Kerala High Court
7 Raju P.I vs Present on 26 May, 2015
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
MONDAY, THE 26TH DAY OF FEBRUARY 2018 / 7TH PHALGUNA, 1939
WP(C).No. 21860 of 2015
PETITIONER(S)
1 UNNIKRISHNAN NAIR P.S.
S/O LATE P.G.SANKARAN NAIR, DIVISIONAL ACCOUNTANT,
ELECTRICAL DIVISION, THIRUVALLA, RESIDING AT
SREESANKARAM, NEDUMPROM P.O., THIRUVALLA-689578
2 VINOTH M,
S/O K.A.MANIKKAN, AGED 49 YEARS,SENIOR SUPERINTENDENT,
KERALA STATE ELECTRICITY BOARD, LTD., ELECTRICAL CIRCLE,
PALAKKAD-678014,RESIDING AT KEEZHA HOUSE, PUTHUCODE P.O.,
PALAKKAD-678687.
3 NELSON M. VARGHESE,
S/O M.I.VARGHESE, SENIOR SUPERINTENDENT, SYSTEM OPERATION
CIRCLE, HMT COLONY P.O., KALAMASSERY, RESIDING AT
MANIYARA HOUSE, POOTHALI ROAD, MANNAM P.O., NORTH
PARAVOOR-683520.
4 U.V.SURESH,
S/O U.K.VELAYUDHAN, SENIOR SUPERINTENDENT, ELECTRICAL
CIRCLE OFFICE, IRINJALAKUDA, RESIDING AT
UNNIARAMPURAKKAL HOUSE, TALLIKULAM P.O., PIN:680569.
5 AJIT SEN A.B.,
S/O ANSELM K.C.,AGED 55 YEARS,
SENIOR SUPERINTENDENT, PENSION AUDIT, O/O.
CIA, VYDHYUTHI BHAVANAM, PATTOM, TRIVANDRUM, 695004,
KERALA STATE ELECTRICITY BOARD LTD., TRIVANDRUM, RESIDING
AT TC8/646-7, AJINAM, THIRUMALA, TRIVANDRUM-695006.
6 D.HARIDAS,
S/O P.K.DAMODARAN,AGED 49 YEARS, SENIOR SUPERINTENDENT, ELECTRICAL
SECTION, KUMBAZHA, RESIDING AT SABARICKAL HOUSE
NANGIARKULANGARA P.O., ALAPPUZHA-690513.
7 SIBIKKUTTY FRANCIS
S/O M.M.FRANCIS, SENIOR SUPERINTENDENT, O/O CHIEF ENGINEER
(HRM), ELECTRICAL OFFICE VYDHYUTHI BHAVANAM,
TRIVANDRUM-695004, RESIDING AT MANJAKKAL HOSUE,
CHAMMAPATHAL P.O., MANIMALA, KOTTAYAM.
PBS
WP(C).No. 21860 of 2015
8 SURESH KUMAR P.D.
S/O C.K.DAMODARAN NAIR,AGED 49 YEARS, SENIOR SUPERINTENDENT,
O/O CHIEF ENGINEER, ELECTRICAL SECTION, ARANMULA, RESIDING AT
NAVAMI, SANATHANPURAM P.O., KALARCODE, ALAPPUZHA-688003.
9 SREEKALA S
D/O M.SIVASANKARAN NAIR, AGED 51 YEARS,SENIOR SUPERINTENDENT,
ELECTRICAL SECTION, CANTONMENT, THIRUVANANTHAPRUAM,
RESIDING AT SYAMALA NIVAS, PLOT NO.39, SREENAGAR,
MANACAUD P.O., THIRUVANANTHAPURAM-695009.
10 RAJEEV KUMAR P.S.,AGED 50 YEARS,
S/O P.SUKUMARANKUTTY NAIR, SENIOR SUPERINTENDENT, O/O
CHIEF VIGILANCE OFFICER, VYDHYUTHI BHAVANAM, PATTOM,
TRIVANDRUM-695004, RESIDING AT KRISHNANJALI, VENGANUR P.O.,
THIRUVANANTHAPURAM-695523.
11 P.PUSHPALATHA
D/O V.GANGADHARAN NAIR,AGED 51 YEARS, SENIOR SUPERINTENDENT,
ELECTRICAL DIVISION OFFICE, NEYYATTINKARA-695121, RESIDING
AT KRISHNA KRIPA, VILAVANCODE, KUZHITHURA P.O.,
THIRUVANANTHAPURAM.
12 MOHANA KUMAR S,AGED 54 YEARS,
S/O SUBRAMANIAN R., SENIOR SUPERINTENDENT, ELECTRICAL
SECTION, VIZHINJAM-695521, RESIDING AT VALIYA VEETTU MELE
PUTHEN VEEDU, VENGANUR P.O, THIRUVANANTHAPURAM-695 523.
13 SUNIL KUMAR S.V.,AGED 50 YEARS,
S/O P.V.VASUDEVAN NIAR, SENIOR SUPERINTENDENT, ELECTRICAL
DIVISION OFFICE, NEYYATTINKARA-695121, RESIDING AT RADHAS
MARIAVARI, ANAVOOR P.O., THIRUVANANTHAPURAM-695124.
14 SREEKUMARAN NAIR C.K.,AGED 51 YEARS,
S/O K.KRISHNAN NAIR, SENIOR SUPERINTENDENT, REGIONAL AUDIT
OFFICE, PATHANAMTHBITTA, RESIDING AT CHETTIYAVILAYIL
(SREERAGAM), ORIPURAM, CHENNITHALA P.O., MAVELIKARA,
ALAPPUZHA-690105.
15 M.ISMAIL,AGED 54 YEARS,
S/O A.P.MOHAMMED KASSIM, RESEARCH & DAM SAFETY
ORGANISATION, PALLOM, RESIDING AT SUBAIDA MANZIL,
CHUNGAM, ALAPPUZHA-688011.
16 ASSIS N.I.,AGED 52 YEARS,
S/O LATE IBRAHIM, SENIOR SUPERINTENDENT, TRANSMISSION
CIRCLE, KERALA STATE ELECTRICITY BOARD LIMITED,
KALAMASSERY, RESIDING AT NARAKATHUM PARAMBIL, SNEHA
NAGAR, CHENAKKALA ROAD, H.M.T. P.O., KALAMASSERY-683104.
PBS
WP(C).No. 21860 of 2015
17 RAJU P.I.,AGED 50 YEARS,
S/O ISSAC P.A., SENIOR SUPERINTENDENT, ELECTRICAL DIVISION,
TRIPUNITHURA, RESIDING AT PAINUKKAL HOUSE,
THIRUVANKULAM P.O., ERNAKULAM-682305.
BY ADVS.SRI.SAJITH KUMAR V.
SRI.P.K.ANTONY
RESPONDENT(S):
1. KERALA STATE ELECTRICITY BOARD LIMITED,
REPRESENTED BY ITS SECRETARY (ADMINISTRATION), VYDHYUTHI
BHAVANAM, PATTOM, TRIVANDRUM-695004.
2. THE CHIEF ENGINEER (HRM),
KERALA STATE ELECTRICITY BOARD LIMITED, VYDHYUTHI
BHAVANAM, PATTOM, TRIVANDRUM-695004.
BY SMT. ANEETHA A.G.,SC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-02-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PBS
WP(C).No. 21860 of 2015 (F)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1: A TRUE COPY OF THE ORDER NO.ESTT.1/1512/2013 DATED 26.5.2015
ISSUED BY THE IST RESPONDENT BY THE PETITIONERS 1 AND 2.
EXHIBIT P2: A TRUE COPY OF THE REPRESENTATION DATED 14.2.2012 SUBMITTED
BY THE PETITIONER TO THE 2ND RESPONDENT.
EXHIBIT P3: A TRUE COPY OF THE ORDER NO.EB.8/SS/155/12 DATED 16.7.2012
ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P4: A TRUE COPY OF THE APPEAL DATED 1.2.2013 SUBMITTED BY THE
PETITIONER BEFORE THE IST RESPONDENT.
EXHIBIT P5: A TRUE COPY OF THE PETITION DATED 15.1.2014 SUBMITED BY THE
PETITIONER TO THE MEMBER (FINANCE).
EXHIBIT P6: A TRUE COPY OF THE PROCEEDINGS NO.PAY FIXATION/A9/2012-13
DATED 16.9.2014 ISSUED BY THE CHIEF INTERNAL AUDITOR.
EXHIBIT P7: A TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONER
BEFORE THE CHIEF INTERNAL AUDITOR.
EXHIBIT P8: A TRUE COPY OF THE REMARKS IN LETTER NO.CIA/GI/JR. SR.
FIXATION/2014 DATED 20.2.2015 SUBMITTED TO THE DIRECTOR
(FINANCE)
EXHIBIT P9: A RUE COPY OF THE ORDER NO.EB8/DYCE (ELE.)/88/2012 DATED
17.11.2012 OF THE CHIEF ENGINEER (HRM)
EXHIBIT P10: A TRUE C9OPY OF THE RELEVANT PAGES OF LONG TERM SETTLEMENT
IN 2000.
EXHIBIT P11: A TRUE COPY OF THE RELEVANT PAGES OF LONG TERM SETTLEMENT IN
2007.
EXHIBIT P12: A TRUE COPY OF THE RELEVANT PAGES OF LONG TERM SETTLEMENT IN
2011.
RESPONDENT'S EXHIBIT NIL
/TRUE COPY/
PA TO JUDGE
PBS
7/3/2018
P.V.ASHA, J.
--------------------------
W.P(C) No.21860 of 2015-F
-------------------------------------------
Dated this the 26th day of February, 2018
JUDGMENT
The petitioners, who are Divisional Accountants, have filed this writ petition aggrieved by Ext.P1 order by which they were denied stepping up of pay on par with their Junior Smt.Radhika Bhaskar.
2. All the petitioners joined the 1 st respondent-K.S.E.B Ltd. during January-February, 1993 as Junior Assistants on appointment by direct recruitment through Kerala Public Service Commission (PSC), based on advice memo dated 24.12.1992. On further promotions they were posted as Senior Superintendents on various dates in October, 2008. Some of the petitioners are working as Divisional Accountants which is an equivalent cadre in the very same scale of pay. One Smt.Radhika Bhaskar joined the 1st respondent as Junior Assistant one month before the petitioners, on compassionate appointment. Petitioners, though joined subsequent to her, are seniors to her as their seniority is determined on the basis of date of advice by PSC, in December, 1992. Petitioners submit that they were W.P(C) No.21860 of 2015-F 2 drawing the same pay as in the case of Smt. Radhike Bhaskar. Seeing that Smt.Radhika Bhaskar was drawing higher salary than the petitioners, the 1 st petitioner submitted a representation requesting for stepping up of pay. His representation was rejected by the 2 nd respondent as per Ext.P3 order saying that Smt.Radhika Bhaskar got higher pay based on her early entry in service due to increase in service weightage, in 2003 pay revision. It was also informed that Smt.Radhika Bhaskar is having more qualifying service than the 1st petitioner and therefore his claim for stepping up of pay on par with Radhika Bhaskar cannot be considered on the basis of Article IV/II(5) of Long Term Settlement (LTS) 2007 and Rule No.1(C) under Rule 28A Part I KSR.
2. Aggrieved by this, the 1st petitioner submitted Ext.P4 appeal before the Secretary to the Electricity Board stating that provisions relied on in Ext.P3 order are not applicable to him. He pointed out that Smt.Radhika Bhaskar was junior to him in the gradation list of Junior Assistants as well as Senior Assistants. He also pointed out an order dated 17.11.2012 issued by the Chief Engineer (HRM) granting stepping up of pay to one Sri P.A.Narayanaswami, on par with the pay of his junior Sri G.S.Ajithkumar. However, that appeal was rejected. The 1 st petitioner had also thereafter approached the Member (Finance) of KSEB seeking stepping up of pay. W.P(C) No.21860 of 2015-F 3 On the basis of Ext.P5 the petitioner was directed to appear for a personal hearing before the Chief Internal Auditor as per Ext.P6 letter. Thereafter, the petitioner submitted Ext.P7 representation before the Chief Internal Auditor. The Chief Internal Auditor submitted Ext.P8 remarks before the Board in which it was stated that 59 employees in the gradation list were affected by the anomaly as pointed out by the petitioner and they are seniors as per the gradation list, who suffer monetary loss for no fault of their own and the said anomaly deserves to be rectified. It was also stated that the prevailing rules and the terms of LTS do not help in solving the issue and therefore the Board will take appropriate decision in the matter. It was found therein that the junior got benefit only because she joined 27 days earlier to those seniors, on appointment on compassionate ground. She was able to receive increments in the pay revision of 2008. It was also found that she got one increment for increased service weightage by way of rounding off the service as per terms of pay revision 2008 (i.e 6 months or more is taken as one year and less than 6 months is ignored). It was also found therein that another increment resulted from the earlier normal increment to her which fell due on 1.8.2008.
3. However, the Board issued Ext.P1 order stating that stepping up of pay cannot be claimed due to anomaly that had arisen due to service W.P(C) No.21860 of 2015-F 4 weightage as per the provisions of long term settlements. It was further stated that such instances where there is mismatch in pay due to service weightage that arises vis-a-vis appointment from PSC list and compassionate employee scheme cannot be rectified by the prevailing rules and terms regarding junior-senior fixation in long term settlement. Stating that the qualifying service of Radhika Bhaskar was not identical to that of the petitioners, their request for parity of pay was rejected. The petitioners have filed this writ petition at this stage challenging Ext.P1 order. They rely on Ext.P9 proceedings dated.17.11.2012 issued by the Chief Internal Auditor by which one Sri P.A.Narayanaswamy was granted the benefit of stepping up of pay on par with his junior. According to them, such stepping up of pay was granted even in the absence of any provisions for the same in the settlement. They also rely on clause 12 of Ext.P12 long term settlement(LTS).
4. The respondents have filed a counter affidavit stating that the provisions contained in the LTS do not provide for stepping up of pay when the junior got more pay on the basis of service weightage. It is their case that clause 13 of the LTS specifically provides that anomaly should not have arisen due to any advance increment granted to the junior in the lower post or due to increased service weightage to the junior. The respondents have W.P(C) No.21860 of 2015-F 5 explained the pay which was being drawn by Smt. Radhika and the petitioners from time to time, which show that the difference in pay occurred in the 2003 pay revision. The pay of the petitioners was raised subsequently on stepping up with the pay of their another junior. Petitioners do not have a case that the stepping up they got from 2003 was on any of the reasons in clause 12 of the settlement or that it was made on par with the pay of the petitioners. Smt. Radhika got higher pay on account of service weightage. Under clause 13, stepping up of pay is not allowed when junior gets higher pay on account of service weightage. On a perusal of clause 13, it can be seen that as contended by the learned counsel for the petitioners, clause 13 is applicable only in a case where b