High Court of KeralaDivision Bench2007-11-29Writ petition dismissed; CAT order upheld (pari...

Union of India & Director, Integrated Fisheries Project, Kochi v. N.K. Krishnan Kutty, Augustine Joseph, K.R. Kuttappan, K. Chandran Louis and K.K. Gopi

Case / Petition Number:WP(C).No.23423 of 2006 (S)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Balakrishnan Nair
K. P. Balachandran
Judgment Date: 2007-11-29
Court Decision / Holding: Writ petition dismissed; CAT order upheld, with parity in pay scales for the two posts confirmed.
Final Disposition: Writ petition dismissed; CAT order upheld (parity of pay scales maintained).

Parties to the Case

Appellants / Petitioners

N.K. Krishnan Kutty
Augustine Joseph
K.R. Kuttappan
K. Chandran Louis
K.K. Gopi

Respondents

Union of India
Director, Integrated Fisheries Project, Kochi

Legal Representation & Advocates

Counsels for Petitioners

• Adv. T. Niklav u

Counsels for Respondents

• Adv. P. Parameswaran Nair, CGC

Case Synopsis & Summary

This writ petition challenges a Central Administrative Tribunal decision that placed the pay scale of Assistant Foreman in the Integrated Fisheries Project on par with the Processing Assistants under the IV/V Central Pay Commissions. The petitioners, Union of India represented by the Secretary, Ministry of Agriculture, and the Director of the Integrated Fisheries Project, contend that promotees should have pay fixed with reference to the direct recruitment qualification for the post of Assistant Foreman, which is Diploma in Mechanical Engineering with two years’ experience. The direct recruitment rule would then govern the pay scale, and since the petitioners’ staff do not possess the Diploma, they ought not to receive the higher Rs.5000-8000 scale. They rely on Recruitment Rules and annexures indicating the Diploma qualification for higher pay. The respondents point to a CAT order in OA 1323/92, which held parity between the two posts for pay purposes based on duties, functions and qualifications, and argue parity should apply here as well. The court notes that the pay of promotees is tied to the direct recruitment qualification and that there cannot be two pay scales for the same post arising from promotion vs direct recruitment. It cites Mohinder Singh Gil v. Chief Election Commissioner (AIR 1978 SC 851) to resist grounds not raised in the challenge and ultimately dismisses the petition, upholding the CAT order.

Provisions of Law Cited

Recruitment Rules: Diploma in Mechanical Engineering with two years experience for direct recruitment to the post of Assistant ForemanCentral Administrative Tribunal Act (O.A. No. 637/03 before CAT Ernakulam Bench)

Legal Doctrines & Maxims

Parity of pay scales for posts with the same duties and qualifications
Apex Court doctrine cited: cannot challenge an order on grounds not raised (Mohinder Singh Gil v. Chief Election Commissioner)

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants contend that, as promotees, their pay should be fixed by reference to the direct recruitment qualification for the post of Assistant Foreman, i.e., Diploma in Mechanical Engineering with two years’ experience. Direct recruitment qualification should govern pay; since they possess ITI credentials rather than the diploma, they are not entitled to the Rs.5000-8000 scale. They rely on Recruitment Rules and Annexures showing the Diploma in Engineering as a qualification for the higher scale and argue that pay cannot be split across promotee and direct recruitment categories for the same post.

Contentions of Respondents

The respondents argue parity of pay between the two posts is supported by the prior CAT decision in OA 1323/92, based on duties, functions and qualifications. They contend that the higher scale reflects the direct recruitment qualification and that there cannot be two different pay scales for the same post in promotion and direct recruitment tracks. They maintain that the Tribunal’s reasoning in OA 1323/92 and the underlying policy justify keeping the two posts on a congruent pay scale. They rely on Mohinder Singh Gil to argue that grounds not raised cannot be used to challenge the order.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Mohinder Singh Gil v. Chief Election Commissioner	AIR 1978 SC 851	Positive	Cited to support the proposition that arguments based on grounds not raised cannot be entertained; used to reject the petitioners’ attempt to rely on additional grounds.
O.A. No. 1323/92, CAT, Ernakulam Bench	OA 1323/92	Positive	Prior CAT decision holding parity between Processing Assistants and Assistant Foreman for pay purposes based on duties/qualifications; the present court relies on this reasoning to justify parity.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN** **THURSDAY, THE 29TH NOVEMBER 2007 / 8TH AGRAHAYANA 1929** ## **WP(C).No.23423 of 2006(S)** **--------------------------** ## **OA.637/2003 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** **....................** ## **PETITIONERS:** - **----------------** **1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF AGRICULTURE, DEPARTMENT OF ANIMAL HUSBANDRY & DAIRYING, KRISHI BHAVAN, NEW DELHI-1.** **2. THE DIRECTOR, INTEGRATED FISHERIES PROJECT, KOCHI-16.** **BY ADV. SRI.P.PARAMESWARAN NAIR, CGC** **RESPONDENTS:** - **-----------------** **1. N.K. KRISHNAN KUTTY, ASSISTANT FOREMAN, (ENGINE & EQUIPMENTS), INTEGRATED FISHERIES PROJECT, KOCHI-16.** **2. AUGUSTINE JOSEPH, ASSISTNT FOREMAN, (ENGINE & EQUIPMENTS), INTEGRATED FISHERIES PROJECT, KOCHI-16.** **3. K.R. KUTTAPPAN, ASSISTANT FOREMAN, (STRUCTURAL), INTEGRATED FISHERIES PROJECT, KOCHI-16.** **4. K. CHANDRAN LOUIS, ASSISTANT FOREMAN (STRUCTURAL), INTEGRATED FISHERIES PROJECT, KOCHI-16.** **5. K.K. GOPI, ASSISTANT FOREMAN (MECHANIC SHOP), INTEGRATED FISHERIES PROJECT, KOCHI-16.** **BY ADV. SRI.T.NIKLAVU** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/11/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **APPENDIX** ## **PETITIONERS' EXTS:-** **EXT.P1:- TRUE COPY OF O.A. NO.637/03 OF THE CAT, ERNAKULAM BENCH DT.24/07/03.** **EXT.P2:- TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS HEREIN IN O.A. NO.637/03 DT.09/03/05.** **EXT.P3:- TRUE COPY OF THE ORDER DT.17/11/05 IN O.A NO.637/03 OF THE CAT, ERNAKULAM.** **//TRUE COPY//** K.Balakrishnan Nair & K.P.Balachandran, JJ. -------------------------W.P.(C)No. 23423 of 2006 S -------------------------- ## **JUDGMENT** Balakrishnan Nair, J. The petitioners are the respondents in O.A.No. 637/03 before the Central Administrative Tribunal, Ernakulam Bench. The applicants in the said original application are the respondents. 2. The respondents/applicants approached the Central Administrative Tribunal by filing the above original application feeling aggrieved by the scale of pay granted to them by the Government in implementation of the V Central Pay Commission report. All the petitioners are Assistant Foreman in the Integrated Fisheries Project. They are promotees. The revised scale of pay as per the V Central Pay Commission report is Rs.4500-7000. Their counter parts in other Departments were granted the scale of pay of Rs.5000-8000. Feeling WPC 23423/06 2 aggrieved by the said discrimination, they approached the Central Administrative Tribunal. 3. The Central Administrative Tribunal found that earlier, the Processing Assistants, working in the Integrated Fisheries Project, approached the Central Administrative Tribunal by filing O.A.No. 1323/92, when the IV Central Pay Commission report was implemented. Their scale of pay was lower when compared to that of Assistant Foreman. The said original application was allowed. When this time the V Central Pay Commission was implemented, the scale of pay of the Processing Assistants was revised as Rs.5000-8000. But, the scale of pay of the Assistant Foreman was revised as Rs.4500-7000. In O.A.1323/92 the Tribunal held that those two posts should be treated at par for the purpose of grant of pay, having regard to their nature of duties, functions and qualifications. Following the said decision in that original application, which has become final, the Central Administrative WPC 23423/06 3 Tribunal, this time, held that the scale of pay of Assistant Foreman should be equal to that of the Processing Assistants. Based on that reasoning, the original application was allowed. The petitioners attack the said finding in this writ petition. 4. According to the petitioners, the qualifications of the applicants are only ITI and seven years experience. For direct recruitment, as per the Recruitment Rules, the qualification to the post of Assistant Foreman is Diploma in Engineering. Direct recruitment is permissible if only no qualified candidate is available for promotion. So far, direct recruitment has not been made to the post of Assistant Foreman, it is submitted. The petitioners, relying on Annexure-A1 of Exhibit P1 original application, submitted that the qualification for direct recruitment to the post of Technical Supervisors in workshops is Diploma in Engineering in the relevant discipline WPC 23423/06 4 or graduation in Science. Keeping the said qualification in mind, the scale of pay was recommended. Annexure-A2 of Exhibit P1 application would also show that Technicians with degree in Science or Diploma in Engineering are eligible to get the scale of pay of Rs.5000-8000. According to the petitioners, since the applicants do not have the above said qualification, they are not eligible to get the scale of pay of Rs.5000-8000. So, the order of the Central Administrative Tribunal is unsustainable, it is submitted. 5. We notice that the claim of the applicants has been rejected by Annexure-A5 of Exhibit P1 original application on the ground that the qualification for direct recruitment to the post of Assistant Foreman is not Diploma in Engineering. But, the said stand, taken to reject the claim of the applicants, is plainly untenable. As per the Recruitment Rules, the qualification for direct recruitment to the post of Assistant Foreman is WPC 23423/06 5 Diploma in Mechanical Engineering with two years experience. Though the petitioners are promotees, the scale of pay is determined with reference to the qualification for direct recruitment, which is evidently Diploma in Engineering. In a particular post there cannot be two scales of pay, for promotees and the direct recruitees, on the basis of the difference in the qualification, prescribed for promotion and direct recruitment. Therefore, we are of the view that the stand taken by the Central Administrative Tribunal in the impugned order is perfectly legal and valid. 6. We also notice that as per Annexure-A5, their claim was rejected on a particular ground, i.e., the qualification for direct recruitment to the post of Assistant Foreman is not Diploma in Engineering. When that order is under challenge before this Court, they cannot try to support that order on certain other grounds. The same is impermissible in law in view of the decision of the WPC 23423/06 6 Apex Court in **Mohinder Singh Gil v** . **Chief Election** **Commissioner** (AIR 1978 SC 851). In the result, there is no merit in this writ petition. Accordingly, it is dismissed. **==> picture [236 x 13] intentionally omitted <==** 29[th] November, 2007 **==> picture [228 x 12] intentionally omitted <==** tkv