Balakrishnan Nair, J.

The point that arises for decision in this case is whether on the junior getting grade promotion, can the senior claim the same pay as his junior, though the latter has not completed the required number of years for grade promotion. The respondents in the Writ Petition are the appellants. The first respondent herein was the petitioner.

2. The brief facts of the case are the following. The first respondent joined the service of the first appellant as Draftsman/Overseer/Surveyor Grade III/Tracer on 13.5.1985. He was promoted as Draftsman/Overseer/Surveyor Grade II with effect from 13.5.1987. Still later, he was promoted as Draftsman/Overseer/Surveyor Grade I with effect from 14.5.1988. One Smt. Suprabha, who joined the service of the first appellant as Draftsman/Overseer/Surveyor Grade II on 4.3.1988 and who was junior to the respondent, was promoted as Draftsman/Overseer/Surveyor Grade I on 4.3.1990. On completion of eight years in the said cadre, she became eligible for grade promotion in the scale of pay of Assistant Engineer. Since the opted to come over to the scale of Assistant Engineer on 1.11.1998, she was granted higher grade with effect from the said date. As a result of the grade promotion, she started drawing higher pay than the first respondent. The first respondent, therefore, filed a representation claiming stepping up of his pay equal to that of Smt. Suprabha. The competent authority of the first appellant considered the said claim and rejected it, by Ext.P2 communication dated 18.5.2002. Challenging that order, the Writ Petition was filed. The appellants filed a counter affidavit, stating that the first respondent/petitioner is not eligible for stepping up of his pay. They also produced Ext.R1(a) reply, furnished to the first appellant by the Deputy Director, Local Fund Audit, for the clarification sought by them regarding the eligibility of the first respondent for stepping up of his pay.

3. The learned Single Judge, after hearing both sides, took the view that it is highly unjust to allow the situation of the first respondent/petitioner drawing lesser pay than his junior, Smt. Suprabha and quashed Ext.P2 and Ext.R1(a), even though there was no specific pleading for quashing the latter order. The learned Single Judge also ordered to step up the pay of the first respondent/petitioner to the level of the pay drawn by his junior, Smt. Suprabha with effect from the date on which she started drawing higher pay.

4. We heard the learned counsel on both sides. The learned counsel for the appellants submitted that the rules and orders governing fixation of pay do not permit stepping up of the pay of the first respondent to make it equal to that of his junior, who got grade promotion as Assistant Engineer. The learned counsel for the first respondent, on the other hand, submitted that in every respect the first respondent and Smt. Suprabha were on the same footing in Grade II and Grade I and the first respondent was also senior to Smt. Suprabha. Therefore, when the junior starts drawing higher pay, the first respondent is entitled to have his pay stepped up and therefore, the view taken by the learned Single Judge is legal and valid. In support of his submission, the learned counsel for the first respondent relied on the decision of the Apex Court in Union of Indian v. P. Jagdish (1997 (3) SCC 176) and also a decision of the Division Bench of this Court in Kamala Devi v. K.S.F.E. Ltd., [2002 (1) K.L.T.

5. The concept of junior-senior fixation finds statutory recognition in Rule 28A of Part I of the Kerala Service Rules. Ruling No.1 under it permits stepping up of the pay of the senior, who draws lesser pay than his junior. The said ruling reads as follows:

"In cases where the application of the rule would give rise to anomalies in as much as an officer officiating in a higher post could get his pay refixed at a stage higher than the pay drawn by another who stands confirmed in the higher