P. N. Sasidharan v. State of Kerala and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **THURSDAY, THE 5TH DAY OF JANUARY 2017/15TH POUSHA, 1938** **OP(KAT).No. 154 of 2016 (Z)** **---------------------------AGAINST THE ORDER IN OA[EKM] 812/2014 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 16-08-2016** **PETITIONER(S)/(APPLICANT):** **-------------------------** **P.N SASIDHARAN AGED 63 YEARS, S/O. LATE NEELAKANTAN,** **OVERSEER GRADE I (RETIRED), PUBLIC WORKS DEPARTMENT, ELECTRICAL WING, SUB DIVISION OFFICE, PAINAVU, IDUKKI DISTRICT, RESIDING AT PUTHENPURAYIL, NEAR GOVERNMENT HIGH SCHOOL, KANJARIMATTOM, THODUPUZHA EAST P.O., IDUKKI-685 589.** **BY ADVS.SRI.P.RAMAKRISHNAN SMT.PREETHI RAMAKRISHNAN SRI.T.C.KRISHNA SRI.C.ANIL KUMAR SMT.ASHA K.SHENOY SRI.PRATAP ABRAHAM VARGHESE** ## **RESPONDENT(S)/(RESPONDENTS):** **----------------------------** ## **1. STATE OF KERALA** **REPRESENTED BY ITS SECRETARY, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** ## **2. THE CHIEF ENGINEER** **PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM-695 001.** **3. ASSISTANT EXECUTIVE ENGINEER PUBLIC WORKS DEPARTMENT, ELECTRICAL WING, SUB DIVISION, IDUKKI-685 589.** **BY SENIOR GOVERNMENT PLEADER SRI. A.J. VARGHESE** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 05-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(KAT).No. 154 of 2016 (Z)** **----------------------------** ## **APPENDIX** ## **PETITIONER'(S) EXHIBITS** **----------------------EXHIBIT P1 COPY OF OA(EKM)NO.812/2014 SUBMITTED BY THE PETITIONER BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL.** **EXHIBIT P2 COPY OF REPLY STATEMENT FILED BY THE 1ST RESPONDENT IN OA (EKM)NO.812/2014.** **EXHIBIT P3 COPY OF REJOINDER FILED BY THE PETITIONER IN OA(EKM)NO.812/2014.** **EXHIBIT P4 COPY OF ORDER DATED 16.8.2016 PASSED BY THE KERALA ADMINISTRATIVE TRIBUNAL IN OA(EKM)NO.812/2014.** **RESPONDENT(S)' EXHIBITS** **-----------------------** **NIL** //True copy// P.A. TO JUDGE SHG/ **'C.R.'** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - O.P.(KAT)No.154 of 2016 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5[th] day of January, 2017** ## **J U D G M E N T** ## **Ravikumar, J.** A potentially profound question calls for resolution in this original petition filed against the order dated 16.8.2016 in O.A.(EKM)No.812/2014 of the Kerala Administrative Tribunal. The petitioner was the applicant therein. He was directly recruited by the Kerala Public Service Commission (for short 'PSC' only) to the post of Helper (Electrical) in the Public Works Department on 18.12.1975. While working so, he responded to a notification issued by the PSC for appointment to the post of Lineman (Electrical) by direct recruitment, in the Public Works Department itself. After the selection process, he was directly recruited to the post of Lineman and he joined the post on 22.8.1980. In the post of Lineman, the petitioner had to stay sans promotion for a period of more than 18 years. In such circumstances, he O.P.(KAT)No.154 of 2016 2 was granted a higher grade on completion of 18 years on 22.8.1998 as per Annexure A1. Subsequently, he was granted second higher grade, as per Annexure A2 dated 28.8.2003 on completion of 23 years with effect from 1.8.2003. Evidently the petitioner was granted such higher grades treating his entry cadre as Lineman and the date of commencement of service in that cadre as 22.8.1980. The grievance of the petitioner is that being a person who was directly recruited to the post of Helper in the Public Works Department with effect from 18.12.1975 on his subsequent direct recruitment to the same department in another post viz. Lineman and especially taking note of the fact that of late the post of Helper (Electrical) was merged with Lineman as per Annexure A3 dated 21.7.1999, his erstwhile service as Helper ought to have been reckoned for the purpose of sanctioning such higher grades. In otherwords, according to him, reckoning such service with effect from 18.12.1975 in the post of Helper he is entitled to get antedated, with attending benefits, such grade promotions, in O.P.(KAT)No.154 of 2016 3 the post of Lineman. 2. The Tribunal considered the tenability of the said contention in the light of its own earlier decision in O.A.No.1605/2012 (Shaji v. State of Kerala and Ors.) which was upheld by this court in O.P.(KAT)No.185/2014 and also the decision of a Division Bench of this Court in **Mohanan v. State of Kerala [(2013) 3 KLT 970]** . On such consideration, the Tribunal found that though he was directly recruited to the post of Lineman in PWD while working as Helper in the same department, for the purpose of sanctioning such higher grades his entry cadre could only be taken as Lineman and the period in that regard, could be reckoned only from the date of commencement of his service in the cadre of Lineman pursuant to such direct recruitment. In such circumstances it was found that the orders granting grade promotions treating the entry cadre of the petitioner as Lineman and reckoning the requisite period from 22.8.1980 could not be said to be illegal or irregular warranting an interference. In that view of the O.P.(KAT)No.154 of 2016 4 matter the original application was dismissed. It is aggrieved by the said order passed by the Tribunal that the original petition has been filed. 3. We have heard the learned counsel appearing for the petitioner and also the learned Government Pleader. 4. With respect to the relevant particulars of service of the petitioner there is no dispute. Admittedly, the petitioner was directly recruited to the service of PWD as a Helper (Electrical) on 18.12.1975. It was while working so that he applied and got directly recruited through PSC to the post of Lineman (Electrical) in the same department on 22.8.1980. It is also not in dispute that for the purpose of granting higher grades on completion of 18 years and on completion of 23 years, the requisite span of service was reckoned with effect from 22.8.1980 i.e. the date on which he commenced his service in the post of Lineman (Electrical) on being recruited directly through PSC. The challenge against the said order of the Tribunal has two strands: firstly, the Tribunal had failed to appreciate the O.P.(KAT)No.154 of 2016 5 fact that his first direct recruitment to the post of Helper and subsequent direct recruitment to the post of Lineman were in the same department; secondly, the fact that as per Annexure A3 the post of Helper (Electrical) was merged in the post of Lineman was also not given due consideration. The learned counsel appearing for the petitioner submitted that it is the erroneous appreciation of the aforesaid aspects, rather the non- consideration of the said aspects in their real perspective that culminated in the dismissal of the original application and therefore, it warrants interference. In elaboration of the said contention, it is further contended that the Tribunal had lost sight of the fact that persons who were worked alongwith him in the post of Helper (Electrical) and continued as such, later on, became Lineman on merger of those posts pursuant to Annexure A3 and as a matter of fact, they are drawing higher salary than the petitioner. At this juncture it is to be noted that no such pleadings were taken up by the petitioner before the Tribunal as also in this O.A. It is only at the time of O.P.(KAT)No.154 of 2016 6 argument such a contention was raised sans any basic pleadings. That apart, it is to be noted that at no point of time the petitioner raised any such case for consideration before the authorities and all throughout his precise case was that the service rendered by him in the post of Helper (Electrical) in the department from 18.12.1975 has to be counted for the purpose of computing the requisite period to earn eligibility for getting higher grades on completion of 18 years and thereafter, on completion of 23 years. In short, the contention of the petitioner is that instead of reckoning the requisite period for granting such grades with effect from 22.8.1980 it ought to have been reckoned with effect from the commencement of his service in the post of Helper (Electrical), i.e. from 18.12.1975. In the absence of fundamental pleadings concerning such disparity in pay, which was not taken up before the Tribunal it cannot be permitted to be raised for the first time before this court. At any rate, on such a matter requiring basic, factual pleadings, based on such oral submission made at the time O.P.(KAT)No.154 of 2016 7 of hearing, the order of the Tribunal cannot be re-visited for the purpose of invalidating it. We are fortified in our view by the decisions of the Hon'ble Apex Court in National Buildings Construction Corporation v. S. Raghunathan reported in (1998) 7 SCC 66 and U.P. Gram Panchayat Adhikari Sangh & Ors. v. Daya Rama Saroj reported in (2007) 2 SCC 138. 5. Now reverting to the contention that the aforementioned higher grades ought to have been sanctioned with effect from the date of commencement of his service as Helper rendered on the strength of the first direct recruitment through PSC, for the purpose of granting higher grades in the subsequent directly recruited post of Lineman, its tenability has necessarily to be considered in the light of the decision of this court in **Mohanan** 's case (supra). In **Mohanan** 's case (supra) this court in unequivocal terms held that service jurisprudence did not envisage a government servant, while in office, re-entering government service by direct recruitment. Virtually, it was O.P.(KAT)No.154 of 2016 8 held that on being selected by direct recruitment in the latter post one could accept such latter appointment, pursuant to such selection by direct recruitment, only after demitting the post held by him. When, on demitting the post held by him for the purpose of taking up the appointment given after the subsequent selection by direct recruitment a break in service must occur. In otherwords, it was held that by way of subsequent direct recruitment when one gets selected and appointed he had to demit the previous office and then, there would occur a break in the jural relationship of employer-employee between the State Government and the officer concerned. In such circumstances, the concerned employee on his direct recruitment to another post could not claim any benefit based on the fact that he had earlier rendered service in the same department or in other department and at any rate it cannot be tagged alongwith the service commenced by him on the strength of the subsequent appointment by way of direct recruitment, in the absence of any statutory backing O.P.(KAT)No.154 of 2016 9 in that regard or in the orders relating grade promotions. 6. The learned counsel for the petitioner then, takes up the contention that in the case on hand, the question of breaking up of such jural relationship and beginning a fresh relationship with another department would not arise as both the appointments, through direct recruitment by PSC were under the same department viz., PWD. Whether, such an aspect would make the dictum in Mohanan's case inapplicable in the case on hand? In fact, that issue was also dealt with in the impugned judgment. The Tribunal referred to its earlier decision in O.A.No.1605/2012. In O.A.No.1605/2012 the applicants while working as Excise Guards in the Excise and Prohibition Subordinate Service, got directly recruited to the post of Excise Preventive Officer through PSC in the same department. The Tribunal held against the reckoning of such previous service s Excise Guards for the purpose of granting higher grades subsequent to their direct recruitment as Excise Preventive Officer through PSC. In the impugned order itself, it is O.P.(KAT)No.154 of 2016 10 stated that the said order in O.A.1605/2012 passed by the Administrative Tribunal was upheld by this court in O.P. (KAT)No.185/2014. The learned Government Pleader handed over a copy of the order passed by this court in O.P. (KAT)No.185/2014. Paragraph 4 thereof, would reveal that this court as per judgment dated 21.8.2014 confirmed the order passed by the Tribunal in O.A.No.1605/2012. Evidently, for sanctioning grade promotions, Excise Preventive Officer was taken as their 'entry cadre' and their case for reckoning the service as Excise Guards, was declined. Thus, the factual position obtained in this case is akin to the factual position obtained in that case. In their case, the decision of the Tribunal declining to take the date of their entry in the post of Excise Guards for the purpose of considering grade promotion and taking the date of commencement of their service in subsequent directly recruited post of Excise Preventive Officer was confirmed by this court. Certainly, when one demits office to which he was recruited directly and then, joins duty in the post to O.P.(KAT)No.154 of 2016 11 which he is recruited directly through PSC a break in service must occur and for the purpose of sanctioning the higher grade/grades, in the absence of any enabling statutory provision or executive orders for reckoning the previous service, such a direct recruit is not entitled to get reckoned the previous service merely because the subsequent selection by direct recruitment is also against another post in the same department. This is because what makes one entitled to higher grade/grades is stagnation in a particular cadre without promotion for the requisite period prescribed. In this case, the petitioner's previous service in the PWD was in the cadre of Helper. True that he was directly recruited to that post in the year 1975. The subsequent selection and appointment was to the post of Lineman, in the PWD itself, by direct recruitment through PSC in the year 1980. It is to be noted the post of Lineman was a post in the direct line of promotion of Helper in PWD and both the posts belonged to Kerala Electrical Engineering Subordinate Service of the Public Works O.P.(KAT)No.154 of 2016 12 Department. Admittedly, the post of Helper merged with the post of Lineman as per Annexure A-3 after about more than 10 years since the petitioner demitted his office as Helper and joined as Lineman. In such circumstances, how can the petitioner seek for reckoning his service from 18.12.1975 for the purpose getting higher grade/grades on the ground of getting stagnated without promotion in the cadre of Lineman. If the said service is tagged on to his service in the cadre of Lineman, taking into account the fact that his previous service on direct recruitment was in the post of Helper and that the post of Lineman was then in the direct line of promotion of Helper, it has to be treated as continuous service. If it is so treated it would reveal that within five years from 18.12.1975 viz., on 22.8.1980 he reached the post of Lineman which is a post in the direct line of promotion of Helper. In such circumstances if the service as Helper is taken into account it would make him disentitled to get higher grade promotion. If the past service of Helper is tagged on then, it could not be said he O.P.(KAT)No.154 of 2016 13 got stagnated in the entry cadre. Therefore, the petitioner could earn eligibility to get higher grade/grades in the post of Lineman only if it is taken that on his direct recruitment to the post of Lineman in PWD he demitted his office of Helper in PWD and thenceforth, there occurred a break in service and then only he joined the directly recruited post of Lineman. Therefore, for the aforesaid purpose the post of Lineman has to be taken as his entry cadre. True that on reckoning the required length of service of 18 and 23 years from the date of his entry in the cadre of Lineman it can be seen that the petitioner had no promotion in the direct line since then and therefore he is entitled to get higher grades on completion of 18 years and then, on completion of 23 years. In short, we find absolutely no reason to hold that the Tribunal has committed an illegality in accepting the decision of the department to treat the petitioner's entry cadre as 'Lineman' and 22.2.1980, the date of his entry in that cadre for the purpose of sanctioning the first higher grade on completion of 18 years on 22.8.1998 and the next O.P.(KAT)No.154 of 2016 14 higher grade on completion of 23 years on 22.8.2003. In the light of the said indisputable and undisputed factual position and in the light of the decisions referred supra, we do not find any reason to hold the order passed by the Tribunal in O.A.(EKM)No.812/2014 as illegal or irrational warranting an interference in exercise of the power under Article 227 of the Constitution of India. The decision is in conformity with the dictum laid down by this Court in Mohanan's case (supra). Hence, this appeal is liable to fail and consequently, it is dismissed. There will be no order as to costs. Sd/- ## **C.T. RAVIKUMAR** **JUDGE** Sd/- **K.P. JYOTHINDRANATH JUDGE** //True copy// P.A. TO JUDGE shg/