VASUDEVAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONERS in O. P. No. 6239 of 1981 are the appellants. The first petitioner is working as Administrative Officer Grade II and the second petitioner as Finance Officer. They claim special pay as given to their counter-parts drawn from the Secretariat service. That claim was negatived by Ext. P2 order dated 7th January 1981. Thereupon they approached this Court for quashing Ext. P2 order and for the issue of a writ of mandamus directing the Government to grant the petitioners special pay as in the case of their counterparts in the Secretariat service. The learned Single Judge dismissed the Original Petition holding that the special pay is given to a class or persons by reason of the special nature of their work and so it is based on a reasonable classification. The averments in para 8 of the counter affidavit were relied on to sustain the conclusion. The decisions of the Supreme Court bearing on the question are not seen referred to in the judgment. The O. P. was dismissed by judgment dated 5th September 1984. Hence this Writ Appeal.

(2.) THE short facts necessary for the disposal of the appeal are as follows. The 1st petitioner entered service of the Government as a Lower Division Clerk in the Public Works Dept. , on 21st July 1958. He got promotion as Upper Division Clerk, Junior Superintendent and Senior Superintendent. On 5th October 1970, he was appointed as Financial Assistant Grade II, by direct recruitment through the Public Service Commission. On 20th November 1978, he was appointed as Administrative Officer Grade-II. He is now working in that cadre in the Chief Electrical Inspectorate, Trivandrum. The 2nd petitioner entered service as Lower Division Clerk on 11th August 1955. He got promotion as Upper Division Clerk and Junior Superintendent. On 16th June 1967, he was appointed as Financial Assistant Grade II through the Public Service Commission. In June 1978, he became Financial Assistant Grade-I. He is now working as such in the office of the Chief Engineer (Building and Roads), Trivandrum. By G. O. (P) 860/78/fin. dated 16th December 1978, Administrative Officers/finance Officers (in the cadre of Deputy Secretary) and Administrative Officers/financial Assistants (in the cadre of Under Secretary) have been made eligible for special pay of Rs. 75/-per mensem respectively. The cadre of Administrative Officers/ Finance Officers/financial Assistants consists of persons drawn from the Secretariat and those recruited from other departments. The post of Administrative Officers consists of two grades; Grade II is equivalent to the post of Under Secretary and Grade I is equivalent to the post of Deputy Secretary. 50 per cent of these posts are earmarked to Officers of the Secretariat. The cadre of Financial Assistants consists of Finance Officers (equivalent to Deputy Secretary), Financial Assistants Grade I (equivalent to Under Secretary) and Financial Assistant Grade-Ill (in between the grades of Section Officer and Under Secretary ). The Special Pay has not been recommended to officers holding the post of Financial Assistant Grade II. The posts in the cadre of Financial Assistant are also filled up by Secretariat Officers and non-Secretariat Officers in equal proportion. Officers like the petitioners who belong to the same cadre but are not drawn from the Secretariat are denied the benefit of special pay. They made representations to the Government for getting the same benefit to them as well. That request has been rejected by Ext. P2 order. According to the petitioners, the action of the Government in granting the special pay to Administrative Officers/ Finance Officers/financial Assistants drawn from the Secretariat wing alone is illegal, discriminatory and violative of the principles contained in Articles 14 and 16 of the Constitution.

(3.) ON behalf of the State of Kerala a detailed counter affidavit has been filed. The Government tries to support the differential treatment of Officers drawn from the Secretariat and from other departments. The reason for the said treatment is explained in paragraph 5 of the counter affidavit. For a proper understanding of that we would read the same: Normally a Secretariat Officer is not expected to be transferred and posted for work in the offices of Heads of Departments. But Secretariat Officers are posted as Administrative Officers/financial Assistants which posts are treated as additions to the cadre of the posts in the Secretariat. In the Secretariat, Under Secretary/deputy Secretary is not expected to take final decision in policy matters. There are officers above their rank vested with more powers and orders can be taken by circulating files to Ministers and even by placing them before the Cabinet, if necessary. But when such an officer is posted in the offices of the Head of Departments as Financial Assistant/finance Officer/administrative Officer he is to guide the Head of Department and he has to take decision in financial matter also. Hence an Under Secretary/deputy Secretary posted as Administrative. Officer/financial Assistant has to shoulder more responsibilities than that they will have to attend if they work in the Secretariat itself. There is a definite change of their duties and they have to shoulder more responsibilities when they work outside the Secretariat. A directly recruited Administrative Officer or a Financial Assistant Grade I promoted from the category of directly recruited Financial Assistant Grade II will not have to face such a difficult position. Since they are direct recruits to the above posts the duties and responsibilities attached to these posts of Administrative Officer/financial Assistant Grade I can be considered to be only their normal duties and no speciality or arduousness can be attributed to it. unlike in the case of Administrative Officer/financial Assistant Grade I posted from among Secretariat Officers. In the circumstances, the Special pay allowed to the Administrative Officers/financial Assistant posted from among the Officers of the Secretariat cannot be extended to those who are directly recruited/appointed to these cadres.