K.C. Sreenivas v. State of Kerala and High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 26TH DAY OF SEPTEMBER 2019 / 4TH ASWINA, 1941** ## **WP(C).No.23726 OF 2018(R)** ## **PETITIONER:** **K.C.SREENIVAS, AGED 40 YEARS, SUPERINTENDENT (VEHICLES), HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.** **BY ADVS. SRI.K.JAJU BABU (SR.) SRI.R.RAJPRADEEP SMT.M.U.VIJAYALAKSHMI** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY ADDITIONAL CHIEF SECRETARY AND SECRETARY TO GOVERNMENT OF KERALA, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031, REPRESENTED BY ITS REGISTRAR GENERAL.** **BY ADVS. SRI.ELVIN PETER P.J. SRI.N.MANOJ KUMAR, SPECIAL GOVT. PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.23726 OF 2018(R)** **2** ## **JUDGMENT** **Superintendent (Vehicles) of this Court has filed this writ petition aggrieved by the rejection of the recommendations of the Pay Revision Commission as well as of the Honourable the Chief Justice of this Court under Article 229(2) of the Constitution of India, for revision of his pay.** **2. The post of Superintendent (Vehicles) is included in Category-1 of Sub Division-2 in Division1 of Annexure 1 of Rule 4 of Kerala High Court Service Rules, 2007. The scale of pay attached to the post of Superintendent (Vehicles) was Rs.1079018000/-. On the basis of the pay revision orders issued as per G.O.(MS)257/2011/Home dated 18.11.2011 r/w G.O.(MS).No.195/2012/Home dated 16.07.2012, the scale of pay was revised to 18740-33680/-. In Ext.P1 report, the 10[th] Pay Revision Commission recommended for revision of pay as follows:** _**“11. Post of Superintendent Vehicles is now on 1874033640. Considering the workload, additional responsibilities attached the post and long years of**_ **WP(C).No.23726 OF 2018(R)** **3** _**service before and after joining this post Commission is of the view that post be upgraded to the level of Assistant Executive Engineer (PWD) and placed in the revised scale corresponding to Rs.22360-37940. This will be treated as a personal up-gradation. Any fresh person who joins duty in this post on a later date will be eligible only for the scale of pay of 18740-33640.”**_ **3. The post in question was in the grade of Assistant Engineer. The Commission found it necessary to upgrade it to the level of Assistant Executive Engineer. The said recommendations, along with other recommendations with respect to staff of the High court were examined by a committee of 3 Judges and based on their report the Chief Justice addressed the Government with Ext.P2 letter recommending revision pay in respect of various posts. The recommendation with respect to the Superintendent (Vehicles) is at Sl.No. 42 of the Schedule I as follows:** **42: Superintendent (Vehicles): 18740-33680-37500-75600 (45800-87000) as personal scale to the present incumbent).** **4. It was also pointed out that the Commission** **WP(C).No.23726 OF 2018(R)** **4** **had recommended personal scale of pay of Rs.4780087000/- to the present incumbent in the post of Superintendent (Vehicles) considering the workload, additional responsibilities attached to the post and long years of service. Government thereafter issued Ext.P3 order on 20.06.2016 sanctioning revised pay and allowances for the staff of this Court. Revision** **for the post in question which was at Sl.No.39, was only to the scale of pay of Rs.35700-75600/-.** **5. Thereafter the High Court addressed the Government with Ext.P4 letter pointing out the requirement for approving the recommendations made by the Chief Justice in exercise of his power under Article 229(2) of the Constitution of India, for revision of pay. In this letter paragraph M of remarks was with respect to the post in question, which reads as follows:** _**“M) The Superintendent (Vehicles) supervises the Chauffeurs of the High Court. His duties include providing technical assistance for purchase of motor vehicles for the use in the High court, Kerala Judicial Academy and**_ **WP(C).No.23726 OF 2018(R)** **5** _**Subordinate Courts, inspection of vehicles, providing technical knowledge in detecting complaints etc. He inspects the vehicle before and after repairs. He performs administrative as well as technical functions. Considering the qualifications, workload, additional responsibilities attached to the post and long years of service before and after joining the post, the Commission recommended personal upgradation of the post to the level of Assistant Executive Engineer (PWD) in the revised scale of ₹42500-87000. The Honourable the Chief Justice also recommended the same scale to the post.”**_ ## **6. Ext.P8 order was issued thereafter on** ## **28.04.2018 rejecting the recommendation on the following reasons:** _**“Four level hike in Scale of pay (Personal up gradation) is recommended. As per general decision taken on revision of scale of pay and allowances, personal upgradation is not allowed except where the scale of pay of the post is down graded. Hence the recommendation stands rejected.”**_ ## **The writ petition is filed challenging the same.** **7. The learned senior counsel for the petitioner points out that the recommendation made by** **WP(C).No.23726 OF 2018(R)** **6** **the Honourable the Chief Justice under article 229(2) of the Constitution of India should not have been dealt with in this manner ignoring the observations of the Apex Court and of this Court in the judgment in** _**Raja Mohan K.G. and Others v. State of Kerala and Others**_ **[2013 (3) KHC 559] explaining all those. It was argued that in view of the recommendation as well as the explanation submitted thereafter, Government ought to have considered the same and accepted and revised the scale of pay attached to the post of petitioner.** **8. Government has filed a counter affidavit stating that a general decision is taken not to grant any personal upgradation. It is stated that the Commission had recommended enhancement of the scale of pay to Rs.45800-87000/- as personal upgradation with four level hike. It is stated that the personal upgradation is allowed only where the scale of pay is downgraded. It is also stated that in view of the serious financial stringency of State Exchequer, Government has taken a policy decision that personal** **WP(C).No.23726 OF 2018(R)** **7** **upgradation in the scale of pay should not be allowed.** **9. The learned Special Government Pleader points out that the personal upgradation was recommended taking into account the service rendered by the petitioner before and after joining the High Court, with a further recommendation that the fresh incumbent need not be given the scale of pay and that such an upgradation cannot be given on individual basis that too referring to his prior service and that revision is not made based on the previous service.** **10. The High Court has filed a counter affidavit stating that specific recommendation was made for revision of pay by the Chief Justice under Article 229(2) of the Constitution of India, which was made on the basis of the study report by the Committee of Judges. It was stated that the Commission had in paragraph 11 of the report recommended personal upgradation in the case of the petitioner taking note of the additional responsibilities attached to the** **WP(C).No.23726 OF 2018(R)** **8** **post as well as the long years of service of the incumbent. It was stated that the request was made to grant personal upgradation for the post from the level of Assistant Engineer to that of Assistant Executive Engineer (PWD). It is also pointed out that the Government ought to have approved the recommendations made by the Chief Justice under Article 229(2) of the Constitution of India.** **11. The learned senior counsel also relied on Ext.P7 judgment relating to the revision of pay of Typist categories in which the judgment of the Apex Court in** _**Union of India and Another v. S.B.Vohra and others**_ **[(2004) 2 SCC 150] as well as the judgment in** _**- High Court Non Graduate Staff Association v. State of Kerala**_ **[1997 (2) KLT 665] were relied on.** **12. The learned Special Government Pleader also relying on the paragraph 16 of the judgment in** _**S.B. Vohra's case (Supra)**_ **argued that this Court under Article 226 of the Constitution of India is not supposed to compel the Government to grant approval to the rules framed by the Honourable the Chief** **WP(C).No.23726 OF 2018(R)** **9** **Justice of India relating to salary, allowances etc.** **13. Having heard the contentions on either side it is seen that the main contention of the learned Government Pleader is that personal upgradation was recommended for the petitioner taking note of his service before and after joining the High Court, while recommending that a fresh incumbent need not be given the said scale of pay. The post of Superintendent (Vehicles) is a solitary post. The pay commission had recommended for its upgradation taking note of the additional responsibilities attached to the post. The Honourable the Chief Justice also recommended upgradation of the post, taking note of the duties and responsibilities attached to the post as observed by the Apex Court in** _**High Court Employees Welfare Assn. v. State of W.B**_ **[(2004) 1 SCC 334], which reads as follows:** _**“11. The Government will have to bear in mind the special nature of the work done in the High Court which the Chief Justice and his colleagues alone could really appreciate. If the Government does not desire to meet the needs of the High**_ **WP(C).No.23726 OF 2018(R)** **10** _**Court, the administration of the High Court will face severe crisis.”**_ **14. In the judgment in** _**S.B. Vohra's case (Supra)**_ **while considering the question of revision of pay of Assistant registrars of the High Court, the Apex Court, after referring to the judgments relating to the pay revision of High Court staff and the effect of recommendation under Article 229(2) of the** ## **Constitution observed as follows:** _**“46.Decisions of this Court, as discussed hereinbefore, in no unmistakable terms suggest that it is the primary duty of the Union of India or the State concerned normally to accept the suggestion made by a holder of a high office like a Chief Justice of a High Court and differ with his recommendations only in exceptional cases. The reason for differing with the opinion of the holder of such high office must be cogent and sufficient. Even in case of such difference of opinion, the authorities must discuss amongst themselves and try to iron out the differences. The appellant unfortunately did not perform its own duties.**_ ## _**(emphasis supplied)**_ _**48.It has to be further borne in mind that it is not**_ _**always helpful to raise the question of financial implications vis-à-vis the effect of**_ **WP(C).No.23726 OF 2018(R)** **11** _**grant of a particular scale of pay to the officers of the High Court on the ground that the same would have adverse effect on the other employees of the State. Scale of pay is fixed on certain norms; one of them being the quantum of work undertaken by the officers concerned as well as the extent of efficiency, integrity etc. required to be maintained by the holder of such office. xxxx”**_ ## **15. Thereafter the apex court directed as** ## **follows:** _**“51. Having regard to the aforementioned**_ _**authoritative pronouncements of this Court, there cannot be any doubt whatsoever that the recommendations of the Chief Justice should ordinarily be approved by the State and refusal thereof must be for strong and adequate reasons. In this case the appellants even addressed themselves on the recommendations made by the High Court. They could not have treated the matter lightly. It is unfortunate that the recommendations made by a high functionary like the Chief Justice were not promptly attended to and the private respondents had to file a writ petition. The question as regards fixation of a revision of the scale of pay of the High Court being within the exclusive domain of the Chief Justice of the High Court, subject to the approval, the State is expected to accept the**_ **WP(C).No.23726 OF 2018(R)** **12** _**same recommendations save and except for good and cogent reasons.**_ _**52. XXX The statutory duties should be allowed to be performed by the statutory authorities at the first instance. In the event, however, the Chief Justice of the High Court and the State are not ad idem, the matter should be discussed and an effort should be made to arrive at a consensus.”**_ **16. Respondents do not have a case that there was any discussion with the Chief Justice before Ext.P8 was issued. Though respondents have stated that a personal upgradation and four level hike cannot be granted, it is seen that the respondents have not considered the duties and responsibilities attached to the post, based on which an upgradation from the level of Assistant Engineer to that of Assistant Executive Engineer was found necessary. As observed by the Apex Court the recommendation was made based on materials placed by those who are acquainted with the requirements in the High Court as well as the duties and responsibilities attached to the post. Without choosing to have any discussion with the Chief Justice the respondents chose to** **WP(C).No.23726 OF 2018(R)** **13** **reject the recommendations made under Article 229(2) in an thoroughly improper manner, which the Apex Court has in various judgments deprecated.** **17. This court in** _**Raja Mohan's case (Supra)**_ **after discussing various judgments on the issue directed reconsideration of the matter, taking note of the constitutional obligation of the Chief Justice under Article 229(2) to get approval of the scale of pay from the Governor and the constitutional duty of the Governor to approve the same and the requirement to have exchange of thoughts and views between them in the event of any difference of opinion.** **18. Government has not considered the fact that the post in question is a solitary post in the High Court and that length of service of the incumbent was referred to taking note of the duties and responsibilities attached to the post, which would not be within the knowledge of Government. There was no material before Government to discard the explanation at least for an enhancement when it was pointed out that the post was originally in the grade** **WP(C).No.23726 OF 2018(R)** ## **14** **of Assistant Engineer and it was sought to be upgraded to the grade of Assistant Executive Engineer. Despite a series of judgments even after** _**Raja Mohan's case (Supra)**_ **the Government have not chosen to have any discussion or exchange of ideas with the Chief Justice, before issuing Ext.P8 order. In the judgment in W.P.(C) No.17938 of 2018 while considering another case of revision of pay of employees of the High Court, this court had observed as follows:** _**“It is highly unfortunate that even after a series of judgments of this court and the apex court, on the impact of the recommendations made and the rules framed by the Chief Justice of a State under Article 229(2), the approach of the Government continues to be the same, treating the same on par with that of the heads of Public Sector Undertakings, which is liable to be deprecated.”**_ **Therefore Ext.P8 to the extent it relates to** **the post of Superintendent is set aside. There shall be a direction to the Government to reconsider the question of revision of pay in respect of** **WP(C).No.23726 OF 2018(R)** **15** **Superintendent (Vehicles) after exchange of views with the Chief Justice and at least for the purpose of enhancement of the scale of pay. This shall be done within a period of three months from the date of receipt of a copy of this judgment.** **Accordingly, this writ petition is disposed** **of.** **Sd/P.V.ASHA JUDGE** AS/ww **WP(C).No.23726 OF 2018(R)** **16** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1: COPY OF THE REVEVANT EXTRACT OF THE RECOMMENDATION OF THE COMMISSION RELATING TO SCALE OF PAY CONTAINED IN CHAPTER III.** **EXHIBIT P2: COPY OF THE RELEVANT EXTRACT OF THE PROPOSAL VIDE DO.NO.FW/J3-49631/2014 DATED 06/11/2015 OF THE HON'BLE HIGH COURT.** **EXHIBIT P3: COPY OF THE GO(P) NO.180/2016/HOME DATED 20/06/2016 REVISING THE PAY AND ALLOWANCES TO THE STAFF OF THE HON'BLE HIGH COURT.** **EXHIBIT P4: COPY OF THE COMMUNICATION VIDE NO.FW/J349631-2014 DATED 07/10/2016 ISSUED BY THE REGISTRAR GENERAL BEFORE THE GOVERNMENT.** **EXHIBIT P5: COPY OF THE GOVERNMENT ORDER GO(MS)NO.315/ 2016/HOME DATED 14/12/2016. EXHIBIT P6: COPY OF THE GOVERNMENT ORDER GO(MS)NO.215/ 2017/HOME DATED 26/10/2017** **EXHIBIT P7: COPY OF THE JUDGMENT DATED 09/01/2018 IN WPC.NO.30000/2016 OF THIS HON'BLE COURT. EXHIBIT P8: COPY OF THE GOVERNMENT ORDER GO(P)NO.19/ 2018 DATED 28/04/2018.**