M.J. XAVI v. State of Kerala, High Court of Kerala and K.P. Sasidharan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 28[TH] DAY OF JUNE 2021 / 7TH ASHADHA, 1943** **WP(C) NO. 1872 OF 2021** ## **PETITIONER** **M.J. XAVI, LIBRARY ASSISTANT (SELECTION GRADE), HIGH COURT LIBRARY, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADVS. T.VENUGOPAL SRI.N.S.GOPAKUMAR** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO**| ||**GOVERNMENT, HOME (C) DEPARTMENT, GOVERNMENT OF KERALA,**| ||**SECRETARIAT, THIRUVANANTHAPURAM - 695 001.**| |**2**|**HIGH COURT OF KERALA,**| ||**REPRESENTED BY REGISTRAR GENERAL,**| ||**HIGH COURT P.O., ERNAKULAM, PIN - 682 031.**| |**3**|**K.P.SASIDHARAN,**| ||**LIBRARY ASSISTANT (SENIOR GRADE),**| ||**HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031.**| ||**BY ADVS.**| ||**SRI.SUNIL KUMAR KURIAKOSE, GP**| ||**SRI.BABU PAUL**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) NO. 1872 OF 2021** **-2-** ## **JUDGMENT** ## **Dated this the 28[th] day of June, 2021** The petitioner says that he is working as a Library Assistant (Selection Grade) in the services of the High Court of Kerala and that he is aggrieved by the fact that his junior, namely the 3[rd] respondent, is drawing a higher scale of pay than him. He thus prays that this Court declare that he is entitled to receive equal pay with that of his junior with effect from 15.03.2016 and to quash Ext.P4 order of the Government, which rejects his request for stepping up his pay scale appropriately. 2. I have heard Sri.T.Venugopal – learned Counsel for the petitioner; Sri.Babu Paul – learned Counsel appearing for the 2[nd] respondent – High Court of Kerala and Sri.Sunil Kumar Kuriakose – learned Government Pleader appearing for respondent No.1 - State of Kerala. **WP(C) NO. 1872 OF 2021** **==> picture [22 x 9] intentionally omitted <==** 3. Sri.Sunil Kumar Kuriakose contested the submissions of learned counsel for the petitioner as afore, by referring to the averments in the counter affidavit filed on behalf of the 1[st] respondent, wherein it has been stated that both the petitioner and the 3[rd] respondent had prior service in “different posts”. He added that, therefore, since they had prior service in such “different posts”, they cannot be treated as being senior and junior to each other, as has been asserted by the petitioner; and therefore, that the anomaly, if any, occurred only on account of that reason. He then added that as far as the 3[rd] respondent is concerned, he is drawing a higher scale of pay because of the Higher Grade fixation which he had obtained in the meanwhile and that, going by Ext.P6 Government Order, stepping up of the pay scale of the “senior” is possible only if an anomaly had occurred on account of introduction ## **WP(C) NO. 1872 OF 2021** **-4-** of the revised scale of pay and fixation of Rules and in no other situation. Sri.Sunil Kumar Kuriakose, therefore, prayed that this writ petition be dismissed. 4. Sri.Babu Paul – learned Counsel appearing for the 2[nd] respondent – High Court of Kerala, submitted that the stand taken by his client, as is evident from Ext.P3, is that the post occupied by the petitioner earlier, namely watchman; and that by the 3[rd] respondent, namely peon, were at the relevant time considered as interchangeable, carrying the same scale of pay. He then submitted that the Hight Court of Kerala does not have anything to add in this matter and that it is for the Government to take an apposite decision as per law. – 5. Sri.T.Venugopal learned counsel appearing for the petitioner, replied to the afore submissions by relying on the declarations of the ## **WP(C) NO. 1872 OF 2021** **-5-** Hon'ble Supreme Court in **Gurcharan Singh Grewal &** **Anr. v. Punjab State Electricity Board** [2009 (3) SCC 94], that a senior cannot be allowed to remain on a pay scale lower than his junior; and thus argued that since the 2[nd] respondent – High Court of Kerala, has unequivocally taken the stand that the posts earlier occupied by his client and the 3[rd] respondent, namely watchman and peon, were in the same scale of pay and were interchangeable, it was not justified for the State to have issued Ext.P4 rejecting his client's claim. He, therefore, reiteratingly prayed that Ext.P4, to the extent to which it is impugned, be set aside and the State be directed to issue appropriate orders enhancing the pay scale of his client to be at par with that of the 3[rd] respondent, with effect from 15.03.2016. 6. I have considered the afore submissions and have also gone through the materials available ## **WP(C) NO. 1872 OF 2021** ## **-6-** on record very clearly. 7. The substratum of the stand of the Government, as is conspicuous from Ext.P4 as also their counter pleadings, is that the petitioner and the 3[rd] respondent came to their present posts from previous posts, which were different. Pertinently, the averments in para.4 of the counter affidavit filed on behalf of the 1[st] respondent specifically avers that even though the petitioner is senior to the 3[rd] respondent in the present post of Library Assistant, both of them have prior service in “different posts” and therefore, “cannot be compared” as senior and junior. 8. However, as rightly pointed out by Sri.Babu Paul, the stand taken by the High Court of Kerala is quite to the contrary, that post of watchman and peon were, at the relevant time, interchangeable and carrying the same scale of ## **WP(C) NO. 1872 OF 2021** **-7-** pay. I, therefore, cannot understand how the Government can say that the petitioner and 3[rd] respondent came from “different posts” and therefore that they cannot be treated as Senior and junior; albeit, the averments in the counter affidavit expressly admitting that the petitioner is, in fact, senior to the 3[rd] respondent in the present post of Library Assistant. 9. Additionally, as regards the arguments of Sri.Sunil Kumar Kuriakose that the pay scale of the 3[rd] respondent has been enhanced on account of the pay fixation and not as a direct result of the introduction of the revised scale of pay is concerned, I cannot favour with them either, since there is not even whisper of such in Ext.P4, though it has been attempted to be feebly stated so in the counter affidavit. 10. I am, therefore, of the firm view that this cannot stand in the way of the Government ## **WP(C) NO. 1872 OF 2021** **-8-** reconsidering the matter, particularly when, as I have already said above, they admit that the petitioner is senior to the 3[rd] respondent in the post of Library Assistant. Indubitably, therefore, when the petitioner draws a lower scale than the 3[rd] respondent, he is justified in approaching this Court. In the afore circumstances, I order this writ petition and set aside Ext.P4, to the extent to which it impugned; with a consequential direction to the competent Authority of the State of Kerala to again hear the petitioner and the 3[rd] respondent – either physically or through video conferencing – thus culminating in an appropriate order thereon, particularly adverting to the stand of the High Court of Kerala that the post of watchman and peon, at the relevant time, were interchangeable and carrying the same scale of pay. ## **WP(C) NO. 1872 OF 2021** **-9-** The afore exercise shall be completed by the State of Kerala, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. **Sd/DEVAN RAMACHANDRAN JUDGE** akv **WP(C) NO. 1872 OF 2021** **-10-** ## **APPENDIX OF WP(C) 1872/2021** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF HIGH COURT ORDER NO.A695723/2016 VOL.II DATED 8/3/2017.** **EXHIBIT P2 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO R2.** **EXHIBIT P3 TRUE COPY OF LETTER NO.GII(5)75195/2017 DATED 1/11/2018 FROM RESPONDENT NO.2.** **EXHIBIT P4 TRUE COPY OF THE LETTER NO.C2/408/2019/HOME DATED 16/11/2020 FROM R1.** - **EXHIBIT P5 EXTRACT OF G.O.(P) NO.85/2011/FIN. RULE 6 (9TH PRC ORDER) DATED 26TH FEBRUARY 2011.** **EXHIBIT P6 EXTRACT OF G.O.(P) NO.7/2016/FIN RULE 9 (10TH PRC ORDER) DATED 20TH JANUARY 2016.** ## **RESPONDENT'S/S EXHIBITS : NIL.** //TRUE COPY// P.A. TO JUDGE