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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4676 OF 2012

T.I.JOSE AND ORS.                    APPELLANT(s)

                         VERSUS

MANAGING DIRECTOR, KERALA WATER  AUTHORITY AND ANR. RESPONDENT(s)

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J.

This  appeal  arises  from  a  judgment  of  a  Division

Bench of the High Court of Kerala dated 16 November 2004.

The appellants were working at the material time as

Head  Operators  and  Operators  under  the  Kerala  Water

Authority1, a statutory body established by the State of

Kerala  on  1  April  1984.   KWA  implemented  three  pay

revisions:

(i) The first pay revision was on 13 February

1990, with effect from 1 July 1988;

(ii) The  second  pay  revision  was  on  and  with

effect from 24 April 1995; and

(iii) The  third  pay  revision  was  on  19  August

1999, with effect from 1 March 1997.

Qualified  operators  were  entitled  to  three  grade

promotions on the completion of 10, 18 and 25 years of

service.  Under the pay revision of 1999, the period of

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service for the third grade promotion was reduced from 25

to 23 years.   

Prior to the third pay revision, there was a post of

Operator.  The next higher post was of Head Operator.

The  next  available  promotional  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.

During  the  course  of  the  third  pay  revision,  an

intermediate post of Senior Operator was created.  Note

13 in Annexure 2 provided as follows:

“Note.13: The  post  of  Senior  Operator/Head Operator having the same scale of pay will be separate as the Senior Operator and the Head Operator with two different scales of pay.  The post of the Senior Operator will be  the  ratio  promotion  post  for  all  the Operators.  The ratio between the Operator and the Senior Operator will be 5:1.  The Senior Operator will be allowed the scale of pay equal to the existing scale of pay of Senior Operator/Head Operator.  The post of the Head Operator will be the promotion post from the post of the Senior Operators who have  the  requisite  qualifications  for  the post  of  Mechanical  Superintendent.   The ratio between the Senior Operator and the Head Operator will also be 5:1.  The Head Operator will be allowed the scale of pay equal to the existing scale of pay of the Mechanical  Superintendent  (Existing  scale Rs.1760-3050 and the revised scale Rs.5635- 9135).   However,  total  of  the  existing strength of Operators/Senior Operators/Head Operators should not exceed on this account. These modifications will take effect from 1- 3-1997.”

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The  above  note  indicates  that  as  a  result  of  the

creation of the intermediate post of Senior Operators,

that post would be allowed a scale of pay equal to the

existing scale of pay of Head Operators.  Consequently,

Head Operators would be allowed a scale of pay equivalent

to that of a Mechanical Superintendents.  The above note

also  prescribes  the  ratios  to  be  maintained.   In

consequence,  the  following  revised  scales  of  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).

The  decision  of  the  State  Goverment  to  create  an

intermediate  post  was  challenged  in  a  Writ  Petition2

before the Kerala High Court.  By a judgment dated 12

April 2002, a Single Judge of the High Court came to the

conclusion that the introduction of an intermediate post

could have only been carried out by means of an amendment

to the Special Rules and not by an administrative order.

Consequently, the Single Judge held that the notification

2  OP 6961 of 2000

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introducing the post of Senior Operator between Operators

and Head Operators shall not work against the appellants

and  their  normal  chance  of  getting  grade  pay  in

accordance with the prevailing orders and according to

the  Special  Rules.   The  Court  held  that,  while  the

appellants could not be prevented from availing of the

benefit of the pay revision, the existing benefit under

statutory rules could not be taken away without amending

the Rules.   

On 12 March 2003, the Single Judge granted revised

pay scales to 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.  

Following the above decisions of the High Court, a

Government Order3 was issued by the State Government on 18

March 2004.  By the GO, the post of Senior Operator was

deleted and the scales of pay were refixed corresponding

to the existing pre-revised scales of pay.  The tabulated

chart contained in the GO is as follows:

Sl.No. Category Scales of Pay

Existing (Rs.) Revised (Rs.)

1. Operator 3440-5385 No change

2. Senior Operator 4710-7710 Deleted

3. Head Operator 5635-9135 4710-7710

4. Mechanical  Superintendent

6935-11460 5635-9135

5. Mechanical - 6935-11460

3  GO(P) No.18/04/WRD

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Superintendent  (Higher Grade)

Paragraph 8 of the GO reads as follows:

“The  issues  raised  by  the  petitioners  in Ext.p7  representation  dated  16.11.01 O.P.No.19752/02 is disposed of on the above basis.   These  orders  are  issued  without prejudice to the directions/orders already issued  by  the  Hon’ble  High  Court  in  the other  related  O.Ps  and  subject  to  the orders  of  the  Hon’ble  Court  in  the  O.Ps pending in the matter.”

Review Petitions were filed by KWA before the High

Court  against  the  orders  dated  12  March  2003  and  3

September 2003 on the ground that the scale of pay drawn

by the appellants will be lowered in light of the GO.

The Review Petitions were dismissed on 8 July 2004 by the

High Court on the ground that the GO cannot affect the

right of the appellants flowing from the judgment.

The State and KWA preferred Writ Appeals against the

original judgments of the learned Single Judges as well

as the decision in review.  The Division Bench allowed

the Writ Appeals.  In review, the High Court held that

there shall be no recovery of amounts already disbursed

to the employees or the pensioners of the KWA on the

basis of the pay revision order, which would not have

been payable on account of  GO(P) No.18/04/WRD, but which

was disbured on or before the date on which the judgment

sought to be reviewed was passed.

The grievance which has been urged on behalf of the

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appellants by Mr. C.S. Rajan, learned senior counsel, is

that as a result of the GO dated 18 March 2004 the pay

scales of Head Operators were reduced from Rs 5635-9135

to Rs 4710-7710.  Learned senior counsel submitted that

the State Government, in the process of complying with

the judgment of the learned Single Judge holding that an

intermediate  post  could  not  have  been  created  by  an

administrative circular, not only deleted the post, but

reduced the pay scale which was being drawn by the Head

Operators.  This, it has been submitted, was an arbitrary

exercise of power.

On a careful analysis of the pay revision, it has

emerged before the Court that Head Operators were drawing

a  pre-revised  scale  of  Rs  1455-2440.   The  equivalent

revised scale of pay under the third pay revision was Rs

4710-7710.  Since an intermediate post of Senior Operator

was created by an administrative decision, the scale of

pay for that post was fixed at the pay scale allowable to

the next higher post of Head Operator.  Consequently, the

pay  scale  for  the  post  of  Head  Operator  was  made

equivalent to that which was drawn in the next higher

post of Mechanical Superintendent.  The High Court held

that an intermediate post could not have been created by

an administrative order and would require an amendment to

the  statutory  rules.   Following  this,  the  State

Government in its GO dated 18 March 2004 abolished the

intermediate  post.   Upon  the  abolition  of  the

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intermediate post, all that was done by the GO dated 18

March 2004 was to clarify that Operators, Head Operators

and Mechanical Superintendents would be entitled to draw

equivalent revised scales of pay corresponding to their

pre-revised pay scales.   

We are in agreement with the view of the High Court

that  the  higher  pay  scale  which  was  given  to  Head

Operators under note 13 was occasioned by the creation of

an  intermediate  post  of  Senior  Operators.   Once  the

intermediate post was abolished since it was found to be

ultra vires by the High Court, the pay scale of Head

Operators was restored to the exactly corresponding pay

scale under the revised scales of pay.  This is clear

from  the  following  pre-revised  scales  of  pay  and  the

equivalent revised pay scales which have been granted to

the above categories:

S.No. Existing Scales of Pay Revised Scales of Pay

S5 1090-35-1230-45-1500- 65-1695

3440-80-3600-85-3940- 90-4210-100-5010-125- 5385

S10 1455-45-1500-65-1760- 85-2440

4710-100-5010-125- 5635-150-6235-175- 7110-200-7710

S14 1760-85-2440-90-2710- 105-2920-130-3050

5635-150-6235-175- 7110-200-7710-225- 8385-250-9135

 This action was consistent with law.  The High Court

has fairly issued a direction that no recoveries shall be

made.  

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In consequence, we see no merit in the appeal.  The

appeal is accodingly dismissed.  No costs.   

.............................J.  (DR DHANANJAYA Y CHANDRACHUD)

.............................J.  (HEMANT GUPTA)

NEW DELHI FEBRUARY 13, 2019

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ITEM NO.103               COURT NO.9               SECTION XI-A

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Civil Appeal  No(s).4676/2012

T.I. JOSE & ORS.                                   Appellant(s)

                               VERSUS

MANAGING DIRECTOR, KERALA WATER  AUTHORITY & ANR. Respondent(s)   Date : 13-02-2019 This appeal was called on for hearing today.

CORAM :           HON'BLE DR. JUSTICE D.Y. CHANDRACHUD          HON'BLE MR. JUSTICE HEMANT GUPTA

For Appellant(s) Mr. A. Raghunath, AOR                     For Respondent(s) Mr. Nishe Rajen Shonker, Adv.

Anu K. Joy, Adv. Mr. Alim Anvar, Adv.

                   Mr. P. S. Sudheer, AOR

                   Mr. Jogy Scaria, AOR                      

UPON hearing the counsel the Court made the following                               O R D E R

The  appeal  is  dismissed  in  terms  of  the  signed

reportable judgment.  No costs.

Pending application, if any, stands disposed of.

 (SANJAY KUMAR-I)                (SAROJ KUMARI GAUR)      AR-CUM-PS                           COURT MASTER

(Signed reportable judgment is placed on the file)