Padmakumar A.V. vs State Of Kerala
2021 Latest Caselaw 4253 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

     FRIDAY, THE 05TH DAY OF FEBRUARY 2021 / 16TH MAGHA,1942

                      WP(C).No.23668 OF 2016(G)


PETITIONER:

               PADMAKUMAR A.V., AGED 42,
               S/O.LATE VISWANATHAN ASARI, SREE VISWA NIVAS,
               POOZHIKUNNU,INDUSTRIAL ESTATE.P.O.,
               THIRUVANANTHAPURAM-695 019.

               BY ADV. SRI.P.K.RAVISANKAR

RESPONDENTS:

      1        STATE OF KERALA,
               REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT
               OF KERALA, TOURISM(B)DEPARTMENT,
               GOVERNMENT SECRETARIAT, STATUE,
               THIRUVANANTHAPURAM-695 001.

      2        TOURIST RESORTS (KERALA) LTD. (TRKL),
               A GOVERNMENT OF KERALA UNDERTAKING,
               REPRESENTED BY ITS MANAGING DIRECTOR,
               HAVING CORPORATE OFFICE AT T.C.14/1364, PARIS ROAD,
               BAKERY JUNCTION, THIRUVANANTHAPURAM-695 033.

               BY ADVS. SRI.V.ABRAHAM MARKOS
                        SRI.ABRAHAM JOSEPH MARKOS
                        SRI.GOVIND VIJAYAKUMARAN NAIR
                        SRI.HARAN THOMAS GEORGE
                        SRI.ISAAC THOMAS
                        SRI SUNIL KUMAR KURIAKOSE (GP)

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD            ON
05.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.23668 OF 2016(G)

                                          -2-

                                    JUDGMENT

Dated this the 5th day of February 2021

The petitioner says that even though he was

appointed as a Computer Operator in the services

of "Tourist Resorts (Kerala) Limited ('the TRKL'

for short) through Ext.P1 order on 30.12.2010,

he was granted only a scale of pay of Rs.6,680 -

10,790, the one applicable to the Data Entry

Operator - which post requires a lesser

qualification - as per Ext.P2 Pay Revision

Order.

2. The petitioner says that, along with

him, a Driver and an Attender were also

appointed, as is evident from Ext.P1, and that

their scales of pay were subsequently revised to

the one applicable as per Ext.P2 Pay Revision

Order, in view of Ext.P3 order dated 16.12.2011.

3. The petitioner says that since he alone

was discriminated in not being granted the scale

applicable as per Pay Revision Order, he

preferred Ext.P5 representation dated WP(C).No.23668 OF 2016(G)

14.05.2012, before the Competent Authority of

Government, but that it has been rejected

through Exts.P9 and P11 communications, saying

that the post of Computer Operator was created

in the services of TRKL with a scale of pay of

Rs.6,680 - 10,790 by the Government through

Ext.R2(a) order dated 23.02.2010, and therefore,

that Revision as prayed for by the petitioner

cannot be granted, particularly because no

additional delegation of duties are made to the

petitioner at any point of time.

4. The petitioner says that Exts.P9 and P11

are wholly untenable in law because it had been

made clear, through Ext.P10 communication dated

22.01.2015 of the TRKL to the Government, that

he had been entrusted with additional duties

which were on par with the post of a Computer

Operator in other Government Departments. The

petitioner, therefore, prays that Exts.P9 and

P11 be set aside and the Government be directed

to grant him the scale of pay applicable to the WP(C).No.23668 OF 2016(G)

post of Computer Operator as per Ext.P2 Pay

Revision Order, as also as per the Revisions

ordered thereafter.

5. In addition to the above contentions,

Sri.P.K.Ravisankar - learned counsel for the

petitioner, pointed out that Ext.P12 order of

the Government, dated 27.08.2012, issued with

respect to the Vegetable and Fruit Promotion

Council, has granted the post of Computer

Operator in its services same scale of pay as

the post of Computer Programmer, along with the

applicable Pay Revisions. Sri.P.K.Ravisankar,

therefore, submitted that in view of Ext.P12,

Ext.P11 could not have been issued, particularly

when it says that the Revision was made in terms

of the scales of pay applicable to the relevant

posts.

6. In response to the afore submissions of

the petitioner, the learned Government Pleader -

Sri.Sunil Kumar Kuriakose submitted that the

petitioner cannot impel the contentions as above WP(C).No.23668 OF 2016(G)

at this time, because he was appointed through

Ext.P1 order wherein it was made clear that the

scale of pay to the post to which he was being

engaged is Rs.6,880-10,790.

7. The learned Government Pleader submitted

that, in fact, the posts mentioned in Ext.P1

were created by the Government based on

restructuring of the TRKL and they were

sanctioned, in addition to certain other higher

posts, in the scales of pay mentioned in the

said order. The learned Government Pleader

submitted that, therefore, unless the petitioner

challenges the Government Order dated

23.02.2010, which consciously granted a scale of

pay of Rs.6,680-10,790 to the post of Computer

Operator/Office Assistant in the services of the

TRKL, he cannot say that he is entitled to a

higher scale of pay based on Ext.P2 Pay Revision

Order. The learned Government Pleader then

added to his submissions by saying that Ext.P12

will not inure any benefit to the petitioner WP(C).No.23668 OF 2016(G)

since the pay scale shown therein with respect

to the Computer Programmer, whose duties are

certainly much more onerous than that of a

Computer Operator in the services of the TRKL.

8. The learned Government Pleader concluded

his submissions by asserting that the petitioner

cannot seek a comparison of the designations of

different posts in other departments, because

the qualifications prescribed are different for

each other; and that merely because he has been

designated as a Computer Operator in the

services of the TRKL, it does not mean that he

is entitled to parity with that of a Computer

Programmer in the services of Vegetable and

Fruits Promotion Council. He thus prayed that

this writ petition be dismissed.

9. I find substantial force in the

submissions of the learned Government Pleader,

since the singular contention of the petitioner

is that he has been erroneously placed in the

pay scale shown in Ext.P1 and that the WP(C).No.23668 OF 2016(G)

respondents ought to have given the scale of pay

claimed by him at the time when he was

appointed, based on Ext.P2 Pay Revision Order.

However, the order of Government creating the

post in question - which has been placed on

record as Ext.R2(a), along with the counter

affidavit filed on behalf of the second

respondent - shows that Government had

consciously created the post and assigned a

particular pay scale against it and this was

independent of the recommendations in Ext.P2 Pay

Revision Order or any such other proceedings.

10. Obviously, therefore, when the

Government has designedly created a post and

attached a particular pay scale to it, without

reference to the nomenclatures provided in

Ext.P2 Pay Revision Order, the petitioner cannot

contend that he should be given the benefit of

the said Pay Revision and that the pay scale

should be altered right from the day on which he

was appointed, contending that this is only an WP(C).No.23668 OF 2016(G)

anomaly. This is certainly not an anomaly, since

the decision taken by the Government, to attach

a particular pay scale to a particular post, was

deliberately done in Ext.R2(a); and unless the

petitioner represents to the Government against

this order, I do not think that any further

relief can be granted to him in this writ

petition. This is more so because, Exts.P9 and

P11 are based on Ext.P1 order and Government had

made it clear in the impugned orders that

creation of the post carried with it a

particular pay scale, which was intentionally

adopted.

In the afore circumstances, though I cannot

find fault with Exts.P9 and P11, am of the firm

view that the petitioner must be given an

opportunity for approaching the Government

against Ext.R2(a) order; and if he does so

within a period of one month from the date of

receipt of a copy of this judgment, the said

representation will be considered by its WP(C).No.23668 OF 2016(G)

Competent Authority taking note of the

petitioner's contentions and after affording him

an opportunity of being heard - either

physically or through video conferencing - thus

culminating in an appropriate order thereon, as

expeditiously as is possible, but not later than

three months from the date on which the said

representation is received by the Authority.

This writ petition is thus ordered.

Sd/-

DEVAN RAMACHANDRAN JUDGE akv WP(C).No.23668 OF 2016(G)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE PHOTOCOPY OF THE ORDER NO.TRKL/ESTT/CF/08-09 DATED 30.12.2010 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P2 TRUE PHOTOCOPY OF RELEVANT PAGES G.O.(P) NO.145/2006/FIN. DATED 25.3.2006.

EXHIBIT P3 TRUE PHOTOCOPY OF GOVERNMENT ORDER, G.O.

(RT)9534/2011/TSM, DATED 16.12.2011 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P4 TRUE PHOTOCOPY OF REPRESENTATION SUBMITTED ON 31.3.2011 BEFORE THE 2ND RESPONDENT.

EXHIBIT P5 TRUE PHOTOCOPY OF REPRESENTATION DATED 14.5.2012 SUBMITTED BEFORE THE 1ST RESPONDENT.

EXHIBIT P6 TRUE PHOTOCOPY OF COMMUNICATION NO.53085/B1/12 TSM DATED 3.7.2012 ISSUED BY 1ST RESPONDENT TO THE 2ND RESPONDENT.

EXHIBIT P7 TRUE PHOTOCOPY OF RELEVANT PAGES OF G.O.(P) 85/2011/FIN DATED 26.2.2011.

EXHIBIT P8 TRUE PHOTOCOPY OF G.O.(M.S)482/2012/FIN DATED 27.8.2012.

EXHIBIT P9 TRUE PHOTOCOPY OF COMMUNICATION NO.53085/B1/2012/TSM DATED 14.2.2014 ISSUED BY 1ST RESPONDENT TO THE 2ND RESPONDENT.

EXHIBIT P10 TRUE PHOTOCOPY OF COMMUNICATION DATED 22.1.2015 ISSUED BY 2ND RESPONDENT TO THE 1ST RESPONDENT.

EXHIBIT P11 TRUE PHOTOCOPY OF COMMUNICATION NO.65787/B1/2014/TSM DATED 5.10.2015 ISSUED BY 1ST RESPONDENT.

EXHIBIT P12 TRUE PHOTOCOPY OF G.O.(MS)480/12/FIN. DATED 27.8.2012.

WP(C).No.23668 OF 2016(G)

RESPONDENT'S/S EXHIBITS:

EXHIBIT R2 (a) TRUE COPY OF ORDER G.O.(MS)NO.37/2010/TSM DATED 23-02-2010 ISSUED BY THE SECRETARY TO GOVERNMENT, GOVERNMENT OF KERALA, TOURISM (B) DEPARTMENT.

EXHIBIT R2 (b) TRUE COPY OF LETTER NO.TRKL ESTT 2005/233 DATED 27-08-2005 ISSUED BY THE MANAGING DIRECTOR OF THE TOURIST RESORTS (KERALA) LIMITED TO THE PETITIONER.

EXHIBIT R2 (c) TRUE COPY OF ORDER G.O.(MS)NO.410/2010/TSM DATED 21-12-2010 ISSUED BY THE SECRETARY TO GOVERNMENT, GOVERNMENT OF KERALA, TOURISM (B) DEPARTMENT.

EXHIBIT R2 (d) TRUE COPY OF ORDER G.O.(P)NO.262/07/ (59)/FIN. DATED 19.06.2007 ISSUED BY THE PRINCIPAL SECRETARY (FINANCE) GOVERNMENT OF KERALA, FINANCE (PARC) DEPARTMENT.

EXHIBIT R1 (a) TRUE COPY OF LETTER NO.TRKL. 2005/233 DATED 27.08.2005

EXHIBIT R1 (b) TRUE COPY OF GO(P) NO.262/07/(59)/FIN.

DATED 19.06.2007

//TRUE COPY// P.A. TO JUDGE