Writ Petition (Civil) Nos. 23178/2019, 23656/2019 and 25836/2019

1 WPC Nos. 23178, 23656 and 25836/2019 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE BASANT BALAJI`** ``` TUESDAY, THE 6[TH] DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945 ``` ## **`WP(C) NO. 23178 OF 2019`** ## **`PETITIONER/S:`** - `1 JOHN N., AGED 55 YEARS, ASSISTANT ENGINEER(ASSEMBLY) KERALA AGRO MACHINERY CORPORATION LTD ATHANI, ERNAKULAM DISTRICT-683585` - `2 SAJI JACOB, ASSISTNAT ENGINEER(R AND D)KERALA AGRO MACHINERY CORPORATION LTD ATHANI, ERNAKULAM DISTRICT683585` - `3 NAZAR K.N., ASSISTANT ENGINEER(PURCHASE),KERALA AGRO MACHINERY CORPORATION LTD ATHANI, ERNAKULAM DISTRICT683585` - `4 ABDULKANI RAWTHER .P.K., ASSISTANT ENGINEER (MARKETING) KERALA AGRO MACHINERY CORPORATION LTD ATHANI, ERNAKULAM DISTRICT-683585` ``` BY ADVS. M.P.ASHOK KUMAR, SRI.P.C.GOPINATH, SMT.BINDU SREEDHAR, SHRI.ASIF N ``` ## **`RESPONDENT/S:`** - `1 THE STATE OF KERALA, REP BY SECRETARY TO GOVERNMENT AGRICULTURE DEVELOPMENT AND FARMER'S WELFARE DEPARTMENT, SECRETARIAT, TRIVANDRUM-695001` - `2 KERALA AGRO MACHINERY CORPORATION LTD, REP BY ITS MANAGING DIRECTOR, ATHANI, ERNAKULAM DISTRICT-683585` ``` BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR, SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN, SRI.KURYAN THOMAS, SRI.PAULOSE C. ABRAHAM, SRI.RAJA KANNAN, SMT.ANN MARIA FRANCIS ``` ## **`OTHER PRESENT:`** ``` ADV JAY MOHAN ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.01.2024, ALONG WITH WP(C).25836/2019 and 23656/2019, THE COURT ON 6.2.2024 DELIVERED THE FOLLOWING: ``` 2 WPC Nos. 23178, 23656 and 25836/2019 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE BASANT BALAJI`** ``` TUESDAY, THE 6[TH] DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945 ``` ``` WP(C) NO. 25836OF 2019 ``` ## **`PETITIONER/S:`** ``` 1SAJEEV.M.R, AGED 60 YEARS, S/O.V.K.RAMAKRISHNAN, PUZHAVOOR RAJA VILAS, NANDIATTUKUNNAM, NORTH PARAVUR.P.O., ERNAKULAM 2MATHEW.P.T ,PULIYAMBILLY HOUSE, POOKAITHA NAGAR, MEKKAD.P.O., ALUVA-683589 ``` ``` 3PAISON.M.A, MULLOTH HOUSE, ATHANI.P.O., ALUVA-683585 4K.P.GOPI, CHARANCHERRY HOUSE, CHENGAMANADU.P.O., ALUVA-683578 BY ADVS. M.P.ASHOK KUMAR, SRI.P.C.GOPINATH, SMT.BINDU SREEDHAR, SHRI.ASIF N ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA, REP BY SECRETARY TO GOVERNMENT AGRICULTURE DEVELOPMENT AND FARMER'S WELFARE DEPARTMENT, SECRETARIAT, TRIVANDRUM-695001 ``` ``` 2KERALA AGRO MACHINERY CORPORATION LTD REP BY ITS MANAGING DIRECTOR, ATHANI, ERNAKULAM DISTRICT-683585 BY ADVS. SRI.M.GOPIKRISHNAN NAMBIARSRI.JOSON MANAVALAN,SRI.KURYAN THOMAS, SRI.K.JOHN MATHAI, SRI.PAULOSE C. ABRAHAM ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 9.1.2024, ALONG WITH WP(C).23178/2019 AND WPC 25836/2019, THE COURT ON 06.02.2024 DELIVERED THE FOLLOWING: ``` 3 WPC Nos. 23178, 23656 and 25836/2019 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE BASANT BALAJI`** ## **`TUESDAY, THE 6`** `[TH]` **`DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945`** ``` WP(C) NO. 23656OF 2019 ``` ## **`PETITIONER/S:`** - `1 CYRIAC PHILIP, AGED 55 YEARS, ASSISTANT MANAGER (QUALITY ASSURANCE) KERALA AGRO MACHINERY CORPORATION LTD, ATHANI, ERNAKULAM DISTRICT-683585` - `2 SASIKUMAR B, ASSISTANT MANAGER (R AND D), KERALA AGRO MACHINERY CORPORATION LTD ATHANI, ERNAKULAM DISTRICT-683585` - `3 SHAJI JACOB, ASSISTANT MANAGER (MACHINE SHOP) KERALA AGRO MACHINERY CORPORATION LTD ATHANI, ERNAKULAM DISTRICT-683585` - `4 MOHANAN.N.A, ASSISTANT MANAGER (PWH), KERALA AGRO MACHINERY CORPORATION LTD ATHANI, ERNAKULAM DISTRICT-683585` - `5 SUBRAN.P.A, ASSISTANT MANAGER (STORE) KERALA AGRO MACHINERY CORPORATION LTD ATHANI, ERNAKULAM DISTRICT-683585` - `6 ABRAHAM.P U., ASSISTANT MANAGER (MAINTENANCE), KERALA AGRO MACHINERY CORPORATION LTD ATHANI, ERNAKULAM DISTRICT-683585` - `7 PRASANNA KUMAR ASSISTANT MANAGER (MACHINE SHOP) KERALA AGRO MACHINERY CORPORATION LTD ATHANI, ERNAKULAM DISTRICT-683585` - `8 DON BOSCO VAZ, ASSISTANT MANAGER (ASSEMBLY) KERALA AGRO MACHINERY CORPORATION LTD ATHANI, ERNAKULAM DISTRICT-683585` - `9 SHAJI.P.S, S/O.SUKUMARAN, ASSISTANT MANAGER (MAINTENANCE) KERALA AGRO MACHINERY CORPORATION LTD ATHANI, ERNAKULAM DISTRICT-683585` - `10 V.RAVEENDRAN, ASSISTANT MANAGER (ASSEMBLY) KERALA AGRO MACHINERY CORPORATION LTD ATHANI, ERNAKULAM DISTRICT-683585` 4 WPC Nos. 23178, 23656 and 25836/2019 ``` BY ADVS. M.P.ASHOK KUMAR, SRI.P.C.GOPINATH, SMT.BINDU SREEDHAR, SHRI.ASIF N ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA, REP BY SECRETARY TO GOVERNMENT AGRICULTURE DEVELOPMENT AND FARMER'S WELFARE DEPARTMENT, SECRETARIAT, TRIVANDRUM-695001 2KERALA AGRO CORPORATION LTD, REP BY ITS MANAGING DIRECTOR, ATHANI, ERNAKULAM DISTRICT-683585 BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR, SRI.K.JOHN MATHAI, SRI.JOSON MANAVALAN, SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM, SRI.RAJA KANNAN, SMT.ANN MARIA FRANCIS ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 9.1.2024, ALONG WITH WP(C).23178/2019 AND 23656/2019, THE COURT ON 06.02.2024DELIVERED THE FOLLOWING: ``` 5 WPC Nos. 23178, 23656 and 25836/2019 ## **JUDGMENT** **(** Dated this the 6[th] day of February 2024) [WP(C) Nos.23178/2019, 25836/2019 and 23656/2019] Since the issue arising in all these Writ Petitions is regarding the claim for stepping and protections of pay, these Writ Petitions are heard together and a common judgment is passed. 2. W.P.(C) No.23178 of 2019 is treated as a main case and the facts are narrated below: The petitioners are Assistant Engineers under the second respondent. They were recruited in service as operatorworkmen in the G-3 category. The service conditions are governed by the Long Term Settlement executed under Industrial Disputes Act. The employees of the 2nd respondent are classified into 2 categories namely, workmen and officers. The service conditions of the officers are 6 WPC Nos. 23178, 23656 and 25836/2019 governed by the laws applicable to State Government employees. The service conditions of managerial and supervisory posts are governed by the Special Rules. The workmen will be promoted as officers based on the grade and seniority. After a service of 25 to 28 years of the petitioners in the workmen category, were promoted as officers which come under G.8 grade. All the petitioners were promoted to the post of Assistant Engineer while working as Chief Mechanic. While holding the post of Chief Mechanic, their basic pay was Rs.24,650/- and when they were promoted to the post of Assistant Engineer, the basic pay was fixed as Rs.20,740/. Therefore, there was a reduction in the basic pay alone to the tune of around Rs.3,000/-. When promotions were effected as Asst. Engineers from the post of Chief Mechanic, the fixation of salary was based on the provisions of Rule 28A of Part I KSR as per Ext.P5. But when promotions were effected in respect of the petitioners, the pay was fixed not under Rule 28A 7 WPC Nos. 23178, 23656 and 25836/2019 of Part I KSR and based on Ext.P8 order issued by the second respondent. Pointing out the anomaly, the petitioners filed representations before the 2[nd] respondent as Ext.P6, which was replied through Ext.P7. It was also informed that the pay fixation of employees who have been promoted from workmen category to office category cannot be in tune with Rule 28A part I KSR. Therefore the petitioners approached this court for quashing Ext.P7 and for a declaration that the basic pay of the petitioners in the promoted post of Asst. Engineers is to be fixed following the principle under Rules 28A and 37(a) of KSR. 3. A counter affidavit is filed on behalf of the 2[nd] respondent, wherein it is contended that the employees of the 2nd respondent corporation are classified as workmen and officers. The service conditions of the workmen are governed by certified standing orders, whereas the scale of pay and other 8 WPC Nos. 23178, 23656 and 25836/2019 allowances of workmen are based on the Long Term Settlement entered every four years between the trade unions and management. The service conditions of the officers are governed by KAMC Staff Bye-laws 1973 (for short ‘the Byelaws’). The scale of pay DA, HRA etc. of the officers are based on the pay revision of the Government as and when they are issued. When promotion is effected from the category of workman to an officer, it was difficult to fix the pay in the promoted post invoking Rule 28A part 1 of KSR. It is in the said scenario, Ext.P8 order was issued by the Managing Director on 10.2.1999. As per Ext.P8, when promotion is effected from workman category to officer category, instead of basic pay, Pay + DA drawn in the lower post will be taken as a unit and their notional increment in the lower scale will be added to the unit of Pay + DA. The figure thus obtained will be split up as pay + DA in the officers scale of pay to the nearest basic pay possible. This basic pay will then be fitted in 9 WPC Nos. 23178, 23656 and 25836/2019 the appropriate next higher stage in the officer’s scale of pay. Therefore, when the petitioners were promoted to the post of Asst. Engineer in the pre-revised scale of Asst. Engineer, the basic pay and DA in the Chief Mechanic post were protected while fixing the pay in the promoted post of Asst. Engineer. Therefore, the total of pay and allowances was more than what they have received in the workman category. The request projected in Ext.P6 representation has been duly answered through Ext.P7. Hence prayed for dismissal of the WP. 4. A reply affidavit is filed by the petitioners to the counter filed by the 2[nd] respondent. It is admitted in the counter affidavit, that the scale of pay, DA, HRA of the officers are determined based on the Government pay revision orders. Therefore, the pay of the petitioners when promoted to officer grade should be in tune with Rules 28A and 36(a) of 10 WPC Nos. 23178, 23656 and 25836/2019 Part 1 KSR. A workman aspiring for promotion to the post of an officer expects a higher scale of pay and other service benefits. Because of the unscientific fixation of pay of the promoted officers from the category of workmen, there will be huge financial loss, and therefore, prayed for allowing the prayers in the Writ Petition. 5. Heard Sri.M.P. Ashok Kumar, counsel for the petitioners, Shri.M.Rajeev, the Government Pleader and Shri.Jai Mohan for the 2nd respondent. 6. The counsel for the petitioners relied on the judgment of this court in **Kamala Devi v. Kerala State Financial Enterprises Ltd. (2002 KHC 35)** and also **Union of India and others v. P. Jagdish and others (1997 KHC 759)** for the proposition that where a junior is given higher pay than the senior, the classification suffers from vice and is a clear case of discrimination under Article 14 of the Constitution of 11 WPC Nos. 23178, 23656 and 25836/2019 India. The principle of stepping up applies and the pay in the higher post is required to be stepped up to a figure equal to pay as fixed for the junior officer in that higher post. The petitioners who were working under the category of workmen were promoted to the category of officers on completion of a long spell of around 25 to 28 years. 7. It is true that the petitioners, while working as Chief Mechanic in the workman grade, were earning Rs.24,650/- per month as basic pay. But when they were promoted as officers into a different category, the initial basic pay of an officer is fixed as Rs.20,740/-. It is to be noted that the pay scale of the workman starts from Rs.16,090/- with annual increments. The petitioners might have reached to a stage above the initial basic pay due to long service in the cadre of workmen. But when such a person is promoted to the officer category, it is fixed at the initial basic pay + other allowances. This is done on the 12 WPC Nos. 23178, 23656 and 25836/2019 basis of Ext.P8 order of the Managing Director as they found it difficult to fix the pay in the cadre of officers under Rule 28A of Part 1 KSR, when promotions were effected from workman category to officers category. It is to be noted that Ext.P8 was issued on 10.2.1999 and is allowed to continue even today. The petitioners’ contention is that only when they were promoted to the cadre of officers in 2017 did the anomaly come to their notice, and therefore, they filed representations. At the same time, a few of the employees who were working as workmen did not opt their promotion as officers, as their basic pay would come down if they opt for promotion. The petitioners very well knew that the basic pay would come down and accepting the said reality, they have accepted their promotion from the post of Chief Mechanic to Assistant Engineer. ## 8. Rule 28A part 1 KSR reads as follows: “28A. Notwithstanding anything contained in these rules, where an Officer holding a post in a substantive, 13 WPC Nos. 23178, 23656 and 25836/2019 temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity to another post carrying a higher time-scale of pay, his initial pay in the higher time-scale of pay shall be fixed at the stage next above the pay notionally arrived at in the lower time-scale of pay by increasing the actual pay, drawn by him in the lower timescale by one increment. A refixation of pay will be allowed whenever there is a change of pay in the lower time-scale The competent authority shall incorporate in the promotion order a provision to the effect that the officer shall exercise option within one month from the date of order of promotion or of taking charge in the promoted post whichever is later. The option under this rule shall be in (Form No.18)”. 9. The Rule stipulates that where an officer holding a substantive post, temporary or officiating capacity is appointed to another post, carrying of higher time-scale of pay his initial pay in the higher time scale of pay shall be fixed at the stage next above the pay notionally arrived at in the lower time scale of pay by increasing actual pay, drawn by him in the lower scale by one increment. This provision is applicable when an officer holding a post is promoted to a post which is having a higher time scale. In the present case, the petitioners who were 14 WPC Nos. 23178, 23656 and 25836/2019 working under a different category as workmen are promoted to an officers’ category and placed in a different time scale. Rule 28A as well as 37(a) of Part 1 KSR shall not have any application. In the case relied on, the petitioners are promoted further from the post of Asst. Engineer to a higher post having a higher time scale, then the pay in the higher post shall be protected and shall be fixed at a stage next above the pay actually drawn by them in the lower post. The situation is entirely different here. Moreover the Ext.P8 is being followed from 10.2.1999 onwards without any challenge. The pay scale and the allowances in an organisation is fixed by the said organisation itself. An employee cannot dictate terms regarding the pay fixation of an organisation. If he is aggrieved by Rules for fixation of pay, the same ought to have been challenged. But the petitioners have not chosen to challenge Ext.P8 in any of the Writ Petitions. Instead, they have sought for a declaration that the pay has to be fixed on the basis of 15 WPC Nos. 23178, 23656 and 25836/2019 Rules 28A and 37(a) of Part 1 KSR. Unless there is a challenge to the pay fixation order issued by the Managing Director, the petitioners cannot succeed. Therefore, the fixation of pay for petitioners who have migrated from the workman category to the officers category cannot be said to be illegal and erroneous. In the result, the Writ Petitions fail and are dismissed. SD/- **BASANT BALAJI JUDGE** dl/ 16 WPC Nos. 23178, 23656 and 25836/2019 ## **`APPENDIX OF WP(C) 25836/2019`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1PHOTOCOPY OF THE MD'S ORDER NO.2/75 DATED 29.01.1975 ``` ``` EXHIBIT P2PHOTOCOPY OF THE SPECIMEN REPRESENTATION FILED BY THE 1ST PETITIONER DATED 25.10.2018 ``` ``` EXHIBIT P2PHOTOCOPY OF THE COMMON REPLY DATED 26.11.2018 RECEIVED BY THE 1ST PETITIONER ``` ``` EXHIBIT P3PHOTOCOPY OF THE ORDER NO 7/99 DATED 10.02.1999 OF THE MD ``` ``` EXHIBIT P4PHOTOCOPY OF LAWYER NOTICE DATED 08.03.2019 EXHIBIT P5PHOTOCOPY OF THE REPLY NOTICE DATED 05.04.2019 NBY THE MANAGEMENT ``` 17 WPC Nos. 23178, 23656 and 25836/2019 ## **`APPENDIX OF WP(C) 23656/2019`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1PHOTOCOPY OF THE MD'S ORDER NO.2/75 DATED 29.01.1975 ``` ``` EXHIBIT P2PHOTOCOPY OF A SPECIMEN REPRESENTATION DATED 11/10/2018 ``` ``` EXHIBIT P3PHOTOCOPY OF THE REPLY DATED 22.10.2018 RECEIVED BY THE 5TH PETITIONER ``` - `EXHIBIT P4 PHOTOCOPY OF THE ODER NO.7/99 DATED 10.02.1999 OF THE MD` ``` EXHIBIT P5PHOTOCOPY OF LAWYER NOTICE DATED 08/03/2019 ``` - `EXHIBIT P6 PHOTOCOPY OF THE REPLY NOTICE DATED 05.04.2019 BY THE MANAGEMENT` ``` Exhibit P8TRUE COPY OF SALARY SLIP OF B.JAYAN FOR OCTOBER, 2022. ``` ``` Exhibit P9TRUE COPY OF SALARY SLIP OF D.MURALIDHARAN OF OCTOBER , 2022. ``` ``` Exhibit P10TRUE COPY OF SALARY SLIP OF PRASANNAKUMAR OF OCTOBER, 2022 ``` ``` Exhibit P11TRUE COPY OF SALARY SLIP OF SHAJI P.S.OF FEBRUARY, 2022. ``` 18 WPC Nos. 23178, 23656 and 25836/2019 ## **`APPENDIX OF WP(C) 23178/2019`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1PHOTOCOPY OF SALARY SLIP OF THE 1ST PETITIONER FOR THE MONTH OF OCTOBER 2017 AND NOVEMBER 2017 ``` ``` EXHIBIT P2PHOTOCOPY OF SALARY SLIP OF THE 2ND PETITIONER FOR THE MONTH OF NOVEMBER 2017 AND JANAUARY 2018 ``` - `EXHIBIT P3 PHOTOCOPY OF SLARY SLIP OF THE 3RD PETITIONER FOR THE MONTH JANUARY 2018 AND MARCH 2018` - `EXHIBIT P4 PHOTOCOPY OF SALARY SLIP OF THE 4TH PETITIONER FOR THE MONTH NOVEMBER 2017 AND JANUARY 2018` ``` EXHIBIT P5PHOTOCOPY OF THE MD'S ORDER NO.2/75 DATED 29.01.1975 ``` - `EXHIBIT P6 PHOTOCOPY OF SPECIMEN REPRESENTATION DATED 25.01.2018` - `EXHIBIT P7 PHOTOCOPY OF THE REPLY DATED 19..02.2018 RECEIVED BY THE 2ND PETITIONER` - `EXHIBIT P8 PHOTOCOPY OF THE ORDER NO.7/99 DATED 10.02.1999 OF THE MD` - `EXHIBIT P9 PHOTOCOPY OF THE LAWYER NOTICE DATED 08.03.2019` - `EXHIBIT P10 PHOTOCOPY OF THE REPLY NOTICE DATED 05.04.2019 BY THE MANAGEMENT` ``` Exhibit P11THE RELEVANT PAGES OF THE BYE LAW OF KAMCO ```