P Thomas Kurian and Others v. Kerala Water Authority and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 27TH DAY OF NOVEMBER 2019 / 6TH AGRAHAYANA, 1941** ## **WP(C).NO.8249 OF 2015(E)** ## **PETITIONERS:** **1 P THOMAS KURIAN, AGED 55 YEARS DIVISIONAL ACCOUNTS OFFICER, OFFICE OF THE CHIEF ENGINEER (JICA PROJECT), KERALA WATER AUTHORITY, VELLAYAMBALAM, THIRUVANANTHAPURAM, NOW RESIDING AT, T.C 28/491(9), GNRA-16, GANDHI NAGAR, KAITHAMUKKU, THIRUVANANTHAPURAM - 695 024.** - **2 JOHNSON V GEORGE AGED 47 YEARS WORKING AT JUNIOR SUPERINTENDENT, WATER SUB DIVISION, KERALA WATER AUTHORITY, KOCHI - 18, NOW RESIDING AT VAZHAPPILLIL HOUSE, CHERAI P.O., ERNAKULAM.** - **3 SUSY SEBASTIAN AGED 49 YEARS DIVISIONAL ACCOUNTS OFFICER, GPF SECTION, FINANCE WING, KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, NOW RESIDING AT T.C 14/591/1, NANDAVANAM, PALAYAM, THIRUVANANTHAPURAM - 695 033.** - **4 SUBASH KUMAR AGED 47 YEARS** **DIVISIONAL ACCOUNTS OFFICER, INNURM P, KERALA WATER AUTHORITY, KURIATHY, THIRUVANANTHAPURAM - 695 009, NOW RESIDING AT KAVITHA NIVAS, VELICODU, OORUTTAMBALAM P.O., THIRUVANANTHAPURAM - 695 507.** **5 MANY T.V. AGED 49 YEARS JUNIOR SUPERINTENDENT, WATER WORKS SUB DIVISION, KALOOR, KOCHI - 17, NOW RESIDING AT VELIYAMKODE MANA, CHELAMATTOM, OKKAL P.O., PERUMBAVOOR - 683 550.** **6 T.V.PHILIPS AGED 50 YEARS JUNIOR SUPERINTENDENT, PUBLIC HEALTH CIRCLE, KERALA WATER AUTHORITY, MUVATTUPUZHA (ERNAKULAM DT), NOW RESIDING AT THACHATH HOUSE, PAZHAMTHOTTAM P.O., ERNAKULAM DISTRICT.** **WP(C).NO.8249 OF 2015(E)** 2 **BY ADVS. SRI.P.VIJAYAKUMAR SRI.M.V.ASHIM SRI.R.BALAKRISHNAN SRI.B.HARRYLAL SRI.C.R.REGHUNATHAN SRI.SUVIN.R.MENON** ## **RESPONDENTS:** - **1 KERALA WATER AUTHORITY REPRESENTED BY MANAGING DIRECTOR, THIRUVANANTHAPURAM.** - **2 CHIEF ENGINEER HRD GL KERALA WATER AUTHORITY, THIRUVANANTHAPURAM.** - **R1-2 BY SRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).NO.8249 OF 2015(E)** 3 ## **J U D G M E N T** Petitioners challenge Exts.P7 and P9 orders by which the dates of their promotion as UD clerks have been altered to their detriment. 2. Petitioners joined as LD Clerks in Kerala Water Authority on 13.04.1992, 25.04.1992, 06.04.1992, 06.04.1992, 20.04.1992 and 15.04.1992 respectively. The first petitioner acquired the test qualification in June, 1992; petitioners 2 to 4 acquired the test qualification in December, 1992 and the 5[th] petitioner acquired test qualification in June 1993 and 6[th] petitioner acquired test qualification in December 1992. Petitioners were promoted as UD Clerks as per Ext.P1 order dated 11.04.1994. Whileso various writ petitions were filed seeking promotion as UD Clerks/challenging the promotions granted and assailing the seniority list of UD Clerks. As per Ext.P3 judgment dated 11.10.2007, the final seniority list of UD Clerks as **WP(C).NO.8249 OF 2015(E)** 4 on 01.01.2005 was quashed with direction to revise the same with reference to the date of occurrence of vacancies. Petitioners submits that their promotions were thereafter revised as per Ext.P2 (a) and (b) orders issued on 13.08.2008 and 28.10.2008 and were granted promotion as UD Clerks with effect from various dates in July and December 1992 in tune with the date on which they acquired test qualification. Based on those promotions they got their pay fixed after exercising re-option. By Ext.P8 judgment dated 19.03.2009 in W.P.(C).No.24198 of 2009, this Court set aside the final seniority list of UD Clerks issued on 28.10.2008, as per Ext.P2(b) order. Eventhough petitioners submitted objections, Ext.P7 order was issued on 1.1.2014, publishing revised final seniority list of UD Clerks as on 31.12.2011, by which dates of promotion of petitioners were revised to the dates on which they completed their probation. Respondents thereafter issued Ext.P9 **WP(C).NO.8249 OF 2015(E)** 5 order directing recovery of the excess pay drawn by persons like petitioners who were granted promotion as per Ext.P2(b) order dated 28.10.2008 which were revised in Ext.P7 seniority list. This writ petition was filed challenging those orders. 3. According to the learned counsel for the petitioners completion of probation is not necessary for promotion from the post of LDC to UDC. 4. Learned counsel for the petitioners relies on the proviso to Rule 28(a) of KS&SSR and also the judgment of the Division Bench of this Court in **P. Devaki v. State of Kerala and Others** [ILR 2006 (3) Kerala 825] in support of his contention that petitioners were entitled to be granted promotion with effect from the date on which they acquired the test qualification. 5. The respondents have filed a counter affidavit supporting the orders impugned and pointing out that the promotion granted to the **WP(C).NO.8249 OF 2015(E)** 6 petitioners were revised in tune with the direction contained in Ext.P8 judgment and the said promotion is in accordance with law as by way of revision, petitioners have been granted promotion with effect from the date of completion of their probation. 6. On consideration of the contentions on either side I find it necessary to have a look at Rule 28(a) of KS&SSR, 1958, which reads as follows: 28(a) **Promotion** .-(i) Except in the case of appointment to the posts of Heads of Departments no member of a service or class of a service shall be eligible for promotion from the category in which he was appointed to the service unless he has satisfactorily completed his probation in that category: Provided that a probationer in a class, category or grade shall not be superseded for promotion to a higher class, category or grade by his junior, if the vacancy in the higher class, category or grade arises within the period specified in the Special Rules for completion of probation in the class, category or grade in which he is probationer and if he has passed the test or tests prescribed for successful completion of probation and is otherwise eligible and suitable for such promotion; but his promotion shall be subject to the condition that he satisfactorily completes the probation in the class, category or grade from which he was promoted within the period prescribed therefore, and for this purpose the period of service put in by him in the higher class, category or grade shall be **WP(C).NO.8249 OF 2015(E)** 7 reckoned towards probation in the class, category or grade from which he was promoted and also in the class, category or grade to which he was promoted. Provided further that if a probationer promoted in pursuance of the above proviso fails to complete his probation in the class, category or grade from which he was promoted within the period prescribed therefor, his probation in the higher class, category or grade shall be terminated and he shall be reverted to the class, category or grade from which he was promoted, and any subsequent promotion of such person to the higher class, category or grade shall not also entitle such person to claim seniority in the higher class, category or grade by reason only of his previous promotion in pursuance of the preceding proviso and he shall commence probation afresh in that class, category or grade from the date of such subsequent promotion. 7. The proviso to Rule 28(a) which was relied on by the learned counsel applies only in a case where a senior probationer is superseded by a junior. There is no such circumstance in the present case. Admittedly the date of their declaration of probation were 13.04.1994, 25.04.1994, 06.04.1994, 06.04.1994, 20.04.1994 and 15.04.1994 respectively, on completion of two years. Petitioners do not have a case that any of their **WP(C).NO.8249 OF 2015(E)** 8 juniors became test qualified before them or that the probation of any of their juniors were declared prior to the dates from which their probation was declared. The period of probation prescribed for an LDC is 2 years from the date of joining and they should have acquired test qualification for the purpose of promotion. Just because the petitioners acquired the test qualification even before they completed the period of probation that does not mean that they have become eligible for promotion. 8. Under Rule 28(a) of KS&SSR, successful completion of probation is the pre-requisite for promotion to any post except that of Head of the Department. In the light of the aforesaid provision, petitioners have become eligible for promotion only on completion of probation. 9. The judgment of the Division Bench in **P.Devaki** 's case (supra) relied on by the petitioner does not have any relevance to the factual **WP(C).NO.8249 OF 2015(E)** 9 circumstances of the present case. It was a case where it was found that the 3[rd] respondent in that case was not even entitled to the benefit of the proviso to Rule 28(a), since the vacancy arose after the prescribed period of probation and at that time her junior-the appellant was already test qualified. This Court held that the appellant therein who was test qualified had got her probation declared by the time the vacancy arose whereas the 3[rd] respondent therein got it declared much thereafter. At any rate no proposition is laid down therein to the effect that promotions can be granted before completing the period of probation contrary to Rule 28(a) of KS&SSR. Therefore, there is nothing wrong in Ext.P7 or in Ext.P9. 10. The next contention is regarding the recovery of excess pay. It is pointed out that petitioners have retired from the post of Divisional Accountants, Junior Superintendents, etc. Therefore **WP(C).NO.8249 OF 2015(E)** 10 the judgment in **State of Punjab and Others v. Rafiq Masih (White Washer) and Others** [2005 (4) SCC 334] would not apply in the case of the petitioners. Therefore petitioners are liable to refund the excess pay drawn by them. The respondents shall see that the recovery is made in easy instalments. In the result the writ petition is dismissed. Sd/- **P.V.ASHA, JUDGE.** AS **WP(C).NO.8249 OF 2015(E)** 11 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE FIRST COMMON ORDER DATED 11.04.1994 OF PROMOTION ISSUED TO THE PETITIONERS AND OTHERS.** **EXHIBIT P2(A) TRUE COPY OF THE RELEVANT PAGES OF THE ORDER DATED 13.08.2008.** - **EXHIBIT P(B) TRUE COPY OF THE RELEVANT PAGES OF THE ORDER DATED 28.10.2008.** - **EXHIBIT P3 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C) 22997/2005.** **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 12.05.2009 PERMITTING THE PROMOTEES UNDER EXHIBIT P2 SERIES TO GIVE FRESH OPTIONS.** - **EXHIBIT P5 TRUE COPY ORDER DATED 28.10.2013. EXHIBIT P6 TRUE COPY OF ONE SUCH REPRESENTATION GIVEN BY 1ST PETITIONER.** - **EXHIBIT P7 TRUE COPY OF THE RELEVANT PAGES OF THE ORDER DATED 01.01.2014.** - **EXHIBIT P8 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C)24198/2009.** - **EXHIBIT P9 TRUE COPY ORDER DATED 05.01.2015. EXHIBIT P10(A) TRUE COPY OF REPRESENTATION BY FIRST PETITIONER.** - **EXHIBIT P10(B) TRUE COPY OF REPRESENTATION BY SECOND PETITIONER.** - **EXHIBIT P10(C) TRUE COPY OF REPRESENTATION BY THIRD PETITIONER.** - **EXHIBIT P10(D) TRUE COPY OF REPRESENTATION BY FOURTH** **WP(C).NO.8249 OF 2015(E)** 12 **PETITIONER.** **EXHIBIT P10(E) TRUE COPY OF REPRESENTATION BY FIFTH PETITIONER. EXHIBIT P10(F) TRUE COPY OF REPRESENTATION BY SIXTH PETITIONER.**