W.P.(C).No.22364/2007-R

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.GIRI** **TUESDAY, THE 4TH MARCH 2008 / 14TH PHALGUNA 1929** **WP(C).No. 22364 of 2007(R)** **---------------------------------------** **PETITIONERS:** - **---------------------** **1. K.RAVEENDRAN, SENIOR GRADE CHAUFFEUR, HIGH COURT OF KERALA, ERNAKULAM.** **2. JOSEPH THAYYIL, SENIOR GRADE CHAUFFEUR, HIGH COURT OF KERALA, ERNAKULAM.** **3. T.M.ANIL, SENIOR GRADE CHAUFFEUR, HIGH COURT OF KERALA, ERNAKULAM.** **4. M.R.PINTO, SENIOR GRADE CHAUFFEUR, HIGH COURT OF KERALA, ERNAKULAM.** **5. C.MADHAVANKUTTY, SENIOR GRADE CHAUFFEUR, HIGH COURT OF KERALA, ERNAKULAM.** **6. K.A.HAMSA, SENIOR GRADE CHAUFFEUR, HIGH COURT OF KERALA, ERNAKULAM.** **7. T.R.JOHNSON, SENIOR GRADE CHAUFFEUR, HIGH COURT OF KERALA, ERNAKULAM.** **8. M.P.NANJAPPAN CHETTIYAR, SENIOR GRADE CHAUFFEUR, HIGH COURT OF KERALA, ERNAKULAM.** **9. E.J.ABRAHAM, SENIOR GRADE CHAUFFEUR, HIGH COURT OF KERALA, ERNAKULAM.** **10. P.J.STANLY, SENIOR GRADE CHAUFFEUR, HIGH COURT OF KERALA, ERNAKULAM.** **11. C.JOHNKUTTY, CHAUFFEUR GRADE I, HIGH COURT OF KERALA, ERNAKULAM.** **12. R.REGHUNATHAN PILLAI, CHAUFFEUR GRADE I, HIGH COURT OF KERALA, ERNAKULAM.** ## **W.P.(C). NO.22364/2007-R:** **13. K.G.RAVI, CHAUFFEUR GRADE I, HIGH COURT OF KERALA, ERNAKULAM.** **14. V.N.VIDYADHARAN, CHAUFFEUR GRADE I, HIGH COURT OF KERALA, ERNAKULAM.** **15. K.K.NAZAR, CHAUFFEUR GRADE I, HIGH COURT OF KERALA, ERNAKULAM.** **16. C.VENU, CHAUFFEUR GRADE I, HIGH COURT OF KERALA, ERNAKULAM.** **17. P.KRISHNAMOORTHY, CHAUFFEUR GRADE I, HIGH COURT OF KERALA, ERNAKULAM.** **18. K.DEVADASAN, CHAUFFEUR GRADE I, HIGH COURT OF KERALA, ERNAKULAM.** **19. P.K.HARIKUMAR, CHAUFFEUR GRADE I, HIGH COURT OF KERALA, ERNAKULAM.** **20. P.ARUNKUMAR, CHAUFFEUR GRADE I, HIGH COURT OF KERALA, ERNAKULAM.** **21. G.ANILKUMAR, CHAUFFEUR GRADE I, HIGH COURT OF KERALA, ERNAKULAM.** **22. T.R.KALADHARAN, CHAUFFEUR GRADE I, HIGH COURT OF KERALA, ERNAKULAM.** **23. T.B.VINOD, CHAUFFEUR GRADE I, HIGH COURT OF KERALA, ERNAKULAM.** **24. N.K.HARIDAS,CHAUFFEUR GRADE I, HIGH COURT OF KERALA, ERNAKULAM.** **25. S.MADHUSOODANAN, CHAUFFEUR GRADE I, HIGH COURT OF KERALA, ERNAKULAM.** **26. E.K.KUNHIKANNAN, CHAUFFEUR GRADE I, HIGH COURT OF KERALA, ERNAKULAM.** **27. M.RAJAN, CHAUFFEUR GRADE I, HIGH COURT OF KERALA, ERNAKULAM.** **28. K.P.SUNILKUMAR, CHAUFFEUR GRADE I, HIGH COURT OF KERALA, ERNAKULAM.** **29. C.K.SHIBU, CHAUFFEUR GRADE I, HIGH COURT OF KERALA, ERNAKULAM.** ## **W.P.(C). NO.22364/2007-R:** **30. RAJAN JOSEPH, CHAUFFEUR GRADE I, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADVS. SRI. K.JAJU BABU,** **SMT.M.U.VIJAYALAKSHMI, SRI. BRIJESH MOHAN, SRI. T.R. SADEESAN, SMT. DHANYA CHANDRAN.** **RESPONDENTS:** - **------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVT.SECRETARIAT, TRIVANDRUM.** **2. HIGH COURT OF KERALA, REPRESENTED BY ITS REGISTRAR GENERAL, KOCHI-682031.** **R1. BY SR. GOVT. PLEADER SRI. NANDAKUMAR, R2 .BY ADV. SRI.K.R.B.KAIMAL (SR.).** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.22364/2007-R:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P.1: COPY OF THE JUDGMENT DTD. 19/08/1995 IN O.P. NO. 3116/1992 OF THIS HONOURABLE COURT.** **EXT.P.2: COPY OF THE ORDER DTD. 09/02/1998 IN R.P. NO. 488/1997 IN O.P. NO. 3116/1992 OF THIS HONOURABLE COURT.** **EXT.P.3: COPY OF THE G.O. (P). NO. 1562/1999/(27)/FIN. DTD. 12/07/1999 ISSUED BY THE R.1.** **EXT.P.4: COPY OF THE G.O. (MS). NO. 159/2001/HOME DTD. 24/08/01 ISSUED BY THE R.1.** **EXT.P.5: COPY OF THE NOTIFICATION NO. A2-17129/2005 DTD. 07/09/05 ISSUED BY THE R.2.** **EXT.P.6: COPY OF THE RELEVANT EXTRACT OF G.O. (P). NO. 145/2006/FIN. DTD. 25/03/06 ISSUED BY THE R.1.** **EXT.P.7: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS ON 08/06/06 BEFORE THE R.2.** **EXT.P.8: COPY OF THE G.O. (MS). NO. 230/2006/HOME DTD. 26/12/2006 ISSUED BY THE R.1.** **EXT.P.9: COPY OF THE PROCEEDINGS DTD. 25/01/07 ISSUED BY THE R.2.** **EXT.P.10: COPY OF THE JUDGMENT DTD. 08/12/04 IN W.P.(C). NO. 24940/04 OF THIS HONOURABLE COURT.** **EXT.P.11: COPY OF THE RELEVANT EXTRACT OF HIGH COURT SERVICE RULES.** ## **RESPONDENT'S EXHIBIT:** **EXT.R2.A: COPY OF THE D.O. LETTER NO. A1-19864 OF THE R.2. TO THE GOVERNMENT.** ## **//TRUE COPY//** **prv.** ## **V.GIRI, J.** ## **-------------------------** ## **W.P.(C).No.22364 of 2007 ------------------------Dated this the 4[th ] day of March, 2008.** ## **JUDGMENT** The petitioners are Chauffeurs in the High Court service. Petitioners 1 to 10 are Senior Grade Chauffeurs and petitioners 11 to 13 are Chauffeurs Grade I. The issue raised in this writ petition relates to the refusal on the part of the Government to sanction a pay scale to the Chauffeurs in the High Court service, on a par with the Chauffeurs in the Tourism Department, in spite of a specific proposal, in that regard, made by the Hon'ble Chief Justice accepting the recommendation made by a committee of two Judges of this court. The question as to whether the Chauffeurs in the High Court are discharging the duties, which are more arduous in character, was considered by this court in Ext.P1 judgment. The peculiar nature of the duties discharged by them was appraised and it was found that the Chauffeurs in the High Court service, most of whom are Chauffeurs of the Judges, are many a time, on duty beyond the **W.P.(C).NO.22364/07** **:: 2 ::** normal hours of duty, of the other staff. Accordingly, in the context of an issue as to whether such Chauffeurs are entitled to special allowance on a par with the allowance paid to the Chauffeurs in the Secretariat Department, this court held that they are so entitled to. Accordingly, special allowance at the rate of Rs.130/- per month, sanctioned by the pay revision commission, to the Chauffeurs in the Secretariat, was made available to the Chauffeurs in the High Court service also. 2. Apparently, there came about a change whereby the Chauffeurs, who were earlier in the Secretariat service, required to spend more than normal office hours in the course of them acting as drivers of Ministers, leader of opposition etc. came to be deputed to the Tourism Department and it was after taking note of these facts that the pay scale of the Chauffeurs in the Tourism Department came to be fixed. Petitioners make a reference in this regard to Exts.P3 to P6 orders passed by the Government, Ext.P6, is an extract of latest pay revision order dated 25.3.2006. **W.P.(C).NO.22364/07** **:: 3 ::** 3. As stated above, the Hon'ble Chief Justice had constituted a committee of two learned Judges of this court to suggest a pay revision for the various categories of the High Court staff. A report was submitted by the said committee on 28.7.2006. The case of the Chauffeurs were considered in paragraphs 18 to 20 which read as follows: **"18. The post of Chauffeur in the High Court has two grades - Chauffeur Grade -II in the scale of pay of Rs.3050-5230 and Chaufeur Grade-I in the scale of pay of rs.3350-5275. The Pay Revision Commission has suggested three grades - Grade II, Grade-I and Senior Grade in the ratio of 2:2:1 with revision as follows:** **Chauffeur Grade II Rs.4990-7990 Chauffeur Grade I Rs.5930-9590 Chauffeur (Sr.Gr) Rs.6680-10790** **19. Going through G.O.(P)No.145/2005/Fin. Dated 25.03.2006, the Committee noticed that Chauffeur in the Tourism Department has been assigned two grades in the ratio of 1:1 with one post of Head Chauffeur. There are mainly attached to the Hon'ble Chief Justice and Judges. Considering all aspects, the Committee feels that it is only appropriate that the grades,** ## **W.P.(C).NO.22364/07** **:: 4 ::** **ratio and scales granted to the Chauffeurs in the Tourism Department are granted to Chauffeurs in the High Court. We recommend revision as follows:** **Existing Scale Proposed Scale Head Chauffeur ... Rs.7480-11910 Chauffeur Grade-I Rs.3350-5275 Rs.6680-10790 Chauffeur Grade-II Rs.3050-5230 Rs.4990-7990** **The ratio between Chauffeur Grade I and Grade II shall be 1 : 1.** **20. Chauffeurs are expected to be on duty with the Judges and senior officers beyond office hours and even on holidays. We therefore recommend continuance of the Special Allowance now granted to them and to the Head Chauffeur at the rate of Rs.320/- p. m."** 4. The committee, therefore, suggested that there should be Chauffeurs Grade II, Grade I and Head Chauffeur. The ratio between Grade I and II was to be 1 : 1. Apparently, the Head Chauffeur is contemplated as a person, who will be able to control the activities of other Chauffeurs. The scale of pay for Grade I and II was on a par with the scale of pay which was recommended by the 8[th] pay revision commission which ultimately came ## **W.P.(C).NO.22364/07** **:: 5 ::** to be accepted by the Government vide G.O.(P) No.600/06 dated 25.3.2006. 5. Taking note of the aforementioned recommendations, the Hon'ble Chief Justice directed the Registrar to send a recommendation to the Government conveying the proposal for a revision of the pay of the Chauffeurs in the manner aforementioned. Apparently, this was not accepted, as is evident from Ext.P8 order passed by the Government. Ext.P8 is an order passed by the Home Department in the matter of revision of pay and allowances and other benefits to the staff of the High Court. It is seen therefrom that as against the scale of pay proposed by the High Court, the scales which were sanctioned therein are: for Chauffeur Grade I Rs.59309590; what was recommended was Rs.6680-10790. The scale of pay for Grade II as recommended was accepted by the Government. But apparently, in spite of the recommendation, the post of Head Chauffeur was not sanctioned by the Government. Instead, the scale of pay of Chauffeur Senior Grade was sanctioned with the scale **W.P.(C).NO.22364/07** **:: 6 ::** of pay of Chauffeur Grade I as recommended by the High Court, as against Rs.7480-11910 as proposed by the High Court. This has been challenged in the writ petition. 6. The Government has filed a counter affidavit. The stand taken by the Government is that the duties and responsibilities of the Chauffeurs in the High Court service and those in Department of Tourism are not the same. It is further submitted that in the case of Chauffeurs in the High Court, the qualification required is also different, in the sense that the required qualification is literacy, valid driving licence and driving experience, but in the case of the Chauffeurs in the Tourism Department, the qualification is SSLC with the above mentioned other qualifications. These aspects were controverted by the petitioners in the reply affidavit. 7. I have heard learned counsel for the petitioner Mr.Jaju Babu, learned counsel for the High Court and Mr.Nandakumar, learned Senior Government Pleader. **W.P.(C).NO.22364/07** **:: 7 ::** 8. It is true that the Government has to take a decision in the matter of approving the scales of pay in relation to any category of staff of the High Court as contemplated by the proviso to Article 229(2) of the Constitution. But, what is to be remembered and what has been reiterated in several judgments of the Supreme Court in **Gurumurthy v. Accountant General, Assam & Nagaland {AIR 1971 SC 1850}** and **Supreme Court Employees Welfare Association v. Union of India {AIR 1990 SC 334}** that where there is a recommendation by the Chief Justice with regard to the pay scale of any category of staff, normally, the said recommendation is to be accepted. It is not as if the Government is bereft of power to take a different view. But, if the Government is of the opinion that the recommendation cannot be accepted as such, then it shall bring it to the notice of the Registrar and through the Registrar to the Hon'ble Chief Justice giving reasons, as to why they are not in a position to accept the recommendation. There are two aspects, which are **W.P.(C).NO.22364/07** **:: 8 ::** highlighted in the counter affidavit in answer to the claim made by the petitioners that the Chauffeurs in the High Court service are entitled to parity with the scales of pay applicable to Chauffeurs in the Tourism Department. It is contended by the Government Pleader that the qualifications in the two department are different. This is demonstrated to be factually incorrect. The second contention is that there cannot be any comparison with the nature of duties discharged by the Chauffeurs in the High Court service and the Chauffeurs in the Tourism Department. What does not seen to have been taken note of by the Government is that, the High Court has already, in Ext.P5 judgment, embarked upon a comparison between the nature of duties discharged by the Chauffeurs of the High Court and the Chauffeurs of the Secretariat Department and it was found that the nature of duties are the same. A mandamus was also issued to the Government to pay special allowance to the Chauffeurs of the High Court on a par with that being paid to the Secretariat staff. Exts.P3 to P6 orders will **W.P.(C).NO.22364/07** **:: 9 ::** indicate that those among the Chauffeurs in the Secretariat, who were similarly situated as the Chauffeurs in the High Court, as found by the High Court in Ext.P1 judgment, presently find a place in the Tourism Department. It is this aspect which weighed with the committee of two Judges constituted by the Hon'ble Chief Justice, to make a recommendation that the pay scales of the Chauffeurs in the Tourism Department (There alone one would find a post of Chauffeur) to be adopted as the pay scale of Chauffeurs in the High Court service. There is absolutely no material to indicate that the said recommendation was considered on merits, but was dissented to for any other overwhelming reason, which might have weighed with the Government as such. Obviously, this is not the mode of exercise of power that is contemplated by the proviso to Article 229(2) of the Constitution. 9. For all these reasons, the writ petition is allowed in part. The first respondent is directed to reconsider the issue of scale of pay applicable to the ## **W.P.(C).NO.22364/07** **:: 10 ::** Chauffeurs in the High Court service, as recommended in the report of the two member committee of the Judges dated 28.7.2006 and forwarded to the Government along with the proposal by the Registrar General on 31.7.2006. Revised orders shall be passed by the Government in this regard within three months from the date of receipt of a copy of this judgment, uninfluenced by Ext.P8 insofar as it relates to the scales of pay of Chauffeurs in the High Court. 10. The petitioners have also raised an issue as regards the special allowance at the rate of Rs.320/- per month, for Senior Grade Chauffeurs. This aspect may not survive any more at this stage, in view of the stand taken by the Government in this regard. Paragraph 5 of the counter affidavit reads as follows: **"It is submitted that Chauffeur Senior Grade is a newly introduced post. Chauffeur Senior Grade are also eligible for the special allowance admissible to the Grade II and Grade I Chauffeurs. Special Allowances will be sanctioned to Chauffeur Senior Grade also."** **W.P.(C).NO.22364/07** **:: 11 ::** 11. Learned cousnel for the petitioner submits that the special pay might be due to chauffeurs also. That aspect will have to await a decision to be taken by the Government pursuant to the directions issued above. The writ petition is disposed of as above. Sd/- **(V.GIRI) JUDGE** sk/ **//true copy//** P.S. To Judge