Kerala Engineering Staff Association & Jayarajan V.S. v. State of Kerala & Principal Secretary (Finance), Finance Department, Government Secretariat, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY ,THE 04TH DAY OF JANUARY 2019 / 14TH POUSHA, 1940** ## **OP(KAT).No. 416 of 2018** **AGAINST THE ORDER IN OA 1092/2014 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 23-01-2018** ## **PETITIONERS/APPLICANTS:** - **1 KERALA ENGINEERING STAFF ASSOCIATION, REPRESENTED BY ITS GENERAL SECRETARY H. SIDHIK, SAHANAM, SASTHAPURI, KALPATHI PO, PALAKKAD- 678 003** - **2 JAYARAJAN.V.S., ASSISTANT ENGINEER, IRRIGATION DEPARTMENT,IIP SECTION NO.2/2, ANGAMALY,ERNAKULAM-683 572.** **BY ADVS.DR.K.P.SATHEESAN (SR.) SRI.K.SUDHINKUMAR SRI.MUHAMMED IBRAHIM ABDUL SAMAD SRI.P.MOHANDAS (ERNAKULAM) SRI.SABU PULLAN SRI.S.K.ADHITHYAN SRI.S.VIBHEESHANAN** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY (FINANCE), FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** O.P.(KAT)No.416 of 2018 2 - **2 THE PRINCIPAL SECRETARY(FINANCE), FINANCE (PAY REVISION CELL-D) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** ## **BY GP SRI. ANTONY MUKKATH.** **THIS O.P KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 04.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** O.P.(KAT)No.416 of 2018 3 ## **JUDGMENT** ## **Ravikumar, J.** The order dated 23.1.2018 in O.A.No.1092 of 2014 passed by the Kerala Administrative Tribunal is under challenge in this original petition. Disparity in the scale of pay in the post of Assistant Engineer in the Irrigation Department pursuant to the Career Advancement Scheme recommended by the 9[th] Pay Revision Commission and its implementation vide Annexure-A2 constrained the petitioners herein to approach the Tribunal by filing O.A.No.1092 of 2014. They moved the said Original Application seeking the following reliefs:- - “(i) to set aside Annexure-A4 order G.O.(Rt)No.8158/ 2013/Fin. dated 25.10.2013 issued by the 2[nd] respondent as it is arbitrary, illegal and void; - ii) to set aside Annexure-A2 order G.O.(P)No.536/2012/ 116/Fin. dated 29.09.2012 issued by the 2[nd] respondent to the extent of limiting the benefit of Career Advancement Scheme to the directly recruited professionals in the State; - iii) to declare that the Diploma holders on getting appointment as Assistant Executive Engineers and Executive Engineers are also eligible for Career Advancement Scheme as ordered in Annexure-A2 on completing the required number of years of service; - iv) to issue such other order or direction as this Hon'ble Tribunal may be deem fit and proper in the facts and circumstances of the case.” Essentially, the crux of the contention is that the benefits of Career O.P.(KAT)No.416 of 2018 4 Advancement Scheme under Anneuxre-A2 could not be confined to degree holders directly recruited to the post of Assistant Engineer. The further contention of the petitioners is that there is no reason or justification for treating them differently solely on the ground that they reached the post of Assistant Engineer on obtaining promotions after entering into the service of the department in a lower post and that they are Diploma Holders. It is also their contention that in the cadre of Assistant Engineer the Diploma Holders like the petitioners and degree holders who were directly recruited, got merged and thenceforth, there cannot be any differential treatment based on their educational qualification. In other words, solely taking into account the source from which they reached to the post of Assistant Engineer there cannot be a further classification or discrimination, especially in the matter of pay. The reliefs sought for by the petitioners and the contentions raised in support thereof, as mentioned above, were repelled and as a necessary consequence the Original Application was dismissed. It is in the said circumstances that the above mentioned original petition has been filed. 2. We have heard the learned Senior Counsel appearing for the petitioners and also the learned Government Pleader appearing for the respondents. O.P.(KAT)No.416 of 2018 5 3. As stated earlier, a Career Advancement Scheme for directly recruited Assistant Engineers in service was introduced pursuant to the recommendation of the 9[th] Pay Revision Commission Report, which is produced as Annexure-A1 and subsequently, AnnexureA2 order was passed by the Finance Department in implementation of the said recommendation. Subsequent to the introduction of the said Scheme the first petitioner which is an association submitted AnnexureA3 representation virtually, seeking for extension of the benefit flowing from Annexure-A1 in respect of non-graduates viz., Diploma holders in the category of Assistant Engineer, as well. The said request was turned down as per Annexure-A4 stating that the Career Advancement Scheme is provided only to directly recruited professionals as recommended by the 9[th] Pay Revision Commission. It is the said order that was challenged before the Tribunal unsuccessfully. 4. As noticed hereinbefore, the grievance of the petitioners against the Scheme is that on completion of a specified number of years of service the degree holders are given a scale of the promoted post. At the same time, the same is denied to Diploma Holders on completion of the same number of years of service. This, according to the petitioners, amounts to invidious discrimination and would go O.P.(KAT)No.416 of 2018 6 against exposition of law by the Hon'ble Apex Court that classification based on the birthmark that stood obliterated after integration of officers coming from different sources into a common cadre/category, would be wholly unjustified and discriminatory. However, the stand of the respondents, is that the second petitioner and the members of the first petitioner who are Diploma holders reached the post of Assistant Engineer on obtaining promotions whereas in the case of directly recruited professionals to the said post, it is their entry cadre and it is to widen the scope of promotions to those persons with higher qualification and to avoid their stagnation in the entry cadre itself that after the prescribed number of years in the entry cadre Annexure-A2 order was issued in implementation of the 9[th] Pay Commission Report. According to the petitioners, when in the cadre of Assistant Engineer there occurred a merger of directly recruited degree holders and promotees like the petitioners, merely because they came from different sources, a further classification based on birthmark, in the granting of scale of pay on completion of the specified number of years in the said cadre, is impermissible. To put it briefly, according them, in such circumstances, the same scale of pay grantable to Degree Holders on completion of specified number of years of service should be extended to Diploma holding Assistant Engineers also on completion of O.P.(KAT)No.416 of 2018 7 the same number of years of service. In support of their claims and contentions the learned Senior Counsel appearing for the petitioners relied on a Constitutional Bench decision of the Hon'ble Apex Court in **Roshan Lal** v. **Union of India (AIR 1967 SC 1889)** and the decision in **B.Manmad Reddy and Others** v. **Chandra Prakash Reddy and Others ((2010) 3 SCC 314)** . Virtually, the dictum laid down by the Hon'ble Apex Court in the said decisions is to the effect that when promotees and direct recruits got integrated into one common cadre/category it is wholly unjustified and discriminatory to classify them in the matter of promotion solely based on their birthmark for the reason that on such integration into a common cadre their birthmark would stand obliterated. In **Roshan Lal's** case (supra) direct recruits and promotees were absorbed into a common cadre. However, pursuant to a notification, the promotees were given favourable treatment for future promotions. Ultimately, the Apex Court held that giving such favourable treatment to direct recruits after their absorption into one common cadre would be violative of Articles 14 and 16. As noticed hereinbefore, in **B.Manmad Reddy's** case (supra) the Apex Court held that when there is integration of officers coming from different sources into a common cadre it would be unjustified and discriminatory to treat them differently in the matter of further O.P.(KAT)No.416 of 2018 8 promotion solely based on the source of recruitment, in other words, based on their birthmark. There can be no doubt or cavil on the said position. But, at the same time, a perusal of Annexure-A2 order which was issued to implement the recommendations of the 9[th] Pay Revision Commission in the matter of Career Advancement Scheme for directly recruited professionals in service it is evident that such a Scheme was introduced for the purpose of widening the scope of promotion to the directly recruited Degree Professionals who got stagnated in their entry post itself for the specified number of years. In other words, it is evident that going by the recommendation which was implemented through Annexure-A2 the same was confined only to Degree Holders in the said category not based on their birthmark of the Assistant Engineer but, taking into account the qualifications. Therefore, essentially, the question is whether such disparity in the scale of pay between graduate Engineers and diploma holding Engineers is possible and permissible ? That question is no longer _res integra_ in the light of the decision of a Division Bench of this Court in **Fertilisers & Chemicals Travancore Ltd.** v. **Sooryanarayana Iyer (2000 (2) KLT 782)** . Evidently, the said judgment was rendered by the Division Bench following the Constitution Bench decision of the Hon'ble Apex Court in **State of Jammu & Kashmir** v. **Triloki Nath Khosa (AIR** O.P.(KAT)No.416 of 2018 9 **1974 SC 1)** . In the said decision classification in service rule founded on educational qualification for promotion was upheld by the Apex Court. It was held therein thus:- “We are therefore of the opinion that though persons appointed directly and by promotion were integrated into a common class of Assistant Engineers, they could, for purposes of promotion to the cadre of Executive Engineers, be classified on the basis of educational qualifications. The rule providing that graduates shall be eligible for such promotion to the exclusion of diploma-holders does not violate Articles 14 and 16 of the Constitution and must be upheld.” In such circumstances, it is evident that classification based on the educational qualifications to achieve a purpose which is real and not unreasonable, is permissible. In **Sooryanarayana Iyer's** case (supra) the grievance was with respect to the disparity in the scale of pay of First Class Graduate Engineers and Diploma Holders who were merged in the category of Electrical Engineer in FACT. The Division Bench held that having regard to the basic distinctions in the academic qualification and the very rigorous procedure for recruitment of the first class Engineering Graduates directly at the managerial level of Electrical Engineers, the said distinction and disparity was wholly justified. We are therefore of the opinion that though persons appointed directly and by promotion were integrated into a common class of Assistant Engineers, for the purpose of granting benefits like what is O.P.(KAT)No.416 of 2018 10 contemplated under Annexure-A2 it is possible to confine it to the directly recruited graduate Assistant Engineers. The rule providing that graduates shall only be eligible for such benefits in exclusion of Diploma holders does not violate Articles 14 and 16 of the Constitution of India. 5. It is also contended by the petitioners that by rendering service of 10-15 years in the same office before becoming as Assistant Engineers they had gained much experience and practical knowledge than directly recruited Assistant Engineers. The said contention is absolutely untenable in the light of the decision of the Hon'ble Apex Court in **State of M.P.** v. **Dharam Bir ((1998) 6 SCC 165)** wherein the Apex Court held thus:- “The “experience” gained by the respondent on account of his working on the post in question for over a decade cannot be equated with educational qualifications required to be possessed by a candidate as a condition of eligibility for promotion to a higher post.” The Apex Court went on to hold that the qualifications would naturally vary with the nature of posts or the service created by the Government. In such circumstances, in the light of the decisions referred supra permitting favourable treatment in respect of persons who got integrated into a common cadre on the ground of qualifications cannot be said to be impermissible or violative of Articles 14 and 16 of the Constitution of India. In the light of the enunciation of law by the Apex O.P.(KAT)No.416 of 2018 11 Court on the aforesaid subject there can be no doubt that such limited favourable treatment based on educational qualifications is permissible in law. Viewed in that perspective, we do not find any illegality or impropriety in the order passed by the Tribunal whereby the Original Application was dismissed. The upshot of the above discussion is that there is no merit in this original petition and consequently, it is dismissed. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **V.G.ARUN Judge** TKS O.P.(KAT)No.416 of 2018 12 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE ORDER DATED 23.01.2018 IN O.A.NO.1092/2014.** **EXHIBIT P2 TRUE COPY OF THE O.A.NO.1092/2014.** **EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BY THE FIRST RESPONDENT IN O.A.NO.1092/2014 DATED 25.10.2014.** **EXHIBIT P4 TRUE COPY OF THE REJOINDER FILED BY THE PETITIONERS DATED 08.01.2015.** TKS