Dharmabalan and others v. State of Kerala and The Kerala Water Authority

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **TUESDAY, THE 01ST DAY OF OCTOBER 2019 / 9TH ASWINA, 1941** ## **WP(C).No.32558 OF 2017(T)** ## **PETITIONERS:** |**1**|**DHARMABALAN**| |---|---| ||**AGED 58 YEARS**| ||**S/O K.P. KRISHNAN,**| ||**KODAKKATTUPARAMBIL HOUSE,**| ||**KANGANADU, VILAYUR.P.O,**| ||**PATTAMBI, PALAKKAD 679 309.**| |**2**|**V.S.ASSANAR**| ||**AGED 56 YEARS**| ||**S/O V.SULAIMAN,**| ||**PADHANI WADAKKANCHERRY.P.O,**| ||**PALAKKAD - 680582.**| |**3**|**M.UNNI**| ||**AGED 56 YEARS**| ||**S/O V.MANIYAN,**| ||**CHELLAKKADKUNNATH,**| ||**WADAKKANCHERRY.P.O, PALAKKAD - 680582**| |**4**|**BABY THOMAS**| ||**AGED 57 YEARS**| ||**S/O K.M. THOMAS**| ||**KARIMUNDAKEL HOUSE,**| ||**CHITTOOR.P.O, PALAKKAD 678 101.**| |**5**|**M.S.SASIKUMAR**| ||**AGED 56 YEARS**| ||**S/O M.K.SIVARAMAN,**| ||**MANIYAMKAD HOUSE, KOPPAM,**| ||**PALAKKAD-678014**| |**6**|**RADHAKRISHNAN.P.K**| ||**AGED 58 YEARS,S/O KUMARAN,**| ||**KERALA WATER AUTHORITY QUARTERS,**| ||**OPPOSITE K.V.SCHOOL, SRK NAGAR.P.O,**| ||**OTTAPPALAM, PALAKKAD 679101.**| WP(C).No.32558 OF 2017(T) 2 - **7 K.SURESH KUMAR AGED 58 YEARS,S/O ARUMUGHAN, KUNAGALATH HOUSE,(ANUGRAHA), CHUDUVALATHUR, SHORNUR, PALAKKAD - 679 121.** - **8 VENUGOPALAN.K S/O P.KUTTY,AGED YEARS, THASHAMURALIYIL HOUSE, INDUSTRIAL ESTATE, PALAKKAD-678 731.** - **9 M.SETHUMADHAVAN AGED 53 YEARS S/O LATE ACHUTHAN NAIR, 'ASWATHY', KARIPPODE.P.O, PUTHUNAGARAM, PALAKKAD-678503.** - **10 K.T.VENUGOPALAN AGED 54 YEARS S/O K.KRISHNAN, KALLAMAMARUTHODI HOUSE, KUNNATHTHAZHATH P.O, SHORNUR, PALAKKAD-679 121.** - **11 M.RAVINDRAN AGED 55 YEARS, S/O CHAMI, MANMORKODE HOUSE, SHORNUR.P.O, PALAKKAD 679121.** - **12 M.MOHANDASAN AGED 53 YEARS,S/O S.MADHAVAN, RAGAMALIKA HOUSE, PALAKKAD 678001.** - **13 K.VIJAYAKUMAR AGED 53 YEARS S/O KARUPPAN, SOBHANIVAS, PALAPPALAM HOUSE, CHITTOOR.P.O, PALAKKAD 678101.** - **14 C.ARAVINDAN AGED 54 YEARS S/O CHITHAMBARAN, KARUMANKAD HOUSE, KOTTEKKAD.P.O, PALAKKAD-678732.** - **15 GOPI.K S/O SANKUNNI EZHUTHACHAN, KUTTALAM KUNNATH HOUSE, CHERUMUNDASSERY.P.O, AMBALAPPARA, OTTAPPALAM, PALAKKAD 679101.** WP(C).No.32558 OF 2017(T) 3 ## **BY ADVS.** **SRI.SHABU SREEDHARAN SMT.NIDHI RAVINDRAN SRI.D.THILAKAN SRI.P.R.VIBHU SRI.M.YOHANNAN** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, WATER RESOURCES (WS-B) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **2 THE KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN, THIRUVANANTHAPURAM 695 001.** **BY ADVS.** **R2 BY SRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY SRGP.SRI.BIJOY CHANDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.32558 OF 2017(T) 4 ## **JUDGMENT** The petitioners who are workers in Kerala Water Authority are aggrieved by Ext P9 order to the extent it denied them monetary benefits with effect from the date on which they were regularised/ completed five years’ service as NMR. 2. The petitioners joined the Kerala Water Authority as CLR workers. Thereafter as per Ext P1 order they were absorbed as NMR workers with effect from 22.05.1990. Petitioners claim that they were entitled to be absorbed in regular service on completion of 5 years' service as NMR, in accordance with the decision taken by Government in 1983 and thereafter in Ext P2 order, which is referred to in Ext P3 order issued on 30.10.1999 also. Petitioners submit that on the basis of representations submitted by them along with similarly situated other NMR workers, the 2[nd] respondent absorbed them in the regular establishment as per Ext P4 order dated 28.10.2005. But absorption was ordered only with effect from 21.10.2005. Ext P4 order was issued during the pendency of O.P. No.24590 of 1998, in which the NMR hands had claimed regularisation irrespective of their qualification seeking the benefit of **Jacob M. Puthuparambil and others v. Kerala Water Authority & others** [AIR 1990 SC 2228]. By Ext P5 judgment WP(C).No.32558 OF 2017(T) 5 dated 07.11.2007, this court found that the order Ext P4 to the extent it absorbed the petitioners therein only with prospective effect was illegal and directed their absorption in the light of the judgment of Apex court in Jacob's case. 3. While so petitioners had approached this Court in W.P.(C) 29897 of 2009 claiming absorption from 22.05.1995, the date on which they completed 5 years of NMR service. This court directed them to approach the respondents. Thereupon petitioners approached the 1 st respondent with representations and thereafter the 1st respondent rejected their representation as per Ext P7 order issued on 19.03.2014. Petitioners challenged the same filing W.P.(C) No.10397 of 2014 seeking absorption from 22.05.1995 and for consequential benefits. As per Ext P8 judgment, this Court found that petitioners were also entitled to the benefit of absorption with effect from the date from which the benefit was granted petitioners in the O.P. No.24590 of 19988. It was held that once a common order was passed by the Government granting regularisation in the case of similarly situated persons, the petitioners are also entitled to benefits of the same and that the same cannot be denied on the ground that they were not parties to the writ petition. WP(C).No.32558 OF 2017(T) 6 4. The Petitioners had claimed the benefit of Ext P5 judgment in O.P.No.24590 of 1998 wherein this Court had directed the absorption of the petitioners as directed in **Jacob M. Puthuparambil and others v. Kerala Water Authority & others** [AIR 1990 SC 2228]. Ext.P9 order was passed. 5. Government thereafter issued Ext.P9 order absorbing the petitioners with effect from the date of completion of 5 years of NMR service; but limiting the monetary benefits only from the date of Ext P9 order i.e from 12.08.2015. Government found that 328 NMR workers were permitted to be regularised as per Order dated 21.10.2005, with effect from 21.10.2005 and that some among those 328, were granted regularisation with effect from 19.09.1990 on the basis of the judgment dated 07.11.2007 in O.P.No.24590 of 1998; another person was also absorbed with all benefits based on directions contained in the judgment dated 15.10.2014 in W.P.(C) No.10888 of 2014. 316 out of the 328 were found to have remained without absorption. Therefore, Govt ordered that the remaining 316 would be absorbed with retrospective effect from the date of completion of five years as NMR on condition that they would be entitled to monetary benefits only with effect from the date of order. The petitioners are challenging Ext P9 order to the extent WP(C).No.32558 OF 2017(T) 7 it denied them monetary benefits and are claiming the benefits from the date from which they are absorbed in regular establishment. 6. In the counter affidavit filed by the Government it is stated that petitioners were absorbed taking a very lenient view giving them relaxation of qualification. According to the Government the petitioners are not entitled to claim any service benefits when government has taken a policy decision to absorb/regularise the NMR workers on completion of five years of their NMR service with retrospective effect exempting them from technical and general education qualification and from age limit. It is stated that they are enjoying time bound higher grade promotions and other benefits based on their service from the date from which they are regularised. It is stated that the petitioners were granted regularisation purely on humanitarian grounds. It is further stated that there are thousands of persons claiming similar benefits and that grant of benefits to all such persons would cause a huge burden on the public exchequer. 7. Having heard both sides, it is seen that the respondents do not have a case that the petitioners in O.P.No.24590 of 1998 leading to Ext P5 judgment were not granted the monetary benefits. Admittedly they were regularised on the basis of Ext.P5 judgment and they are WP(C).No.32558 OF 2017(T) 8 given all the benefits. This Court in Ext.P8 judgment found that the petitioners are eligible for all the benefits as granted to the petitioners in O.P.No.24590 of 1998. It is seen that petitioners were granted a benefit which was denied long back. Ext P3 order would show that Government had, as early as in 1983, taken a decision to absorb all those NMR workers who completed five years' NMR service, in regular establishment. But the implementation of such a decision was started only after the judgments of this Court in Ext P5 and thereafter in Ext P8 judgment. In the case of the petitioners government granted the monetary benefits only from the date of the order saying that there would be several other persons. But it is relevant to note that Government themselves found that all the 328 NMR hands were eligible for absorption on completion of 5 years' service and also that some of them got all the benefits from the date of effect of absorption. In case the absorption was made at the correct time the petitioners could have enjoyed these benefits from the respective dates of completion of five years of NMR service. At any rate when this court in Ext P9 judgment found that petitioners cannot be denied the benefit of Ext P5 judgment, the respondents cannot riggle out of the same. There is no justification in denying them the monetary benefits with effect from the date from WP(C).No.32558 OF 2017(T) **==> picture [8 x 9] intentionally omitted <==** which they are granted regularisation. Accordingly, the order Ext.P9 to the extent it denies the benefits from the date from which they are absorbed in the regular establishment shall stand set aside. In the result the petitioners would be entitled to all the benefits which were given to the petitioners in W.P(C) No.24590 of 1998 covered by Ext.P5 judgment and they would be entitled to the monetary benefits with effect from the date from which they are regularised as per Ext P9 order. The respondents shall see that the entire monetary benefits due to petitioners are disbursed to them within a period of six months from the date of receipt of a copy of this judgment. SCS **Sd/P.V.ASHA JUDGE** WP(C).No.32558 OF 2017(T) 10 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE PROCEEDINGS OF THE SECOND RESPONDENT WITH NO.KWA/HO/GLI/10293/85 DATED 16.08.1991. EXHIBIT P2 THE TRUE COPY OF THE GOVERNMENT ORDER WITH GO(MS) NO.5/91/LAD DATED 5.1.1991. EXHIBIT P3 THE TRUE COPY OF THE GOVERNMENT ORDER WITH GO(MS)NO.79/99/LRD DATED 30.10.1999 EXHIBIT P4 THE TRUE COPY OF THE PROCEEDINGS ISSUED BY THE 2ND RESPONDENT DATED 28.10.2005. EXHIBIT P5 THE TRUE COPY OF THE ORDER OF THIS HON'BLE COURT IN OP NO.24590/1998 DATED 7/11/2007. EXHIBIT P6 THE TRUE COPY OF THE COMMON JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO.24741, 29896 & 29897/2009 DATED 27.05.2013. EXHIBIT P7 THE TRUE COPY OF THE ORDER OF THE IST RESPONDENT WITH G.O(RT) NO.319/2014/WRD DATED 19.3.2014. EXHIBIT P8 THE TRUE COPY OF THE COMMON JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NOS.28851/2013 & 10397/2014 DATED 27.2.2015. EXHIBIT P9 THE TRUE COPY OF THE ORDER PASSED BY THE IST RESPONDENT DATED 12.08.2015. EXHIBIT P10 THE TRUE COPY OF THE PROCEEDINGS ISSUED BY THE 2ND RESPONDENT DATED 18.09.2015. EXHIBIT P11 THE TRUE COPY OF THE COMMON JUDGMENT OF THIS HON'BLE COURT IN COC NOS.1703/2015, 1704/2015 & 1706/2015 DATED 11.07.2017. EXHIBIT P12 THE TRUE COPY OF THE PROCEEDINGS ISSUED BY THE 2ND RESPONDENT DATED 20.11.2014.** //TRUE COPY// PA TO JUDGE