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N. Madhavan Unnithan Vs. State - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKerala High Court
Decided On
Case NumberO.P. No. 98 of 1957
Judge
Reported inAIR1959Ker338
ActsConstitution of India - Articles 14, 226, 310(1) and 311
AppellantN. Madhavan Unnithan
RespondentState
Appellant Advocate G.B. Pai,; P. Govindan Nair and; P.K. Kurein, Advs.
Respondent Advocate C.M. Kuruvilla, Govt. Pleader
DispositionPetition dismissed
Cases ReferredState of W.B. v. Anwar Ali
Excerpt:
.....not maintainable. - - 2. the travancore-cochin state as is well-known was formed on 1-7-1949. the integration of the service personnel in the two erstwhile states of travancore and cochin was soon after taken up and naturally took some time. 6. taking up the first question it may now be taken to be well established that the paramount law as between the government and their servants is, as enunciated by article 310(1) of the constitution that the latter hold their office during the pleasure of the former subject only to the two conditions, relating to disciplinary action embodied in article 311 thereof. the petitioner can then be taken only to complain that the government were rot more generous than they were -hardly a fit subject matter for scrutiny in a court of law......staff within which latter category the petitioner will fall in the matter of the grant of the arrears in question. for whatever different functions these respective servants may discharge in their respective offices there is no difference pertinent to the subject herein in respect of which the classification is made. as the supreme court observed in state of w.b. v. anwar ali (1952) scr 284 : (air 1952 sc 75): 'the classification permissible must be 'based on some real and substantial distinction bearing a just and reasonable relation to the objects sought to be attained and cannot be made arbitrarily and without any substantial basis.' apart': however from this aspect there is the reason taken that the grant of the refixation was itself ex gratia. the petitioner can then be taken.....
Judgment:
ORDER

Varadaraja Iyengar, J.

1. This is a petition under Article 226 of the Constitution filed by Sri N. Madhavan Unnithan who was a District Munsiff in the service of the Respondent State of Kerala. The complaint is against certain refusal by the Respondent of arrears of salary.

2. The Travancore-Cochin State as is well-known was formed on 1-7-1949. The integration of the service personnel in the two erstwhile States of Travancore and Cochin was soon after taken up and naturally took some time. This gave mo to the anomaly of differences in nay between the officers of the Travancore and Cochin branches who were dicharging the same duties. The question, as pointed out by certain officers in the Administrative Secretariat, was either to give effect to the integrated pay scales with effect from 1-7-1949 or to allow them to draw the pay which their immediate juniors were drawing. The Government chose the latter alternative and passed, orders on 13-1-1955 as regards the staff of the Administrative Secretariat re-fixing the pay of the senior officer drawing a lesser pay than his juniors in the same scale of pay with the benefit of the next increment on the same date as that of the junior. The order was to take effect from the date on which the integration of that Department took place, viz,. 19-11-1933 and also provided -- and it is here that the question arising in this case started, 'that the officers concerned will be eligible for arrears of pay and allowances, if any, accruing with effect from 19-11-1953 as a result of refixa-tion of pay on the above basis.' Vide Ex. A order. The principle of the above order was subsequently expended to the staff of the Finance Department by order dated 29-11-1955. Vide Ext. B order and also to the staff of the Legislative Secretariat by order dated 4-5-1956.

3. Representations were then made that the principle so uniformly recognised may be extended to Munsiffs in the Judicial Department and Government accordingly passed Ext. C order as follows:

'Proceedings dated Trivandrum the 11th December 1956. Read again C. P. S. 6. 20322/52/CS dated 13-3-1955. Order (C) S 38903/56/PD.

In the G.P. Read above, Government ordered that the pay of officers in the Secretariat who were drawing lesser pay than their juniors in the same scale ot pay as a result of the integration of services would'be refixed at the same stag as tha of their immediate juniors wi-h the benefit of the next increment on the same date as their juniors Some of the District Munsiffs of the Judicial Department wno are now receiving lesser pay than their juniors in the same scale of pay consequent on the integration of services in that Department have also requested for a similar treatment. A few other cases relating to other Departments have also come up for the consideration of Government.

Government have carefully considered the question and they are pleased to order that the principles laid down in the G. P. S. 6.20322/52/CS dated 13-1-1955 will be extended to the non-Secretariat Department also. Refixation of pay in the case of the officers concerned, consequent on these orders, will accordingly take effect from the date of integration of the respective departments. No arrears will, however, be paid. The enhanced salaries will be paid only from 1-11-1956.'

It is the last portion of this order disallowing arrears of pay from 19-6-1954, viz., the date of the integration of the Judicial Department, as far as the petitioner was concerned, that has given rise to this petition praying for appropriate writ, direction or order.

4. The main grounds relied on in the affidavit in support of the petition are two-fold. Firstly that the directions contained in the order refusing arrears is discriminatory and therefore hit by Article 14 of the Constitution; secondly that the order has deprived the petitioner and others of the rights to property without jurisdiction and therefore was violative of Article 31 of the Constitution. This latter ground has not been pressed before me. In the counter-affidavit filed on behalf of the State the objection has been raised that the petition is no; maintainable and that the Petitioner can in any event have no real grievance inasmuch as the re-fixation of pay itself under Ext. C was ordered by Government as a matter of concession and it was for 'the Government to fix the limits thereof. In fact the limitation that no arrears will be paid was made on account of financial and administrative necessity. Besides, principle accepted in Ext. A was not for general application but was confined to the Secretariat. Its non-extension to the Judicial Department, the officers of which belonged to a different class and did not perform the same duties could not by any means be said to be discriminatory. The impugned order, it was said, did not discriminate between Munsiff and Munsiff and accordingly was unquestionable.

5. The questions that therefore arise for consideration are firstly whether the principle against discrimination under Article 14 cannot, as contended for the respondent, be at all invoked by the petitioner and secondly, whether he has succeeded in making it out in the case.

6. Taking up the first question it may now be taken to be well established that the paramount law as between the Government and their servants is, as enunciated by Article 310(1) of the Constitution that the latter hold their office during the pleasure of the former subject only to the two conditions, relating to disciplinary action embodied in Article 311 thereof. Therefore so far nt anv rate, as regulations or orders framed by the Government andgoverning the benefits or privileges of its servants e. g., seniority, promotion, transfers, dearness allowance etc., are concerned, no legal right capable ot vindication in ttie Municipal courts arises in favour of the servants. See the latest decisions on the subject of this Court in Mary v. State of T.C., 1957 Ker LT 938: (AIR 1958 Kerala 85) and of the Madras High Court in Devasahayam v. State of Madras, 1958-2 Mad LJ 379: (AIR 1959 Mad 1), And this principle has been applied without regard to the legal character of the Regulations or Rules whether executive or administrate directions on the one hand or statutory on the other See Sambhandhan v. R.T.S. Southern Railway, 1957-2 Mad LJ 541: (AIR 1958 Mad 243).

But then the rigour of the principle is, it would appear, mitigated by the power reserved to the courts to intervene -- though to limited extent, under Article 226. Thus the question as to 'discrimination' raised by party was considered by the court though it was answered against him on the merits in John v. State of T. C., i955 Ker LT 752: ILR (1955J Trav-Co 1274: ((S) AIR 1956 Trav-Co 117) (FB). Similarly in 1957 Ker LT 938: (AIR 1958 Kerala 85), the main rule as to non-justifiability was stated in the leading judgment as 'apart of course from any question of 'mala fides' and 'discrimination'' wnile Koshi, C.J., in his concurring judgment executed instances of 'violation of constitutional guarantess' and 'infringement of the rules ot natural justice.' And Rajamannar, C.T. in 1958-2 Mad LT 379: (AIR 1959 Mad 1) cited above did not also rule out the possibility of relief in cases involving discrimination and mala fides.

There appears to be no reason therefore why a servant of Government in the position of the Petitioner cannot be allowed to invoke Article 14 as against the Government in the case, here concerned with pay arrears, albeit it was the subject of an executive order and the existing Service Regulations did not also deal with it. The question whether executive orders not concerned; with the application of 'law' as defined in Article 13(3) can in general be interfered with under Article 14 is a large question with which I am not concerned. I therefore hold that it is open to the petitioner to raise this question of discrimination in these proceedings.

7. On the second question as to whether the petitioner has in fact made out discrimination, I have however to hold against the petitioner, though not for all the reasons mentioned by the respondent. I am not for instance imnresscd by the classification attempted between Secretariat' and non Secretariat staff within which latter category the petitioner will fall in the matter of the grant of the arrears in question. For whatever different functions these respective servants may discharge in their respective offices there is no difference pertinent to the subject herein in respect of which the classification is made. As the Supreme Court observed in State of W.B. v. Anwar Ali (1952) SCR 284 : (AIR 1952 SC 75):

'The classification permissible must be 'based on some real and substantial distinction bearing a just and reasonable relation to the objects sought to be attained and cannot be made arbitrarily and without any substantial basis.'

Apart': however from this aspect there is the reason taken that the grant of the refixation was itself ex gratia. The petitioner can then be taken only to complain that the Government were rot more generous than they were -- hardly a fit subject matter for scrutiny in a court of law. And after all, orders of refixation of pay of the kind herein are matters of policy depending on considerations not alone of uniform application but offinance and administrative convenience, which it must be in the province of the State alone to consider and carry out. I hold therefore against the petitioner on the second point.

8. In the result the petition is dismissed but in the circumstances without costs.


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