P K Ramakrishnan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** ## **WEDNESDAY, THE 24[TH] DAY OF AUGUST 2022 / 2ND BHADRA, 1944** ## **WP(C) NO. 30325 OF 2012** ## **PETITIONER/:** P K RAMAKRISHNAN AGED 48 YEARS PLUMBER (HIGHER GRADE) P.H SECTION, KERALA WATER AUTHORITY, PURAMERI, VADAKARA, KOZHIKODE. BY ADVS. SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN ## **RESPONDENT/S:** 1 STATE OF KERALA REP.BY THE SECRETARY, IRRIGATION (W.S.D) DEPARTMENT, THIRUVANANTHAPURAM 695 001. 2 THE MANAGING DIRECTOR KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM. 3 THE EXECUTIVE ENGINEER P.H DIVISION, KERALA WATER AUTHORITY, VATAKARA, KOZHIKODE. 4 THE ASSISTANT EXECUTIVE ENGINEER P.H DIVISION, KERALA WATER AUTHORITY, VATAKARA, KOZHIKODE. BY ADVS. GOVERNMENT PLEADER SHRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY P.M.JOHNY GOVERNMENT PLEADER SRI.GEORGE MATHEW, SC, KERALA WATER AUTHORITY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.8.2022 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) NO. 30325 OF 2012 ``` ``` 2 ``` ## **JUDGMENT** The petitioner joined as Seasonal Labour Roll Mazdoor in the erstwhile Public Health Engineering Department on 30.01.1976. He was promoted as SLR Plumber with effect from 01.10.1977. Later, the Public Health Engineering Department became defunct and Kerala Water Authority (KWA) was formed in the year 1984 and the employees of erstwhile Public Health Engineering Department were absorbed as employees of the KWA. The Government issued G.O(P) No.26/79 dated 23.02.1979 whereby CLR/SLR workers who had completed 240 days of service in 12 continuous months from 21.03.1972 to 04.08.1977 were absorbed into the Non Masdoor Roll (NMR) with effect from 01.04.1979 in the respective posts they have worked. Accordingly, the petitioner was absorbed in the NMR Man Mazdoor category with effect from 01.04.1979. Later, the employees were absorbed as regular NMR workers with retrospective effect from 04.08.1977. According to the ``` WP(C) NO. 30325 OF 2012 ``` ``` 3 ``` petitioner, he is entitled to be absorbed as NMR Plumber with effect from 01.10.1977. The petitioner was promoted as NMR Plumber with effect from 01.08.1984. As per Ext.P1, the KWA recommended the Government for absorption of the petitioner in NMR Plumber category with effect from 01.10.1977. The Government issued Ext.P2 order absorbing the petitioner as NMR Plumber with effect from 01.10.1977, subject to the condition that no arrears would be paid to the petitioner as stated in Ext.P3 Government Order dated 27.05.1984 (sic.27.05.1981) . Consequent to the absorption of the petitioner as NMR plumber, he was granted arrears of salary for the period from 1.4.1979 to 6.11.2002. 2. While so, an audit objection was raised by the KWA with regard to the arrears of salary paid pursuant to Ext.P4 and steps were initiated for recovering an amount of Rs.1,09,509/- from the petitioner. The petitioner submitted Ext.P5 representation before the KWA against the recovery steps. The petitioner later approached this ``` WP(C) NO. 30325 OF 2012 ``` ``` 4 ``` Court by filing W.P.(c) No.18204/2005 and by Ext.P6 judgment, the 2[nd] respondent was directed to re-consider the steps for recovery of the arrears in the light of Ext.P3 Government Order. However, the KWA by Ext.P7 rejected the request of the petitioner. Against the same, the petitioner approached this Court and by Ext.P8 judgment, this Court quashed the recovery proceedings. Though a review petition was filed against Ext.P8 before this Court, the same was also dismissed by Ext.P9 judgment. Accordingly, no recovery was effected. The petitioner thereafter submitted Ext.P10 representation before the 2[nd] respondent for fixing the seniority in the higher grade and for pay revision benefits. 3. By Ext.P11, the KWA granted higher grade to the petitioner as given to other similarly situated persons. Later, the KWA issued Ext.P12 order fixing the pay of the petitioner in the higher grade. While so, by Ext.P14, the KWA cancelled Ext.P12 order whereby higher grade was sanctioned to the petitioner counting his NMR service as Plumber ``` WP(C) NO. 30325 OF 2012 ``` ``` 5 ``` with effect from 1.10.1977. Consequently, Ext.P15 order was issued by the 4[th] respondent for recovering the excess pay drawn in the revised scale with effect from February, 2003 from the arrear bill due to the petitioner. In the meantime, the Government issued Ext.P16 order whereby the KWA was ordered to keep in abeyance Ext.P2 order of absorption of the petitioner in NMR plumber category. 4. The petitioner challenges Exts.P14, P15 and P16 orders in this writ petition and also prays for direction to the respondents to restore the benefits granted as per Ext.P2 and for fixation of pay in the said category and for consequential benefits. 5. During the pendency of this writ petition, a similarly situated person namely one K.T.Joseph has approached this Court in W.P.(c) No. 35379/2018 and by Ext.P17 judgment, this Court set aside the order impugned therein with a consequential direction to the Government to consider the case of the petitioner based on his contention that the relevant date on which the category of ``` WP(C) NO. 30325 OF 2012 ``` ``` 6 ``` NMR worker ought to have been reckoned was 1.4.1979 and not on 4.8.1977. Being dissatisfied with the directions in Ext.P17 judgment, the said petitioner filed W.A. No.505/2021 and this Court, by Ext. P18 judgment, allowed the Writ Appeal. Paragraphs 17 and 18 of the said judgment are reproduced hereunder: “ 17. We are fortified in taking the above view, in the light of Ext.P-14 judgment dated 1.8.2012 in WP(C).Nos.12337 & 15491 of 2008 and Ext.P-15 judgment dated 17.10.2014 in WP(C).No.12263 of 2008, wherein in analogous situations in the establishment of the respondent Kerala Water Authority, it has been held that operators are absorbed into NMR category, they are entitled to be absorbed as operators, which is a skilled category, failing which it would amount to demotion. 18. In that view of the matter it is ordered that the impugned judgment of the learned Single Judge rendered on 1.3.2021 in WP(C).No. 35379/2018 to the limited extent it has directed to remit the matter to the 1 st respondent State Government for fresh consideration will stand set aside. The orders passed by the learned Single Judge in the impugned judgment regarding the quashment of Ext.P-12 rejection order will stand affirmed. However it is ordered in the interest of justice that the petitioner is entitled to succeed and it is declared that the petitioner is legally entitled to be regularized on the basis of Anx.II and Anx.III norms as NMR pump operator and the requisite monetary benefits due to the petitioner shall be disbursed to him by the 2nd respondent Kerala Water Authority within 2 months from the date of production of a certified copy of this judgment. Correspondingly, the last pay and the pensionary benefits of the petitioner may also be revised by the 2nd respondent and the arrears of revised pensionary benefits should also be disbursed to the petitioner within one month thereafter. “ ``` WP(C) NO. 30325 OF 2012 ``` ``` 7 ``` 6. Annexure II norms referred to in Ext.P18 judgment is produced by the petitioner herein as Annexure II filed along with a memo dated 24.08.2022 in the writ petition and Annexure III in Ext.P18 is produced as Ext.P3 in this writ petition. 7. It is contended by the petitioner that he is also similarly situated and is entitled to the benefits granted to the petitioner in Ext.P18 judgment. The petitioner also points out that in Ext.P17 judgment, the learned Single Judge has referred to the case of the petitioner in paragraph (9) while granting relief to the petitioner therein. Paragraph (9) of Ext.P17 judgment reads as under; “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 ``` WP(C) NO. 30325 OF 2012 ``` ``` 8 ``` 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 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.” 8. The petitioner has also brought to my notice the judgment in W.P(c) Nos.12337 and 15491/08 referred to in paragraph 17 of Ext.P18 judgment wherein the relief claimed for by the petitioner herein has been granted to similarly situated persons. This Court has held that when NMR operators are absorbed into service, they are entitled to be absorbed as Operators, failing which that would amount to demotion. This Court, therefore, held that the petitioners therein are entitled to be absorbed in the service of the KWA as Operators as per Ext.P3 order herein. This Court also held that based on the same, the petitioners therein are entitled to all monetary benefits arising therefrom as also the retirement benefits as if they retired from service as Operators in regular service. ``` WP(C) NO. 30325 OF 2012 ``` ``` 9 ``` 9. The petitioner has produced Ext.P19 proceedings issued by the 2[nd] respondent to show that Ext.P18 judgment of this Court has been complied with by the KWA in respect of the appellant therein with a rider that the same shall not be a precedent. 10. A counter affidavit has been filed by the Kerala Water Authority wherein it has been contended in paragraph (2) as follows:- “It is submitted that the petitioner was initially engaged as SLR Manmazdoor from 30.01.1976 and as per GO(P) No.26/79/LA&SWD dated, 23.02.1979 SLR workers who have completed 240 days of continuous service in a calendar year prior to 04.08.1977 were declared eligible for absorption into NMR category. The petitioner while rendering service as SLR Man-mazdoor was absorbed into NMR Man-mazdoor with effect from 01.04.1979 vide GO(MS) No.26/79/LA & SWD dated 23.02.1979. Thereafter service benefits to those who were absorbed based on the aforesaid Government Order have been changed as per Ext.P3. The admitted case of the petitioner is that he has worked as SLR plumber with effect from 01.10.1977. The period of service rendered by him in the SLR plumber category is after the cutoff date of ‘04.08.1977’ as specified in the Government order. The petitioner was later absorbed into regular establishment with effect from 01.04.1984 as Man-mazdoor as per GO (Rt) NO.2012 /8S/ LA& SWD dated 26.06.1985. With regard to para 2 it is submitted that based on a practical test conducted at the ``` WP(C) NO. 30325 OF 2012 ``` ``` 10 ``` Division Level the petitioner was promoted as NMR Plumber with effect from 01.08.1984, vide Order NO: E1.160/84 dated 01.08.1984 of the 4" respondent and he became Plumber under regular establishment with effect from 01.08.1984. While continuing as Plumber on his representation dated 22.02.1999 requesting to absorb him as NMR Plumber with effect from 01.10.1977 and as per Ext.P2 the 1“ respondent accorded sanction for absorbing him into NMR Plumber Category with effect from 0.10.1977, but sanction to absorb him into the corresponding category under regular establishment till date was not accorded. Thus his absorption into regular establishment was as Man “Mazdoor with effect from 01.04.1984 GO (Rt) No:2012/85/LAUSWD dated 26.06.1985. Pursuant to this 1[st] respondent as per letter No. 13461/B3/2005/WRD dtd.04.07.2005 has ordered that order is to be kept in abeyance thus it has not come into effect.” 11. Learned counsel for the petitioner relied on the decision of the Apex Court in **Sadasivan Nair v. Cochin University of Science and Technology (2021 (6) KLT 746** wherein the Court held that the law does not allow the employer to apply the rules differently in relation to persons who are similarly situated. The petitioner retired from service in the year 2013. 12. In the light of the directions of this Court in Ext.P18 judgment, I am of the view that the petitioner is ``` 11 ``` ``` WP(C) NO. 30325 OF 2012 ``` entitled to be absorbed as NMR plumber with effect from 1.10.1977 in the light of Ext.P3 Government order and he is entitled for all monetary benefits arising therefrom and also retirement benefits as if he retired from service as NMR plumber. It is so ordered. Consequently, the 2[nd] respondent shall revise last pay and pensionary benefits of the petitioner and the same shall be disbursed to the petitioner. The consequential orders shall be passed by the 2[nd] respondent within a period of one month from the date of receipt of a copy of this judgment and the monetary benefits as aforesaid shall be disbursed within a period of two months thereafter. The writ petition is disposed of. **Sd/-** ## **MURALI PURUSHOTHAMAN** **JUDGE** al/-+. ``` WP(C) NO. 30325 OF 2012 ``` ``` 12 ``` ## **APPENDIX OF WP(C) 30325/2012** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE LETTER NO.KWA/JB/E3/100/1000 DATED 22.03.2000 BEFORE THE GOVERNMENT. Exhibit P2 TRUE COPY OF THE G.O.(RT) 1008/2002/LAD DATED 06.11.2002. Exhibit P3 TRUE COPY OF THE G.O.(MS) NO.93/01/ LAD SWD DATED 27.05.1981. Exhibit P4 TRUE COPY OF THE ORDER DATED 05.12.2002 ISSUED BY THE 2ND RESPONDENT MANAGING DIRECTOR. Exhibit P5 TRUE COPY OF THE REPRESENTATION DATED 20.07.2004. Exhibit P6 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.18204/05 DATED 17.06.2005 OF THIS HON'BLE COURT. Exhibit P7 TRUE COPY OF THE ORDER DATED 13.02.2006 ISSUED BY THE 2ND RESPONDENT. Exhibit P8 TRUE COPY OF THE JUDGMENT DATED 28.07.2011 IN W.P.(C) NO.10943/2006 OF THIS HON'BLE COURT. Exhibit P9 TRUE COPY OF THE JUDGMENT IN R.P.NO.344/2012 IN W.P.(C) NO.10943/2006. Exhibit P10 TRUE COY OF THE REPRESENTATION DATED 18.06.2012 SUBMITTED BY THE PETITIONER. Exhibit P11 TRUE COPY OF THE PROCEEDINGS DATED 07.07.2012 ISSUED BY THE 2ND RESPONDENT. Exhibit P12 TRUE COPY OF THE ORDER DATED 08.10.2012 ISSUED BY THE 3RD RESPONDENT. Exhibit P13 TRUE COPY OF THE14.5 SALARY CERTIFICATE ISSUED BY ASST. ENGINEER, KERALA WATER AUTHORITY, PURAMERI DATED 22.11.2012. Exhibit P14 TRUE COPY OF THE PROCEEDINGS DATED 29.01.2013 ISSUED BY THE 3RD RESPONDENT. Exhibit P15 TRUE COPY OF THE PROCEEDINGS DATED 29.01.2013 ISSUED BY 4TH RESPONDENT. Exhibit P16 TRUE COPY OF THE ORDER ISSUED BY THE GOVERNMENT DATED 04.07.2005 KEEPING IN ABEYANCE THE ABSORPTION OF THE PETITIONER IN THE NMR CATEGORY.