Betty Varghese K. v. Government of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 28[TH] DAY OF JUNE 2022 / 7TH ASHADHA, 1944** ## **WP(C) NO. 32658 OF 2019** ## **PETITIONER:** BETTY VARGHESE K., KONUKUDY(H),NEELEESWARAM.P.O, KALADY-683574. BY ADVS. A.JAYASANKAR SRI.MANU GOVIND 1 THE GOVERNMENT OF KERALA REPRESENTED BY THE FINANCE DEPARTMENT (PRC-D) DEPARTMENT,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM695001. 2 SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, REPRESENTED BY ITS REGISTRAR,MAIN CAMPUS KALADY POST,ERNAKULAM DISTRICT-6983574. 3 THE GOVERNMENT OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, HIGHER EDUCATION(B)DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM,PIN-695001. 4 THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. BY ADVS. GOVERNMENT PLEADER SRI.PRASANTH S., SC, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT SHRI.DINESH MATHEW J.MURICKEN, SC, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY SMT.SREELATHA SR.GP ## **RESPONDENTS:** THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 32658 OF 2019** **2** ## **JUDGMENT** The petitioner is stated to be working as an Assistant Engineer in the Public Works Department of the 2[nd] respondent – Sree Sankaracharya University of Sanskrit (hereinafter referred to as “University” for short). She says that she completed 15 years of service on 24.05.2019, thus being eligible for 2[nd] Higher Grade Pay; but that she has been denied the same solely because the University takes the stand that Ext.P5 recommendations – which are based on the 10[th] Pay Revision – are applicable only to Assistant Engineers in six departments of the Government, namely Agriculture, Harbour Engineering, Irrigation, Ports (Mechanical Engineering Wing), Public Works and LSG Engineering Wing. The petitioner ## **WP(C) NO. 32658 OF 2019** **3** thus contends that Ext.P5, which limits the benefits only to a section of the Assistant Engineers, while declining it to the others, is illegal and unlawful. She consequently prays that Ext.P5, to the extent to which it appears to deny benefits of the wage revision to persons like her, be declared illegal and to direct the 1[st] respondent to issue orders making it applicable to all the departments of the University. 2. Sri.Manu Govind – learned counsel appearing for the petitioner, further submitted that Ext.P8 order has now been issued by the University declining his client's request saying that Ext.P5 could not apply to her. He argued that this is per se illegal and unlawful and therefore, reiteratingly prayed that the reliefs sought for in this writ petition be granted. **WP(C) NO. 32658 OF 2019** **4** 3. The learned Standing Counsel for the University - Sri.Dinesh Mathew J.Murikkan, argued that his client is completely incapacitated from travelling beyond Ext.P5, since implementation of 10[th] Pay Revision can be done only as per the mandate of the Government of Kerala. He submitted that since Ext.P5 does not include the departments of the University in which the petitioner is working, they cannot implement the same as pleaded by him. 4. Smt.M.R.Sreelatha – learned Senior Government Pleader, submitted that an affidavit has been filed on record by the 1[st] respondent controverting the allegations of the petitioner and argued that the scales of pay of various posts are fixed considering several germane factors like its duties and responsibilities, educational qualifications **WP(C) NO. 32658 OF 2019** **5** required; hierarchical and functional regulations etc. She contented that the comparison of the scale of pay of the post of Assistant Engineer in a Government Department, with that of an Assistant Engineer in University services, is inappropriate because they fall under two distinct services. She further added that the duties and responsibilities of the Assistant Engineer in Government service is in comparable with that of the University and therefore, that the petitioner cannot claim any benefit based on Ext.P5, especially since parity in scales of pay can be claimed only in respect of posts which are equated and interchangeable, as per the special Rules concerned. She concluded her submissions pointing out that the Government revises the pay and allowances of employees based on specific recommendations of the Pay **WP(C) NO. 32658 OF 2019** **6** Revision Commissions; and that the 9[th] and 10[th] Pay Revision Commissions did not recommend the Career Advancement Scheme to directly recruited professionals of Universities. She, thus prayed that this writ petition be dismissed and relied upon the judgment of the Hon'ble Supreme Court in _**State of Bihar and**_ _**others v. Bihar Veterinary Association and**_ _**others**_ [(2008) 11 SCC 60] in substantiation . 5. When I evaluate the afore submissions, it is manifest that the stand of the Government is that the duties and responsibilities of the Assistant Engineers in the University are totally different and distinct from that of who are engaged in the Government service. They take the stand that it is within their policy domain to grant a particular pay scale to specified **WP(C) NO. 32658 OF 2019** **7** posts, which includes the benefits under the Career Advancement Schemes; and that constitutional courts should not enter into the said realm without a proper reason. 6. No doubt, the principles of law, as argued by Smt.M.R.Sreelatha, are on firm ground; but the question really is whether the Government had taken a conscious decision for not granting benefits to the Engineers of the University, after an assessment of their duties and responsibilities qua those in the Government departments. In Ext.P5, there is no such reflection, but the Government has chosen to decline such benefits to the Assistant Engineers in the University, confining it to six of its departments alone. For doing so, or for taking a stand that the Assistant **WP(C) NO. 32658 OF 2019** **8** Engineers in the University are not eligible to the benefits of Career Advancement Scheme, they ought to have certainly evaluated their duties and responsibilities, as also their deserving scale of pay, on the touchstone of that enjoyed by the officers in Government service. This not having been done, I cannot find favour with the Government in asserting that an Assistant Engineer in the University service cannot seek any benefit as have been granted to Assistant Engineers in the Government Departments. Resultantly and for the reasons above, I order this writ petition, leaving liberty to the petitioner to approach the Government of Kerala with an appropriate representation seeking the benefits of the Career ## **WP(C) NO. 32658 OF 2019** **9** Advancement Scheme; and if this is done within a period of one month from the date of receipt of a copy of this judgment, its competent Authority will consider the same, after hearing him, as also the official concerned of the University; thus culminating in an appropriate order and necessary action thereon, as expeditiously as is possible, but not later than three months from the date on which such representation is received. Needless to say, the resultant order will be issued, after analyzing and assessing the duties and responsibilities of the Assistant Engineers in the University service qua that of similarly placed Engineers in the Government Service, also adverting to the scales of pay as are **WP(C) NO. 32658 OF 2019** **==> picture [15 x 9] intentionally omitted <==** applicable, and the opinion of the Government in this regard shall be specifically indited in the resultant order, so as to enable the petitioner to invoke any further remedy as may be found necessary. I, however, deem it appropriate to clarify that I have not entered into the merits of the contentions of the rival parties and that they are all left open to be decided by the Government appropriately when the afore exercise is completed. **Sd/-** ## **DEVAN RAMACHANDRAN** ## **JUDGE** SAS **WP(C) NO. 32658 OF 2019** **11** ## **APPENDIX OF WP(C) 32658/2019** |PETITIONER'S EXHIBITS|| |---|---| |EXHIBIT P1|COPY OF PROBATION ORDER NO.AD.B| ||4473/SSUS/04 DATED 02.06.2005| |EXHIBIT P2|COPY OF ORDER NO.AD.B/932/SSUS/2009 DATED| ||30.05.2012| |EXHIBIT P3|COPY OF ORDER NO.AD.B/4473/SSUS/04 DATED| ||22.01.2014| |EXHIBIT P4|COPY OF JUDGMENT DATED 08.08.2019 IN WPC| ||NO.16363/2019| |EXHIBIT P5|COPY OF ANNEXURE IV OF G.O(P)NO.7/2016/FIN| ||DATED 20.01.2016| |EXHIBIT P6|C0PY OF THE RELEVANT PORTION OF| ||G.O(P)NO.10/2016/FIN.DATED 21.01.2016| |EXHIBIT P7|COPY OF LETTER DATED 09.04.2019 FROM THE| ||PETITIONER TO THE 2ND RESPONDENT| |EXHIBIT P8|COPY OF NOTICE NO.AD C/4473/SSUS/2004| ||DATED 14/08/2019| |EXHIBIT P9|COPY OF THE REPRESENTATION NO.E-| ||3942275/19/FD DATED 29.10.2019 FROM THE| ||PETITIONER TO THE 1ST RESPONDENT.| |RESPONDENTS' EXHIBITS:|| |EXHIBIT R1A|TRUE COPY OF LETTER NO.1540569/PRC-| ||D3/2020/FIN DATED 25.07.2020|