Service Law; N.K. Haridas Vs. High Court of Kerala [25-08-2016]

High Court Service Rules, 2007 (Kerala) – Chauffeur – the rules do not provide for any ratio to be maintained, either while determining the cadre strength of the respective posts, or in the matter of promotion from Chauffeur Grade II to Chauffeur Grade I. When the rules do not provide for such a ratio, an executive order in the nature of Ext.P9 cannot insist on such a ratio either. Thus, Ext.P9 to the extent it contemplates a ratio between Chauffeur Grade I and Chauffeur Grade II at 1:1, and the consequent reversion of persons who have been promoted as Chauffeurs Grade I in the past, cannot be legally sustained.

High Court Service Rules, 2007 (Kerala) – Chauffeur – the granting of pay scales is a purely executive function and that Courts would not ordinarily interfere with an exercise of pay fixation by the State Government. However, when a patent illegality is noticed in an executive order, this Court has necessarily to strike off the offending clause so that the pay fixation intended by the State Government is given effect to without breaching any legal provision.

High Court Service Rules, 2007 (Kerala) – Chauffeur – the rules by themselves do not have the effect of depriving the employees of the benefit that they had already availed, and it is the retrospective effect contemplated in an executive order (Ext.P9), that has resulted in the deprivation of benefits that were already extended to the employees earlier. Such a retrospective operation cannot be legally countenanced and the recovery contemplated in Ext.P11 cannot be legally sustained.

Chauffeur


IN THE HIGH COURT OF KERALA AT ERNAKULAM

A.K. JAYASANKARAN NAMBIAR, J.

W.P.(C). Nos. 1097, 9265, 9288, & 10912 of 2015

Dated this the 25th day of August, 2016

PETITIONER(S)

N.K. HARIDAS AND OTHERS

BY SRI.P.RAVINDRAN, SENIOR ADVOCATE. ADV. SRI.SREEDHAR RAVINDRAN.

RESPONDENT(S)

HIGH COURT OF KERALA AND OTHERS

R1 BY SMT.V.P.SEEMANDINI, SENIOR ADVOCATE. R2 BY GOVT. PLEADER SMT.NISHA BOSE. ADDL. R3 TO R42 BY SRI.K.JAJU BABU, SENIOR ADVOCATE. ADVS. SMT.M.U.VIJAYALAKSHMI, SRI.BRIJESH MOHAN.

JUDGMENT

As all these writ petitions involve a common issue, they are taken up for consideration together and disposed by this common judgment. For the sake of convenience, the reference to facts and exhibits is from W.P.(C) No.1097 of 2015.

2. The petitioners in all these writ petitions are working as Chauffeurs in the High Court service. Their service conditions are determined by the Provisions of the

Kerala High Court Service Rules, 2007

Under the said Rules, as they stood till 2014, the Chauffeurs were graded into four grades, namely, Head Chauffeur, Chauffeur Senior Grade, Chauffeur Grade I and Chauffeur Grade II. The Rules indicate that the entry level post, of Chauffeur Grade II, is one where the mode of appointment is by transfer, deputation, recruitment by transfer or direct recruitment, from persons having the qualification of S.S.L.C, and possessing a valid Light Motor Vehicle Driving Licence. The posts of Chauffeur Grade I and Senior Grade Chauffeur were posts which were to filled up by promotion from the lower grades, and the said promotions were to be on the basis of seniority subject to fitness. It is seen that, when, apart from the post of Head Chauffeur, there were three grades of Chauffeurs, namely, Chauffeur Senior Grade, Chauffeur Grade I and Chauffeur Grade II in the High Court Services, the number of posts were 75, after excluding the single post of Head Chauffeur, and the said 75 posts were distributed among the three grades, in the ratio of 1:1:1. Accordingly, there were 25 posts of Chauffeur Senior Grade, 25 posts of Chauffeur Grade I and 25 posts of Chauffeur Grade II. During the period prior to 2014, contrary to the position that obtained in the High Court services, in the State Government Service, the post of Chauffeur was to be found only in the Department of Tourism. In the State service, apart from the post of Head Chauffeur, there are only two other grades of Chauffeurs, namely Chauffeur Grade I and Chauffeur Grade II. In other words, the post of Senior Grade Chauffeur does not exist in the hierarchy of Chauffeur posts in the Tourism Department of the State Government. The issue with regard to equating of pay scales of Chauffeurs in the Department of Tourism under the State Government, and the Chauffeurs in the services of High Court, had engaged the attention of the State Government as well as the High Court in the past. The issue last came to be considered by this Court in WP(C) No.22364 of 2007 when, by Ext.P2 judgment dated 04.03.2008, this Court found that it had on an earlier occasion, by the judgment dated 19.08.1995 in OP No.3116 of 1992, clearly found that, on a comparison of the nature of duties discharged by the Chauffeurs of the High Court and Chauffeurs of the Secretariat Department, the nature of duties performed by both categories of Chauffeurs was the same. It was also noticed that a direction had been issued to the Government to pay special allowance to the Chauffeurs of the High Court at par with the allowance being paid to the Secretariat staff. In Ext.P2 judgment, this Court, while examining the legality of a Government Order that was passed contrary to the recommendations of the Chief Justice in the matter of fixation of pay scales for chauffeurs, found that the State Government had not bestowed any consideration to the recommendations of the Chief Justice for effecting parity in the pay scales of the Chauffeurs in the High Court services, with those of the Chauffeurs in the Government service. It was observed that the contrary stand of the State Government was not justified and, under Art. 229 (2) of the Constitution of India, the State Government could disagree with the recommendations of the Chief Justice only for valid reasons. The State Government was, therefore, directed to reconsider the matter and give due consideration to the recommendations of the Chief Justice, to bring about a parity in pay scale between Chauffeurs in the High Court service and Chauffeurs in the Government Service. Although the Government took up Ext.P2 judgment in an intra-court appeal before this Court, the Writ Appeal was dismissed by Ext.P3 judgment. The SLP preferred before the Supreme Court thereafter, also did not meet with any success since the same came to be dismissed by Ext.P4 order of the Supreme Court. Consequent to the said judgments and order, the Government passed Ext.R1(e) order dated 15.02.2010, sanctioning scales of pay to the Chauffeurs in the Senior Grade, Grade I and Grade II of the High Court at scales which were similar to the scales of pay granted to Chauffeurs in the Government Department.

3. Pursuant to the recommendations of the 9 th pay revision commission, that submitted its report on 26.02.2011, the Government by order No.57/11 dated 18.11.2011, extended the recommendations of the pay revision to employees in the High Court service as well. Accordingly, the Chauffeurs in the High Court service too received the benefits of the pay revision order. Thereafter, however, by separate Government Orders dated 18.11.2011 and 23.07.2012, produced as Exts.P5 and P6 respectively in the writ petition, Chauffeurs in the Tourism department under the State Government were extended higher scales of pay than what was extended to Chauffeurs in the High Court service. This led the Association of Chauffeurs in the High Court to make a representation before the High Court, and the High Court to make a corresponding representation to the Government, for ensuring a parity in the scales of pay offered to Chauffeurs in both the High Court service as well as the Government Service. Ext.R1(a), produced along with the counter affidavit of the 1 st respondent, is the letter sent by the High Court to the Government, wherein it was pointed out that the post of Senior Grade Chauffeur in the High Court was a promotion post of Chauffeur Grade I, and it always carried a higher scale of pay. It was, therefore, suggested that the scale of pay of Senior Grade Chauffeur be suitably revised to remove the anomaly that existed, primarily on account of the fact that, while in the High Court service, the Chauffeurs fell for classification under four grades, in the department of Tourism under the State Government, the Chauffeurs fell for classification in three grades. The request was therefore, made for issuing orders revising the scale of pay of Senior Grade Chauffeurs to the level of Rs.13900-24040 with retrospective effect from 01.07.2009. The response to Ext.R1(a) communication was through Ext.P7 communication dated 18.03.2013. Therein, the State Government found that, in the High Court service, Chauffeurs were in four grades, whereas in Tourism department, there were only three grades available, in the absence of a Senior Grade. It was also observed, contrary to the specific findings in the judgments and order of this Court/Supreme Court referred above, and contrary to Ext.R1(e) order of the Government, that the duties and responsibilities of Chauffeurs in High Court and Tourism department are different. Based on the said observations, the State Government took the view that the proposal for revised scale of pay for Chauffeurs Grade II and Head Chauffeur in High Court could not be considered. The High Court was also requested to offer its views in the matter of adopting the pattern that prevailed in Tourism department of having three grades of Chauffeurs, in the High Court service as well.

4. It would appear that the recommendation of the Government was accepted by the High Court, which, by Ext.P8 communication dated 18.04.2013, proposed to accept the package with regard to categories of posts and corresponding scales of pay of Chauffeurs existing in the Tourism department as such, to Chauffeurs of the High Court service with prospective effect. In Ext.P8 communication, the High Court also proposed that a protection of existing pay and allowances, that were being drawn by the Senior Grade Chauffeurs, be ensured while implementing the new package that was proposed. The concluding paragraph of Ext.P8 sums up the proposal of the High Court when it states that, the request was for issuing orders making applicable the categories of posts and corresponding scales of pay of Chauffeurs existing in the Tourism department, as such, to the Chauffeurs in the High Court and as a special case, protecting the existing pay of Chauffeurs in the High Court. The proposal put forward by the High Court in Ext.P8 was rejected by the Government by Ext.R1(b) letter, that is produced along with the counter affidavit filed on behalf of the High Court. In the said communication, the State Government suggested that, if conversion of grades as in the Tourism department would cause hardship to the Chauffeurs in the High Court service, the best course of action would be to continue the status-quo, and the Government was not prepared to consider the grant of protection of pay of Chauffeurs as a special case, as requested by the High Court. Thereafter, by Ext.P9 Government Order dated 25.07.2014, the State Government, while considering a request from the Registrar General of High Court to revise the scale of pay of Head Chauffeurs and Chauffeurs Grade II, on par with scales of pay of Chauffeurs in the Tourism department, modified the schedule of Chauffeurs in High Court on par with the Chauffeurs in Tourism department as shown below: