Disposed

V.v.James Kunju v. Cochin Port Trust

Kerala HC5 Jan 2016WA/1098/2013

Case brief

AI extract

What is this about?

The High Court of Kerala disposed of a writ appeal challenging a lower court judgment that partially granted relief for pay fixation on promotion. The court held that lack of probation in the intermediate post does not bar the benefit and directed authorities to verify pay calculations.

What did the court decide?

Granted; the appellant's grievance regarding probation bar was rejected, and the respondent authorities were directed to verify the pay calculation within two months.

V.v.James Kunju Vs Cochin Port Trust — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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TUESDAY, THE 5TH DAY OF JANUARY 2016/15TH POUSHA, 1937

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WA.No. 1098 of 2013 () IN WP(C).36358/2008

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AGAINST THE ORDER/JUDGMENT IN WP(C) 36358/2008 of HIGH COURT OF KERALA DATED 28-02-2013

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APPELLANT/PETITIONER:

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V.V.JAMES KUNJU, AGED 68 YEARS, S/O.V.C.VARKEY, (RETD EXECUTIVE ENGINEER/MECHANICAL/COCHIN PORT TRUST WILLINGTON ISLAND COCHIN 682 009), RESIDING AT VADAPARAMBIL HOUSE KARUVELY ROAD, KUNDANNOOR, MARADU P.O ERNAKULAM DISTRICT PIN 682 304

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BY ADVS.SRI.T.C.GOVINDA SWAMY SRI.G.SHYAM RAJ SMT.T.N.SREEKALA

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RESPONDENTS/RESPONDENTS:

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1. COCHIN PORT TRUST REPRSENTED BY ITS CHAIRMAN, WILLINGTON ISLAND KOCHI 682 009

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2. THE SECRETARY, COCHIN PORT TRUST, WILLINGDON ISLAND, KOCHI 682 009

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3. THE FINANCIAL ADVISOR AND CHIEF ACCOUNTS OFFICER, COCHIN PORT TRUST, WILLINGTON ISLAND, KOCHI 682 009

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4. THE CHIEF MECHANICAL ENGINEER, COCHIN PORT TRUST, WILLINGTON ISLAND, KOCHI 682 009

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R1-4 BY ADV. SRI.B.S.KRISHNAN (SR.) R1 -R 4 BY ADV. SRI.K.ANAND (SR.) R1-R4 BY ADV. SMT.LATHA KRISHNAN R1-R4 BY ADV. SRI.JOSEPH SEBASTIAN (PARACKAL)

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WA NO.1098/13

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APPENDIX

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APPELLANT'S EXHIBITS

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ANNEXURE A: RULE 22(1) (a)(1) OF THE FUNDAMENTAL RULES.

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ANNEXURE B: ORDER OF THE DEPARTMENT OF PERSONNEL & TRAINING CONTAINED IN OM NO.18011/1/86-EST (D) DATED 28/3/1988.

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EXHIBITS OF R4

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ANNEXURE R4(a): TRUE COPY OF REPRESENTATION DATED 30/5/2013 SUBMITTED BY THE PETITIONER.

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ANNEXURE R4(b): TRUE COPY OF ORDER DATED 7.6.2013 PASSED BY THE RESPONDENT.

//True Copy//

PS to Judge

ASHOK BHUSHAN, C.J. &

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A.M. SHAFFIQUE, J.

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================

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W.A. No. 1098 of 2013

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==================

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Dated this, the 5^th day of January, 2016

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J U D G M E N T

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Shaffique, J.

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This appeal is filed by the writ petitioner challenging the judgment of the learned Single Judge dated 28/2/2013 in WP(C) No.36358/08 to the limited extent of not granting the entire relief sought for by the petitioner.

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The writ petition has been filed by the appellant seeking various reliefs including a declaration that his pay in the cadre of Executive Engineer should be refixed in consonance with his regular promotion as Assistant Executive Engineer in terms of Ext.P5.

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The short facts involved in the writ petition would disclose that the petitioner entered service as Supervisor on 8/11/1977. He was promoted as Assistant Engineer (Mechanical) on 25/3/1994, as Assistant Executive Engineer (Mechanical) on 1/5/2001 and as Executive Engineer (Mechanical) on 31/8/2002.

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W.A. No.1098/13

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-:2:-

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He superannuated on 31/10/2003 as Executive Engineer (Mechanical).

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Petitioner had certain grievances with reference to the scale of pay fixed especially on account of the fact that his junior was drawing a higher scale of pay. Petitioner also took up a contention that he is entitled to pay scale in the promoted post on the basis of F.R.22 (I) (a) (1).

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Learned Single Judge after considering the matter allowed the writ petition to the limited extent as under;

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“6. Under the above mentioned circumstances, I am inclined to allow the writ petition in part. Exhibits P9 and P11 are hereby quashed to the extent it declined stepping up of pay of the petitioner in the cadre of Assistant Engineer. The respondents are directed to re-fix pay and allowances of the petitioner in the cadre of Assistant Engineer, in order to cope up with the benefit which was made available to his junior Sri.Balachandran Nair by virtue of Exhibit P1, with effect from the date on which the benefits were granted to Sri.Balachandran Nair. The respondents are directed to rework benefits due to the petitioner on the basis of the above direction. It is made clear that, the benefits granted under Exhibit P9 by which re-fixation of pay in the cadre of Executive Engineer was given to prevent short fall

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W.A. No.1098/13

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in pay consequent to the promotion, will stand protected while effecting re-fixation.”

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However, the claim of the petitioner for fixation of pay on the basis of F.R.22 (I) (a) (1) was not allowed on the ground that the petitioner did not complete probation in the cadre of Assistant Executive Engineer.

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Learned counsel for the appellant impugning the aforesaid judgment would rely upon the Rules and Regulations of Cochin Port Trust. It is contended that as per the Recruitment Rules of Class I and II posts - Schedule 'A'. which forms part of the Regulations, no probation is specified in the post of Assistant Executive Engineer for being promoted to the post of Executive Engineer. Therefore, according to the petitioner, Regulation 8(4) shall not apply, when he is promoted as Executive Engineer. That apart, it is contended that, in Ext.P5, the order by which petitioner was regularized in service as Assistant Executive Engineer, there is no mention made about any probation in the said post.

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Having regard to the aforesaid contentions, it is argued that the respondent authorities were bound to fix the pay scale by applying F.R.22 (I) (a) (1). On the other hand, Sri.K.Anand, learned

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W.A. No.1098/13

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-:4:-

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senior counsel appearing on behalf of the respondents relied upon Annexures R4(a) and R4(b). Annexure R4(a) is the representation submitted by the petitioner to the Chairman of Cochin Port Trust in which it is stated at paras 4 and 5 as under;

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“4. It may be seen from the aforesaid order, my pay as on 01/05/2002, is shown as Rs.11100/- while holding the post of Assistant Executive Engineer (M) and on 01/09/2002, the pay is shown as Rs.11050/- on being promoted to the post of Executive Engineer (M). It is evident from the aforesaid order that there is a fall in pay with effect from 01/09/2002 on promotion. In fact, the very same anomaly which existed earlier has come to the fore again.

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5. It may be seen that, to over come the anomalous situation, the authorities were pleased to fix my pay at a stage, next higher than the pay I was drawing in the post of Assistant Executive Engineer. There is no stage of Rs.11,100/- in the promoted post, and therefore, applying the same analogy my pay should be fixed at a stage, next higher than the pay I was drawing in the lower post of AEE, that is to say at the stage of Rs.11,350/- in scale Rs.10750-300-16750 with effect from 01/09/2002. On that basis pay should be at the stage of Rs.11650/- w.e.f. 01/09/2003.”

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Annexure R4(b) is an office order dated 7/6/2013 by

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W.A. No.1098/13

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which the pay of the petitioner had been refixed pursuant to the directions issued by this Court. The revised sanction order reads as under;

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“Revised sanction is accorded by the Chairman to refix the pay of Sri.V.V.James Kunju EE (M) retired on superannuation on 31/10/2003 AN. with reference to the pay of his junior Shri.K.Balachandran Nair, AE(M), as per judgment dated 28/2/2013 in WP(C) No.36358/2008 of the Hon'ble High Court of Kerala as follows and pay the arrears including retiral benefits.

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Rs.5050/- w.e.f. 01/03/1996 (AE(M) Pay scale @ Rs.4000-175-7150) Rs.9100/- “ 01/01/1997 (AE(M) Pay scale @ Rs.8600-250-14600 (WRC) Rs.9350/- 01/03/1997 ” Rs.9600/- ” 01/03/1998 ” Rs.9850/- ” 01/03/1999 ” Rs.10,100/- ” 01/03/2000 ” Rs.10,350/- ” 01/03/2001 ” Rs.10850/- “ 01/05/2001 (AEE(M) Pay scale @ Rs.9100-250-15100). Rs.11100 “ 01/05/2002 “ Rs.11350/- “ 01/09/2002 (EE(M) Pay scale @ Rs.10750-300-16750) Rs.11650/- “ 01/09/2003.

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The order under reference is cancelled.”

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It is argued that even going by the provisions of F.R.22 (I) (a) (1), petitioner's grievance had been satisfied. That apart, petitioner had no grievance in Annexure R4(a) other than for fixing the pay at `11,650/- w.e.f. 01/09/2003.

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After hearing the learned counsel on either side and having perused the records, first of all, we are of the view that the

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W.A. No.1098/13

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learned Single Judge had granted substantial reliefs to the petitioner. The only fact that remains to be considered is whether the petitioner is entitled to the benefit of F.R.22 (I) (a) (1) or not. F.R.22 (I) (a) (1) reads as under;

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“ F.R.22. (I) The initial pay of a Government servant who is appointed to a post on a time-scale of pay is regulated as follows:(a) (1)Where a Government servant holding a post, other than a tenure post, in a substantive or temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity, as the case may be, subject to the fulfilment of the eligibility conditions as prescribed in the relevant Recruitment Rules, to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at which such pay has accrued or rupees twenty-five only, whichever is more.”

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It is apparent from the material placed on record that

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there is no specific mention made either in Ext.P5 or in the Schedule to the Regulations regarding any probation in the post

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W.A. No.1098/13

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of Assistant Executive Engineer. Therefore, the fact that the petitioner had not completed probation cannot be a reason for denying the benefit under F.R.22 (I) (a) (1).

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In the said circumstances, it is for the respondent authorities to verify whether the calculation mentioned in Annexure R4(b) is in terms with F.R.22 (I) (a) (1). This process shall be done by the respondent authorities within a period of two months from the date of receipt of a copy of this judgment.

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Writ appeal is disposed of with the above observations.

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Sd/- ASHOK BHUSHAN, CHIEF JUSTICE

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Sd/- A.M. SHAFFIQUE, JUDGE

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Rp6/1/2016

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//True Copy//

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PS to Judge

V.v.James Kunju v. Cochin Port Trust

Case brief

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V.v.James Kunju v. Cochin Port Trust

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