30.11.2013. Other petitioners are still in service, working as Inspectors. The 1997 pay revision was implemented by the first -:2:- W.P.(C) No.29966 of 2012-U respondent with effect from 01.03.1997. Exhibit P2 is the memorandum of settlement entered into between the first respondent and the recognized trade unions of the establishment. Annexure-VI to Exhibit P2 is the Pay Fixation Rules. As per Clause 2 thereof, it is stipulated that one option will be allowed to an employee in the holding post as on 01.03.1997. Clause 3 further provides that an employee who has been promoted between 01.03.1997 and the date of signing of the said agreement, would be permitted to opt for the revised scale by exercising his option in the promoted post. Clause 14 of the Rules further provides for the stepping up of the salary of a senior employee where any such person is drawing less pay in the revised scale than his junior promoted to the post after 01.03.1997. The petitioners allege that they are drawing less pay than their juniors who have been promoted after 01.03.1997. Therefore, they claim that they are entitled to have their pay stepped up in accordance with the -:3:- W.P.(C) No.29966 of 2012-U stipulation contained in Clause 14 of Exhibit P2. Though they have been seeking for the grant of the said benefit by submitting representations to the authorities, they complain that no action has been taken in the matter, till date.
3. In the above circumstances, they had approached this Court by filing WP(C) No.10686 of 2010. As per Exhibit P9 judgment dated 03.04.2012, the said writ petition was disposed of directing the petitioners to submit a fresh representation to the first respondent putting forward their claims. If such a representation was made, it was directed that the same should be considered and disposed of within the time limit stipulated in Exhibit P9. Accordingly, the petitioners submitted Exhibit P10 representation, the same was considered by the first respondent and has been rejected by Exhibit P11. The petitioners have filed this writ petition challenging Exhibit P11.
4. According to Sri C V Milton, who appears for the petitioners, Exhibit P2 specifically provides for resolution of -:4:- W.P.(C) No.29966 of 2012-U the anomalous situation that has been created in the present case. It is beyond dispute that, a junior employee should not be allowed to draw a higher pay than his senior, where they are both similarly situated. According to the counsel, Clause 14 of Exhibit P2 makes provision for stepping up the salary of the seniors in order to achieve parity with the pay drawn by the juniors. To the same effect is Rule 28 of Part-I Kerala Service Rules. Reliance is placed on the decision of the Honourable Supreme Court in Calcutta Municipal Corporation v. Sujit Baran Mukherjee [(1997) 11 SCC 463] and the decision of a Division Bench of this Court in Kamala Devi v. Kerala State Financial Enterprises Ltd [2002(1) KLT 157]. Though the above aspects have been placed before the first respondent, without any justification the claims of the petitioners have been rejected in Exhibit P11. Therefore, it is contended that Exhibit P11 is unsustainable and liable to be set aside.
-:5:- W.P.(C) No.29966 of 2012-U
5. Advocate Babu Joseph Kuruvathazha appears for the respondents. A counter affidavit has been filed on behalf of the respondents. According to the counter affidavit, the pay revision was effected pursuant to an agreement that was entered into between the recognized trade unions and the management of the first respondent. Such bilateral agreements as Exhibit P1 are binding on both the management and the employees of the establishment. It is further stated in the counter affidavit that, the allegation that the juniors of the petitioners were drawing a higher pay than the petitioners was not true. In the case of Sri Vasudevan Muthuvara, a Conductor, pointed out by the petitioners, it is stated that he had been given a chance of re-option on the ground he had not exercised his option initially. It is also contended that, later pay revisions having been implemented in the KSRTC, the anomalies in the implementation of 1997 pay revision are not capable of being corrected at this length of time.
-:6:- W.P.(C) No.29966 of 2012-U
6. A reply affidavit has been filed on behalf of the petitioners reiterating their contentions in the writ petition. According to the petitioners, the anomaly is the result of an option given to the juniors of the petitioners who were promoted between 01.03.1997 and 13.04.1999. The option was also granted in the promoted post while the petitioners were granted the option only in the posts that they were holding before their promotions. The pay scales applicable to the lower posts and the promoted posts having been different, the benefit of the options enjoyed by the petitioners and their juniors were also substantially different. It is to take care of such anomalous situations that the remedy of stepping up the pay of the seniors has been provided by Clause 14 of the agreement. It is therefore contended that, Exhibit P11 has rejected their claims without any justification.
7. Heard. Exhibit P2 shows that, the revised scales have taken effect from 01.03.1997. Clause 2 provides that -:7:- W.P.(C) No.29966 of 2012-U one option would be allowed in the holding post as on 01.03.1997. Admittedly, the petitioners are persons who were promoted to the post of conductor Grade-I before 01.03.1997. Therefore, they were granted the right to exercise option only in the post of Conductor Gr-I, which was the post they were holding on 01.03.1997. Clause 3 provides as follows:-
However, if an employee wishes to opt the revised scale of pay of his promoted post, ie., the next immediate promotion post assumed on or after 1-3-1997, he will be permitted to opt the revised scale of promotion post with effect from the date of promotion and his pay in the revised scale fixed on the basis of the pay he drew in the pre-revision scale of promoted post on that date. This benefit will be restricted to the employees who were promoted between 1-3-1997 and the date of signing this Agreement. He/She will not be allowed to exercise option of the feeder post beyond the date of such promotion. No parity will be allowed on this account.
The agreement was signed on 13.04.1999. Therefore, the option provided by the above clause was available to persons who had been promoted during the period from 01.03.1997 to 13.04.1999. The employees who were -:8:- W.P.(C) No.29966 of 2012-U promoted to the post of Conductor Gr-I during the period from 01.03.1997 to 13.04.1999 were all junior to the petitioners. They got the benefit of having their pay fixed in the revised scale in the post of Conductor Gr-II that they were holding at the time of implementation of the pay revision. Thereafter, they were brought to the scale of pay of the promoted post and given the benefit of pay revision in the said post also. Consequently, they got the benefit of the Pay Revision both in their holding post and in the promoted post. As a consequence of the double benefit that they got, the persons who were promoted during the crucial period from 01.03.1997 to 13.04.1999 started drawing pay in excess of what was being drawn by the petitioners.
According to the petitioners, Clause 14 makes provision for resolving the said anomaly. Clause 14 of Annexure -VI to Exhibit P2 is reproduced hereunder for convenience of reference.
14. In cases where a senior employee promoted to a higher post before 1-3-1997 draws less pay in the -:9:- W.P.(C) No.29966 of 2012-U revised scale than his junior promoted to the higher post after 1-3-1997, the pay of the senior shall be stepped upto the level of the junior with effect from the date on which the junior draws more pay provided that,
(i) The senior and the junior employee should belong to the same category and should have been promoted to the same category of post.
(ii) The pre-revised and revised scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical.
(iii) The senior employee at the time of promotion have been drawing equal or more pay than the junior.
(iv) The anomaly should have arisen directly as a result of the introduction of the revised scale of pay.
(v) The senior employee must not exercise unwise option.
NOTE:
(i) If in the lower post the junior employee was drawing more pay in the pre-revised scale than the senior by virtue of any advance increment granted to him, the senior to such junior have no claim over the pay of the junior.
A perusal of the above provision shows that persons who satisfy the conditions stipulated therein are entitled to the benefit of stepping up of their pay.
8. It is clear from the above that, the anomalous -:10:- W.P.(C) No.29966 of 2012-U situation that is complained of by the petitioners is a direct result of implementation of the 1997 pay revision as per Exhibit P2. The question as to whether the petitioners satisfy the conditions that are stipulated by clause 14 is a matter that would have to engage the attention of the first respondent. Despite submission of representations, the claim of the petitioners were not considered. It was in the said circumstances that, by Exhibit P9 judgment, this Court directed the petitioners to prefer a proper representation and to consider the same. However, Exhibit P11 has not considered the said claim. What is stated in Exhibit P11 is only that the said claim had not come up in the discussions in connection with the Pay Revision Agreements of 2006 and 2011. Therefore, the management has decided not to implement the same. The said contention cannot be countenanced for the reason that, Exhibit P2 has provided for rectification for such anomalies. It was for the authorities to have rectified the anomalies at the -:11:- W.P.(C) No.29966 of 2012-U appropriate time. Having omitted to take any action in this regard, it is not open to the first respondent to contend that the anomalies cannot be rectified. It is also worth noticing that, a Division Bench of this Court has held in Kamala Devi v. Kerala State Financial Enterprises Ltd (Supra) that, such stepping up of pay is necessary where, in the implementation of pay revision, anomalies result in seniors drawing lesser pay than their junioirs. This is for the reason that such a situation is violative of the principle of equality enshrined in article 14 of the Constitution. Referring to the anomalous situation in the said writ petition, this Court has held in paragraph seven of the judgment as follows:-
7. In the light of the above principles, it can be seen that the appellant as well as Mr.Kasim Pillai was suffering from the disability of their juniors drawing higher pay. But the appellant was not included in the group of beneficiaries of one special increment.
Therefore, the classification attempted by the first respondent in the matter of rectification of anomaly suffered from the vice of under-inclusiveness. Therefore, the same is liable to be declared as unconstitutional. -:12:- W.P.(C) No.29966 of 2012-U
9. The same dictum applies in the present case also for the reason that by the implementation of 1997 pay revision by Exhibit P2, a special benefit has been conferred on the juniors of the petitioners for the reason that they were persons promoted to the higher post during the period from 01.03.1997 to 13.04.1999. Therefore, the said provision has classified the petitioners and their juniors into two different classes for the purpose of conferring a benefit. The said classification is therefore liable to be declared as unconstitutional. The decision in Calcutta Municipal Corporation v. Sujit Baran Mukherjee [(1997) 11 SCC 463] also supports the above view.
10. In view of the above position of law, Exhibit P11 is unsustainable. Therefore, Exhibit P11 is quashed.
This writ petition is accordingly allowed. The first respondent is directed to consider whether the petitioners satisfy the conditions stipulated by clause 14 of Exhibit P2 and to pass necessary orders stepping up their pay, if they -:13:- W.P.(C) No.29966 of 2012-U satisfy the said conditions. Orders in this regard shall be issued, as expeditiously as possible and at any rate within a period of one month of the date of receipt of a copy of this judgment.
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K.SURENDRA MOHAN, JUDGE kkj