M.Satheesan vs State Of Kerala
2021 Latest Caselaw 4995 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

           THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

    THURSDAY, THE 11TH DAY OF FEBRUARY 2021 / 22ND MAGHA,1942

                       WP(C).No.4593 OF 2020(R)


PETITIONERS:

      1        M.SATHEESAN, AGED 47 YEARS,
               S/O.MADHAVAN T., WATCHMAN, HIGH COURT OF KERALA,
               ERNAKULAM.

      2        ASHAKUMAR M.T., AGED 47 YEARS,
               S/O.K.P.THANKAPPAN, WATCHMAN, HIGH COURT OF KERALA,
               ERNAKULAM.

      3        REJI N.R.,AGED 50 YEARS,
               S/O.NEELAKANDAN RAGHAVAN, WATCHMAN,
               HIGH COURT OF KERALA, ERNAKULAM.

      4        SURESHKUMAR A.D.,AGED 53 YEARS,
               S/O.A.N.DHARMAJAN,WATCHMAN, HIGH COURT OF KERALA,
               ERNAKULAM.

      5        SHANMUGHAN K.P., AGED 50 YEARS,
               S/O.PONNAPPAN ACHARI, WATCHMAN, HIGH COURT OF KERALA,
               ERNAKULAM.

      6        RAGHUVARAN V.A.,AGED 50 YEARS,
               S/O.AYYAPPAN V.V., WATCHMAN, HIGH COURT OF KERALA,
               ERNAKULAM.

      7        JAYAPRAKASAN P.K.,AGED 51 YEARS,
               S/O.KRISHNAN P.K., WATCHMAN, HIGH COURT OF KERALA,
               ERNAKULAM.

      8        JITHESH ALPHONSE, AGED 40 YEARS,
               S/O.ALPHONSE FRANCIS, WATCHMAN, HIGH COURT OF KERALA,
               ERNAKULAM.

      9        PRADEEP R.,AGED 46 YEARS,
               S/O.RAJAPPAN CHETTIYAR, WATCHMAN,
               HIGH COURT OF KERALA, ERNAKULAM.

      10       K.SHAJI, AGED 48 YEARS,
               S/O.AYYAPPAN, WATCHMAN, HIGH COURT OF KERALA,
               ERNAKULAM.
 WP(C).No.4593 OF 2020(R)

                                -2-

      11       SANTHOSH KUMAR S., AGED 46 YEARS,
               S/O.SADASIVAN, WATCHMAN, HIGH COURT OF KERALA,
               ERNAKULAM.

      12       FAZALUDEEN A.,AGED 51 YEARS,
               S/O.M.ABDUL AZEEZ, WATCHMAN, HIGH COURT OF KERALA,
               ERNAKULAM.

      13       KUMARAN K., AGED 48 YEARS, S/O.NARAYANAN,
               WATCHMAN, HIGH COURT OF KERALA, ERNAKULAM.

      14       VINOD KUMAR K.,AGED 49 YEARS,
               S/O.KOCHATHAN T., WATCHMAN, HIGH COURT OF KERALA,
               ERNAKULAM.

      15       BHASKARAN P.C., AGED 48 YEARS,
               S/O.P.K.CHANDRAN, WATCHMAN, HIGH COURT OF KERALA,
               ERNAKULAM.

               BY ADVS.
               SRI.K.JAJU BABU (SR.)
               SMT.M.U.VIJAYALAKSHMI
               SRI.BRIJESH MOHAN

RESPONDENTS:

      1        STATE OF KERALA,
               REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY AND
               SECRETARY TO GOVERNMENT OF KERALA,
               HOME DEPARTMENT, GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM - 695 001.

      2        THE ADDITIONAL CHIEF SECRETARY AND SECRETARY TO
               GOVERNMENT OF KERALA, FINANCE DEPARTMENT,
               GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM - 695 001.

      3        THE HIGH COURT OF KERALA,
               REPRESENTED BY ITS REGISTRAR GENERAL,
               ERNAKULAM - 682 031.

               BY ADVS. SRI.ELVIN PETER P.J.
                        SRI.SUNIL KUMAR KURIAKOSE,SR.GP
                        SRI.N.MANOJ KUMAR, SPL.GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
11.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.4593 OF 2020(R)

                                      -3-

                               JUDGMENT

Dated this the 11th day of February 2021

The issues impelled in this case are two fold;

a) with respect to the Scale of Pay of Watchman

of the High Court of Kerala, as per the 9 th Pay

Commission recommendations and

b) as regards the Scale of Pay of the Watchman

of the High Court of Kerala in terms of the 10 th Pay

Revision Commission.

2. When the 9th Pay Revision Commission Report

was published, the Chief Justice of Kerala, acting

under Article 229 of the Constitution of India, framed

Rules for various posts under the High Court, in

which, the Scale of Pay for Watchman was recommended

as 9940-16580. However, when this was considered by

the Government as per the proviso to Article 229(2) of

the Constitution of India, they issued Ext.P2 order

granting the Scale of Pay as only 8500-13210. This led

the High Court to address the Government through

Ext.P3 letter, pointing out that the original WP(C).No.4593 OF 2020(R)

recommendation had not been fully complied with, but

it was again 'declined' by the Government, through

Ext.P4 letter, stating that the proposed Pay Scale is

'over the recommendations of the Pay Revision

Commission'.

3. Pertinently, the Chief Justice thereupon

addressed another letter to the Government, but since

nothing came out of it, the petitioners approached

this Court and obtained Ext.P6 judgment, dated

24.07.2014, directing the Government to consider the

recommendations of the Chief Justice in the light of

the judgment in K.G.Rajamohan v. State of Kerala

[2013(3) KLT 803].

4. While so, the recommendations of the 10 th Pay

Revision Commission was published and the Chief

Justice of Kerala, resultantly framed Rules as per

those recommendations and forwarded the same, through

Ext.P10 letter to the Government, again as per the

proviso to Article 229(2) of the Constitution. In the

Rules so framed, the proposed pay scale of the WP(C).No.4593 OF 2020(R)

Watchman in the High Court of Kerala was shown as

19,000 - 39,500 and the reason for making this

proposal was explained in Ext.P10 in the following

lines:

"P) The Watchman in the High Court is recommended a scale of pay of ` 17000-35700 by the Commission. In the Government Secretariat there is post of Conference Hall Watchman which is recommended a higher scale of pay of ` 19000-39500. The Watchman in the High Court are uniformed staff and are assisting the police personnel in the security of the High Court. They have to work during day and night. Considering the nature of duties the scale of pay of ` 19000-39500 is recommended for Watchman."

5. However, after the Government considered

this recommendation, they issued Ext.P11 order

granting the pay scale only at 17,500 - 39,500, which

compelled certain Watchmen to approach this Court with

a Contempt of Court case, namely COC No.444 of 2018,

in which Ext.P16 order was delivered on 29.10.2018,

indicating that Government must accede to the

recommendations of the proposals of the Chief Justice

of Kerala.

6. Interestingly, Government then issued WP(C).No.4593 OF 2020(R)

Ext.P17 order enhancing the scale of pay of the

Watchman to 8960 - 14260, with respect to the proposal

made by the Chief Justice based on the 9th Pay

Revision Commission Recommendations; and therefore,

the High Court addressed a letter to the Government,

namely Ext.P22, reminding them that the original

proposed pay scale of watchman with respect to the

10th Pay Revision Commission was 19000 - 39500. The

Registrar General of the High Court followed this up

with Ext.P23 letter, dated 13.06.2017, informing the

Government that if there was any problem in granting

the scales of pay to the watchman as sought for in

the two recommendations aforementioned, then they may

be re-designated as "Security Guards", so that the

scales of pay available in the services under the

Government with respect to that post can automatically

become available to the Watchmen of the High Court

also.

7. Subsequent to these developments, COC

No.444 of 2018, in which Ext.P16 order has been WP(C).No.4593 OF 2020(R)

issued, was closed, allowing the petitioners to

agitate the issues relating to the scales of pay,

appropriately.

8. It is in the afore backdrop that the

petitioners have approached this Court through this

writ petition.

9. Before I tread forward, it must be borne

in mind that the issues with respect to the manner in

which the Government is expected to consider the

recommendations made by the Chief Justice under

Article 229(2) of Constitution of India has been

spoken conclusively by the Hon'ble Supreme Court in

State of Rajasthan and Ors. v. Ramesh Chandra Mundra

and Ors. [2019(4)SCT 360(SC)]. It has been made clear

therein that the imperative interaction between two

high Constitutional Institutions in these matters must

be one edificed on comity and on dialogue and debate.

It has also been made clear that during this process

there is no question of any supremacy being asserted

by either side, and that what is relevant is to find WP(C).No.4593 OF 2020(R)

out a meeting point through a deliberative process, so

that the mandate of the Constitution can be finally

fulfilled.

10. However, what is seen in this case, I am

afraid, is a complete departure from the declarations

of the Supreme Court and its holdings in Ramesh

Chandra Mundra (supra).

11. I say as afore because, even though the

Chief Justice made two recommendations with respect to

the Watchmen of High Court of Kerala, based on the 9th

Pay Revision Commission and 10th Pay Revision

Commission, respectively, both of them had not been

fully acceded to by the Government and the reasons

stated by them, going by the declarations of law made

by the Hon'ble Supreme Court as said above, are

certainly untenable.

12. As far as the Rules framed by the Chief

Justice, based on Ext.P1 report (relating to the 9 th

Pay Revision Commission recommendations) is concerned,

it is evident that Government has never acceded to it WP(C).No.4593 OF 2020(R)

in its full and has not furnished any reason for not

doing so. The sole reason stated by them in Ext.P4 is

that this scale of pay is in excess of the

recommendations of the Pay Revision Commission.

However, the Government did not take into account

Ext.P5 letter of the Chief Justice issued thereafter,

detailing the specific reasons as to why a higher

scale of pay was proposed for the Watchmen. It is

painful that this has not even been adverted to nor

considered in its spirit, even when Ext.P17 order was

issued on 15.06.2019, enhancing the scale of Pay to

8960 - 14260; and the Government again did not say why

the original proposed scale of pay was not approved.

13. As far as the Rules framed by the Chief

Justice pursuant to the 10th Pay Revision Commission

is concerned, the reasons stated in "rejecting" the

said recommendation are available only in Ext.P19

counter affidavit filed by the Government in the

aforementioned COC No.444 of 2018, wherein the

following have been averred:

WP(C).No.4593 OF 2020(R)

"5. In the master pay scale recommended for the Government employees, the scale of pay of Rs.19000-39500 was recommended for the post of "Conference Hall Watchman" in the Secretariat. However while implementing the Pay Revision recommendation the said scale was restructured as Rs.17500-39500, and G.O. (P)No.7/2016/Fin dated 20.01.2016 was issued. Since the recommendations of the Judges Committee was to sanction the scale of pay of "Conference Hall Watchman" to the Watchmen of the High Court, as evidenced in Annexure J, the Government granted the restructured scale of pay of Rs.17500-39500 to the Watchman in the High Court. This has been accepted by the High Court and hence the post of Watchman was not included in the letter addressed by the High Court for rectification of anomalies. A copy of the letter dated 17.07.2018 of the Registrar General of the High Court to the Additional Chief Secretary to Government, Home (C) Department of Government of Kerala is produced herewith and marked as Annexure R4(a). In the said letter the High Court had requested the Government to reconsider the anomalies not considered by the Government. It can be seen that the post of Watchmen has not been included in the said letter."

14. Thus, as matters now stand, the proposals

of the Chief Justice, made under Article 229(2) of the

Constitution - both with respect to the

recommendations of the 9th Pay Revision Commission and

10th Pay Revision Commission, have not been fully WP(C).No.4593 OF 2020(R)

acceded to by the Government.

15. In this context, when one examines the

conduct of the Government exhibited in this case from

the touchstone of the declarations of law in Ramesh

Chandra Mundra (supra), it becomes inescapable that

they have not acted as per the constitutional mandate

in dealing with the Rules framed by the Chief Justice;

but have chosen to "reject" them without any debate or

discussion.

16. Interestingly, even though the Chief

Justice painstakingly explained why a higher scale of

pay was recommended for Watchmen, Government has

chosen to grant a lesser scale of pay as far as the

Rules framed consequent to Ext.P1 is concerned,

because they say that the scale of pay proposed

therein is higher than the recommendations of the 9 th

Pay Revision Commission. Further, as regards the

Rules enclosed along with Ext.P10 is concerned, the

Government's stand is that what is proposed by the

Chief Justice was the pay equivalent to the WP(C).No.4593 OF 2020(R)

"Conference Hall Watchmen" in the Secretariat and that

this has been granted through Ext.P11, because, even

though the said post was holding a scale 19000 - 39500

earlier, it has been subsequently scaled-down to

17500-39500.

17. In fact, this has been explained by

Sri.Sunil Kumar Kuriakose - learned Government

Pleader, by saying that if one examines Ext.P10

carefully, what the Chief Justice has said, while

recommending the pay scale of Watchmen of the High

Court at 19000 - 39500, is that this is comparable to

the post of "Conference Hall Watchmen", and that they

are entitled to the same pay scale as is applicable to

the said post. The learned Government Pleader,

asserts that therefore, when the pay scale of

"Conference Hall Watchmen" in the Secretariat was

restructured and reduced, obviously the

recommendations of the Chief Justice can only be seen

to be seeking its par; and therefore, that the

proposed pay scale must be automatically construed to WP(C).No.4593 OF 2020(R)

be reduced to 17500 - 39500, which has been acceded

to. After saying so, the learned Government Pleader

submitted that even though Ext.P11 was issued by the

Government as early as on 20.06.2016, they chose to

file this writ petition only in the year 2020, after

the Librarians of this Court had obtained Ext.P15

judgment, whereby, the pay scales proposed by the

Chief justice with respect to the 9th Pay Revision

Commission and the 10th Pay Revision Commission had

been granted to them. The learned Government Pleader

argued that, therefore, the doctrine of "Sit Back"

theory will apply and that the petitioners are not

thus entitled to any relief as sought for herein.

18. I am afraid that I cannot accede to any

of the afore contentions of the learned Government

Pleader, since, as rightly stated by Sri.Jaju Babu -

learned Senior Counsel appearing for the petitioners,

the forensic declarations in Ramesh Chandra Mundra

(supra) are unmistakable that Government cannot

disregard the proposals and recommendations of the WP(C).No.4593 OF 2020(R)

Chief Justice without valid and cogent reasons,

particularly because they are under the constitutional

umbra of Article 229(2).

19. As I have already said above, at no point

of time has the Government acceded to the

recommendations of the Chief Justice with respect to

the pay scale of the Watchmen as per the Rules framed

consequent to Ext.P1 (with regard to the 9th Pay

Revision Commission) but they have chosen to grant a

lower scale of 8960 - 14260 through Ext.P17. No

reasons have been stated for this and Ext.P17 is also

silent as to why the original proposal for the scale

of pay of 9940 - 16580 has not been granted.

20. Turning to the Rules framed by the Chief

Justice furnished along with Ext.P10 is concerned, the

reason for not allowing the scale of 19000 - 39500 and

confining it to 17500 - 39500 is that the scale of pay

of "Conference Hall Watchmen" in the Secretariat has

been restructured to the latter scale. This stand of

the Government is incredulous to say the least, WP(C).No.4593 OF 2020(R)

because, at the time when the scale of pay was

proposed by the Chief justice, it had been brought to

his notice that a particular post was available in the

Secretariat, on a scale which was found apposite for

the watchmen. This is not to say that the scale of

the watchman is fixed exclusively guided at the scale

of pay of a comparable post in the Secretariat but

that it sought to be justified by saying that such a

scale was available in the establishment of the

Government also.

21. Therefore, even if the pay scale of

"Conference Hall Watchmen" of the Secretariat had been

restructured and reduced subsequently, it does not

mean that it should automatically apply to the Rules

framed by the Chief Justice under Article 229 of the

Constitution. This is not the manner in which

Government could have been dealt with the

recommendations under Article 229 of Constitution and

they cannot sit in judgment over the wisdom of the

Chief Justice in these matters, as have been WP(C).No.4593 OF 2020(R)

affirmatively declared in Ramesh Chandra Mundra

(supra).

22. In the afore circumstances, I can

certainly not find favour with Exts.P2, P4, P11 or

P17, to the extent to which Government has declined to

approve the pay scale of watchman of the High Court at

9940 - 16580, pursuant to the 9th Pay Revision

Commission; and at 19000 - 39500, pursuant to the 10 th

Pay Revision Commission recommendations.

Consequently, these orders are set aside to the

afore extent and Government is directed to issue

further orders with respect to the Rules framed by the

Chief Justice consequent to the 9th and 10th Pay

Revision Commission recommendations, thus approving

the scale of pay to the Watchman of the High Court as

proposed therein. This shall be done as expeditiously

as is possible, but not later than two months from the

date of receipt of a copy of this judgment.

Sd/-

DEVAN RAMACHANDRAN RR/akv JUDGE WP(C).No.4593 OF 2020(R)

Spoken to on 16.02.2021

I heard this matter and dictated judgment on

11.02.2021. However, subsequently, the learned

Government Pleader, Sri.Sunil Kumar Kuriakose, made a

request that the matter be listed for further hearing,

since a counter affidavit on behalf of the Government

had not yet been filed. He also said that steps had

already been taken to have the same on record.

Today, I notice that a counter affidavit has

been filed by the State, but the averments contained

therein are more or less the verbatim of the

submissions made by the learned Government Pleader at

the Bar, which have already been recorded in the

judgment. I see no additional contentions being

impelled in the counter affidavit and am, therefore,

of the view that no changes are required in the

judgment, which I have already dictated.

Sd/-

DEVAN RAMACHANDRAN JUDGE WP(C).No.4593 OF 2020(R)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE REPORT DATED 11/4/2011 SUBMITTED BY THE COMMITTEE OF JUDGES TO THE HON'BLE CHIEF JUSTICE.

EXHIBIT P2 TRUE COPY OF THE RELEVANT EXTRACT OF G.O.(MS) NO.257/2011 DATED 18/11/2011 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE PROPOSAL DATED 9/1/2012 SUBMITTED BY THE HON'BLE 3RD RESPONDENT TO THE GOVERNMENT.

EXHIBIT P4 TRUE COPY OF THE GOVERNMENT ORDER DATED 16/7/2012 VIDE G.O.(MS) NO.196/2012/HOME.

EXHIBIT P5 TRUE COPY OF THE REQUEST LETTER NO.A1-

18330/2010/J5/FW DATED 11/1/2013 OF THE HON'BLE CHIEF JUSTICE TO THE GOVERNMENT.

EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 24/7/2014 IN W.P.(C) NO.25293/2013 OF THIS HON'BLE COURT.

EXHIBIT P7 TRUE COPY OF THE GOVERNMENT ORDER DATED 5/12/2014 VIDE G.O.(MS) NO.253/2014.

EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 7/1/2015 IN CONT.CASE NO.945/2014 OF THIS HON'BLE COURT.

EXHIBIT P9 TRUE COPY OF THE RELEVANT EXTRACT OF THE 10TH PAY REVISION COMMISSION REPORT JULY 2015.

EXHIBIT P10 TRUE COPY OF THE RECOMMENDATION DATED 6/11/2015 VIDE NO.DO.NO.F1/J3-49631/2014 FORWARDED BY THE HON'BLE CHIEF JUSTICE TO THE GOVERNMENT.

EXHIBIT P11 TRUE COPY OF THE GOVERNMENT ORDER DATED 20/6/2016 VIDE NO.G.O.(P) NO.180/2016/HOME ALONG WITH LIST OF REVISED SCALE OF PAY AND REVISED RATE OF ALLOWANCE.

EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 2/11/2016 IN COC NO.1766/2016 OF THIS HON'BLE COURT.

EXHIBIT P13 TRUE COPY OF THE GOVERNMENT ORDER DATED 14/12/2016 VIDE G.O.(MS) NO.315/2016/HOME. WP(C).No.4593 OF 2020(R)

EXHIBIT P14 TRUE COPY OF THE ORDER DATED 6/10/2017 IN COC NO.1766/2016 OF THIS HON'BLE COURT.

EXHIBIT P15 COPY OF THE GOVERNMENT ORDER DATED 26/10/2017 VIDE G.O.(MS) NO.215/2017/HOME.

EXHIBIT P16 TRUE COPY OF THE ORDER DATED 29/10/2018 IN CONT.CASE (C) NO.444/2018 OF THIS HON'BLE COURT.

EXHIBIT P17 TRUE COPY OF THE GOVERNMENT ORDER DATED 15/6/2019 VIDE G.O.(MS) NO.72/2019/HOME

EXHIBIT P18 TRUE COPY OF THE ORDER DATED 19/7/2019 IN CONT.CASE (C) NO.444/2018 OF THIS HON'BLE COURT.

EXHIBIT P19 TRUE COPY OF THE AFFIDAVIT FILED BY THE GOVERNMENT DATED 18/9/2019 IN CONT.CASE NO.444/2018 OF THIS HON'BLE COURT.

EXHIBIT P20 TRUE COPY OF THE LETTER NO.2712785/2018/HOME (OS) DATED 17/7/2018 SENT TO THE GOVERNMENT BY THE REGISTRAR GENERAL, HIGH COURT OF KERALA ALONG WITH ANNEXURE A.

EXHIBIT P21 TRUE COPY OF THE RELEVANT EXTRACT OF THE PAY REVISION ORDER OF THE ADMINISTRATIVE SECRETARIAT.

EXHIBIT P22 TRUE COPY OF THE INFORMATION DATED 25/3/2019 VIDE NO.P10/151/2019 OBTAINED UNDER THE RIGHT TO INFORMATION ACT.

EXHIBIT P23 TRUE COPY OF THE LETTER NO.A6-68046/2016 DATED 13/6/2017 SENT BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT.

EXHIBIT P24 TRUE COPY OF THE JUDGMENT DATED 29/11/2019 IN CONT.CASE (C) NO.444/2018 OF THIS HON'BLE COURT.

RESPONDENT'S/S EXHIBITS : NIL.

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