Kerala High Court
C.V. Jacob vs Ushakumari P.R on 18 December, 2019
Equivalent citations: AIRONLINE 2019 KER 701, 2020 LAB IC 569
Bench: S.Manikumar, A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
WEDNESDAY, THE 18TH DAY OF DECEMBER 2019 / 27TH AGRAHAYANA, 1941
Con.Case(C).No.2041 OF 2018 IN WA. 1510/2015
AGAINST THE JUDGMENT IN WA 1510/2015 OF HIGH COURT OF KERALA
DATED 24/7/2018
PETITIONER/1ST RESPONDENT/WRIT PETITIONER:
C.V. JACOB,
S/O.C.V.VARGHESE, AGED 59 YEARS, ADMINISTRATIVE
OFFICER, (RETIRED), GREATER COCHIN DEVELOPMENT
AUTHORITY, KADAVANTHRA, COCHIN - 682 020, RESIDING
AT NO.33, SWAS VILLA, VALIAKULAM, UDAYAMPEROOR,
ERNAKULAM DISTRICT, COCHIN - 682 307.
BY ADV. SRI.P.K.RAVISANKAR
RESPONDENT/2ND RESPONDENT/2ND RESPONDENT:
USHAKUMARI P.R.,
AGED 54 YEARS
FATHER'S NAME NOT KNOWN TO THE PETITIONER,
SECRETARY, GREATER COCHIN DEVELOPMENT AUTHORITY,
KADAVANTHRA, COCHIN - 682 020.
R1 BY SRI.M.K.THANKAPPAN, SC, GCDA
THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY
HEARD ON 6.12.2019, ALONG WITH Con.Case(C).551/2019, THE COURT
ON 18.12.2019 DELIVERED THE FOLLOWING:
Cont.Case (c) Nos.2041/18 & 551/19
-:2:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
WEDNESDAY, THE 18TH DAY OF DECEMBER 2019/27TH AGRAHAYANA,
1941
Con.Case(C).No.551 OF 2019 IN WA. 1510/2015
AGAINST THE JUDGMENT IN WA 1510/2015 OF HIGH COURT OF
KERALA DATED 24/7/2018
PETITIONER/1ST RESPONDENT/WRIT PETITIONER:
C.V.JACOB
AGED 59 YEARS
S/O.C.V.VARGHESE, ADMINISTRATIVE OFFICER,
(RETIRED), GREATER COCHIN DEVELOPMENT
AUTHORITY, KADAVANTHRA, COCHIN-682020, RESIDING
AT NO.33, SWAS VILLA, VALIAKULAM, UDAYAMPEROOR,
ERNAKULAM DISTRICT, COCHIN-682307.
BY ADV. SRI.P.K.RAVISANKAR
RESPONDENT/APPELLANT/1ST RESPONDENT:
T.K.JOSE, I.A.S.,
AGED ABOUT 55 YEARS, FATHER'S NAME NOT KNOWN TO
THE PETITIONER, ADDITIONAL CHIEF SECRETARY,
LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT OF
KERALA, THIRUVANANTHAPURAM-695001.
R1 BY SR GOVERNMENT PLEADER SRI.TEK CHAND
THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY
HEARD ON 6.12.2019, ALONG WITH Con.Case(C).2041/2018, THE
COURT ON 18.12.2019 DELIVERED THE FOLLOWING:
Cont.Case (c) Nos.2041/18 & 551/19
-:3:-
JUDGMENT
Dated this the 18th day of December 2019 Shaffique, J.
These two contempt cases are filed alleging non compliance of directions issued by this Court as per judgment dated 18/2/2015 in WP(C) No. 5320/2011, which has been confirmed by judgment dated 24/7/2018 in WA No. 1510/2015.
2. The complainant was the petitioner in the writ petition. The complainant was working as Administrative Officer in the office of Greater Cochin Development Authority (GCDA). He sought for parity in the pay scale to that of the Deputy Secretary in Secretariat Service. Though it was contended that the duties and responsibilities of Administrative Officer in GCDA are not identical to that of Deputy Secretary to Government, it was held that until the Government takes a decision to decline the service pattern adopted in GCDA for Administrative/Ministerial staffs in the line of Secretariat staffs, the refusal of the pay revision to the Administrative Officer is unjust and illegal. Hence the writ petition Cont.Case (c) Nos.2041/18 & 551/19 -:4:- was allowed and direction was issued that the Administrative Officers are to be given revised scale of pay based on the proposal of GCDA in the pay band `20700-26600 w.e.f. 1/7/2004. The judgment was taken in appeal by the State and the appeal was dismissed approving the judgment of the learned Single Judge. There is no dispute about the fact that Government had complied with the directions issued by the learned Single Judge by putting the Administrative Officer in the pay band of 20700- 26600 effective from 1/7/2004.
3. In Cont.Case (C) No.2041/218, the contention was that the service benefits were not paid due to the revision of pay scale as directed in the judgment. It is now pointed out that the petitioner had been given the benefit as directed. Accordingly Cont.Case (C) No.2041/2018 can be closed as being complied with.
4. In Cont.Case (C) No. 551/2019, petitioner contended that as per Go(MS) No.305/2011/LSGD dated 7/12/2011, pay scales of employees of GCDA was revised as per which pay scale of Administrative Officer in CGDA was fixed as `29180-43640 Cont.Case (c) Nos.2041/18 & 551/19 -:5:- effective from 1/7/2009 whereas w.e.f from the same date, pay scale of Deputy Secretary in the State Secretariat was revised as `40640-`57440. Again the pay scale was revised effective as per Government Order dated 25/2/2018 revising the pay scale of employees of GCDA and the pay scale of Administrative Officer in GCDA was fixed as `55350-101400 effective from 1/7/2014 whereas w.e.f. the same date, pay scale of Deputy Secretary in the State Secretariat service was revised as `77400-`115200.
5. Petitioner had retired from service on 31/5/2015. It is stated that pursuant to the judgment in WA No.1510/15, pay scale of the petitioner was revised as `40640-57440 w.e.f. 01/04/2010 and `77400-115200 w.e.f. 1/7/2014. Annexure C is the said order dated 13/9/2018. By Annexure D letter dated 21/2/2019, respondent has issued an order stating that it is not possible to sanction the pay scales of `40640-57440 w.e.f. 01/07/2009 and `77400-115200 w.e.f. 1/7/2014 since there is no mention in the judgment that the Administrative Officer in GCDA shall be paid the scale of Deputy Secretary in Secretariat in the subsequent pay revisions. It is pointed out one Sri.V.A.Faziul Cont.Case (c) Nos.2041/18 & 551/19 -:6:- Rahman who retired on 28/2/2006 as Administrative Officer was given the benefit of the pay revision. It is in the light of the aforesaid facts, it is brought to the notice that there is wilful contempt.
6. An affidavit has been filed by the respondent in which it is stated that GCDA implemented 2006 pay revision order w.e.f. 1/7/2004. CGDA sought sanction for implementing the pay revision following the 2006 State pay revision order. Government approved the revision proposed by GCDA except that of Administrative Officers which prompted the petitioner to file the writ petition. It was contended that the Madras Town Planning Act of 1920 and the Travancore Town Planning Act of IV of 1108 were repealed by S.118 of the Kerala Town and Country Planning Act, 2016 which came into effect on 17/3/2016. The GCDA was reconstituted and the functions of the Development Authorities have been drastically reduced. Hence, subsequent pay revisions can be granted only keeping in mind the activities of the Development Authorities. It is further stated that the qualification and method of recruitment of ministerial staff of GCDA are Cont.Case (c) Nos.2041/18 & 551/19 -:7:- governed by Rule 15(c) of KTCP (DA) Rules 2015 in which it is clearly specified that the Kerala Municipal Common Service (Ministerial and Revenue Branch) Qualification of Method of Appointment Rules, 2001 shall apply. It is further stated that the 9th and 10th pay revision orders were extended to GCDA employees based on the views of the Finance Department as per the recommendations of the Pay Revision Commission. Paragraphs 9 and 10 are relevant which reads as under;
"9. The 9th and 10th pay revision orders has been extended to the GCDA employees based on the views of the Finance Department as per recommendations of Pay Revision Commissions. According to 8th pay revision benefits granted to GCDA by G.O.2251/07/LSGD dated 17/8/2007 the pay scale granted to Administrative Officer is 16650-23200 and pay scales granted to the above post in subsequent revisions are 29180- 43640 (9 th pay revision as per G.O.(Ms)No.305/2011/LSGD dated 07.12.2011) and 55350-10140 (10th pay revision as per G.O. (Ms)No.27/2018/LSGD dated 25.02.2018). Pension revisions upto 9th pay revision has been approved by Government vide G.O. (MS)No.200/2012/LSGD dated 21.07.2012 and G.O.(Ms)No.201/2012/LSGD dated 21.07.2012. Pension revision on par with 10 th Pay Revision Commission is under scrutiny of Government.
Cont.Case (c) Nos.2041/18 & 551/19 -:8:-
10. By virtue of the new rule, Judgment rendered by this Honourable Court based on Rule 18 and 24 of the Kerala Development Authority Rules, 1984 cannot be pressed into service to claim parity in the pay scale with that of Deputy Secretaries in Secretariat. It is under the aforesaid circumstances the Annexure D letter has been issued clarifying that the benefits of subsequent pay revisions i.e., 2009 & 2014 pay revisions cannot be granted to petitioner. Under the circumstances, this Honourable Court may be pleased to find that there is no willful or deliberate act of disobedience on the part of respondent and that the directions contained in the judgment have been fully complied in as much as the pay revision for implemented in the year 2004 has been granted giving parity in pay of the Administrative Officers of GCDA with that of Deputy Secretaries in the Secretariat. This respondent tenders unconditional apology for the inconvenience caused to this Honourable Court."
7. In a reply affidavit filed, the petitioner submitted that pursuant to order dated 10/4/2019 by this Court, the Senior Deputy Director, Kerala Audit Department had issued letter dated 17/5/2019 to GCDA refixing the pay scale to `40640-57440 w.e.f. 1/04/2010. Annexure F is the said letter. The said pay scale is the pay scale payable to Deputy Secretary in the Government service w.e.f. 1/04/2010 and GCDA had paid him the pension and salary Cont.Case (c) Nos.2041/18 & 551/19 -:9:- arrears and other consequential benefits.
8. Apparently, the petitioner was given the benefit of the 9th pay revision and he has no complaint about it.
9. The only question that remains to be considered is regarding the benefits due for the 10 th pay revision. Annexure G is order issued by the Government on 10/6/2019 wherein it is stated that as per Government Order dated 29/3/2012, the revised pay scale of Deputy Secretary as per 9 th pay revision which was `36140-49740, is revised to `40640-57440 to Deputy Secretaries of Advocate General office Kerala Public Service Commission and Government Secretariat. It was mentioned that the said Government Order is not made applicable to other departments. Accordingly, it is ordered to sanction `20700-26600 to the petitioners in WP(C) No. 29106/2007 and 5320/2011 as sanctioned in the 8th pay revision order and to sanction `36140- 49740 being the revised scale of pay as per GO(P) No.85/2011/Finance dated 26/2/2011 corresponding to the same pay scale and complying with the orders of the High Court. Thereafter, by Annexure H Government Order GO(Rt) Cont.Case (c) Nos.2041/18 & 551/19 -:10:- No.1777/2019/LSGD dated 17/8/2019, the pay scale of the petitioner was fixed as `68700-110400 with respect to 10th pay revision. According to the petitioner, the pay scale of the 9 th pay revision and 10th pay revision is that of Under Secretary and not Deputy Secretary. The Deputy Secretary in Secretariat service was given the pay scale of `40640-57440 in the 9th pay revision and `77400-115200 in the 10th pay revision. Petitioner therefore sought for continuance of the contempt proceedings. With reference to Government Order dated 17/8/2019 extending the benefits of the 10th pay revision to petitioner, this Court took note of the submission of the learned counsel for the petitioner that he ought to have been given the pay scale of Deputy Secretary and the respondent was called upon to file additional affidavit. An additional affidavit is filed on 30/9/2019. It is stated that the Government Order dated 17/8/2019 had been issued giving the benefit of 10th pay revision orders to the petitioner. Annexure R1(a) has been produced to prove the said fact. It is stated at paragraphs 5 and 6 of the additional affidavit as under:-
"5. It is respectfully submitted that as per Annexure Cont.Case (c) Nos.2041/18 & 551/19 -:11:- 1 in GO(P) No.85/2011/Fin dated 26.02.2011 the revised pay scale of Rs. 20700-26600 is Rs.36140- 49740. This scale of pay is equivalent to the pay scale of Deputy Secretary in the Government Secretariat. Thereafter as per G.O.(P)No. 193/2012/Fin dated 29.03.2012 the scale of pay of Rs 36140-49740 was revised and fixed as Rs. 40640-57440. This hike in pay for the post of Deputy Secretary in Kerala Public Service Commission, Office of the Advocate General and Government Secretariat were made taking into account the special duty they undertake in their respective offices. In this connection it may also be noted that as per Secretariat Office Manual, the Deputy Secretary occupies a position almost identical to that of a Secretary (An Officer in Indian Administrative Service) in regard to subjects allotted to him by the Secretary. The Secretary is the official head of each Department of Secretariat. In other words, the Deputy Secretary occupies a position identical to that of Head of Department with State wide jurisdiction. The function of Deputy Secretary cannot be equated to Administrative Officer of GCDA who have only a limited administrative power with in the jurisdiction/limit of the Authority. Therefore, the Administrative Officer of GCDA is not eligible for the hike in scale of pay of Deputy Secretary. This Government order is not made applicable to other Departments/Institutions. Further no post in autonomous body are approved Cont.Case (c) Nos.2041/18 & 551/19 -:12:- in principal as equivalent to the post in Government Secretariat.
6. It is therefore clear that the administrative officer in GCDA is eligible only for the pay scale of corresponding to Rs. 20700-26600 ie. Rs. 36140- 49740 as per Annexure 1 of G.O(P) No. 85/2011/Fin dated 26.02.2011 in the 9th pay revision and the pay scale of corresponding to Rs. 36140-49740 i.e.. Rs. 68700-110460 as per Annexure I of G.O.(P) No. 7/16/Fin dated 20.01.2016 in 10th pay revision. Under the circumstance, this Hon'ble Court may be pleased to find that the Judgment of this Hon'ble Court has been complied with by granting all benefits as directed by this Hon'ble Court" .
10. When the matter again came up for hearing, learned Government Pleader produced a memo producing the order dated 29/3/2012 in which the pay scale of Deputy Secretary in the Secretariat, Kerala Raj Bhavan, Advocate General's office and Kerala Public Service Commission have been enhanced from `36140-49740 to `40640-57440. Apparently, with reference to these three services, objections were raised to the recommendations of the 9th Pay Revision Commission. The same was considered by the Government and it is taking into consideration various anomalies that the Government had Cont.Case (c) Nos.2041/18 & 551/19 -:13:- examined the matter and issued the aforesaid order. This order dated 29/3/2012 was with reference to the 9 th pay commission. The petitioner in the above case was an Administrative Officer and the persons in the rank of Deputy Secretary were of the pay band `36140-49740 during the 9th pay revision. This benefit had already been extended to the petitioner. But in respect of three services including Deputy Secretary in Secretariat, the Government by a special order had modified the scale of pay by order dated 29/3/2012. But as far as Administrative Officer of GCDA is concerned, he remained in the pay band of `36140- 49740 and cannot seek the very same pay band of Deputy Secretary which was modified in terms of Government Order dated 29/3/2012. Consequently, when the 10 th pay revision also comes, his pay band would be enhanced from `36140-49740 alone.
11. After considering the respective contentions placed by either side, the learned Single Judge had clearly indicated that it is for the Government to consider whether a parity has to be given between the service of an Administrative Officer and Cont.Case (c) Nos.2041/18 & 551/19 -:14:- Deputy Secretary. The claim of the petitioner for a parity with that of Deputy Secretary in Secretariat has not been finally decided or approved. But the 9th Pay Revision Commission has also recommended only the pay band of `36140-49740 to the post of Deputy Secretary. It was by a special Government Order that for Deputy Secretaries of Secretariat, a higher pay band had been fixed which they alone will be entitled to get. The Administrative Officer of GCDA cannot aspire for a special benefit that is given to Deputy Secretary of Secretariat. Therefore, the enhancement of the pay scale during the 10th Pay Revision Commission can only be from the benefits that had accrued during the 9 th pay revision. Hence, we do not find any reason to take contempt action against the respondents as there are valid reasons for denying the aforesaid benefit. At any rate, what was under consideration was only fixation of pay at a particular pay band and whether the petitioner was entitled for pay revision based on 9 th pay revision and 10th pay revision commission were all matters which ought to be adjudicated in appropriate proceedings. We are of the view that there is valid justification for the Government to have denied Cont.Case (c) Nos.2041/18 & 551/19 -:15:- the pay revision applicable to employees in the rank of Deputy Secretary in Secretariat on account of the special pay scale fixed for them. Hence we do not think that any wilful contempt had been made out in this case.
Contempt cases are therefore dropped.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
A.M.SHAFFIQUE
Rp JUDGE
Cont.Case (c) Nos.2041/18 & 551/19
-:16:-
APPENDIX OF Con.Case(C) 2041/2018
PETITIONER'S EXHIBITS:
ANNEXURE A: TRUE COPY OF THE JUDGMENT DATED
18.02.2015 IN WP(C)NO.5320 OF 2011.
ANNEXURE B: TRUE COPY OF THE JUDGMENT DATED
24.07.2018 IN W.A.NO.1510 OF 2015.
ANNEXURE C: TRUE COPY OF THE LETTER DATED 14.8.2018
ISSUED BY THE PETITIONER TO THE RESPONDENT AND ENGLISH TRANSLATION.
Cont.Case (c) Nos.2041/18 & 551/19 -:17:- APPENDIX OF Con.Case(C) 551/2019 PETITIONER'S EXHIBITS:
ANNEXURE A TRUE COPY OF THE JUDGMENT DATED 18.2.2015 IN WPC.NO.5320 OF 2011.
ANNEXURE B TRUE COPY OF THE JUDGMENT DATED 24.7.2018 IN W.A.NO.1510 OF 2015.
ANNEXURE C TRUE COPY OF THE ORDER NO.3768/ESTT-
2/2014/GCDA DATED 13.9.2018 ISSUED BY THE SECRETARY, GCDA AND ITS ENGLISH TRANSLATION.
ANNEXURE D TRUE COPY OF THE LETTER NO.LSGD-
IA3/165/2018-LSGD DATED 21.2.2019
ISSUED BY THE RESPONDENT AND ITS
ENGLISH TRANSLATION.
ANNEXURE E TRUE COPY OF THE PENSION FIXATION
PROCEEDINGS DATED 6.5.2015 WITH RESPECT TO SRI.V.A.FAZLUL RAHMAN.
ANNEXURE F TRUE COPY OF THE LETTER NO.K.S.A.G.D.A. (A3)749/15 DATED 17.5.2019 ISSUED BY THE SENIOR DEPUTY DIRECTOR, KERALA AUDIT DEPARTMENT ATTACHED TO THE G.C.D.A. TO THE SECRETARY, G.C.D.A. AND ITS ENGLISH TRANSLATION.
ANNEXURE G TRUE COPY OF THE G.O.(Rt)
NO.1190/2019/LSGD DATED 10.6.2019
ISSUED BY THE RESPONDENT AND ITS
ENGLISH TRANSLATION.
ANNEXURE H TRUE COPY OF THE G.O.(Rt)
NO.1777/2019/LSGD DATED 17/8/2019
ISSUED BY THE RESPONDENT AND ITS
ENGLISH TRANSLATION.
Cont.Case (c) Nos.2041/18 & 551/19
-:18:-
ANNEXURE I TRUE COPY OF THE RELEVANT PORTION OF
G.O.(P) NO.7/2016/FIN. DATED 20/1/2016.
RESPONDENT'S EXHIBITS
ANNEXURE R1(a) TRUE COPY OF THE GOVERNMENT ORDER
G.O(RT) NO.1777/2019/LSGD DATED
17/8/2019.
True Copy
PS to Judge
Rp