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2018 Supreme(Ker) 926
IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.T. RAVIKUMAR, A.M. BABU, JJ.
K.J. Peter - Petitioner
Vs.
State of Kerala & Ors. - Respondents
OP (KAT). No. 282 of 2018
Decided On : 30-08-2018
For the Petitioner: Adv. Sri. T.G. Sunil (Pranavam)
For the Respondent: Govt. Pleader Sri. Antony Mukkath
Important Points:
• There is no universal principle that the senior in a cadre must always draw higher pay than the junior
• The petitioner had not challenged the promotion of the third respondent to the post of Senior Superintendent as also her subsequent promotion to the post of Administration Assistant- By virtue of the promotion to the post of Administration Assistant the third respondent happened to get higher pay than the petitioner.
Headnote:The Kerala Service Rules- Rule 28A of Part I-The concept of junior-senior fixation finds statutory recognition in Rule 28A of Part I of the Kerala Service Rules and that ruling No.1 there under permits stepping up of the pay of the senior who draws lesser pay than his junior
Statement of facts:
The petitioner who was then working as Industrial Extension Officer, a post which carries lesser pay than that of the pay attached to the post of Junior Superintendent in the Ministerial Wing filed representations before the authorities. It is the inaction on the part of the authorities that constrained the petitioner to approach this Court by filing W.P.(C)No.35527 of 2008 which was transferred pursuant to the constitution of the Kerala Administrative Tribunal and re-numbered as T.A.No.2640 of 2012. It is to be noted that prior to the filing of W.P.(C)No.35527 of 2008 the petitioner had approached this Court by filing W.P.(C)No.19297 of 2008. This Court as per judgment dated 30.6.2008 disposed of the said writ petition directing the authorities to consider the grievance ventilated by the petitioner through Ext.P24 representation. Pursuant to the said direction Ext.P24 representation was considered and it was rejected as per Ext.P25 order dated 17.10.2008. In fact, it is challenging Ext.P25 order seeking consequential relief that W.P.(C)No.35527 of 2008 which was transferred and re-numbered as T.A.No.2640 of 2012, was filed. As noticed hereinbefore, it is the said Transfer Application which was considered by the Tribunal and ultimately dismissed as per Annexure-D order dated 16.2.2018-The petitioner is entitled to be repatriated to the Ministerial Wing and grant him all consequential benefits including promotion to the post of Senior Superintendent in accordance with his seniority in the category of L.D. Clerk in the Ministerial Wing..
Finding of the court:
Petitioner is entitled to get stepping up of pay to bring it at par with the pay which was being drawn by the third respondent at the relevant point of time-No reason to interfere with Annexure-D order dated 16.2.2018 and to remand the matter for further consideration by the Tribunal as even in case of such remand it will only end in a futile exercise
Result : Original petition dismissed
Ravikumar, J.
This original petition is filed against the order dated 16.2.2018 passed by the Kerala Administrative Tribunal in T.A.No.2640 of 2012. The petitioner herein was the applicant therein. He filed W.P.(C)No.35527 of 2008 before this Court seeking mainly the following relief’s:-
“(i) issue a writ of certiorari or any other appropriate writ, direction or order calling for the records leading to Ext.P25 and quashing the same.
(ii) issue a writ of mandamus or any other appropriate writ, direction or order directing respondents 1 and 2 to give repatriation to the petitioner to the Ministerial Wing and restore his seniority in the posts in the Ministerial Service before the position of the 3rd respondent and also to give promotion to the category of Senior Superintendent with effect from 26.2.2008 with all consequential benefits.
(iii) issue a writ of mandamus or any other appropriate writ, direction or order directing respondents 1 and 2 to repatriate the petitioner to the Ministerial Wing and grant him all consequential benefits including promotion to the post of Senior Superintendent with effect from 26.2.2008.
(iv) issue a writ of mandamus or any other appropriate writ, direction or order declaring that the petitioner is entitled to be repatriated to the Ministerial Wing and grant him all consequential benefits including promotion to the post of Senior Superintendent in accordance with his seniority in the category of L.D. Clerk in the Ministerial Wing.
(v) issue a writ of mandamus or any other appropriate writ, direction or order directing respondents 1 and 2 to repatriate the petitioner to the Ministerial Wing in the light of the decisions reported in 1998 (1) KLT 766, 2003 (2) KLT 922 and in the light of Exts.P21, P22 and P23 judgments and restore his seniority in the posts of Head Clerk and Junior Superintendent in the Ministerial Service and all consequential benefits and promotions in Ministerial Service.”
2. Upon constitution of the Kerala Administrative Tribunal the said writ petition was transferred and renumbered as T.A.No.2640 of 2012. On 16.2.2018 the case was taken up for final hearing and the Tribunal dismissed the T.A. as infructuous stating that due to the intervening developments the Transferred Application had become infructuous. It is the contention of the petitioner that due to an inadvertent omission on the part of the clerk attached to the office of the counsel appearing for the petitioner before the Tribunal the posting of the T.A. could not be noticed and it is in the said circumstances that the impugned order came to be passed. It is the further submission that the conclusion arrived at by the Tribunal that due to intervening developments the T.A. had become infructuous is not true to facts and in fact, the grievance of the petitioner still survives. Taking note of the said submission made by the learned counsel we have heard the learned counsel at length to find out whether there is merit in the said submission. In that context it is only appropriate to refer to certain aspects.
3. Essentially, the grievance of the petitioner is that the third respondent who is junior to him in the Ministerial Service of the Industries Department is getting higher pay. In such circumstances, virtually, the claim of the petitioner is to step up his pay at par with that of the third respondent. Service particulars of the petitioner vis-a-vis the third respondent requires consideration to find whether there is any substance in the said contention. The petitioner was firstly appointed as Typist-Clerk in the Department of Factories and Boilers pursuant to the advice of the Kerala Public Service Commission. While so, he got inter-departmental transfer as Typist-Clerk in the Industries Department, as per Ext.P1 order dated 4.12.1981. A Typist-Clerk in the Industries Department was entitled to give option within one month upon joining, either to continue as L.D Typist or to become L.D. Clerk. The petitioner opt
