Kerala High Court
Kamala Devi vs Kerala State Financial Enterprises ... on 19 October, 2001
Author: K. Balakrishnan Nair
Bench: K.S. Radhakrishnan, K. Balakrishnan Nair
JUDGMENT K. Balakrishnan Nair, J.
1. The point that arises for consideration in the is Writ Appeal is whether the drawal by the junior of higher pay than his admitted senior is arbitrary and is in violation of Article 14 of the Constitution in the facts and circumstances of the case. There cannot be any universal rule that a junior can in no circumstance draw higher pay than his senior. Where the junior is a promotee and the senior is a direct recruit to a particular cadre, the junior will be drawing higher pay. There may be a variety of similar circumstances justifying the drawal of higher pay by a junior. Therefore, the decision on the point raised by the appellant will largely depend upon the facts of this case. The minimum facts necessary for the decision of the case are the following:
The appellant joined the service of the first respondent Kerala State Financial Enterprises Ltd. as Junior Assistant on 12.3.1973. She was promoted as Senior Assistant in July, 1978 and further promoted as Executive Assistant (now designated as Junior Executive) on 6.5.1982 by Ext. P1 order. Later, she was promoted as Manager on 29.8.1994. One Mr. Kasim Pillai who joined the service of the first respondent as Junior Assistant subsequent to the appellant was promoted to the post of Senior Assistant and Junior Executive only subsequent to the promotion of the appellant. His promotion as Junior Executive (formerly Executive Assistant) was on 8.5.1984 as evident from Ext. P2, but the said junior started drawing higher basic pay than the appellant from 1.7.1992.
2. The reason for this disparity is explained in the following manner: There was a long term settlement between the management and the employees concluded on 12.9.1985. One of the terms of the settlement was the creation of the post of special grade Assistant between the posts of Senior Assistant and Junior Executive. As a result, the employees who got promotion as Junior Executive, after the implementation of the settlement, came through the post of Special Grade Assistant. So, they got a fixation of pay on promotion to the newly created post and got another fixation on promotion to the post of Junior Executive. So, the promotees to the post of Junior Executive after the implementation of Ext. P1 agreement began to draw higher pay than those who were promoted to that post earlier. The seniors took up cudgels against this discrimination. But the management resisted the protest contending that it was the result of implementation of a long term settlement which is binding on all employees including the seniors. Few of the aggrieved employees approached this Court against this discrimination by filing O.P. No. 14745/93. The same was dismissed upholding the stand of the management that the disparity is the result of a binding long term settlement. But, later, the management themselves came forward and attempted to rectify the anomaly by giving one additional increment to those persons who were promoted as Junior Executives between 1.4.1983 and 1.7.1984. It appears, the agreement was implemented with effect from 1.7.1984. The pleading of the management in this regard is contained in paragraph 3 of its counter affidavit which is extracted below:
"At the very outset it is submitted that as per the Long Term Settlement dated 12.9.1985 entered into between the management and the trade unions, a new post of Special Grade Assistant was created between the posts of Senior Assistant and Junior Executive. As a result, those employees who were promoted as Junior Executives after the implementation of the Long Term Settlement, became entitled to more benefits by virtue of the fact that promotion as Junior Executives were only from among Special Grade Assistant. It was in response to the protest raised by some Junior Executives who were promoted earlier and were unable to avail of the benefits of the creation of the new post that the Board of Directors decided to grant the benefits of one special increment for all those who were promoted as Junior Executives between 1.4.83 and 1.7.84. This decision of the Board of Directors, was a special consideration to ameliorate the disparities in pay that had occurred on account of the implementation of Long Term Settlement dated 12.9.85."
3. The decision to grant on increment for those who were promoted as Junior Executive between 1.4.1983 and 1.7.1984 was not pursuant to any binding settlement. It was based on the decision of the Board of Directors taking into account the anomaly of the senior drawing lesser pay without any relevant reason. As a result of this grant of one additional increment, the above said Kasim Pillai started drawing higher pay than the appellant. This prompted the appellant to file representations before the respondents which were rejected by Exts. P5 and P7 communications. Challenging those communications and seeking consequential benefits, the appellants filed O.P.No. 16391/94. The same was dismissed by the judgment under appeal.
4. Head both sides. The appellant contended that she and Mr. Khasim Pillai are similarly placed in every respect. She is senior to him in every post. Therefore, the higher pay granted to him is plainly discriminatory and militates against the guarantee of equality contained in Article 14. The decision was taken suo motu by the management to remove the anomaly of junior drawing higher pay. Consequently, Mr. Kasim Pillai and a few others were given the benefit of one additional increment. The appellant also started suffering the very same disability suffered by Mr. Kasim Pillai. But, she was not considered for being included in the group of beneficiaries of the decision of the management.
5. The management did not dispute the fact that the appellant is senior in all cadres and that she is drawing lesser pay than her junior Mr. Khasim Pillai. But the same is sought to be justified by submitting that Mr. Kasim Pillai got one additional increment as part of rectification of the anomaly of the juniors of him drawing higher pay who were promoted after the implementation of the settlement. it is submitted that if the pay of the appellant also is stepped up, that may result in further claims which may cause prejudice to the management.
6. Article 14 guarantees equality before law and equal protection of laws, but the same does not prohibit classification. A classification will not be hit by Article 14, if the same satisfies the twin tests:-
(1) there is an intelligible differentia between those included in one group and those excluded from it;
(2) it has a rational nexus with the object of the law.
The Supreme Court has held that if the classification suffers from the vice of under- inclusiveness, the same will be hit by Article 14. The Supreme Court has explained the said principle pithily in In Re Special Courts Bill, 1978, in the following words:
(AIR 1979 (1) SC 478):
"120. The Court in Mohammad Shujat Ali v. Union of India, (1975) 1 SCR 449 at p. 477: (AIR 1974 SC 1631 at p. 1653) has explained the constitutional facet of classification: This doctrine recognises that the legislature may classify for the purpose of legislation but requires that the classification must be reasonable. It should ensure that persons or things similarly situated are all similarly treated. The measure of reasonableness of a classification is the degree of its success in treating similarly those similarly situated.
But the question is: what does this ambiguous and crucial phrase similarly situated means? Where are we to look for the test of similarity of situation which determines the reasonableness of a classification? The inescapable answer is that we must look beyond the classification to the purpose of the law. A reasonable classification is one which includes all persons or things similarly situated with respect to the purpose of the law."
121. After having stated the general proposition, the Court struck a note of warning which is the main crux of the present controversy: Ibid at p. 478:(at pp. 1653, 1654 of AIR):
"The fundamental guarantee is of equal protection of the laws and the doctrine of classification is only a subsidiary rule evolved by Courts to give a practical content to that guarantee by accommodating it with the practical needs of the society and it should not be allowed to submerge and drown the precious guarantee of equality. The doctrine of classification should not be carried to a point where instead of being a useful servant, it becomes a dangerous master, for otherwise, as pointed out by Chandrachud, J. in State of Jammu & Kashmir v. Triloki Nath Khosa, (1974) 1 SCC 19: (AIR 1974 SC 1), "the guarantee of equality will be submerged in class legislation masquerading as laws meant to govern well-marked classes characterised by different and distinct attainments. ".....That process would inevitably end in substitution the doctrine of classification for the doctrine of equality; the fundamental right to equality before the law and equal protection of the laws may be replaced by the overworked methodology of classification. Our approach to the equal protection clause must, therefore, be guided by the words of caution uttered by Krishna Iyer, I. in State of Jammu & Kashmir v. Triloki Nath Khosa. "Mini-classifications based on micro-distinctions are false to our egalitarian faith and only substantial and straightforward classification plainly promoting relevant goals can have constitutional validity. To overdo classification is to undo equality".
122. Mathew, J. in State of Gujarat v. Shri Ambica Mills, Ahmedabad, (1974) 3 SCR 760 at p. 782: (AIR 1974 SC 1300 at pp 1312, 1313) placed the same accent from the angle of under- inclusion:
"The equal protection of the laws is pledge of the protection of equal laws. But laws may classify..... A reasonable classification is one which includes all who are similarly situated and none who are not. The question is what does the phrase 'similarly situated' means? The answer to the question is that we must look beyond the classification to the purpose of the law. The purpose of a law may be either the elimination of a public mischief or the achievement of some positive public good.
A classification is under-inclusive when all who are included in the class are tainted with the mischief but there are others also tainted whom the classification does not include. In other words, a classification is bad as under-inclusive when a State benefits or burdens persons in a manner that further a legitimate purpose but does not confer the same benefit or place the same burden on others who are similarly situated. A classification is over-inclusive when it includes not only those whoa re similarly situated with respect to the purpose but others who are not so situated as well."
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 int he 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.
8. Even without going into the nuances of law relating to classification, it is apparent that the present case is a clear case of plain discrimination, in as much as the appellant's junior is drawing higher salary than her without any reasonable reasons whatsover. So, the appellant is entitled to have her salary stepped up with effect from the date her junior started to draw higher pay than her. This view taken by us finds support from two decisions of the Supreme Court in Union of India and Ors. v. P. Jagdish and Ors. (1973) 3 SCC 176) and in Calcutta Municipal Corpn. and Anr. v. Sujit Baran Mukherjee and Ors. ((1997) 11 SCC 463). In the first decision, the Supreme Court has held as follows:
"This principle becomes applicable when the junior officer and the senior officer belong to the same category and the post from which they have been promoted and in the promoted cadre the junior officer on being promoted later than the senior officer gets a higher pay. This being the principle of stepping up contained in the Fundamental Rules and admittedly the respondents being senior to several other Senior Clerks and the respondents having been promoted earlier than many of their junior who have promoted later to the post of Head Clerks, the principle of stepping up should be made applicable to the respondents with effect from the date of their juniors in the erstwhile cadre of Senior Clerks get promoted to the cadre of head Clerks and their pay was fixed at a higher slab than that of the respondents. The stepping up should be done in such a way that the anomaly of juniors getting higher salary than the seniors in the promoted category of Head Clerk would be removed and the pay of the seniors like the respondents would be stepped up to a figure equal to the pay as fixed for their junior officer in the higher post of Head Clerk. In fact the Tribunal by the impugned order has directed to apply the principle of stepping up and we see no infirmity with the same direction subject to the aforesaid clarification.....".
9. Counsel for the first respondent attempted to suggest that if the appellant is granted relief, there may be others suffering from the same disability and they may also come forward with similar demands. He suggests that it may have serious adverse consequences on the first respondent. The said submission has been made without placing sufficient data before us. Therefore, we are not inclined to examine it. Further, when a citizen comes to this Court complaining that her rights under Article 14 are being violated, this Court is bound to hear and decide the question on merits uninfluenced by the suggestion of unspecified consequences. In this connection, it is only appropriate to quote the words of Lord Denning M.R. in Bradbury and Ors. v. London Borough of Enfield ((1967) 3 All. ER 434) which read as follows:-
"I come now to the last point. Ought an injunction to be granted against the counsel? It has been suggested by the chief education officer that, if an injunction is granted, chaos will supervene. All the arrangements have been made for the next term, the teachers appointed to the new comprehensive schools, the pupils allotted their places, and so forth. It would be next to impossible, he says, to reserve all these arrangements without complete chaos and damage to teachers, pupils and the public. I must say this: if a local authority does not fulfil the requirements of the law, this court will see that it does fulfil them. It will not listen readily to suggestions of "chaos". The department of education and the council are subject to the rule of law and must comply with it, just like everyone else. Even if chaos should result, still the law must be obeyed; but I do not think that chaos will result. The evidence convinces me that the "chaos" is much over-stated.....I see no reason why the position should not be restored, so that the eight schools retain their previous character until the statutory requirements are fulfilled. I can well see that there may be a considerable upset for a number of people, but I think it far more important to uphold the rule of law. Parliament has laid down these requirements so as to ensure that the electors can make their objections and have them properly considered. We must see that their rights are upheld".
The said observation of the Master of Rolls has been quoted with approval by the Supreme Court in B. Prabhakar Rao v. State of Andhra Pradesh (1985 (Supp) SCC 432).
10. Therefore, we are inclined to allow this Appeal. The impugned orders are quashed. The appellant is entitled to have her salary stepped up to that of her junior Mr. Kasim Pillai with effect from the date he started drawing higher salary than her. She will be entitled to all consequential benefits notionally without arrears. The refixation of pay shall be made within a period of one month from the date of receipt of a copy of this judgment No costs.