Aravindan C. v. The Managing Director, Kerala Water Authority & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 17TH DAY OF NOVEMBER 2020 / 26TH KARTHIKA, 1942** ## **WP(C).No.13979 OF 2020(V)** ## **PETITIONER:** ## **ARAVINDAN C., AGED 57 YEARS** **S/O.CHITHAMBARAN, RTD., OPERATOR HIGHER GRADE, P H SUB DIVISION, KERALA WATER AUTHORITY, PALAKKAD, RESIDING AT KARUMANKADU VEEDU, KOTTEKKAD, PALAKKAD - 678 732.** ## **BY ADV. SRI.U.BALAGANGADHARAN** ## **RESPONDENTS:** - **1 THE MANAGING DIRECTOR, KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM - 695 001.** - **2 THE CHIEF ENGINEER NORTHERN REGION, KERALA WATER AUTHORITY, MALAPPRAMBU, KOZHIKKODE - 673 009.** - **3 THE FINANCE MANAGER AND CHIEF ACCOUNTS OFFICER KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM - 695001.** - **4 THE EXECUTIVE ENGINEER PUBLIC HEALTH DIVISION, KERALA WATER AUTHORITY, PALAKKAD - 678 007.** - **5 SANKAR ACCOUNTS OFFICER (PAY SLIP AND PENSION) KERALA WATER AUTHORITY, HEAD QUARTERS, JALA BHAVAN, THIRUVANANTHAPURAM -695 001.** - **6 THE SUPERINTENDING ENGINEER PH CIRCLE, KERALA WATER AUTHORITY, KOZHIKKODE - 673009.** - **7 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, WATER RESOURCES DEPARTMENT, THIRUVANANTHAPURAM - 695 001.** **BY SRI.BIJOY CHANDRAN - SR.GP BY SRI.P.BENJAMIN PAUL, SC,** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.13979 OF 2020(V) 2 ## **J U D G M E N T** The petitioner says that he retired from the services of the Kerala Water Authority as Operator (Higher Grade) on 31.05.2019; and he has approached this Court being aggrieved by the fact that, through Ext.P1, the Accounts Officer of the Kerala Water Authority has refused to grant him pension citing the following reasons: “In page No.74 of Service Book Vol.II, the date of option is changed to 01.03.1997 from 01.05.1998 (Page No.27 of Service Book Vol.I) for Pay Revision 1997 is irregular since as per order No.KWA/JB/E3-7333/1999/TVPM dated 17.04.2006 of Managing Director has extended the benefit of reckoning CLR service for Time Bound Higher Grades only. Due to this, the options already exercised for pay revision can be changed. Review all the fixations of Pay Revision and Time Bound Higher Grade from Pay Revision 1997 onwards. Excess pay drawn if any shall be worked out and furnished in PA 17 as liability so as to recover from the DCRG payable to the incumbent and resubmit the pensionary claims without delay.” 2. The petitioner says that the objections in Ext.P1 raised by the Kerala Water Authority, with respect to the option WP(C).No.13979 OF 2020(V) 3 for Fixation of Pay exercised by him as early as in the year 1997, cannot now be applied to his detriment, so as to eligible pension, since he retired from service as early as in the year 2019, and further since, going by the judgment of the Hon'ble Court in **State of Punjab and others v. Rafiq Masih (White Washer) and others [2015 4 SCC 334],** no recovery at this stage is possible. The petitioner therefore, prays that Ext.P1 be set aside and the Kerala Water Authority be directed to pay him his eligible retiral benefits at the earliest. 3. In response to the afore submissions made on behalf of the petitioner by Sri.U.Balagangaharan, the learned Standing Counsel for the Kerala Water Authority, Sri.Benjamin Paul, submitted that a counter affidavit has been filed on record, wherein the following have been stated: '”4. It is respectfully submitted that the petitioner entered in KWA service as Casual Labour Roll (CLR) Operator and joined duty on 1.11.1984 and absorbed into NMR Operator w.e.f. 22.5.1990. Later on, he was absorbed into regular establishment with effect from 21.10.2005 in the category of Operator. The date of regularization was given with retrospective effect from 22.5.1995 by reckoning five years of CLR service as per order No.KWA/JB/E3/10911/2003 dated 28.10.2005. Nothing was mentioned in this order about changing option date of WP(C).No.13979 OF 2020(V) 4 pay revision 1997 except retrospective regularization. 5. It is submitted that the petitioner retired from service on 31.05.2019 and the pension proposal received was returned due to audit objection that the petitioner changed the original date of pay revision 1997 from 1.5.1998 to 1.3.1997. As per the rule for fixation of pay, Annexure IV (15) the options once exercised shall be final. In the case of subsequent reversion (after the exercise of option as per these rules) the employee will be allowed to exercise option in respect of the lower post also provided such option exercised within a period of three months from the date of orders of reversion. Re-option will not be allowed for past pay revisions except in the cases involving Hon'ble Court's orders and retrospective promotion. Hence, in the case of the petitioner, it is the retrospective regularization and not retrospective reversion. As per rule 16 of GO[P]46/2007/WRD dated 30.07.2007, Exhibit P2 is not valid/not sustainable in the case of the petitioner. Hence, clarification was sought from the Accounts Officer (Establishment and Administration) in the matter. It is ordered that employees were allowed to exercise options as per rule cited above and re-option will not be permitted for any pay revision except in case of involving retrospective revision or change in scale of pay that take effect in a date prior to the date of option exercised by the employee for the concerned pay revision. It is humbly submitted that such a situation has not arisen in the case of the petitioner. “ 4. The learned Standing Counsel, therefore, submitted that the pension proposal was forwarded to the Pension WP(C).No.13979 OF 2020(V) 5 Sanctioning Authority but that it was received back on 11.08.2020, after effecting the audit objections. He says that the provisional pension to the petitioner was also paid along with his arrears and therefore, that there is no merit in his contention that no amounts can be recovered from him on account of the wrong and erroneous Fixation of Pay. The learned Standing Counsel vehemently submits that this is more so because the petitioner had himself given a declaration, a copy of which has been produced on record along with the statement filed by him on 27.10.2020, wherein, he has undertaken that if any objection is raised in future regarding his revised Fixation of Pay, he will have no objection in the Kerala Water Authority recovering it from his salary bill or from his DCRG. The learned Standing Counsel, therefore, contends that Ext.P1 cannot be found in error and therefore, that this writ petition be dismissed. 5. I have carefully examined the materials available on record and have assessed them on the touchstone of the submissions made before me by the learned counsel as afore. 6. It is evident even from the statement afore extracted, that the Fixation of Pay in the case of the petitioner was made as early as in the year 1997 or 1998 and he has been drawing his WP(C).No.13979 OF 2020(V) 6 ## benefits from that date until his retirement. 7. It may be true that he has given an undertaking - which is the norm in the case of all employees in service - that if any audit objection is raised in future regarding his revised Fixation of Pay, he will have no objection to recover the same from his salary bill or from the DCRG. However, this does not mean that the respondents are at liberty to initiate or pursue action at any time as they choose, particularly when the petitioner has retired more than a year ago. 8. Obviously, therefore, the declarations of law by the Hon'ble Supreme Court in **Rafiq Masih** (supra) applies in all its force to the facts of this case, particularly when the respondents have no case, whatsoever, that the Fixation of Pay sanctioned by the Managing Director of the Kerala Water Authority as early as in the yea **r** 1997/1998, was on account of any error or reason that can be attributed to the petitioner, but following the applicable Guidelines and Regulations at that point of time. 9. Therefore, merely because an audit objection is raised through Ext.P1 as late as on 19.08.2019, which is much after the petitioner retired from service, I do not think that the respondents will be now justified in maintaining that his DCRG WP(C).No.13979 OF 2020(V) 7 is liable to be detained or retained to the extent to which they allege that some excess payments have been made on account of the alleged wrong Fixation of Pay. In the afore circumstances, I set aside Ext.P1 and direct the Kerala Water Authority to pay the entire differential pension and its arrears, if any, along with other terminal benefits to the petitioner, within a period of six months from the date of receipt of a copy of this judgment. I am fixing the time as six months, since I am aware that another learned Judge of this Court has granted this time to the Kerala Water Authority to honour to their commitments, which have also been directed to be paid off in the order of seniority of the persons who have retired before the petitioner. This writ petition is thus ordered. ## **SD/-** ## **DEVAN RAMACHANDRAN** rp ## **JUDGE** WP(C).No.13979 OF 2020(V) 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF LETTER OF THE ACCOUNTS OFFICER TO 4TH RESPONDENT DATED 19/8/2019.** **EXHIBIT P2 A TRUE COPY OF LETTER OF THE FIRST RESPONDENT TO 6TH RESPONDENT DATED 5/4/2016.** **EXHIBIT P3** **A TRUE COPY OF THIRD RESPONDENT TO THE SUPERINTENDENT ENGINEER, PH CIRCLE, PALAKKAD DATED 30/6/16.** **EXHIBIT P4 A TRUE COPY OF LETTER OF 4TH RESPONDENT TO THE THIRD RESPONDENT DATED 28/10/2019.** **EXHIBIT P5 A TRUE COPY OF LAWYER NOTICE DATED 1/6/2020 TO THE RESPONDENTS 1, 2 & 3.**