State of Kerala and Accountant General (A&E) v. Unninayaranan V.K., Private Secretary (Higher Grade) to Judge, High Court of Kerala, and High Court of Kerala represented by Registrar General

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 09TH DAY OF SEPTEMBER 2020 / 18TH BHADRA, 1942** **WA.No.821 OF 2019** **AGAINST THE JUDGMENT DATED 03-10-2017 IN WP(C) 24964/2016(R) OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 & 3:** **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO FINANCE DEPARTMENT, SECRETARIAT, TRIVANDRUM-695 001.** - **2 THE ACCOUNTANT GENERAL (A & E) OFFICE OF THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM-695 001.** ## **BY GOVERNMENT PLEADER** ## **RESPONDENTS/PETITIONER & 2ND RESPONDENT:** **1 UNNINARAYANAN.V.K PRIVATE SECRETARY (HIGHER GRADE) TO JUDGE, HIGH COURT OF KERALA, KOCHI-682 031 RESIDING AT VAISAKHAM, ARIMBASSERY ROAD, P.O., THRIKKAKKARA, VAZHAKKALA, COCHIN-21.** **2 HIGH COURT OF KERALA, REPRESENTED BY REGISTRAR GENERAL, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **R1 BY ADV. SRI.R.K.MURALEEDHARAN R2 BY ADV. ELVIN PETER (B/O)** ## **OTHER PRESENT:** ## **SRI. T. RAJASEKHARAN NAIR-SR.G.P.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26-08-2020, THE COURT ON 09-09-2020 DELIVERED THE FOLLOWING:** WA No.821/2019 -2- ## **J U D G M E N T** Dated this the 9[th] day of September, 2020. ## Gopinath, J: The State of Kerala and the Accountant General (Kerala) have jointly filed this writ appeal challenging the judgment dated 03-10-2017 in W.P (C) No.24964/2016. That writ petition was filed by the 1[st] respondent who is presently working as ' _Private Secretary (HG) to Judge'_ in the service of the High Court of Kerala, claiming stepping up of pay on par with that of his junior. The learned Single Judge has, on a consideration of the matter held that the 1[st] respondent was entitled to stepping up of pay with effect from 01-07-2011. This direction was issued on the finding that the anomaly arose on account of fixation of pay under Rule 28A of Part-I of the Kerala Service Rules (KSR) and on the finding that the provisions of stepping up of pay as provided in Ruling No.I under Rule 28A would apply. 2. The 1[st] respondent was promoted as ' _Selection Grade Personal Assistant (PA) to Judge'_ on 03-11-2000. On 06-01-2009 he was promoted as ' _Private Secretary (PS) to Judge'_ and his pay was fixed on that date, on the basis of the option exercised by him under Rule 28A of Part I KSR . From 06-02-2009 to 07-06-2009 the 1[st] respondent was promoted on a temporary basis as PS to the Chief Justice of the High Court of Kerala and his pay was again fixed taking also into consideration the special WA No.821/2019 -3- allowances that he would draw as Private Secretary to the Chief Justice. On 08-06-2009 he was again granted temporary promotion as P.A. to Chief Justice and his pay was fixed as on 08-06-2009 at Rs.15,890/- in the scale of pay of Rs.12,250 – 19,800. On 08-10-2009 he was again granted a temporary promotion as Private Secretary to Chief Justice and he continued as such till 17-05-2010. From 17-05-2010 to 31-10-2011 he again worked as P.A to Chief Justice, on temporary promotion. On the forenoon of 31-10-2011 he was posted back as P.S. to Judge. Following the pay revision in 2009 the 1[st] respondent had opted for fixation of pay under option (a) of Rule 28A as a result of which he received two increments with effect from the date of promotion and his next date of increment fell due only after one year from the date of promotion as P.S. to Judge. This resulted in his next increment becoming due only on or after 06-01-2010. 3. One Smt. K. Laila was promoted as P.S. to Judge on 05-022009 and is admittedly junior to the 1[st] respondent. On the basis of the option exercised by her under Rule 28A of Part-I KSR, Smt. K. Laila got sanctioned her increments as provided for under option (b) of Rule 28A. As a result of this she was able to draw a higher basic pay of Rs.15,890/- with effect from 01-11-2009 whereas the 1[st] respondent who was admittedly senior was sanctioned increment only with reference to the date of his promotion, as PS. Though technically it is this anomaly that the 1[st] WA No.821/2019 -4- respondent sought to rectify while seeking stepping up of pay, his actual grievance appears to have arisen only on his re-posting as PS to Judge after the various spells of temporary promotions following which he served as PS & PA to the Chief Justice from 6-02-2009 to 31-10-2011. As already noticed above the learned Single Judge has found that the 1[st] respondent was entitled to stepping up of pay with effect from 01-07-2011 . 4. We have heard Sri. Rajesekharan Nair, learned Senior Government Pleader appearing for the appellants and Sri. R.K. Muralidharan, learned counsel appearing for the 1[st] respondent. 5. The learned counsel for the appellants would contend that the anomaly arose on account of the option exercised by the 1[st] respondent on the date of his promotion as P.S to Judge. He would point out that the 1[st] respondent had exercised option to have his pay fixed in terms of option (a) under Rule 28A of Part-I KSR as a result of which his increment fell due only after a completion of one year from the date of promotion. The admitted junior Smt. K. Laila had exercised option on being promoted as P.S to Judge under option (b) of Rule 28A as a result of which she became entitled to an increment with reference to the last date of increment drawn by her in the post from which she was promoted. He would therefore contend that Ruling No.1 under Rule 28A does not apply. He has placed before us a judgment of the Division Bench of this court in _**G.C.D.A and**_ WA No.821/2019 -5- _**another v. Shanavas A.M. and another**_ reported in 2010 (1) ILR Ker. 405 to drive home the point that a senior in a cadre need not always draw higher pay than a junior in the cadre. He also refers an unreported judgment of this court in WA No.36/2007 ( _**E.Emilda Mary v. The Principal Secretary to Government and others**_ ) and the judgment of a learned Single Judge of this Court in W.P (C) No.22525/2006 ( _**T.P. Padmanabhan v. State of Kerala and others)**_ , and would contend on the basis of the ratio of the aforesaid judgments that the anomaly which arose on account of exercising of option in a manner not beneficial to the 1[st] respondent cannot be rectified by applying Ruling No.I under Rule 28A of Part-I KSR. 6. The learned counsel for the 1[st] respondent would submit that during the relevant period and at the time when he exercised option on being promoted as P.S to Judge he had obtained temporary promotion as narrated above and had worked as P.S to Chief Justice and P.A to Chief Justice in different spells and he was posted back as P.S to Judge only with effect from 31-10-2011. It was only then that the 1[st] respondent realized that there was an anomaly in as much as his junior was drawing higher emoluments. He would submit that the failure to notice the anomaly was on account of the fact that he was getting an additional allowance while working as P.S / P.A to Chief justice on the basis of temporary promotions WA No.821/2019 -6- granted to him from time to time. Learned counsel for the 1[st] respondent placed reliance on the judgment of the Supreme Court in _**Gurcharan Singh Grewal and another v. Punjab State Electricity Board and others**_ [(2009) 3 SCC 94] and the judgment of a Division Bench in WA No.1580/2006 **(State of Kerala and others v. James N.J.)** to contend that the 1[st] respondent was entitled, in the peculiar facts and circumstances of the case to have the pay stepped up with effect from 01-07-2011 at Rs.30,610/- in the scale of pay of Rs.21,240- 37040/-. 7. We have considered the contentions raised by either side. It is an admitted fact that Smt. K. Laila is junior to the 1[st] respondent. On promotion as P.S to Judge Smt. K. Laila appears to have exercised option under option (b) under Rule 28A of Part-I KSR as a result of which she became entitled to her first increment in the promoted post with reference to the date of increment drawn by her in the lower post. Whereas the 1[st] respondent had exercised option as option (a) under Rule 28A of Part I as a result of which his increment in the promoted post became due only on completion of one year from the date of promotion. As already noticed the 1[st] respondent was officiating as P.S/P.A to the Chief Justice during various spells and without break from 6-02-2009 till 31-10-2011. A reference to Ext.P13 will show that the 1[st] respondent was drawing a basic pay of Rs.30,610/- as on 01-07-2011. On being posted back as P.S to Judge on WA No.821/2019 -7- 31-10-2011 his pay got reduced from Rs.30,610 to Rs.29,860/- . However in the case of Smt. K. Laila she was drawing a basic pay of Rs.30,610/- with effect from 01-11-2011. As already noticed the 1[st] respondent was also drawing the same basic pay upto 31-10-2011. Whereas from 31-10-2011 his pay got reduced to Rs.29,860/- on account of him being posted back as P.S to Judge. From the judgment in _**GCDA and another v. Shanavas A.M. and another (supra)**_ we notice that the fact situation considered therein was completely different. That was a case where the admitted junior obtained a time bound higher promotion on account of completion of 8 years of service as a result of which she was granted a scale of pay of an Assistant Engineer. Whereas the admitted senior continued to draw the scale of pay applicable to an Overseer Grade-I. This court found that such a situations often present themselves and such anomalies cannot be rectified by the application of Ruling No.1 under Rule 28A of Part-I KSR. We are of the view that the fact situation in this case is completely different. The said decision cannot therefore advance the case of the appellants. The next judgment referred to by the Senior Government Pleader is an unreported judgment of a Division Bench in WA No.36/2007. A reading of the judgment shows that the same was a case in which there was a failure to exercise a re-option within the time limit prescribed in the relevant instructions / Government Orders. This case stands on a different footing WA No.821/2019 -8- though there is a prayer to permit exercise of re-option. We are of the view that the claim of the 1[st] respondent can be decided on a completely different footing and therefore that the decision of the Division Bench holding that re-option cannot be permitted beyond the permitted time will not apply in the peculiar facts and circumstances of this case. The next judgment referred to by the learned Senior Government Pleader is the judgment of the learned Single Judge of this court in W.P (C) No.22525/2006. In that case also the matter was decided on the ground that the failure to exercise re-option within the prescribed time is fatal to a claim for stepping up of pay if the anomaly arose on account of wrong option or failure to exercise re-option within the prescribed time. That was a case where the 4[th] respondent therein who was admittedly junior started receiving higher emoluments on account of re-option submitted by him within the time prescribed. The writ petitioner in that case had failed to exercise that such re-option within the time prescribed. Therefore this court held that the ratio of decision in _**Kamala Devi v. K.S.F.E Ltd.**_ reported in [2002 (1) KLT 157] cannot be applied to the facts. 8. In the present case as already noticed the 1[st] respondent was drawing a basic pay of Rs.30,610/- with effect from 01-07-2011 (see Ext.P13). His junior started drawing that basic pay only with effect from 01-11-2011. On being posted back as P.S to Judge, w.e.f 1.11.2011, the basic WA No.821/2019 -9- pay of the 1[st] respondent got reduced to Rs.29,860/-. So in the month of November 2011, for the first time the 1[st] respondent started drawing lower emoluments than his admitted junior who started drawing basic pay of Rs.30,610/- from November 2011. The case considered by a Division Bench of this court in WA No.1580/2006 was also a case where the anomaly arose on account of the failure of the senior officer to exercise a proper option within the time. This court held as follows:- _“12. It is not in dispute that in view of the stipulations in Rule 4 of Annexure III to G.O(P)No.600/93/Fin. dated 25.9.1995 the pay of the respondent's junior Sri.V.Sreedharan was fixed applying rule 28A of Part I KSR when he opted to come over to the revised scale of pay of Senior Accountant with effect from 19.9.1995. He was also granted higher grade in the category of Senior Accountant with effect from that date as a result of which he started drawing higher pay than the respondent. Then the short question is whether by virtue of the provisions contained in rule 28A of Part I of the KSR, the respondent is entitled to have his pay stepped up and equated with the pay of his junior. The concept of junior-senior fixation finds statutory recognition in rule 28A of Part I KSR. Ruling No.1 under rule 28A of Part I KSR reads as follows:-_ _“In cases where the application of the rule would give rise to anomalies in as much as an officer officiating in a higher post could get his pay refixed at a stage higher than the pay drawn by another who stands_ WA No.821/2019 -10- _confirmed in the higher post on the same scale of pay, the anomaly will be removed by refixing the pay of the senior officer at the stage equal to that fixed for the junior officer in the higher post, the orders of refixation being issued by the Competent Authority under Rule 34, Part I, Kerala Service Rules. The refixation of pay in such cases will be made subject to the following conditions: (a) Both the junior and senior officers should belong to the same cadre and the post in which they have been promoted or confirmed, as the case may be, should be identical and in the same cadre. (b) The scale of pay of the lower post in which they would have drawn their pay but for their promotion or confirmation should be identical. (c) The anomaly should be directly as a result of the application of Rule 28A. For example, if the junior officer draws from time to time a higher rate of pay than the senior by virtue of fixation of pay under the normal rules or any advance increment granted to him, the provision contained in this ruling should not be invoked to step up the pay of the senior officer. (d) The refixation of pay of the senior officer should be done with effect from the date of refixation of pay of the junior officer. The next increment of the senior officer will however be drawn on the date on which it would have fallen due but for this refixation of pay.” (emphasis supplied)_ WA No.821/2019 -11- _13. In the instant case, the anomaly in the pay arose when the pay of Sri.V.Sreedharan, the respondent's junior, was fixed pursuant to the 1992 pay revision applying rule 28A of Part I KSR with effect from 19.9.1995 in the category of Senior Accountant and Senior Accountant (Higher Grade). Though Sri.V.Sreedharan had been promoted to the category of Senior Accountant in June 1986 he chose to come over to the revised scale of pay of Senior Accountant only with effect from 19.9.1995. It was as a result of the fixation of the pay of the junior applying rule 28A of Part I KSR that the anomaly in the pay of the senior arose. On the terms of ruling No.1 under rule 28A of Part I KSR, the respondent is therefore, entitled to have his pay stepped up and equated with the pay of his junior with effect from 19.9.1995. The respondent's junior did not start drawing higher pay by virtue of the fixation of pay under the normal rules or on advance increments being granted to him. In such circumstances though for a reason other than the one given by the learned single Judge, we are of the considered opinion that the decision under challenge does not merit interference.”_ The decision of the Supreme Court in _**Gurcharan Singh Grewal and another v. Punjab State Electricity Board and others** (supra)_ on which considerable reliance has been placed by learned counsel for the 1[st] respondent proceeds on the following basis as can be seen from paragraph 17 of that judgment which is extracted below. WA No.821/2019 -12- _"17. Something may be said with regard to Mr. Chhabra’s submissions about the difference in increment in the scales which the appellant No.1 and Shri Shori are placed, but the same is still contrary to the settled principle of law that a senior cannot be paid lesser salary than his junior. In such circumstances, even if, there was a difference in the incremental benefits in the scale given to the appellant No.1 and the scale given to Shri Shori, such anomaly should not have been allowed to continue and ought to have been rectified so that the pay of the appellant No.1 was also stepped up to that of Shri Shori, as appears to have been done in the case of the appellant No.2."_ We are of the opinion that the fact situation in the present case is more in tune with the fact situation considered by the Division Bench in WA No.1580/2006. The Division Bench has clearly found that the concept of junior senior fixation finds statutory recognition under ruling No.I of Rule 28A of Part-I KSR. The stepping up of pay would arise only from 01-112011 on which the day Smt. K. Laila started drawing basic pay of Rs.30,610/-. The learned Single Judge has found that the 1[st] respondent was entitled to basic pay of Rs.30,610/- with effect from 01-07-2011. However on our finding that the junior officer in this case (Smt. K. Laila) started drawing a basic pay of Rs.30,610/- only with effect from 01-11-2011, we hold that the stepping up of pay in the case of the 1[st] respondent need WA No.821/2019 -13- only be made effective from 01-11-2011 and not with effect from 01-07-2011 as directed by the learned Single Judge. We make it clear that this judgment should not be read as having permitted the 1st respondent to exercise any re-option under Rule 28A. We hold that the 1st respondent is entitled to stepping up of pay following the ratio of the Judgment in WA No.1580/2006. The writ appeal will therefore stand dismissed, however holding that the 1[st] respondent is entitled to stepping up of pay only with effect from 0111-2011 and not with effect from 01-07-2011. In the facts and circumstances of the case we make no order as to costs. **Sd/A.M.SHAFFIQUE JUDGE Sd/GOPINATH P. JUDGE** AMG