Kerala High Court
Unninarayanan V.K vs The State Of Kerala on 6 November, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
TUESDAY, THE 3RD DAY OF OCTOBER 2017/11TH ASWINA, 1939
WP(C).No. 24964 of 2016 (R)
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PETITIONER(S)/PETITIONER:
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UNNINARAYANAN V.K.
PRIVATE SECRETARY(HIGHER GRADE)TO JUDGE,
HIGH COURT OF KERALA,KOCHI-682031.RESIDING AT
VAISAKHAM,ARIMBASSERY ROAD,P.O.THRIKKAKKARA,
VAZHAKKALA,COCHIN-21.
BY ADVS.SRI.R.K.MURALEEDHARAN
SMT. ATHIRA A. MENON
RESPONDENT(S)/RESPONDENTS:
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1. THE STATE OF KERALA
REPRESNTED BY SECRETARY TO FINANCE DEPARTMENT,
SECRETARIAT,TRIVANDRUM-695001.
2. HIGH COURT OF KERALA,
REPRESENTED BY REGISTRAR GENERAL,HIGH COURT OF
KERALA,ERNAKULAM-682031.
3. THE ACCOUNTANT GENERAL(A&E),
OFFICE OF THE ACOUNTANT GENERAL,
THIRUVANANTHAPURAM-695001.
R2 BY ADV. SRI.ELVIN PETER P.J.
R1 AND R3 BY SR.GOVERNMENT PLEADER SRI.C.S.ASHRAFF
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
03-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 24964 of 2016 (R)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 A TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT
DATED 06.11.2008.
EXHIBIT P2 A TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT
DATED 06.01.2009.
EXHIBIT P3 A TRUE COPY OF THE GO(P)NO.227/07/(54)/FIN DATED
31.05.2007.
EXHIBIT P4 A TRUE COPY OF THE OPTION (A)EXERCISED BY THE
PETITIONER DATED 09.01.2009.
EXHIBIT P5 A TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT
DATED 06.06.2009.
EXHIBIT P6 A TRUE COPY OF THE OPTION DATED 10.06.2009
EXHIBIT P7 A TRUE COPY OF THE ORDER DATED 01.07.2009
EXHIBIT P8 A TRUE COPY OF THE PROCEEDINGS DATED 06.10.2009 OF THE
2ND RESPONDENT.
EXHIBIT P9 A TRUE COPY OF THE OPTION FOR FIXATION OF PAY
SUBMITTED BY THE PETITIONER DATED 12.10.2009.
EXHIBIT P10 A TRUE COPY OF THE PROCEEDINGS DATED 13.05.2010 OF THE
2ND RESPONDENT.
EXHIBIT P11 A TRUE COPY OF THE OPTION FOR FIXATION OF PAY DATED
12.09.2012.
EXHIBIT P12 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE
PETITIONER DATED 30.07.2012.
EXHIBIT P13 A TRUE COPY OF THE COMMUNICATION DATED 25.11.2013 FROM
THE 3RD RESPONDENT
EXHIBIT P14 A TRUE COPY OF THE COMMUNICATION FROM THE 3RD
RESPONDENT DATED 26.06.2015
EXHIBIT P15 A TRUE COPY OF THE COMMUNICATION FROM THE 1ST
RESPONDENT DATED 29.01.2016
EXHIBIT P16 A TRUE COPY OF THE OFFICE MEMORANDUM DATED 24.02.2016
EXHIBIT P17 TRUE COPY OF THE SALARY SLIP OF THE PETITIONER
EXHIBIT P17(A) TRUE COPY OF THE SALARY SLIP FOR K.LAILA.
RESPONDENT(S)' EXHIBITS
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NIL
/TRUE COPY/
PS TO JUDGE
ANU SIVARAMAN, J.
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W.P(C).No. 24964 of 2016
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Dated this the 3rd day of October, 2017
JUDGMENT
The prayers in this writ petition are as follows:
"i. Issue a writ of certiorari or any other appropriate writ order or direction quashing Ext.P15 communication of the 1st respondent dated 29.1.2016 and Ext.P15 office memorandum issued by the 2nd respondent dated 24.02.2016; And ii. Issue a writ of mandamus or any other appropriate writ order or direction directing the 1st and 2nd respondents to permit the petitioner to rectify the anomaly in the Junior-Senior fixation of pay by permitting the petitioner to exercise re-option of Ext.P4 or in the alternative direct the respondents 1 and 2 to fix the pay of the petitioner at Rs.30,610/- as on 01.07.2011 in the parent cadre with all attended benefits."
2. Heard learned counsel for the petitioner and the learned Government Pleader appearing for respondents 1 and 3 as well as the learned counsel appearing for the 2nd respondent. The petitioner was appointed as Confidential Assistant in the 2nd respondent on a temporary basis from 27.5.1991. He was later appointed as Shorthand Writer Grade-II from 30.3.1992 onwards. He was promoted as Grade-I Shorthand Writer from 1.7.1996 and thereafter as Selection Grade Shorthand Writer from 3.11.2000. He was later appointed as Selection Grade WP(C).24964/16 2 Personal Assistant to Judge and given full additional charge as Private Secretary to the Chief Justice by Exhibit P1 proceedings dated 6.11.2008. Subsequently, the petitioner was given regular promotion as Private Secretary to Judge by Exhibit P2 dated 6.1.2009. He exercised the option as provided under Rule 28 A, Part I, KSR. The petitioner opted for fixation of pay in the higher pay scale on the date of promotion and for next increment in the higher pay scale on completion of one year from the date of fixation. His pay was fixed and he was granted further postings and promotions as well. Thereafter, the petitioner noticed that there was anomaly in fixation of his pay in as much as his junior Smt. K. Laila, who was pomoted as Private Secretary to Judge from 6.2.2009, was drawing higher pay than him. The petitioner had therefore submitted Exhibit P12 representation before the 2nd respondent and the same was forwarded by the 2nd respondent to the 3rd respondent as per letter dated 6.2.2013. By Exhibit P15 order, the Additional Chief Secretary to Government informed the 2nd respondent as follows:
"Inviting attention to the reference cited, I am to inform you that senior Shri. Unninarayanan drawing less pay than his junior is due to the date of option exercised by him for fixation under Rule 28 A Part I KSRs on promotion as Private Secretary to Judge on 06.01.2009. Hence this does not come under the junior-senior WP(C).24964/16 3 anomaly. In view of the above, the pay of Shri.V.K Unninarayanan cannot be stepped up to the level of his junior Smt.K.Laila."
This order is under challenge in this writ petition.
3. A statement has been filed by the 2nd respondent contending that though Smt. K.Laila is junior to the petitioner, the anomaly in fixation of pay had occurred due to the option exercised by the petitioner, the Accountant General (A&E) informed the 2nd respondent by Exhibit P14 that the anomaly can be rectified as stipulated in Ruling No.1 under Rule 28 A, Part I, KSR. The 2nd respondent had therefore taken up the matter with the first respondent. It is stated that though Smt. K. Laila, who was junior to the petitioner, had been appointed as Private Secretary to Judge with effect from 6.2.2009, she had opted for option No.(b) under Rule 28 A, Part I, KSR. The 1st respondent had therefore held that since the anomaly in fixation of pay was on account of an option exercised by the petitioner, the same could not be treated a senior-junior anomaly which could be rectified under Rule 28 A, Part I, KSR. This fact had been informed to the petitioner also.
4. The 1st respondent has also filed a counter affidavit, wherein it is contended that the anomaly in fixation of pay is as a result of an option consciously exercised by the senior officer WP(C).24964/16 4 and the stepping up of pay as available under Ruling No.I will not be applicable. It is stated that the option excercised under Rule 28 A, Part I, KSR is final and no re-option is admissible. It is stated that the petitioner had opted for option No.(a) while his Junior had opted option No.(b). It is further stated that this anomaly has not occurred directly as a result of the application of the Rule 28 A, Part I, KSR and it cannot be rectified as per the conditions of Ruling No.I under Rule 28 A.
5. Ruling No.1 under Rule 28A, Part I, KSR reads as follows:
"In cases where the application of the rule would give rise to anomalies in as much as an officer officiating in a higher post could get his pay refixed at a stage higher than the pay drawn by another who stands confirmed in the higher post on the same scale of pay, the anomaly will be removed by refixing the pay of the senior officer at the stage equal to that fixed for the junior officer in the higher post, the orders of refixation being issued by the Competent Authority under Rule 34, Part I, Kerala Service Rules. The refixation of pay in such cases will be made subject to the following conditions:-
(a) Both the junior and senior officers should belong to the same cadre and the post in which they have been promoted or confirmed, as the case may be, should be identical and in the same cadre.
(b) The scale of pay of the lower post in which WP(C).24964/16 5 they would have drawn their pay but for their promotion or confirmation should be identical.
(c) The anomaly should be directly as a result of the application of Rule 28A. For example, if the junior officer draws from time to time a higher rate of pay than the senior by virtue of fixation of pay under the normal rules or any advance increment granted to him, the provision contained in this ruling should not be invoked to step up the pay of the senior officer.
(d) The refixation of pay of the senior officer should be done with effect from the date of refixation of pay of the junior officer. The next increment of the senior officer will however be drawn on the date on which it would have fallen due but for this refixation of pay."
6. Learned counsel for the petitioner relies on the judgment of a Division Bench of this Court in W.A No. 1580 of 2006. The Division Bench, considering the anomaly which occurred in the fixation of pay of a junior, who was working as Senior Accountant (Higher Grade), on account of a difference in option submitted pursuant to the pay revision effected in 1993, considered the specific contention raised by the respondents that the difference in pay had arisen as a result of a judicious exercise of option by the junior and in such circumstances, the senior, who had consciously exercised an option which resulted in his drawing a lower pay, cannot be permitted to seek the WP(C).24964/16 6 benefit of stepping up in terms of Ruling No.1 under Rule 28 A, Part I, KSR. The Division Bench held that the question to be decided in a request for stepping up of pay is whether by virtue of the provisions contained in Ruling No.1 under Rule 28 A, Part I, KSR, the senior is entitled to have his pay stepped up and equated his pay of his junior. Referring to conditions (a) to (d) specified in Ruling No.1, the Division Bench held that the conscious exercise of an option which resulted in the senior drawing a lower pay was not excluded from the ambit of the conditions in ruling 1. In the case decided in the said writ appeal also, where the anomaly was a result of the different dates opted by the senior and the junior, the Division Bench held that the anomaly was a result of fixation of pay of the junior applying Rule 28A of Part I KSR and that therefore the senior is entitled to have his pay stepped up.
6. The learned Government Pleader sought to draw a distinction in the instant case on the ground that the difference in this case arose on account of the option exercised by the petitioner as provided in Rule 28A itself. It is contended that the question of the difference arising on account of the option specifically provided in Rule 28A has not been considered by the Division Bench in the judgment referred to above. I have WP(C).24964/16 7 considered the said contention as well. Though it may be true that the Division Bench has not specifically considered the exercise of option as provided in Rule 28A, the principle that the conscious exercise of an option giving rise to anomalies would not be covered under the provisions for stepping up as provided in Ruling No.1 under Rule 28A, Part I, KSR has been considered by the Division Bench. Even in a case where the anomaly arises as a result of the proper exercise of option by the junior and the option exercised by the senior leading to his drawing a lower pay, the Division Bench held that if the fixation was as a result of fixation of pay under Rule 28A, then the stepping up of pay as provided in Ruling No.1 would apply.
7. In the instant case as well, the options (a) and (b) are as specifically provided under Rule 28A. The anomaly arose as a result of the difference in the option exercised by the senior and the junior. I am of the opinion that the finding contained in Exhibit P15 to the effect that the anomaly having arisen as a result of the option exercised, the rule of stepping up of a pay under Ruling No.1 would not be applicable cannot be sustained in view of the declaration of the law by the Division Bench in the judgment referred to above. In the instant case also, since the difference in pay was the result of an option exercised WP(C).24964/16 8 under Rule 28A, I am of the opinion that the said anomaly is directly as a result of application of Rule 28A. In the above view of the matter, Exhibit P15 cannot be sustained. Exhibit P15 is, therefore, set aside. There will be a direction to the respondents to pass revised orders stepping up the pay of the petitioner as sought for by him at par with that of his junior Smt.K.Laila with effect from 1.7.2007 at Rs.30,610/-. The resultant benefit shall be calculated and disbursed to the petitioner. Needful shall be done within a period of three months from the date of receipt of a copy of this judgment.
The writ petition is disposed of as above.
ANU SIVARAMAN JUDGE sab/vgs