K. Subramanian and others v. Kerala Water Authority and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **MONDAY, THE 7TH DAY OF JANUARY 2013/17TH POUSHA 1934** ## **WP(C).No. 11768 of 2011 (U)** ## **---------------------------** ## **PETITIONER(S):** **--------------------------** **1. K.SUBRAMANIAN,S/O KUNCHAN, KORATHODI HOUSE,MALAMPUZHA P.O., PALAKKAD DISTRICT. (NOW WORKING AS OPERATOR KERALA WATER AUTHORITY,PWDD SECTION,MALAMPUZHA).** ## **2. K.VASUDEVAN, S/O.KRISHNAN,** - **VALIYAPARAMBIL HOUSE,KAVASSERY P.O.,ALATHOOR TALUK, PALAKKAD DISTRICT.,(NOW WORKING AS OPERATOR KERALA WATER AUTHORITY,PH SECTION,PATTAMBI).** ## **3. A.P.BALAKRISHNAN, (RETIRED),** - **S/O.A.P.NARAYANAN,ATTASSERY PURAKKAL P.O.,CHOORAKODE, VALLAPPUZHA,PALAKKAD.,(OPERATOR KERALA WATER AUTHORITY,P.W.S.S.S.,SECTION MALAMPUZHA,PALAKKAD).** ## **4. V.SREEDHARAN, (RETIRED),** - **S/O.P.RAMAN NAIR,VETTATH HOUSE,P.O.KOODALLUR, VIA KUMBIDI,PALAKKAD. (OPERATOR,KERALA WATER AUTHORITY,P.H.SECTION NO.1,SHORNUR PALAKKAD).** ## **5. GOWRI SANKARAN, (RETIRED),** - **S/O.K.BHASKARAN,PANCHENAKOLAMBA HOUSE,P.O.OLASSERI, KOTTAMBU,PALAKKAD.,(OPERATOR KERALA WATER AUTHORITY,P.H.SECTION,CHITTUR PALAKKAD).** **6. M.SANKARAN, (RETIRED), S/O.MADHAVAN,ANAMARI HOUSE,P.O.ERATTAKULAM, VIA ANCHUMOORTH,PALAKKAD. (FITTER,KERALA WATER AUTHORITY,P.H.SECTION,ALATHUR PALAKKAD).** **7. M.K.RAMAKRISHNAN, (RETIRED), S/O.KUTTA,OURPADAM HOUSE,KARIMBA P.O., MUNNEKRA,(FITTER,KERALA WATER AUTHORITY PH SECTION,ALATHUR,PALAKKAD).** ## **WP(C).No. 11768 of 2011 (U)** ## **8. T.GOPALAN, (RETIRED),** **S/O.KARIKKA,THERUMARIL HOUSE,P.O.MANNAMPATTA, PULASSERI,PALAKKAD.,(OPERATOR KERALA WATER AUTHORITY,PH SECTION,PATTAMBI PALAKKAD).** **BY ADVS.SRI.SHABU SREEDHARAN SRI.C.K.PRASAD SRI.T.S.ANURAJ SRI.P.SANJAY SHENOI** **RESPONDENT(S):** - **----------------------------** **1. THE KERALA WATER AUTHORITY BY ITS MANAGING DIRECTOR,JALABHAVAN, THIRUVANANTHAPURAM,PIN 695001.** **2. THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY,SECRETARIAT,THIRUVANANTHAPURAM PIN 695001.** **R1 BY ADVS. SMT.AMBIKA DEVI, SC, KWA** **SRI.GEORGE MATHEW, SC, KERALA WATER AUTHORITY SRI.C.UNNIKRISHNAN, SC, KWA R2 BY GOVERNMENT PLEADER SMT. ROSE MICHAEL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-01-2013, T THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 11768 of 2011 (U)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXT.P1: A COPY OF THE JUDGMENT IN O.P.NO.24590/98 DATED 07.11.2007 OF THIS HONOURABLE COURT. EXT.P2: A COPY OF THE REPORT JUDGMENT OF JACOB'S CASE (1991)1 SCC 28. EXT.P3: A COPY OF THE ORDER NO.KWA/JB/E3/662/97 ISSUED BY THE 1ST RESPONDENT DATED 25.08.1998. EXT.P4: A COPY OF THE GO(MS)NO.53/2005/WRD DATED 21.10.2005. EXT.P5: A COPY OF THE JUDGMENT IN WA NO.2209/08 DATED 19.11.2008. EXT.P6: A COPY OF THE ORDER IN SLP(CIVIL)NO.18225/09 DATED 09.08.2010. EXT.P7: A COPY OF THE ORDER NO.KWA/JB/E.3/21042/1999 DATED 10.01.2011. EXT.P8: A COPY OF THE JUDGMENT IN CONT.CASE(C)NO.1351/10 DATED 17.01.2011. EXT.P9: A COPY OF THE GUIDELINES ISSUED BY THE 1ST RESPONDENT DATED 19.01.2011. EXT.P10: A COPY OF THE ORDER NO.E1.8248/04/GRADE PROMOTION DATED 03.08.2006. EXT.P11: A COPY OF THE ORDER NO.E1.8248/04/GRADE/PAY REVISION DATED 03/10/2008. EXT.P12: A COPY OF THE LETTER ISSUED TO THE 1ST PETITIONER DATED 22.10.2008. EXT.P13: A COPY OF THE ORDER NO.PH/PKD/E2-1567/07 DATED 27.01.2010. EXT.P14: COPY OF THE ORDER NO.PH/PKD/E2-1567/07 DATED 08.02.2010. EXT.P15: COPY OF THE JUDGMENT IN WPC NO.19666/2009 DATED 16.11.2011. EXT.P16: COPYOF THE MEMORANDUM OF WPC NO.19666/2009 DATED 13.07.2009. RESPONDENT'S EXHIBITS: NIL** **//TRUE COPY//** **P.A. TO JUDGE** **LSN** A.M.SHAFFIQUE, J. ---------------------------------------------------W.P.(C) No. 11768 of 2011 - U --------------------------------------------------Dated this the 7[th] January, 2013 **==> picture [209 x 13] intentionally omitted <==** The petitioners have been absorbed into regular service of the first respondent, Kerala Water Authority by virtue of Ext.P7, which is passed on the basis of Ext.P1 judgment wherein this Court had directed the first respondent to absorb the petitioners into regular service in the light of the direction of the Supreme Court in **Jacobs Puthuparambil and Others** v. **Kerala Water Authority** [AIR 1990 (1) SC 2228] which is produced as Ext.P2 in the case, without insisting on having the requisite qualification. 2. The facts of the case disclose that the petitioners were employed as C.L.R workers between 12.5.1980 and 26.5.1983 in the Public Health Engineering Department (PHED). When Kerala Water Authority was formed, there was an understanding to take over all the employees in PHED as employees of Kerala Water Authority. However, the issue regarding the regularisation of employees of PHED came up for consideration in a batch of writ petitions which ultimately came to be decided by the Supreme Court in Jacobs' case (supra) wherein the Supreme Court has issued certain directions. It is in pursuance of such directions that Ext.P1 W.P.(C) No. 11768 of 2011 - U 2 came to be passed. Kerala Water Authority had taken a contention that CLR workers were not entitled to the benefit of Ext.P2 judgment and an appeal was filed. The appeal was dismissed on the ground of delay. The fact remains, Ext.P1 judgment had been complied with and Ext.P7 order came to be passed. 3. After issuing Ext.P7, the Kerala Water Authority issued Ext.P9 guidelines for fixation of pay as far as workers covered by Ext.P7 are concerned. The challenge is with respect of the objectionable portions in Ext.P9, which according to the learned counsel affects their rights as various benefits granted to other workers, who are regularised, were not made available to the petitioners and the petitioners were treated differently from the other workers who are regularised on the basis of Jacob's case. 4. Counter affidavit is filed by the 1[st] respondent indicating that in Jacob's case, the Supreme Court was concerned with the rights of employees who had to be regularised and they are appointed through Employment Exchange, on a sanctioned post and with a definite scale of pay and continuing in service in terms of Rule 9(a)(i) of K.S. & S.S.R. It is their case that casual labourers like petitioners cannot be similarly treated to those appointed on sanctioned posts as per Rule 9(a)(i) of K.S. & S.S.R. W.P.(C) No. 11768 of 2011 - U 3 But despite the fact that going by the directions issued in Jacob's case and in view of the judgment in Ext.P1, the petitioners were given certain benefits. According to KWA such benefit cannot be extended to such persons in parity with the benefits given to other persons who had the right to be appointed in terms of Jacob's case. Therefore, there is no nexus between the appointment of the petitioners and the appointment made on the basis of the judgment of the Supreme Court in Jacob's case. It is also contended that petitioners were absorbed into regular establishment with effect from 19.9.90. Hence they were entitled to a minimum scale of pay admissible as per Rule 10 of Part III of KSR. The service of the petitioners prior to regularization i.e. CLR/NMR service cannot be treated as training. It is also contended that since the petitioners had no qualification to hold any of the posts they have to be treated separately. In that view of the matter pay and allowances can be disbursed from 1990 as guidelines are to be framed taking into consideration the benefits that can be given to the petitioners. In that view of the matter it is submitted that the classification now made is reasonable and the petitioners cannot have a complaint that they should also get the benefit that were extended to other workers who were appointed in terms with the Rule 9(a) (i) of the W.P.(C) No. 11768 of 2011 - U 4 K.S & S.S.R. 5. Government also has filed a counter affidavit taking the very same stand that has been taken by the KWA. 6. Heard learned counsel appearing for the petitioners, learned Standing Counsel for the Kerala Water Authority and the learned Government Pleader. 7 **.** Having regard to the fact that petitioners have already been appointed in terms of Ext.P7 and the scale of pay had been fixed at Rs.845 -1370, petitioners had obtained all the benefits in terms of Ext.P1 judgment. Only ground is whether KWA has the right to frame guidelines as evident from Ext.P9. It is clear that petitioners have to be treated as a different category as they did not possess necessary qualification as required in the Public Health Engineering Department. Their appointment has been made only on the basis of Ext.P1 judgment and Jacob's case (supra). In fact, in Jacob's case, the Supreme Court has categorically indicated that “they will be at liberty to deal with the service of the workers who do not possess requisite qualification as may be considered appropriately in accordance with law”. Admittedly, the W.P.(C) No. 11768 of 2011 - U 5 petitioners did not have the requisite qualification and therefore they had to be treated differently and it was open for the KWA to frame rules as far as their service conditions were concerned. 8. Having regard to the said fact, I do not think that there is any illegality on the part of KWA in framing Rules regarding the employment of persons like petitioners who form a different category. In that view of the matter there is no merit in the writ petition. I do not intend to interfere with Ext.P9 and accordingly the writ petition is dismissed. A.M.SHAFFIQUE, JUDGE. rka