State of Kerala v C.V. Jacob and The Greater Cochin Development Authority

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 24TH DAY OF JULY 2018 / 2ND SRAVANA, 1940** **WA.No. 1510 of 2015 IN WPC. 5320/2011** **AGAINST THE ORDER/JUDGMENT IN WP(C) 5320/2011 of HIGH COURT OF KERALA DATED 18-02-2015** **APPELLANT(S)/1ST RESPONDENT IN W.P(C)** **STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA, LOCAL SELF GOVERNMENT(IA),SECRETARIAT, THIRUVANANTHAPURAM-695001.** **BY ADV.RENIL ANTO, SR.GOVERNMENT PLEADER** ## **RESPONDENT(S)/PETITIONER & 2ND RESPONDENT IN THE W.P(C):** **1. C.V. JACOB,** **ADMINISTRATIVE OFFICER,GREATER COCHIN DEVELOPMENT AUTHORITY, KADAVANTHARA,ERNAKULAM-682020.** **2. THE GREATER COCHIN DEVELOPMENT AUTHORITY, REPRESENTED BY ITS SECRETARY,G.C.D.A.OFFICE, KADAVANTHARA,ERNAKULAM-682020.** **R1 BY ADV. SRI.P.K.RAVISANKAR** **R2 BY ADV. SRI.M.K.THANKAPPAN, SC, GCDA** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24-07-2018, ALONG WITH WA NO.1511/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** jg-3/8 'C.R.' K.VINOD CHANDRAN & ASHOK MENON, JJ. ------------------------------------------WA Nos.1510 and 1511 of 2015 ------------------------------------------Dated this the 24[th] day of July, 2018 **==> picture [120 x 9] intentionally omitted <==** Ashok Menon, J. The State is in appeal aggrieved by the common judgment of the learned Single Judge allowing WP(C) Nos.29106 of 2007 and 5320 of 2011. The question that came up for consideration was whether the Administrative Officer in the services of Greater Cochin Development Authority ('GCDA' for short) is entitled to parity of pay in the scale payable to Deputy Secretary in the Secretariat service. The learned Single Judge by virtue of the impugned judgment allowed the Writ Petitions and all the petitioners were directed to be given the revised scale of pay granted to Deputy Secretary. The State is aggrieved by this judgment and hence these appeals. 2. The Writ Petitions were filed by the Administrative Officers of GCDA, some of whom have already retired from service. It is stated in those writ petitions that the pay scales and service conditions of the ministerial employees of the GCDA WAs1510&1511/15 -2- were being treated at par with the staff/officers of the administrative secretariat under the Government. Hence, whenever pay revision is effected with respect to Government employees applicable to the Secretariat, the same is implemented to the GCDA employees also with the approval of the Government. 3. Rule 24(2) of the Kerala Development Authorities Rules, 1984 ('Rules' for short) states that the qualification and method of recruitment to different posts under it shall be fixed by the 'Authority', which means the GCDA, as per the Rules. However, the decision of the 'authority' to implement the method of recruitment and to fix qualifications was subject to prior approval of the Government. In cases, where there are no qualifications prescribed for posts under the Rules, qualifications fixed for posts of similar standing and status under the Government shall be followed. 4. Administrative Officers employed in the GCDA were always treated at par with the Deputy Secretaries in the Secretariat service with respect to their pay scale right from the inception of the GCDA from 1978 WAs1510&1511/15 -3- onward. Based on the pay revision of 2006, the pay scale of Administrative Officer was revised to Rs.20700-26600/- at par with the Deputy Secretary and they were given the benefit with effect from 1.7.2004, and ratification from the Government was sought for. The Government declined the same and recovery of the amount paid has been ordered. Hence, the petitioners approached this Court with the writ petitions. 5. The stand taken the Government is that the duties and responsibilities of a Deputy Secretary in the Secretariat cannot be compared with the duties and responsibilities of an Administrative Officer in the GCDA and that they are not identical. The provisions of the Rules have been misinterpreted by the GCDA, so as to give the benefits of the 2006 pay revision with effect from 1.7.2004 to the post of Administrative Officer of the GCDA at par with the pay scale fixed for the post of Deputy Secretary in the Secretariat. It is stated that the Pay Revision Commission has consciously recommended higher revised scale for the post of Deputy Secretary, which was not intended to be given to the post of Administrative Officer in the GCDA. The mere WAs1510&1511/15 -4- fact that the GCDA has no Rules regarding the qualifications and method of recruitment of ministerial staff and that they adopted the Secretariat Service Rules for recruitment and service conditions, does not indicate that the pay scale also should be matching in all respects. 6. The learned Single Judge was of the view that until the Government takes a decision to decline the service pattern adopted in GCDA for administrative/ministerial staff in the line of secretariat staff, the refusal of the pay revision to the Administrative Officers is unjust and illegal. It was also held that it is for the Government to reexamine the issue as to whether the GCDA could have adopted the rules applicable to the secretariat service for qualification, method of appointment and also for fixation of pay and till then there has to be equation of posts. The Writ Petitions were hence allowed. 7. We find it pertinent to have a look at Rules 18 and 24 of the Rules, which read thus: “ Rule 18 : Creation of posts by the Authority : The Authority shall have powers to create posts, the maximum pay of which does not exceed Rs.1800/- p.m.and with the approval WAs1510&1511/15 -5- of Government posts the maximum pay of which exceeds Rs.1800/- p.m. in the establishment of the Authority it considers necessary for the efficient performance of its functions: Provided that the Authority shall obtain the prior approval of Government in the matter relating to revision of Scale of Pay, Travelling Allowance, Dearness Allowance, etc., of its employees.” “ Rule 24: Qualifications and method of recruitment: (1) The Authority shall, with the prior approval of the Government fix in the qualifications and method of recruitment to the various posts under, it; (2) Where no qualifications have been fixed under sub-rule (1) the qualifications fixed for posts of similar standing and status under the Government shall be followed. (3) No person shall be, appointed to a post under the, Authority if he does not possess, the qualifications fixed for that post under sub-rule (1) or sub-rule(2) above.” As per Rule 18, the GCDA has power to create posts the maximum pay of which shall not exceed Rs.1800/- per month and with the approval of Government, the posts having pay in excess of 1800/- per month. The proviso only states that the Authority shall obtain the prior approval of the Government in the matter relating to revision of scales of pay. Similarly, Rule 24(2) would show that where no qualifications have been fixed, the qualifications fixed for posts of similar standing and status under the Government shall be followed. We are WAs1510&1511/15 -6- of the opinion that it was not even open for the Government to re-examine the adoption of secretariat service conditions for the service with GCDA; since the rule framed by the executive Government under sub-Rule (2) of Rule 24 provided for that. 8. In the additional counter affidavit filed on behalf of the Government, it is stated that the duties and responsibilities of an Administrative Officer in the GCDA is not in any way identical to that of a Deputy Secretary to the Government Secretariat and that a Deputy Secretary of the Government Secretariat has a responsibility to perform duties identical to that of a Secretary to Government, insofar as delegated powers, and that the Deputy Secretary has State-wide jurisdiction. The pre-revised scale of the post of Administrative Officer in GCDA was Rs.10000-15150/-, whereas the pre-revised scale of Deputy Secretary, Government Secretariat was Rs.10000-15150+200 Special Pay in lieu of higher time scale. The Pay Commission had after merging the special pay in lieu of higher time scale, suggested a higher revised scale to the post of Deputy Secretary in the Government Secretariat and thus the pay scale of the Deputy Secretary was raised WAs1510&1511/15 -7- to Rs.20700-26600/-. The pay scale of Administrative Officer in the GCDA can only be fixed at Rs.16650-23200 considering the disparity of the duties discharged, is the plea raised by the Government. The respective pay scales asserted by the Government indicate that there is a huge gap between the scales of the posts revised with effect from 1.7.2004. 9. The learned Government Pleader relies on the decision of the Honourable Supreme Court in (2007) 2 SCC (L&S) 897 [S.C.Chandra and Others v. State of Jharkhand and Others] to argue that while fixing pay scales, determination of complete and wholesale identity between two groups and parity in the pay scale are purely executive functions and the court could not interfere with that, and the proper forum is an expert body or committee constituted for the purpose. The court cannot itself grant a higher pay scale, and that therefore, the learned Single Judge went wrong in directing grant of the revised pay scale of the post of Deputy Secretary to the Government to the post of Administrative Officer of the GCDA. Immediately, it has to be noticed that in the instant case, the WAs1510&1511/15 -8- challenge is against the abrupt decision to find the duties of the Administrative Officer of the GCDA to be disparate from that of Deputy Secretary to Government; when they were treated for long as similar. The cause of action is not based on a claim of parity of pay; but on the parity being upset without a proper study and merely because the special pay of a measly Rs.200/- was merged, to give a better pay scale to the Deputy Secretaries. 10. In (2017) 9 SCC 379 [State of Punjab & Ors v. The Senior Vocational Staff Masters Association & Ors] it is held as follows: “18) We are conscious of the fact that a differential scale on the basis of educational qualifications and the nature of duties is permissible. However, it is equally clear to us that if two categories of employees are treated as equal initially, they should continue to be so treated unless a different treatment is justified by some cogent reason. In a case where the nature of duties is drastically altered, a differential scale of pay may be justified. Similarly, if a higher qualification is prescribed for a particular post, a higher scale of pay may be granted. However, if the basic qualifications and the job requirements continued to be identical as they were initially laid down, then the Court shall be reluctant to accept the action of the authority in according a differential treatment unless some good reasons are disclosed. Thus, the decisions relied upon by learned senior counsel are clearly distinguishable and are not applicable to the facts of the present case.” WAs1510&1511/15 -9- 11. Similarly in 2008 (2) KHC 854 [State of Kerala v. B.Renjith Kumar and Others] the question that came up for consideration is whether the Presiding Officers of Industrial Tribunals were entitled to the revised pay scale granted to the Presiding Officers of Labour Courts and District Judges. The objection raised by the Government was that the Presiding Officers in the Industrial Tribunals were not appointed under Article 233 of the Constitution of India, nor are they appointed to the Judicial Services of the State under Article 234 of the Constitution of India and therefore, they are not entitled to the pay scale of District Judges recommended by the Shetty Commission by which the District Judges were placed at a higher scale, which benefit had been denied to the Presiding Officers of Industrial Tribunals. The Honourable Supreme Court held that the action of the State Government in treating the officers presiding over the Industrial Tribunals differently from the District Judges, in the matter of pay scale, on its face is in violation of Article 14 of the Constitution of India. The essential educational and professional WAs1510&1511/15 -10- qualifications for appointment of Presiding Officer of the Industrial Tribunals are identical to that of the appointment of District Judge. There is no qualitative difference in the nature of functions or duties attached to the categories of posts. This parity having been recognized and accepted by the State Government for more than 30 years, the High Court was right in observing that, the mere fact that the Constitution refers to the appointment of District Judges alone, cannot by itself be a good ground for treating the Presiding Officers of the Industrial Tribunals and the District Judges differently. 12. In the instant case also, the Administrative Officers in GCDA were drawing the pay scale identical to that of Deputy Secretaries in the Secretariat till the 2006 pay revision which came into effect on 1.7.2004. After having drawn the same scale from 1978 onward, it was improper on the part of the Government to have denied that scale to the Administrative Officers in GCDA, merely for the reason that the Deputy Secretaries are having State-wide jurisdiction. There was neither study conducted nor proper reasons stated WAs1510&1511/15 -11- for the deviation from the practice, which continued for more than 25 years. The reasons stated are not convincing and sufficient to draw an abrupt distinction on the duties performed in the two posts. This would clearly be violation of Article 14 of the Constitution of India. The learned Single Judge was perfectly justified in allowing the Writ Petitions. We find no reason to interfere with the findings and hence dismiss these Writ Appeals. No order as to costs. Sd/K.VINOD CHANDRAN JUDGE Sd/ASHOK MENON JUDGE jg