Kerala High Court
Sajeev.M.R vs State Of Kerala on 6 February, 2024
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 6TH 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 DISTRICT-
683585
3 NAZAR K.N., ASSISTANT ENGINEER(PURCHASE),KERALA AGRO
MACHINERY CORPORATION LTD ATHANI, ERNAKULAM DISTRICT-
683585
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 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
WP(C) NO. 25836 OF 2019
PETITIONER/S:
1 SAJEEV.M.R, AGED 60 YEARS, S/O.V.K.RAMAKRISHNAN,
PUZHAVOOR RAJA VILAS, NANDIATTUKUNNAM, NORTH
PARAVUR.P.O., ERNAKULAM
2 MATHEW.P.T ,PULIYAMBILLY HOUSE, POOKAITHA NAGAR,
MEKKAD.P.O., ALUVA-683589
3 PAISON.M.A, MULLOTH HOUSE, ATHANI.P.O., ALUVA-683585
4 K.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:
1 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 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 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
WP(C) NO. 23656 OF 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
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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:
1 STATE OF KERALA, REP BY SECRETARY TO GOVERNMENT
AGRICULTURE DEVELOPMENT AND FARMER'S WELFARE
DEPARTMENT, SECRETARIAT, TRIVANDRUM-695001
2 KERALA 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 6th 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 operator-
workmen 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
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
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 2nd 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 2nd
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
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 Bye-
laws'). 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
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 2nd 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
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
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
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,
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 time-
scale 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
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
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/
WPC Nos. 23178, 23656 and 25836/2019
APPENDIX OF WP(C) 25836/2019
PETITIONER EXHIBITS
EXHIBIT P1 PHOTOCOPY OF THE MD'S ORDER NO.2/75 DATED
29.01.1975
EXHIBIT P2 PHOTOCOPY OF THE SPECIMEN REPRESENTATION FILED BY
THE 1ST PETITIONER DATED 25.10.2018
EXHIBIT P2 PHOTOCOPY OF THE COMMON REPLY DATED 26.11.2018
RECEIVED BY THE 1ST PETITIONER
EXHIBIT P3 PHOTOCOPY OF THE ORDER NO 7/99 DATED 10.02.1999
OF THE MD
EXHIBIT P4 PHOTOCOPY OF LAWYER NOTICE DATED 08.03.2019
EXHIBIT P5 PHOTOCOPY OF THE REPLY NOTICE DATED 05.04.2019
NBY THE MANAGEMENT
WPC Nos. 23178, 23656 and 25836/2019
APPENDIX OF WP(C) 23656/2019
PETITIONER EXHIBITS
EXHIBIT P1 PHOTOCOPY OF THE MD'S ORDER NO.2/75 DATED
29.01.1975
EXHIBIT P2 PHOTOCOPY OF A SPECIMEN REPRESENTATION DATED
11/10/2018
EXHIBIT P3 PHOTOCOPY 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 P5 PHOTOCOPY OF LAWYER NOTICE DATED 08/03/2019
EXHIBIT P6 PHOTOCOPY OF THE REPLY NOTICE DATED 05.04.2019 BY
THE MANAGEMENT
Exhibit P8 TRUE COPY OF SALARY SLIP OF B.JAYAN FOR OCTOBER,
2022.
Exhibit P9 TRUE COPY OF SALARY SLIP OF D.MURALIDHARAN OF
OCTOBER , 2022.
Exhibit P10 TRUE COPY OF SALARY SLIP OF PRASANNAKUMAR OF
OCTOBER, 2022
Exhibit P11 TRUE COPY OF SALARY SLIP OF SHAJI P.S.OF
FEBRUARY, 2022.
WPC Nos. 23178, 23656 and 25836/2019
APPENDIX OF WP(C) 23178/2019
PETITIONER EXHIBITS
EXHIBIT P1 PHOTOCOPY OF SALARY SLIP OF THE 1ST PETITIONER
FOR THE MONTH OF OCTOBER 2017 AND NOVEMBER 2017
EXHIBIT P2 PHOTOCOPY 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 P5 PHOTOCOPY 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 P11 THE RELEVANT PAGES OF THE BYE LAW OF KAMCO
