Kerala High Court
M.J. Xavi vs State Of Kerala on 28 June, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
MONDAY, THE 28TH DAY OF JUNE 2021 / 7TH ASHADHA, 1943
WP(C) NO. 1872 OF 2021
PETITIONER
M.J. XAVI,
LIBRARY ASSISTANT (SELECTION GRADE),
HIGH COURT LIBRARY,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADVS.
T.VENUGOPAL
SRI.N.S.GOPAKUMAR
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT, HOME (C) DEPARTMENT, GOVERNMENT OF KERALA,
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2 HIGH COURT OF KERALA,
REPRESENTED BY REGISTRAR GENERAL,
HIGH COURT P.O., ERNAKULAM, PIN - 682 031.
3 K.P.SASIDHARAN,
LIBRARY ASSISTANT (SENIOR GRADE),
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031.
BY ADVS.
SRI.SUNIL KUMAR KURIAKOSE, GP
SRI.BABU PAUL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
28.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 1872 OF 2021
-2-
JUDGMENT
Dated this the 28th day of June, 2021
The petitioner says that he is working as a
Library Assistant (Selection Grade) in the
services of the High Court of Kerala and that he
is aggrieved by the fact that his junior, namely
the 3rd respondent, is drawing a higher scale of
pay than him. He thus prays that this Court
declare that he is entitled to receive equal pay
with that of his junior with effect from
15.03.2016 and to quash Ext.P4 order of the
Government, which rejects his request for stepping
up his pay scale appropriately.
2. I have heard Sri.T.Venugopal - learned
Counsel for the petitioner; Sri.Babu Paul -
learned Counsel appearing for the 2nd respondent -
High Court of Kerala and Sri.Sunil Kumar Kuriakose
- learned Government Pleader appearing for
respondent No.1 - State of Kerala.
WP(C) NO. 1872 OF 2021
3. Sri.Sunil Kumar Kuriakose contested the
submissions of learned counsel for the petitioner
as afore, by referring to the averments in the
counter affidavit filed on behalf of the 1st
respondent, wherein it has been stated that both
the petitioner and the 3rd respondent had prior
service in "different posts". He added that,
therefore, since they had prior service in such
"different posts", they cannot be treated as being
senior and junior to each other, as has been
asserted by the petitioner; and therefore, that
the anomaly, if any, occurred only on account of
that reason. He then added that as far as the 3 rd
respondent is concerned, he is drawing a higher
scale of pay because of the Higher Grade fixation
which he had obtained in the meanwhile and that,
going by Ext.P6 Government Order, stepping up of
the pay scale of the "senior" is possible only if
an anomaly had occurred on account of introduction
WP(C) NO. 1872 OF 2021
of the revised scale of pay and fixation of Rules
and in no other situation. Sri.Sunil Kumar
Kuriakose, therefore, prayed that this writ
petition be dismissed.
4. Sri.Babu Paul - learned Counsel appearing
for the 2nd respondent - High Court of Kerala,
submitted that the stand taken by his client, as
is evident from Ext.P3, is that the post occupied
by the petitioner earlier, namely watchman; and
that by the 3rd respondent, namely peon, were at
the relevant time considered as interchangeable,
carrying the same scale of pay. He then submitted
that the Hight Court of Kerala does not have
anything to add in this matter and that it is for
the Government to take an apposite decision as per
law.
5. Sri.T.Venugopal - learned counsel
appearing for the petitioner, replied to the afore
submissions by relying on the declarations of the
WP(C) NO. 1872 OF 2021
Hon'ble Supreme Court in Gurcharan Singh Grewal &
Anr. v. Punjab State Electricity Board [2009 (3)
SCC 94], that a senior cannot be allowed to remain
on a pay scale lower than his junior; and thus
argued that since the 2nd respondent - High Court
of Kerala, has unequivocally taken the stand that
the posts earlier occupied by his client and the
3rd respondent, namely watchman and peon, were in
the same scale of pay and were interchangeable, it
was not justified for the State to have issued
Ext.P4 rejecting his client's claim. He,
therefore, reiteratingly prayed that Ext.P4, to
the extent to which it is impugned, be set aside
and the State be directed to issue appropriate
orders enhancing the pay scale of his client to be
at par with that of the 3rd respondent, with effect
from 15.03.2016.
6. I have considered the afore submissions
and have also gone through the materials available
WP(C) NO. 1872 OF 2021
on record very clearly.
7. The substratum of the stand of the
Government, as is conspicuous from Ext.P4 as also
their counter pleadings, is that the petitioner
and the 3rd respondent came to their present posts
from previous posts, which were different.
Pertinently, the averments in para.4 of the
counter affidavit filed on behalf of the 1st
respondent specifically avers that even though the
petitioner is senior to the 3rd respondent in the
present post of Library Assistant, both of them
have prior service in "different posts" and
therefore, "cannot be compared" as senior and
junior.
8. However, as rightly pointed out by
Sri.Babu Paul, the stand taken by the High Court
of Kerala is quite to the contrary, that post of
watchman and peon were, at the relevant time,
interchangeable and carrying the same scale of
WP(C) NO. 1872 OF 2021
pay. I, therefore, cannot understand how the
Government can say that the petitioner and 3rd
respondent came from "different posts" and
therefore that they cannot be treated as Senior
and junior; albeit, the averments in the counter
affidavit expressly admitting that the petitioner
is, in fact, senior to the 3rd respondent in the
present post of Library Assistant.
9. Additionally, as regards the arguments of
Sri.Sunil Kumar Kuriakose that the pay scale of
the 3rd respondent has been enhanced on account of
the pay fixation and not as a direct result of the
introduction of the revised scale of pay is
concerned, I cannot favour with them either, since
there is not even whisper of such in Ext.P4,
though it has been attempted to be feebly stated
so in the counter affidavit.
10. I am, therefore, of the firm view that
this cannot stand in the way of the Government
WP(C) NO. 1872 OF 2021
reconsidering the matter, particularly when, as I
have already said above, they admit that the
petitioner is senior to the 3rd respondent in the
post of Library Assistant. Indubitably, therefore,
when the petitioner draws a lower scale than the
3rd respondent, he is justified in approaching this
Court.
In the afore circumstances, I order this writ
petition and set aside Ext.P4, to the extent to
which it impugned; with a consequential direction
to the competent Authority of the State of Kerala
to again hear the petitioner and the 3 rd respondent
- either physically or through video conferencing
- thus culminating in an appropriate order
thereon, particularly adverting to the stand of
the High Court of Kerala that the post of watchman
and peon, at the relevant time, were
interchangeable and carrying the same scale of
pay.
WP(C) NO. 1872 OF 2021
The afore exercise shall be completed by the
State of Kerala, 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
JUDGE
akv
WP(C) NO. 1872 OF 2021
APPENDIX OF WP(C) 1872/2021
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF HIGH COURT ORDER NO.A6-
95723/2016 VOL.II DATED 8/3/2017.
EXHIBIT P2 TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE PETITIONER TO R2.
EXHIBIT P3 TRUE COPY OF LETTER NO.GII(5)-
75195/2017 DATED 1/11/2018 FROM
RESPONDENT NO.2.
EXHIBIT P4 TRUE COPY OF THE LETTER
NO.C2/408/2019/HOME DATED 16/11/2020
FROM R1.
EXHIBIT P5 EXTRACT OF G.O.(P) NO.85/2011/FIN. RULE
6 (9TH PRC ORDER) DATED 26TH FEBRUARY
2011.
EXHIBIT P6 EXTRACT OF G.O.(P) NO.7/2016/FIN RULE 9
(10TH PRC ORDER) DATED 20TH JANUARY
2016.
RESPONDENT'S/S EXHIBITS : NIL.
//TRUE COPY//
P.A. TO JUDGE
