K.T. Joseph v. State of Kerala and Kerala Water Authority

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** ## **MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942** ## **WP(C).No.35379 OF 2018(V)** ## **PETITIONER:** ## **K.T.JOSEPH, AGED 62 YEARS** **SON OF K.J.THOMAS, RESIDING AT KALATHIL HOUSE, VILLOONNI P.O., KOTTAYAM DISTRICT, (EX.HEAD OPERATOR, P.H.MEDICAL COLLEGE SECTION, KERALA WATER AUTHORITY, KOTTAYAM DISTRICT)** **BY ADV. SRI.M.P.PRAKASH** ## **RESPONDENTS:** - **1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, WATER RESOURCES (WSB) DEPARTMENT, THIRUVANANTHAPURAM 695001** - **2 THE KERALA WATER AUTHORITY REPRESENTED BY THE MANAGING DIRECTOR, JALABHAVAN, THIRUVANANTHAPURAM-695 003** ## **SRI.P.BENJAMIN PAUL SRI.SUNIL KUMAR KURIAKOSE- GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.35379 OF 2018(V) 2 ## **JUDGMENT** ## **Dated this the 1st day of March 2021** The petitioner has approached this Court impugning Ext.P12 Government Order which rejected his plea for being regularized as a Non Muster Roll (NMR) Operator in the services of the Kerala Water Authority (KWA) with effect from 01.04.1979, on the ground that the Government Order, under which he was regularized, does not provide for any such benefit. 2. The petitioner explains that he joined the erstwhile Public Health Engineering Department (PHED) as a Casual Labour Roll (CLR) Worker in the year 1975 and that he thereafter became a CLR Watchman on 01.01.1977 and continued in such position till 09.10.1977. 3. According to the petitioner, he was, thereafter, promoted as CLR Operator from 10.10.1977, in which capacity he continued till 01.04.1979, when he was absorbed in the regular service of the KWA, but only as an NMR Unskilled Worker. The petitioner submits that this was improper and therefore, that he preferred Ext.P3 WP(C).No.35379 OF 2018(V) 3 representation, dated 27.11.2001, requesting the KWA to reckon that he was absorbed in the regular service as an NMR Operator, which is a corresponding post which was holding as a CLR Operator at the time of his absorption; and that this led the KWA to make a recommendation in his favor, which is evident from Ext.P4 dated 26.07.2003. 4. The petitioner points out that in Ext.P4, which was followed by Ext.P5 - wherein the grant of benefits to a similarly placed person namely, Shri.P.K.Ramakrishnan had been conceded - but in spite of this, his request was rejected, thus constraining him to approach this Court by filing W.P(C)No.9177 of 2009, in which this Court delivered judgment directing the Government to reconsider the matter, after quashing the orders until then. The petitioner alleges that in spite of this, the Government has now issued Ext.P12 order, dated 14.6.2018, denying the requested benefit to him, merely saying that he is governed by the Government Order bearing No.G.O(MS)No.26/79/LA&SWD dated 23.02.1979, as per which, he had been regularized. The petitioner, therefore, prayed that Ext.P12 be set aside and that he be directed to be granted the benefits as prayed for by him. WP(C).No.35379 OF 2018(V) 4 5. Shri.M.P.Prakash - learned counsel appearing for the petitioner, in supplementation of the afore contentions of his client, submitted that, in fact, through the afore mentioned Government Order dated 23.02.1979, 950 persons in the service of the erstwhile PHED has been regularized in the services of the KWA; and that this was followed by a subsequent Government Order, bearing No. G.O(MS)No.38/81/LA&SWD dated 24.02.1981 – a copy of which has been placed on record as Ext.P16, which mandated that a CLR worker will be entitled to be absorbed in such category of an NMR Worker, depending upon the maximum duration that was spent by him in the category of the former. 6. Sri.M.P.Prakash added to this submission by saying that, the afore has been restated in Ext.P2 communication dated 20.11.1981 issued by the Special Secretary of the Government to the Chief Engineer, PHED, stating that if a CLR worker has to his credit engagement in different categories, he will be absorbed to the NMR category in which he had worked for the maximum number of days. He says that Ext.P12 Government Order, however, rejected his client's request WP(C).No.35379 OF 2018(V) 5 based on these orders, solely saying that they do not relate to him. He, therefore, prays that Ext.P12 be set aside and the Government be directed to grant his client the benefits, as has been sought for by him. 7. In refutation of the afore submissions, the learned Government Pleader - Sri.Sunil Kumar Kuriakose, submitted that a counter affidavit has been filed on record, wherein, it has been explained that the petitioner and 949 others were absorbed into the service of the KWA based on the aforementioned Government Order dated 23.02.1979, a copy of which has been produced along with a memo dated 10.02.2021. He submitted that, going by the said Government Order, there is no mention as to the category to which the CLR workers had to be regularised as NMR workers and that this was because there was a Government Circular preceding this of the date 20.03.1976, which made it clear that those SLR/CLR workers who had worked in different categories will be absorbed to the lowest category in which they are worked in the 12 months period preceding regularisation. 8. The learned Government Pleader submitted that, therefore, the scheme and manner of absorption of the WP(C).No.35379 OF 2018(V) 6 SLR/CLR workers in the year 1979 and subsequently in the year 1981 – which is governed by Ext.P16 order – are substantially different and was intended to be so, based on the factors and circumstances relevant at the two different times. The learned Government Pleader thus asserted that the petitioner, having been regularised as an NMR Unskilled worker in 1979, cannot thereafter say that he should also get the benefit of the 1981 order, namely Ext.P16, to be reckoned as an NMR operator with effect from the date of his initial absorption, which was much prior to the said order. 9. After saying as afore, the learned Government Pleader explained that the case of Sri.Ramakrishnan mentioned in Ext.P4 recommendation of the KWA cannot be taken advantage of by the petitioner, since he had been granted certain benefits illegally and unauthorisedly, consequent to which, recovery had been initiated against him. The learned Government Pleader further explained that when such steps were taken against the aforementioned Sri.Ramakrishnan, he had approached this Court by filing W.P.(C) No.10943/2006, whereby, such action was interdicted but subsequently clarified through the order in R.P.No.344/2012 dated WP(C).No.35379 OF 2018(V) 7 29.05.2012, that though Sri.Ramakrishnan was not liable to refund any amount but that he was entitled to any further benefit. The learned Government Pleader, therefore, prayed that this writ petition be dismissed. 10. Sri.Benjamin Paul, the learned standing counsel for the KWA submitted that his client has nothing in favour or against the petitioner, but that they had made Ext.P4 recommendation because it was found that Sri.Ramakrishnan had also been given an analogous benefit. He, however, added that, going strictly by the terms of the Government Order dated 23.02.1979 – under which the petitioner and 949 persons were regularised – the category in which they were working as on 04.08.1977 was the most relevant, since it makes it clear that the benefits of regularisation will be available only to persons who are working continuously for 240 days between 21.03.1972 and 04.08.1977. He submitted that, therefore, the relevant cut-off date to be borne in mind is 04.08.1977 and not 01.04.1979, as has been asserted by the petitioner, since the latter was only the date from which the regularisation took effect. 11. Sri.Benchamin Paul further argued that, as on WP(C).No.35379 OF 2018(V) 8 04.08.1977, the petitioner was admittedly working only as a CLR Watchman and therefore, that even if his contentions are now accepted, he would only be entitled to be absorbed as an NMR Watchman, which is the same as NMR Unskilled worker. He thus asserted that since this benefit has already been granted to the petitioner, he cannot have any further grievance. 12. In reply to the afore, Sri.M.P.Prakash, the learned counsel for the petitioner, submitted that it is now well settled, through the judgment of the Hon'ble Supreme Court in **Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi & others** [AIR 1978 SC 851] that the contents of an order cannot be bettered by the pleadings placed on record; and he asserted, pointing to Ext.P12, that the only reason stated by the Government therein is that since the petitioner had been regularised based on the Government Order of the year 1979, he is not entitled to the benefits under the subsequent Government Order, namely Ext.P16. Sri.M.P.Prakash then made his submissions to the effect that even if the assertions of the learned Government Pleader is accepted, it can only mean that there WP(C).No.35379 OF 2018(V) 9 were no particular criteria for selection of category of absorption as per the 1979 order and therefore, that what is relevant is the category in which the petitioner was working as on 01.04.1979, since that was the date of regularisation. He fortified this submissions by showing me from Ext.P13 that the post of CLR Operator is a promotion post from CLR Watchman and therefore, predicated that the benefit of the promotion that he had already secured in his career could not have been taken away through the Government order of the year 1979, when he was regularised. He submitted that this creates a rather anachronistic situation because when the petitioner was given the benefit of being absorbed in service, he lost the benefit of promotion. The learned counsel, therefore, reiteratingly prayed that Ext.P12 be set aside and the Government be directed to grant his client the benefit of regularisation as an NMR Operator with effect from 01.04.1979. 13. I have evaluated the afore rival submissions from the touchstone of the pleadings and materials available on record. 14. It is the first contention of the petitioner that he ought to have been given the benefits as were given to his WP(C).No.35379 OF 2018(V) 10 juniors, who were regularised as per the Government Order of the year 1981, namely Ext.P16. It is in such manner that he asserts that Ext.P2 clarification issued by the Government to the KWA would apply to him also. However, I must record upfront that I cannot find favour with this because, admittedly, the petitioner was absorbed into the NMR category through the Government order of the year 1979 and by the time, the subsequent Government Order of the year 1981 was issued, he had concededly been regularised and was working as NMR Unskilled worker. It is also on record that he was subsequently promoted as an NMR Operator in the year 1984. The claim, therefore, that he should be given the benefit of the subsequent Government Order, even though he had already been regularised in service, cannot appeal to me and I cannot, therefore, accept the same. 15. That said, the second argument of Sri.M.P.Prakash made on behalf of the petitioner is that, even going by the 1979 Government Order, his client was entitled to have been regularised as an NMR Operator, since he was working as a CLR Operator on 01.04.1979, which is the date on which the regularisation came into effect. WP(C).No.35379 OF 2018(V) 11 16. When I consider this submission, I must glance through the Government order of the year 1979, which clearly says that the benefit of regularisation was being offered to 950 persons - including the petitioner, and that such persons were eligible for being regularised provided they had completed 240 days of work in twelve continuous months during the period from 21.03.1972 to 04.08.1977. It is in such fashion that Sri.Benjamin Paul argues that 04.08.1977 will have to be construed as the cut-off date; but it is also equally important that the benefit of regularisation was given only with effect from 01.04.1979. This is more so because, when one looks at Ext.P16, it is limpid that the said order has been issued specifically with respect to 565 persons who were working in the services of Kerala Water Authority as on 16.06.1980 and ineluctably therefore, this was a separate class than the one in which the petitioner had been included. 17. In that perspective, I find some force in the submissions of Sri.M.P.Prakash that the status of an employee as on 01.04.1979 also had to be reckoned since otherwise, as rightly said by him, even a promotion which was obtained by persons like the petitioner between 04.08.1977 to 01.04.1979 WP(C).No.35379 OF 2018(V) 12 would stand jeopardized. This aspect has not been considered by the Government in any of their proceedings and Ext.P12 is also silent on this. 18. In the afore circumstances, I am certain that the Government is obligated to reconsider the petitioner's claim, not merely from the touchstone of his argument that he is entitled to the benefits of the subsequent Government Order in the year 1981 but also based on the afore recorded submissions of Sri.M.P.Prakash that the date 01.04.1979 was one that relevant to consider regularisation based on the Government order bearing G.O.(MS) No.26/79/LA&SWD dated 13.02.1979. This is required because evidently, this aspect had not even engaged the mind of the Government in the said order. 19. When I say as afore, I am certainly cognizant of the submissions of Sri.Sunil Kumar Kuriakose - the learned Government Pleader, that the Government order of the year 1979 was based on the Circular of the Government dated 20.03.1976, wherein, it has been mandated that a worker who had been engaged in different categories would be regularised to the lowest of such in the NMR category. WP(C).No.35379 OF 2018(V) 13 20. However, even a close look through the Government Order of the year 1979 would not show that the stipulations in the afore Circular had been followed and pertinently there is not even a mention of it therein. I cannot, therefore, find merit to this submission of the learned Government Pleader and I am certain that the entitlement of the petitioner must depend upon the way in which the Government order of the year 1979 is worded. Resultantly, I order this writ petition and set aside Ext.P12; with a consequential direction to the Government to reconsider the case of the petitioner; however, solely based on his contention that the relevant date on which the category of NMR worker ought to have been reckoned was 01.04.1979 and not 04.08.1977. This shall be done by the Government after affording an opportunity of being heard to the petitioner, as expeditiously as is possible, but not later than four months from the date of receipt of a copy of this judgment. **Sd/- DEVAN RAMACHANDRAN** Mc/Stu **JUDGE** WP(C).No.35379 OF 2018(V) 14 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 THE PROFORMA SHOWING SERVICE DETAILS OF THE PETITIONER DULY COUNTERSIGNED BY THE ASSISTANT EXECUTIVE ENGINEER.** - **EXHIBIT P2 THE TRUE COPY OF THE LETTER NO. 62021/B3/81/LA AND SWD DATED 20.11.1981** - **EXHIBIT P3 THE TRUE COPY OF THE REPRESENTATION DATED 27.11.2001** - **EXHIBIT P4 THE TRUE COPY OF THE SAID LETTER NO. KWA/JB/E3-14399/01 DATED 26.7.2003** - **EXHIBIT P5 THE TRUE COPY OF THE LETTER NO. 21761/B3/2003/WRD DATED 8.10.2003** - **EXHIBIT P6 THE TRUE COPY OF THE DECISION TAKEN AT THE 256TH MEETING OF KERALA WATER AUTHORITY HELD ON 30.3.2004** - **EXHIBIT P7 THE TRUE COPY OF THE LETTER NO. KWA/JB/E314399/01 DATED 27.4.2004** - **EXHIBIT P8 THE TRUE COPY OF THE SAID LETTER NO. KWA/JB/E3-14399/01 DATED 17.4.2008** - **EXHIBIT P9 THE TRUE COPY OF THE JUDGMENT DATED 16.6.2008 IN W.P.C NO. 16341/2008** **EXHIBIT P10 THE TRUE COPY OF THE G.O(RT) NO. 167/09/WRD DATED 9.2.2009** - **EXHIBIT P11 THE TRUE COPY OF THE JUDGMENT DATED 5.4.2017 IN W.P(C) NO. 9177/2009** - **EXHIBIT P12 THE TRUE COPY OF THE G.O (RT) NO. 424/2018 /WRD DATED 14.6.2018** - **EXHIBIT P13 THE TRUE COPY OF THE LETTER NO. KWA/JB/E5 17493/96 DATED 29.10.1997** **EXHIBIT P14 TRUE COPY OF THE JUDGMENT DATED 1.8.2012 IN W.P.(C).NO.15491/2008** WP(C).No.35379 OF 2018(V) 15 **EXHIBIT P15 TRUE COPY OF THE JUDGMENT DATED 17.10.2014 IN W.P.(C).NO.12263/2008** - **EXHIBIT P16 TRUE TYPED COPY OF THE G.O.DATED 24.2.1981** ## **RESPONDENT'S EXHIBITS:** - **EXHIBIT R1 A TRUE COPY OF THE LETTER NO. KWA/JB/E3/100/2000 DATED 13.02.2006** - **EXHIBIT R1 B TRUE COPY OF THE LETTER DATED 23.06.2004** - **EXHIBIT R1 C TRUE COPY OF THE JUDGMENT DATED 28.07.2011 IN WPC NO.10943/2006** **EXHIBIT R1 D TRUE COPY OF THE JUDGMENT IN RP 344/2012 IN WPC NO.10943/2006 DATED 29.05.2012**