P. Gangadharan and M. Balakrishnan v. Kerala Water Authority

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 8TH DAY OF JUNE 2016/18TH JYAISHTA, 1938** ## **WP(C).No. 5466 of 2011 (G)** ## **-------------------------------------** ## **PETITIONER(S):** **-----------------------** **1. P.GANGADHARAN, RETIRED OPERATOR** - **(KERALA WATER AUTHORITY, P.H.SECTION,, PAYYANNUR, THALIPARAMBA), P.O.PALAKODE, VIA VENGARA, KANNUR-670 305.** **2. M.BALAKRISHNAN, RETIRED OPERATOR (KERALA WATER AUTHORITY, P.H.SECTION,, PAYYANNUR, THALIPARAMBA), `MITHUN NIVAS', 7TH MILE, HAJEE ROAD, TRICHAMBARAM P.O. THALIPARAMBA, KANNUR-670 141.** ## **BY ADV. SRI.KALEESWARAM RAJ** **RESPONDENT(S):** - **--------------------------** **1. KERALA WATER AUTHORITY, REPRESENTED BY THE MANAGING DIRECTOR, KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM-695 001.** **2. THE EXECUTIVE ENGINEER, KERALA WATER AUTHORITY (P.H.DIVISION), KANNUR-670 001.** **3. THE ASSISTANT EXECUTIVE ENGINEER, KERALA WATER AUTHORITY (P.H.SUB DIVISION), PAYYANNUR, KANNUR DISTRICT-670 001.** **4. THE ASSISTANT EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, P.H.SUB DIVISION, TALIPARAMBA, KANNUR-671 141.** **R1 TO 4 BY ADV. SRI.C.UNNIKRISHNAN, SC, KWA R1TO 4 BY ADV. SMT.AMBIKA DEVI, SC, KWA R1TO R4 BY ADV. SRI.JOSEPH JOHN, SC, KERALA WATER AUTHORITY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AD** ## **WP(C).No. 5466 of 2011 (G) -------------------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **---------------------------------EXT.P1: TRUE COPY OF THE REPORT DATED 16.7.1982** **EXT.P2: TRUE COPY OF THE REPRESENTATION DATED 5.8.1987 SUBMITTED BY THE 1ST PETITIONER** ## **EXT.P3: TRUE COPY OF THE REPRESENTATION DATED 6.9.1988 SUBMITTED BY THE 1ST PETITIONER** **EXT.P4: TRUE COPY OF THE ORDER DATED 5.7.1991** **EXT.P5: TRUE COPY OF G.O(P) NO.66/95 DATED 24.4.1995** **EXT.P6: TRUE COPY OF THE PROCEEDINGS DATED 28.10.2005 EXT.P7: TRUE COPY OF THE ORDER DATED 24.1.2006 EXT.P8: TRUE COPY OF THE ORDER DATED 15.1.2008** **EXT.P9: TRUE COPY OF THE PROCEEDINGS DATED 26.2.2008** **EXT.P10: TRUE COPY OF THE ORDER DATED 15.9.2010 EXT.P11: TRUE COPY OF THE ORDER DATED 26.2.2008** **EXT.P12: TRUE COPY OF THE ORDER DATED 21.6.1991 EXT.P13: TRUE COPY OF THE ORDER DATED 5.7.1991 EXT.P14: TRUE COPY OF STATEMENT OF FIXATION OF PAY** **EXT.P15: TRUE COPY OF THE PROCEEDINGS DATED 29.9.1999** **EXT.P16: TRUE COPY OF THE PROCEEDINGS DATED 28.10.2005 EXT.P17: TRUE COPY OF THE ORDER DATED 24.1.2006 EXT.P18: TRUE COPY OF THE ORDER NO.E1 1941/06 DATED 5/2007 EXT.P19: TRUE COPY OF THE ORDER DATED 6.8.2007 EXT.P20: TRUE COPY OF THE PROCEEDINGS DATED 25.2.2008** **EXT.P21: TRUE COPY OF THE ORDER DATED 15.8.2010** **EXT.P22: TRUE COPY OF THE STATEMENT OF FIXATION OF PAY EXT.P23: TRUE COPY OF THE JUDGMENT DATED 7.11.2007 IN O.P NO.24590/1998 EXT.P24: TRUE COPY OF THE ORDER DATED 10.01.2011 EXT.P25: TRUE COPY OF THE COMMUNICATION DATED 20.10.2011** ## **EXT.P26: TRUE COPY OF THE LETTER DATED 10/2011 WITH RESPECT TO 2ND PETITIONER** **EXT.P27: TRUE COPY OF THE GRATUITY PAYMENT ORDER** **EXT.P28: TRUE COPY OF THE COMMUTATION PAYMENT ORDER** **EXT.P29: TRUE COPY OF THE CIRCULAR DATED 6.11.2014** ## **RESPONDENT'S EXHIBITS** **--------------------------------------** **EXT.R1: TRUE PHOTOCOPY OF THE RELEVANT PAGES OF GO(P) NO.46/07/WRD DATED 30.07.2007** **//TRUE COPY//** **P.A. TO JUDGE** **AD** ## **P.V.ASHA J.** ## **-------------------------------------------W.P.(C) No.5466 of 2011 ---------------------------------------------** Dated this the 8[th] day of June, 2016 ## **J U D G M E N T** Petitioners retired from the service of the Kerala Water Authority while working as operators after enjoying the 3[rd] higher grade. Their grievance is against the refixation of their pay and pensionary benefits and also recovery made from the terminal benefits due to them consequent to the re-fixation. 2. The first petitioner commenced service as CLR worker under the Kerala Water Authority in the year 1979. He was absorbed as NMR with effect from 01.04.1984 and thereafter absorbed as Operator in the regular establishment, as per Ext.P6 order dated 28.10.2005, of the Kerala Water Authority. Similarly the second petitioner was also absorbed as Operator, as per Ext.P6 order in the scale of pay of Rs.3440-5385. By Ext.P7 order dated 24.01.2006, the first petitioner was granted first higher grade in the scale of pay of Rs.1455-2440 and his pay was fixed at Rs.1565 as on 01.04.1996. Thereafter, his pay was fixed in the revised scale of Rs.3440-5385 at Rs.5510 on 2 ## **W.P.(C) No.5466 of 2011** 01.04.2004. Simultaneously, his pay was fixed after granting second higher grade at Rs.6235/- as on 01.04.2005 in the scale of pay of Rs.5635-9135. By Ext.P8 order, the respondents modified higher grade granted to him reckoning the CLR service rendered by him in the years 1979 & 1981 and accordingly pay was fixed on grant of first higher grade with effect from 21.10.2005 in the scale of pay of Rs.4710-7110, the second higher grade also with effect from 21.10.2005 in the scale of pay Rs.5635-9135 and thereafter the 3[rd] higher grade on completion of 23 years of service with effect from 21.10.2005 in the scale of pay of Rs.6935-11460. Thereafter by Ext.P9 order his pay was fixed in the revised scale of pay of Rs.11410-20680 at Rs.14830 as on 01.10.2008. Similarly in the case of the second petitioner his pay was also fixed as per Ext.P18 order reckoning the CLR service with effect from 21.10.2005, as in the case of the first petitioner. By Ext.P20, his pay was fixed at Rs.14380 as on 01.04.2008 in the scale of pay of Rs.11410-20680 and thereafter by Ext.P10 and P21 orders dated 15.09.2010 to their detriment. In this order it was **W.P.(C) No.5466 of 2011** 3 stated that the scale of pay allowed to them while granting the 2[nd] and 3[rd] time bound higher grade with effect from 21.10.2005 were irregular and hence the pay fixed in the revised scale (“Audit remarks”). Accordingly their pay was fixed in the lower scale of pay of Rs.48107935 on grant of second higher grade and pay was fixed at Rs.5385 as on 21.10.2005. Similarly pay on grant of 3[rd] higher grade was fixed with effect from 21.10.2005 at Rs.6085 in the scale of pay of Rs.5135-8160 as on 01.10.2008. Thereafter the pay was fixed in the revised scale of pay of Rs.9360-16180 and fixed at Rs.11800 as on 01.10.2008. The pay was reduced from Rs.1483211800. This re-fixation was made without stating any reason for the same and referring to only Audit remarks for which the petitioners are not given any notice either before re-fixation or after the re-fixation. The petitioners submitted that both of them retired from service on 31.03.2010 and re-fixation comes on 15.09.2010 after 6 months of their retirement. Consequent to this, it is stated that the respondents fixed their pension at the reduced rates and recovered the excess pay on account of the re- 4 ## **W.P.(C) No.5466 of 2011** fixation for the period from 21.10.2005 onwards from the terminal benefits which were due to them. 3. Petitioners challenge this pointing out that the orders issued in Exts.P10, P11, P20 and P21 are illegal and liable to be set aside and they are entitled to get the terminal benefits on the basis of the re-fixation of his pay. 4. Respondents have filed a counter affidavit stating that subsequently it was found that petitioners did not have the requisite qualification for appointment as operator which is pass in SSLC and NTC in MMV/Electrician and therefore, they were not entitled to the scale of pay admissible to the regular promotion post. It is stated that in the case of persons who do not have the qualification for the regular promotion post, they are entitled only for the higher scale of pay in the standard scale. It is stated that the first petitioner has not passed SSLC but he is having NTC in the trade of fitter. At the same time, the second petitioner has passed SSLC. 5. Heard the learned counsel for the petitioners as well as the learned counsel appearing for the Water Authority. **W.P.(C) No.5466 of 2011** 5 6. The reason for re-fixation of pay of petitioners stated in the counter affidavit is that the qualification required for appointment as operator is fixed as a pass in SSLC & NTC in MMV/Electrician and since the petitioners did not have that qualification their pay was re-fixed. But it is relevant to note that while absorbing the petitioners to regular establishment as per Ext.P6 order dated 28.10.2005, it was stated that Government were pleased to accord sanction for absorption of 328 qualified NMR workers in the corresponding categories of regular establishments with prospective effect in relaxation of the technical and general educational qualifications. When Government had ordered the relaxation of the qualification the Water Authority does not have any authority to revise the effect of that Government order depriving the benefit of the fixation to the petitioners that too after retirement and that too without notice to the petitioners and without stating any reason in the orders re-fixing and revising their pay to their determent. 7. Under the above circumstances the orders, Exts.P10, P11, P20 and P21 are without any authority, 6 ## **W.P.(C) No.5466 of 2011** apart from being violative of the principles of natural justice, it in effect overrules the decision taken by the Government. In the light of Ext.P6 order, petitioners are entitled to get their pay fixed as done in Exts.P7 to P9 and orders Exts.P18 to P20, respectively, in the case of petitioners 1 and 2. 8. Even otherwise, respondents cannot be permitted to effect recovery from the low paid employees like petitioners. It is settled law as laid down by the Apex Court in **State of Punjab and others v. Rafiq Masih (White Washer) and others** ([2015] 4 SCC 334) that there cannot be any recovery in respect of Groups (C) and (D) employees after retirement. In this case petitioners were never responsible for fixation of their pay. They have been working with the legitimate expectation that they will be eligible for retirement benefits on the basis of the pay they were drawing. Therefore any action to re-fix their pay to their detriment cannot be accepted. Paragraph 27 of the judgment of the Apex Court provides for the conditions under which recovery cannot be allowed. The case of the petitioners clearly comes under **W.P.(C) No.5466 of 2011** 7 that in the purview of the conditions. Apart from that I have already found that there cannot be any action against the petitioners on the ground that they did not have qualification fixed for the post of operator in view of Ext.P6. In view of that no re-fixation is also possible. Accordingly impugned orders, Exts.P10, P11, P20 and P21 are quashed. Petitioners shall be paid all the benefits on the basis of the pay they were drawing prior to re-fixation. The amount recovered from the terminal benefits of the petitioners shall be disbursed to them. In case they are entitled to any benefit on account of the revision of pay subsequent to their retirement they shall be granted the benefit of the same also. The entire action shall be completed within a period of three months from the date of receipt of a copy of the judgment. Writ Petition is disposed of as above. Sd/- ## **P.V.ASHA, JUDGE.** AS/16/06/16