Jose N.V and others v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 3RD DAY OF NOVEMBER 2017/12TH KARTHIKA, 1939** **WP(C).No. 31832 of 2017 (D)** **----------------------------** **PETITIONER(S): -------------** **1. JOSE.N.V, ASSISTANT SECRETARY, KSHB, ERNAKULAM DIVISION, RESIDING AT NADUVILEVEETTIL HOUSE, KONTHURUTHY, COCHIN-13.** ## **2. SUGUNA NAIR,** **ASSISTANT SECRETARY, KSHB, D/O. T. LAKSHMANAN NAIR, RESIDING AT CHETTOORE HOUSE, CHENNENGAD P.O., PARUTHUPULLY (VIA), PALAKKAD -678573.** ## **3. LALITHA I. K,** **ASSISTANT SECRETARY, KSHB, THRISSUR DIVISION, RESIDING AT IRUPPASSARY HOUSE, CHITTANJUR P.O., (VIA) KUNNAMKULAM, THRISSUR 680523.** ## **4. OMANA C,** **ASWATHY, RESIDING AT VIDAKUZHA, ALUVA-6, (ASSISTANT SECRETARY, RETIRED, KSHB).** **5. M. DEVAN,** **RESIDING AT MANGOTTASSERI MANA, KAVIKKAD THRIKKALANGODE POST, MANJERI, MALAPPURAM DISTRICT, (JUNIOR SUPERINTENDENT, RETIRED, KSHB).** **6. PRAMEELA P., RESIDING AT HOUSE NO.37/1177, SMRITHI, (P.O) KURUVISSERY, KOZHIKODE-673010. (ASSISTANT SECRETARY, RETIRED, KSHB).** **7. SOBHALATHA P.M, RESIDING AT 'SOBHANAM' PULPARA PARAMB, KOOTTOOLY P.O., KOZHIKODE-673016. (ASSISTANT SECRETARY, RETIRED, KSHB).** **8. SIVADAS K.M., RESIDING AT SARANYA, MELEMADAM, WANDOOR P.O, MALAPPURAM DISTRICT, (ASSISTANT SECRETARY, RETIRED, KSHB).** ## **WP(C).No. 31832 of 2017 (D)** ## **----------------------------** **9. THARA A.V., RESIDING AT KOCHUMADAPPALLY, CMC-IV, CHERTHALA P.O., (ASSISTANT SECRETARY, RETIRED, KSHB).** **BY ADVS.SRI.LIJI.J.VADAKEDOM SMT.REXY ELIZABETH THOMAS SRI.RAJEEV JYOTHISH GEORGE SRI.TOM E. JACOB** **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA,** **REPRESENTED BY ITS SECRETARY, HOUSING DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-691001.** **2. THE LOCAL FUND AUDIT DEPARTMENT, THIRUVANANTHAPURAM.** **3. THE SENIOR DEPUTY DIRECTOR,** - **KERALA STATE AUDIT DEPARTMENT, KERALA STATE HOUSING BOARD AUDIT OFFICE, THIRUVANANTHAPURAM.** **4. KERALA STATE HOUSING BOARD, REPRESENTED BY ITS SECRETARY HEAD OFFICE, SANTHINAGAR, THIRUVANANTHAPURAM-691001.** ## **5. THE SECRETARY,** - **KERALA STATE HOUSING BOARD, HEAD OFFICE, SANTHINAGAR, THIRUVANANTHAPURAM-691001.** **6. THE EXECUTIVE ENGINEER, KERALA STATE HOUSING BOARD, ERNAKULAM DIVISION, PANAMPILLY NAGAR, ERNAKULAM. 682012.** **R1 TO R3 BY SENIOR GOVERNMENT PLEADER SMT NISHA BOSE R4 TO R6 BY ADV. SRI.MANOJ RAMASWAMY, SC,** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **WP(C).No. 31832 of 2017 (D)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1 THE COPY OF THE RELEVANT EXTRACT OF THE G.O.(P) NO.3000/98/FIN DATED 25.11.98. EXHIBIT P2 THE COPY OF THE COMMUNICATION NO.4943/A1/2004/HSG DATED 30.7.2005. EXHIBIT P3 THE COPY OF THE EXTRACT OF THE MINUTES OF THE BOARD MEETING OF THE 4TH RESPONDENT DATED 5.1.2006. EXHIBIT P4 THE COPY OF THE EXTRACT OF THE MINUTES OF BOARD MEETING DATED 30.1.2007. EXHIBIT P5 THE COPY OF THE LETTER NO.4583/A1/11/HSG. DATED 31.7.2012. EXHIBIT P6 THE COPY OF THE JUDGMENT DATED 18.10.2016 IN W.P.(C) 4509/2015. EXHIBIT P7 THE COPY OF THE ORDER NO.HBO NO.343/AD1(B)1891/2015 DATED 24.1.2017 ISSUED BY THE 5TH RESPONDENT. EXHIBIT P8 THE COPY OF THE COMMUNICATION NO. KSA-SHBA/3/437/2017 DATED 15.7.2017 ISSUED BY THE 3RD RESPONDENT. RESPONDENT(S)' EXHIBITS ----------------------R4(A) TRUE COPY OF THE LETTER VIDE NO 1412/A1/15/HOUSING DATE 9.1.2017. /TRUE COPY/ K.V. P.S.TO JUDGE** ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.31832 of 2017-D ------------------------------------------- _Dated this the 3[rd] day of November, 2017_ ## _**JUDGMENT**_ The petitioners, who are retired as well as serving employees in the service of the 4[th] respondent – the Kerala State Housing Board (hereinafter referred to as 'the Board'), have filed this writ petition aggrieved by Ext.P8 order by which the 3[rd] respondent directed recovery of the amounts paid to the petitioners towards higher grades sanctioned to them in the scale of pay admissible to Junior Superintendents. 2. All the petitioners commenced their service as Lower Division Clerks under the 4[th] respondent Board. Petitioners 4 to 9 retired from service on various dates in 2016 and 2017, while petitioners 1 to 3 are continuing in service. On the basis of the pay revision orders issued as per Ext.P1 G.O(P).No.3000/98/Fin. dated 25.11.1998, the second time bound higher grade was granted to the UD clerks in the Board, on completion of 8 years of service in that post. As the immediate promotion post of the UD Clerks in the Board is that of Junior Superintendent and not Head Clerk in various departments, the second higher grade was granted to the UD 2 W.P(C) No.31832 of 2017-D Clerks in the scale of pay of admissible to the Junior Superintendents. 3. It is stated that the qualification for appointment to the post of LDCs in the Board is graduation and LDCs in the 4[th] respondent Board were given scale of pay as admissible to the LDCs on a promotional avenue of next level of UD Clerks and thereafter to the Junior Superintendent. In between there is no post of Head Clerk as available in the other departments. However, after the second higher grade was granted to persons like the petitioners in the scale of pay of Junior Superintendents, Government issued Ext.P2 letter on 30.07.2005 objecting to the grant of higher grade saying that they were granted higher scale as in the case of the Assistants Grade II and Grade I in the Secretariat and that UD Clerks in the Board who are in the scale of pay of Rs. 4600-7125 are entitled to only the scale of pay available to the UD Clerks (Higher Grade) in the scale of 46008000, as there is no post of Head Clerk in the Board in accordance with table I of the G.O. (P) No.3000/98/Fin dated 25.11.1998. Government directed to effect recovery accordingly. 4. The Board, thereafter, in its meeting held on 5.1.2006 resolved to request the Government to review Ext.P2 decision pointing out that the educational qualification for appointment to the post of LD Clerks, the scale 3 W.P(C) No.31832 of 2017-D of pay of LD Clerks and UD Clerks in the Board, etc. are in par with that of the Assistants Grade II in the Secretariat. The UD clerks of the Board are in the scale of pay of 4600-7125 as in the case of Assistants Gr I of Secretariat; there is no post of Head Clerk available in the Board as in other Departments with the scale of pay of UD Clerks in the Board and that Since the post of Junior Superintendent is the next higher post in direct line of promotion of UD Clerks, the UD Clerks were granted the scale of pay of Junior Superintendents as their higher grade, in tune with the provisions contained in the pay revision order issued on 25.11.1998. Pointing out that the scale of pay of Rs.5500-9075 was granted as higher grade only to the qualified UD Clerks, the Board in its meeting held on 3.01.2006, resolved to request the Government to drop the objection and accorded sanction for granting the higher grade in the scale of pay of Rs.5500-9075. In the meeting held on 30.01.2007, the Board decided to entrust the Additional Secretary to take follow up action on the decision of the Board to request the Government to review their decision. However, by Ext.P5 letter, Government rejected that request. 5. Several employees of the Board, who are similarly situated like the petitioners, had already approached this Court challenging Ext.P2 W.P(C) No.31832 of 2017-D 4 objection as well as Ext.P5 order of the Government. This Court, in Ext.P6 common judgment dated 18.10.2016 in W.P.(C) No.4509 of 2015 and connected cases, found that identical issues arose in the Khadi Board where also the higher grade was granted as in the case of petitioners in the absence of the post of Head Clerks. Therefore, relying on the judgment dated 16.6.2014 in W.A.No.593 of 2013, in the case of the UDCs of Khadi Board, this Court held that the UD Clerks of the Board are also entitled to the higher grade in the scale of pay admissible to the next promotion post which is available to them, i.e, in the scale of pay of Junior Superintendent. The relevant portion of the judgment reads as follows: “As already noted, since, in the services of the respondent Board, the immediate promotion post to the post of U.D.Clerk is Junior Superintendent, an application of clause (6) of Ext.P1 Government order would effectively mean that the petitioners' claim for the time bound higher grade scale of pay would have to be accepted in the scale of pay of Junior Superintendent as contemplated in Ext.P1 order. In that view of the matter, I find that the extension of the pay scales to the petitioners, cannot be said to be illegal. xxxx xxxxx xxxxx xxxx” The aforesaid findings were made after referring to the provisions contained in the pay revision order Ext.P1, which provides that when a normal promotion post is available, higher grade shall be in the scale of pay admissible to that post. In implementation of Ext.P6 judgment, the Board issued Ext.P7 proceedings on 24.1.2017 and ordered to extend the benefit 5 W.P(C) No.31832 of 2017-D of the judgment to all similarly situated employees. 6. Despite this, when the proposal for fixation of pay in the case of the 1[st] petitioner, was processed, on grant of higher grade, and forwarded to the 3[rd] respondent, for regularisation, the 3[rd] respondent objected to the same issuing Ext.P8 letter and directed to recover the excess pay, based on Ext.P2 order, saying that the 1[st] petitioner was not entitled to the higher grade in the scale of pay admissible to the Junior Superintendent, while working as UDC, and that the scale of pay which was admissible to him was only in the scale of Rs.4600-8000 in the place of Rs.5500-9075. The petitioners have filed this writ petition at this stage challenging Ext.P8 letter. 7. The 4[th] respondent has filed counter affidavit practically admitting the claim of the petitioners. It is stated that the second time higher grade to the UDC of the Board was given in the scale of pay applicable to Junior Superintendent. In para.6 it is stated as follows: “6. It is submitted that sanctioning of the second time bound higher grade to the U.D. Clerks of the Board w.e.f. 01.11.1998 and thereafter in the-scale of pay of the next promotion post in the direct line of promotion was purely in accordance with the Pay Revision Order, 1998 i.e. Exhibit PI. Even though this being the facts, Government vide letter No.4943/Al/ 2004/Hsg. dated 30.07.2005 as produced in Exhibit P2 had informed that the categories of L.D. Clerk and U.D. Clerk of the Kerate State Housing Board are enjoying higher scale of pay on par with that of the post of Assistant Grade II and Grade I in the Government Secretariat and also informed that the scale of pay of U.D. Clerk i.e. Rs.4600-7125 6 W.P(C) No.31832 of 2017-D in the Board is equivalent to that of the Head Clerk under common categories of posts and the post of Head clerk does not exist in the Board. Considering the above facts, Government had agreed to sanction the scale of pay of Rs.4600- 8000 as higher grade to the U.D. Clerks of the Board and had directed to recover the excess pay and allowances consequent on the sanctioning of higher grade in the scale of pay of Junior Superintendent i.e. Rs.5500-9075.” It is also stated that the Board had taken a decision to extend the benefit of the judgment to all the employees under the Board as the Government objection was already set aside by this Court. It is also stated that the Board is of the opinion that there is no legal impediment in extending the benefit of the judgment of this Court to all the similarly situated persons. 8. Having considered the contentions on either side I find that the action of the 3[rd] respondent is arbitrary and unreasonable. When the objection raised in Ext.P2 order of Government was found illegal and directions were issued to refix the pay of similarly situated persons in the Board as per Ext.P6 judgment, and that judgment was implemented granting them time bound higher grades as admissible to Junior Superintendents, there is no justification in raising objections on the basis of Ext.P2 again. When this Court has declared the admissibility of the higher grade in the scale of pay of Junior Superintendents setting aside Ext.P2 and similarly situated employees have already been granted higher grades on the basis of such a declaration and direction, the action of the 3[rd] respondent in W.P(C) No.31832 of 2017-D 7 raising objection as contained in Ext.P8 is not only unjust, but arbitrary also. The 3[rd] respondent ought to have applied his mind to the circumstances under which the Board took Ext.P7 decision and found that Ext.P6 judgment which set aside the orders Exts.P2 and P5, was applicable to all the similarly situated employees, as held by the Apex Court in the judgment in **State of U.P v. Arvind Kumar Srivastava** : (2015) 1 SCC 347, **State of Jharkhand v. Harihar Yadav** : (2014) 2 SCC 114, the judgment of this court in **Raveendran Nair v. State of Kerala** : 2001(2) KLT 809, **Somukuttan Nair v. State of Kerala & others** : 1997(1) 601, etc. and regularised the pay fixation done in the case of first petitioner extending the benefit of judgment as decided by the Board in Ext.P7, instead of compelling the petitioners to approach this Court. It is settled law that the benefit of judgment shall be extended to all those who are similarly situated, without driving them to courts. In the above circumstances, Exts.P2, P5 and P8 shall stand set aside. It is declared that the petitioners and similarly situated others under the Board are entitled to the higher grade in the scale of pay of Junior Superintendent, as decided in Ext.P7 and they are entitled to get their pay fixed accordingly and such fixation of their pay are liable to be regularised W.P(C) No.31832 of 2017-D 8 as ordered in Ext.P7 in accordance with the judgment Ext.P6. The amount, if any, recovered from them or similarly situated others shall be refunded to them. Appropriate steps shall be taken within a period of 2 months. The writ petition is disposed of with the above directions. Sd/- _**(P.V.ASHA, JUDGE)**_ _rtr/_