Kerala High Court
Sureshan.K vs Kerala State Handloom Development ... on 25 September, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
TUESDAY,THE 28TH DAY OF NOVEMBER 2017/7TH AGRAHAYANA, 1939
WP(C).No. 37694 of 2010 (J)
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PETITIONER :
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SURESHAN.K.,
SALES ASSISTANT, REGIONAL OFFICE,
KERALA STATE HANDLOOM DEVELOPMENT CORPORATION,
KANNUR.
BY ADVS.SRI.KALEESWARAM RAJ
SRI.VARUN C.VIJAY
RESPONDENT(S):
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1. KERALA STATE HANDLOOM DEVELOPMENT CORPORATION,
REPRESENTED BY THE MANAGING DIRECTOR,
KERALA STATE HANDLOOM DEVELOPMENT CORPORATION,
KANNUR-670 001.
2. THE MANAGING DIRECTOR,
KERALA STATE HANDLOOM DEVELOPMENT CORPORATION,
KANNUR-670 001.
3. THE MANAGER, REGIONAL STORES,
KERALA STATE HANDLOOM DEVELOPMENT CORPORATION,
KANNUR-670 001.
R1 TO R3 BY ADVS. SRI.E.K.NANDAKUMAR
SRI.P.BENNY THOMAS
SRI.P.GOPINATH
SRI.K.JOHN MATHAI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 28-11-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
sts
WP(C).No. 37694 of 2010 (J)
APPENDIX
PETITIONER'S EXHIBITS:
P1 COPY OF THE PROVISIONAL SENIORITY LIST AS ON 31/8/2004 ALONG WITH
CIRCULAR DATED 25/9/2004
P2 COPY OF THE G.O(RT) NO.866/2009/10 DATED 6/7/2009
P3 COPY OF THE PAY FIXATION ORDER DATED 6/10/2009
P4 COPY OF THE ORDER DATED 6/10/2009
P5 COPY OF THE SALARY SLIP OF OCTOBER 2010
P6 COPY OF THE PROMOTION ORDER DATED 24/2/2010
P7 COPY OF THE PAY FIXATION ORDER DATED 24/4/2010
P8 COPY OF THE PAY REFIXATION ORDER DATED 18/6/2010
P9 COPY OF THE SALARY SLIP OF JUNE 2010
P10 COPY OF THE QUESTIONNAIRE DATED 29/6/2010
P11 COPY OF THE REPLY DATED 20/7/2010
P12 COPY OF THE APPEAL BEFORE THE APPELLATE AUTHORITY
P13 COPY OF THE REPLY TO APPEAL
P14 COPY OF THE REPRESENTATION DATED 13/8/2010 SUBMITTED BY THE
PETITIONER.
P15 COPY OF THE REPRESENTATION DATED 29/6/2010
RESPONDENT'S EXHIBITS: NIL
/TRUE COPY/
P.A.TO JUDGE
sts
A.MUHAMED MUSTAQUE, J.
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W.P.(C) No.37694 of 2010
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Dated this the 28th day of November, 2017
JUDGMENT
The petitioner joined as Sales Assistant in the Kerala State Handloom Development Corporation, a State Government Undertaking. Based on the long term agreement with the trade union, the petitioner was given basic pay of R.4,620/- as on 1.4.2009 in the cadre of Depot Worker. The Corporation appears to have adopted the State Government pattern in the organization in regard to the scale of pay and also relation to the promotion. The State Government pattern includes a component of D.A. After the implementation of the State Government pattern, the petitioner was promoted to the post of the Sales Assistant from the Depot Worker. The scale of pay applicable to the post of the Sales Assistant is Rs.3050- 5230/-. The petitioner's case is that his basic pay as drawn by him in the feeder category ought to have been protected and basic pay could not have been reduced W.P.(C) No.37694 of 2010 2 while promoting into the higher grade. The petitioner's request for protection of his basic pay did not yield any result. Therefore, the petitioner has approached this Court.
2. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents.
3. In this matter, a statement has been filed by the respondents. It is appropriate to refer paragraph-2 of the statement, which reads as follows:
"The petitioner, a Sales Assistant of the Corporation has filed the above writ petition challenging the pay fixation order issued by the Corporation on his promotion to the post of Sales Assistant fromt he post of Depot worker. In this context, it is submitted that in the Corporation, there are two categories of employees, one category drawing State Government pattern scale of pay and State Government parttern D.A. and another category drawing pay as per Long Term Agreement between the Trade Unions and the Management from time to time on a 5 year gap. At present, there are 205 employees are drawing State W.P.(C) No.37694 of 2010 3 Government pattern scale of pay and 111 No. of employees are drawing pay as per Long Term Agreement. The petitioner was originally drawing the scale of pay on L.T.A. Basis in the post of Depot Worker in which, the basic pay and the variable D.A. Based on handloom cost of living index issued by North Malabar Chamber of Commerce. The basic pay on L.T.A. Basis is totally different and dos not have resemblance to State Government pattern basic pay. In the Corporation, there is a promotion policy, in which certain employees in the category of L.T.A based on scale of pay are given promotional avenue to other categories i.e. to State Govenment pattern scale of pay and on getting promotion; they automatically get the State Government pattern scale of pay. While so, when the State Government scale of pay is given on promotion, they are given the basic pay & D.A. on State Government pattern which is a higher DA and their basic pay is fixed accordingly. If any employee is drawing higher basic pay on L.T.A due to his long continuous service and he gets a post in the State Government pattern scale of pay on promotion, then fixation is given in such a manner to protect his pay in the higher post." W.P.(C) No.37694 of 2010 4
4. According to the Corporation, the total emoluments now being given to the petitioner is higher though there is a reduction of basic pay. Since there is no reduction in the total emoluments being drawn by the petitioner, owing to the adoption of the State pattern, the petitioner cannot raise any complaint against it.
5. The learned counsel for the petitioner relying upon the judgment of the Hon'ble Supreme Court in K.Gopinathan v. Union of India[CDJ 1992 SC 417] argued that basic pay cannot be reduced. It has to be protected.
6. The judgment relied by the petitioner has no relevance in the matter in as much as that, it was a matter arising on deputation. That was the matter wherein the Assistant Sub Inspector of Police went on deputation in the Central Bureau of Investigation and his basic pay was fixed based on the pay pertaining to the post in the parent office and thereafter, on absorbtion it was reduced. Accordingly, his basic pay was refixed. The Central Administrative Tribunal found that total W.P.(C) No.37694 of 2010 5 emoluments being drawn by the applicant had not been reduced and he is not entitled to the relief. The Hon'ble Apex Court after adverting to the earlier judgment in S.L.P.No.21962 of 1992 and held that the view of the Tribunal cannot be accepted and allowed the appeal.
7. Going by the facts of the case as above, this Court is of the view that it has no application in the present matter. In this case, the organization had a pay scale based on the long term agreement with the trade union. Thereafter, it was decided to adopt the Government pattern. In such circumstances, the question is whether the adoption of the Government pattern without giving an option to the employee concerned to continue under the long term agreement is correct or not. The petitioner wants to protect his basic pay as per the long term agreement and also on the other hand wants to enjoy the other benefits flowing out of the Government pattern. If the petitioner wants to continue on the pattern under the long term agreement and if it is beneficial to W.P.(C) No.37694 of 2010 6 him, he could have sought for such prayers. The pattern of pay scale in the organization cannot be left to the discretion of the employee. No doubt, if he is aggrieved by the pattern, he can challenge. Nevertheless, if this Court accepts the petitioner's argument, it would amount to rewriting the pattern of scale of pay applicable in the organization. The court can interfere if there is any reduction in the pay. Total emoluments now being paid to the petitioner in fact is higher. If any option can be given to the petitioner to follow the pattern under the long term agreement, certainly, the respondents shall consider such option, if the same is beneficial to the petitioner.
In that view of the matter, this Court is of the view that it is beyond the scope of interference by this Court. Accordingly, this writ petition is dismissed. No costs.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE ln