T. I. JOSE AND ORS. versus MANAGING DIRECTOR, KERALA WATER AUTHORITY AND ANR. on 13 February 2019

1. This appeal arises from a judgment of a Division Bench of theHigh Court of Kerala dated 16 November 2004.

2. The appellants were working at the material time as HeadOperators and Operators under the Kerala Water Authority[1], a statutory A

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Abody established by the State of Kerala on 1 April 1984. KWAimplemented three pay revisions:

(i) The first pay revision was on 13 February 1990, with effectfrom 1 July 1988;

(ii) The second pay revision was on and with effect from 24 AprilB1995; and

(iii) The third pay revision was on 19 August 1999, with effectfrom 1 March 1997.

3. Qualified operators were entitled to three grade promotions onCthe completion of 10, 18 and 25 years of service. Under the pay revisionof 1999, the period of service for the third grade promotion was reducedfrom 25 to 23 years.

4. Prior to the third pay revision, there was a post of Operator.The next higher post was of Head Operator. The next availableDpromotional post was that of Mechanical Superintendent. Their pre-revised scales of pay were:

(i) Operators: Rs 1090-1695;

(ii) Head Operators: Rs 1455-2440; and

(iii) Mechanical Superintendents: Rs 1760-3050.

E5. During the course of the third pay revision, an intermediatepost of Senior Operator was created. Note 13 in Annexure 2 providedas follows:“Note.13: The post of Senior Operator/Head Operator having theFsame scale of pay will be separate as the Senior Operator and theHead Operator with two different scales of pay. The post of theSenior Operator will be the ratio promotion post for all theOperators. The ratio between the Operator and the SeniorOperator will be 5:1. The Senior Operator will be allowed thescale of pay equal to the existing scale of pay of Senior Operator/GHead Operator. The post of the Head Operator will be thepromotion post from the post of the Senior Operators who havethe requisite qualifications for the post of MechanicalSuperintendent. The ratio between the Senior Operator and theHead Operator will also be 5:1. The Head Operator will be allowedHthe scale of pay equal to the existing scale of pay of the Mechanical Superintendent (Existing scale Rs.1760-3050 and the revised scaleRs.5635-9135). However, total of the existing strength ofOperators/Senior Operators/Head Operators should not exceedon this account. These modifications will take effect from1-3-1997.”

6. The above note indicates that as a result of the creation of theintermediate post of Senior Operators, that post would be allowed ascale of pay equal to the existing scale of pay of Head Operators.Consequently, Head Operators would be allowed a scale of pay equivalentto that of a Mechanical Superintendents. The above note also prescribesthe ratios to be maintained. In consequence, the following revised scalesof pay were given:

(i) Operators: Rs 3440-5385;

(ii) Senior Operators: Rs 4710-7710 (equivalent to the revised pay scale for Head Operators); and

(iii) Head Operators: Rs 5635-9135

(equivalent to the revised pay scale of

Mechanical Superintendents).

7. The decision of the State Goverment to create an intermediatepost was challenged in a Writ Petition[2] before the Kerala High Court.By a judgment dated 12 April 2002, a Single Judge of the High Courtcame to the conclusion that the introduction of an intermediate post couldhave only been carried out by means of an amendment to the SpecialRules and not by an administrative order. Consequently, the Single Judgeheld that the notification introducing the post of Senior Operator betweenOperators and Head Operators shall not work against the appellantsand their normal chance of getting grade pay in accordance with theprevailing orders and according to the Special Rules. The Court heldthat, while the appellants could not be prevented from availing of thebenefit of the pay revision, the existing benefit under statutory rulescould not be taken away without amending the Rules.

8. On 12 March 2003, the Single Judge granted revised pay scalesto the petitioners in OP 4490 of 2000 with effect from 1 March 1997.The order was followed on 3 September 2003 in OP 22119 of 2003.

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A9. Following the above decisions of the High Court, a GovernmentOrder[3] was issued by the State Government on 18 March 2004. By theGO, the post of Senior Operator was deleted and the scales of pay wererefixed corresponding to the existing pre-revised scales of pay. Thetabulated chart contained in the GO is as follows:

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Paragraph 8 of the GO reads as follows:

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“The issues raised by the petitioners in Ext.p7 representation dated16.11.01 O.P.No.19752/02 is disposed of on the above basis.These orders are issued without prejudice to the directions/ordersalready issued by the Hon’ble High Court in the other relatedO.Ps and subject to the orders of the Hon’ble Court in the O.PsEpending in the matter.”

10. Review Petitions were filed by KWA before the High Courtagainst the orders dated 12 March 2003 and 3 September 2003 on theground that the scale of pay drawn by the appellants will be lowered inlight of the GO. The Review Petitions were dismissed on 8 July 2004 byFthe High Court on the ground that the GO cannot affect the right of theappellants flowing from the judgment.

11. The State and KWA preferred Writ Appeals against the originaljudgments of the learned Single Judges as well as the decision in review.The Division Bench allowed the Writ Appeals. In review, the High CourtGheld that there shall be no recovery of amounts already disbursed to theemployees or the pensioners of the KWA on the basis of the pay revisionorder, which would not have been payable on account ofGO(P) No.18/04/WRD, but which was disbursed on or before the dateon which the judgment sought to be reviewed was passed.

12. The grievance which has been urged on behalf of the appellantsby Mr. C.S. Rajan, learned senior counsel, is that as a result of the GOdated 18 March 2004 the pay scales of Head Operators were reducedfrom Rs 5635-9135 to Rs 4710-7710. Learned senior counsel submittedthat the State Government, in the process of complying with the judgmentof the learned Single Judge holding that an intermediate post could nothave been created by an administrative circular, not only deleted thepost, but reduced the pay scale which was being drawn by the HeadOperators. This, it has been submitted, was an arbitrary exercise ofpower.

13. On a careful analysis of the pay revision, it has emergedbefore the Court that Head Operators were drawing a pre-revised scaleof Rs 1455-2440. The equivalent revised scale of pay under the thirdpay revision was Rs 4710-7710. Since an intermediate post of SeniorOperator was created by an administrative decision, the scale of pay forthat post was fixed at the pay scale allowable to the next higher post ofHead Operator. Consequently, the pay scale for the post of HeadOperator was made equivalent to that which was drawn in the nexthigher post of Mechanical Superintendent. The High Court held that anintermediate post could not have been created by an administrative orderand would require an amendment to the statutory rules. Following this,the State Government in its GO dated 18 March 2004 abolished theintermediate post. Upon the abolition of the intermediate post, all thatwas done by the GO dated 18 March 2004 was to clarify that Operators,Head Operators and Mechanical Superintendents would be entitled todraw equivalent revised scales of pay corresponding to their pre-revisedpay scales.

14. We are in agreement with the view of the High Court thatthe higher pay scale which was given to Head Operators under note 13was occasioned by the creation of an intermediate post of SeniorOperators. Once the intermediate post was abolished since it was foundto be ultra vires by the High Court, the pay scale of Head Operatorswas restored to the exactly corresponding pay scale under the revisedscales of pay. This is clear from the following pre-revised scales of payand the equivalent revised pay scales which have been granted to theabove categories :

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This action was consistent with law. The High Court has fairlyissued a direction that no recoveries shall be made.

In consequence, we see no merit in the appeal. The appeal isDaccordingly dismissed. No costs.

Kalpana K. Tripathy

Appeal dismissed.

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