Saffeeq M.P v. Kerala Water Authority and others

W.P.(C).No.20069/2020 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 13[TH] DAY OF AUGUST 2021 / 22ND SRAVANA, 1943 WP(C) NO. 20069 OF 2020** ## **PETITIONER:** SAFFEEQ M.P AGED 44 YEARS S/O. MUHAMMED M.P. PRESENTLY WORKING AS U.D. CLERK, DISTRIBUTION SUB DIVISION-1, KERALA WATER AUTHORITY, WEST HILL, KOZHIKKODE, PIN - 673005, RESIDING AT PUTHIYARAKKAL, M.I.E., KUNNAMANGALAM P O, KOZHIKODE - 673571. BY ADVS. R.RENJITH SRI.M.T.SURESHKUMAR ## **RESPONDENTS:** 1 KERALA WATER AUTHORITY JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695033, REPRESENTED BY ITS MANAGING DIRECTOR. 2 THE MANAGING DIRECTOR, KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695033. 3 THE CHIEF ENGINEER H.D.R. AND GENERAL, KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695033, W.P.(C).No.20069/2020 2 - 4 THE EXECUTIVE ENGINEER QUALITY CONTROL DIVISION, KERALA WATER AUTHORITY, MALAPPARAMBU P.O, KOZHIKODE, PIN - 673009. - 5 THE ASSISTANT EXECUTIVE ENGINEER DISTRIBUTION SUB DIVISION - I, KERALA WATER AUTHORITY, WEST HILL, KOZHIKODE, PIN - 673005. - 6 THE FINANCE MANAGER AND CHIEF ACCOUNTS OFFICER KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695033 BY ADV SRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.07.2021, THE COURT ON 13.08.2021 DELIVERED THE FOLLOWING:- W.P.(C).No.20069/2020 3 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = =** ## **W.P.(C).No.20069 of 2020.** **= = = = = = = = = = = = = = = = Dated this the 13[th] day of August, 2021** ## **JUDGMENT** - 1.This writ petition is filed seeking the following reliefs:- “i.Issue a writ in the nature of mandamus commanding the respondents to disburse Rs.1,17,274/- to the petitioner with interest at the rate of 8% from 13.6.2018 till the date of payment. ii.Issue a writ in the nature of mandamus commanding the respondents to take steps to recover the loss caused to the Water Authority on account of payment of interest to the petitioner , from the erring officials.” - 2.Heard the learned counsel for the petitioner and the learned standing counsel appearing for the respondents. - 3.The contention of the petitioner is that he is entitled to arrears - of salary in the post of U.D. Clerk in the Kerala Water Authority on account of the reassignment of his promotion as such. It is submitted that the petitioner had entered service as W.P.(C).No.20069/2020 4 L.D.Clerk on 7.2.2006. There were several vacancies of U.D.Clerks remaining unfilled. Moreover, on account of the delay in implementing the revised pay, the petitioner suffered loss in his emoluments. He had, therefore, preferred Exhibit P1 representation dated 30.11.2009 seeking promotion and refixation of pay. Later by order dated 26.8.2011, the petitioner was promoted as U.D.Clerk. Though further representations were submitted seeking retrospective promotion, no orders were passed. The petitioner, therefore, approached this Court filing W.P.(C).No.6354/2012. By Exhibit P4 judgment dated 14.3.2012, the writ petition was disposed of directing the respondents to consider the grievance of the petitioner and to pass orders thereon. Ext.P5 order was passed on 1.1.2014 reassigning the petitioner's date of promotion as UDC on 1.11.2008. The petitioner again approached the respondents with Exhibit P6 request seeking disbursal of arrears on account of notional promotion w.e.f. 1.11.2008. Since no action was taken on Exhibit P6, W.P.(C).No.25428/2014 was filed by the petitioner. By Exhibit P7 judgment, this Court again directed the consideration of the representation. W.P.(C).No.20069/2020 5 Exhibit P8 further representation was submitted requesting disbursal of an amount of Rs.1,23,275/- to the petitioner as arrears. It is submitted that Exhibit P9 arrear fund request for an amount of Rs.1,17,274/- had been re-submitted by the 4[th] respondent on 6.3.2018 and the amount was duly sanctioned by Exhibit P10. It is further contended by the petitioner that identically situated persons had been granted the arrears of salary on account of the revision of date of promotion and that the refusal on the part of the respondents to grant the benefits to the petitioner is completely untenable. 4.A statement has been placed on record by the respondents. It is submitted therein as follows:- “ 1. It is respectfully submitted that the petitioner joined duty in Kerala Water Authority as L.D. Clerk on 17.2.2006. He was promoted as U.D. Clerk by order dated 26.8.2011 with effect from the date of order. By order dated 1.1.2014, his promotion was reassigned to 1.11.2008. 2. It is submitted that the petitioner is entitled for monetary benefit as reassignment arrears which is governed by GO[P]No.515/07/FIN dated 19.10.2007, which reads as follows:-Retrospective effect to promotion not involving change of duties. Government have examined the matter in detail and are pleased to order that in cases W.P.(C).No.20069/2020 6 of promotions which do not involve a change of duties, the promotions will have notional effect from the date of occurrence of vacancy or the date of acquiring eligibility for promotion as the case may be, but monetary benefit will be admissible only for a maximum period of one year prior to the date of order of promotion. 3. It is humbly submitted that the petitioner is eligible for monetary benefit only for a period of one year.” - 5.A reply affidavit has also been placed on record and documents produced to show that an identically situated person had been granted the arrears. The learned counsel for the petitioner would submit that since the petitioner had been granted promotion w.e.f. 1.11.2008, the arrears of salary are also due to be calculated and disbursed to the petitioner. It is contended that the amounts had been made available by Exhibit P10 and the refusal to pay the amounts to the petitioner is illegal and unsustainable. - 6.The learned counsel for the petitioner places reliance on decisions of this Court in **Valsala Kumari Devi M v. State of Kerala and others** [2011 (3) KLT 549], **Rajappan Nair v. State of Kerala** [1984 KLT 141] and of the Apex Court in W.P.(C).No.20069/2020 7 ## **State of Kerala and others v. E.K.Bhaskaran Pillai** [ 2007 (2) KHC 972] . It is submitted that in cases where promotion is wrongly denied to a person, the principle of ' no work no pay' has no application and that the petitioner would be eligible for the benefits of arrears of salary for the period during which the promotion was wrongly denied. 7.I have considered the contentions advanced. The specific contention of the petitioner is that since promotion had been wrongly denied to him, he is entitled to all the monetary benefits when the promotion is ultimately granted. At the first instance I notice that the two judgments which have been rendered by this Court in the petitioner's case, which are Exhibits P4 and P7 respectively, do not contain any finding that promotion had been wrongly denied to the petitioner. The two judgments only directed a consideration of the petitioner's representations without going into the merits of the case. Exhibit P5 is the order by which the promotion had been granted to the petitioner from an earlier date. It is apparent from a reading of Exhibit P5 that the reassignment of W.P.(C).No.20069/2020 8 promotion was in compliance with the direction in the judgments of this Court in other writ petitions to which the petitioner does not claim to have been a party. It is, therefore, clear that there were pending disputes with regard to the assignment of seniority and the filling up of posts of Upper Division Clerks in the Kerala Water Authority. It is apparent that pursuant thereto, an exercise to identify the number of posts and the vacancies available for promotion had been undertaken by the authority and the eligible incumbents were granted notional promotions taking note of the available vacancies. The petitioner had repeatedly approached the respondents seeking the release of amounts due to him. He had pointed out that another officer by name Subhashini P had been granted an amount of Rs.1,72,000/- as arrears of pay. Reliance is also placed on Exhibits P9, P10 and P11 to contend that the arrears due to the petitioner had been calculated and the petitioner's eligibility had been found. However, it is apparent that no orders had been issued to release the amounts due to the petitioner, since it was found that the arrears with regard to only one year is liable to be disbursed W.P.(C).No.20069/2020 9 to the petitioner in terms of Rule 23(c) of Part 1 KSR. It is specifically submitted by the learned standing counsel appearing for respondents that the amounts admissible under Rule 23(c) of Part I KSR had already been disbursed to the petitioner. - 8.Having considered the contentions advanced on either side, I find that the promotion granted to the petitioner was only a notional promotion and the order did not refer any retrospectivity to the promotion or payment of the arrears on account of the same. The judgments of this Court in Exhibits P4 and P7 also did not contain any finding to the effect that the due promotion had been wrongly denied to the petitioner in time. - 9.In the above view of the matter, the reliance placed by the petitioner on the decisions of this Court and the Apex Court is not justified in as much as there was no finding that the promotion to which the petitioner was eligible had been denied to him on account of the action of the respondents. W.P.(C).No.20069/2020 10 Rule 23(c) of Part I KSR specifically provides that arrears shall be limited to one year. The said benefits have, admittedly, been released to the petitioner as well. In the absence of any finding to the effect that the promotion had been wrongly denied to the petitioner, I am of the opinion that the petitioner cannot, as a matter of right, claim that a notional promotion granted to him should carry arrears of pay for the entire period as well. The mere fact that another officer had been wrongly granted the benefits by itself will not be a reason to hold that the petitioner is entitled to the benefits as well. In the result, the prayers sought for cannot be granted. The writ petition fails and the same is accordingly dismissed. **==> picture [25 x 12] intentionally omitted <==** **Anu Sivaraman, Judge** sj W.P.(C).No.20069/2020 11 ## **APPENDIX OF WP(C) 20069/2020** PETITIONER EXHIBITS |EXHIBIT P1|TRUE PHOTOSTAT COPY OF THE| |---|---| ||REPRESENTATION DATED 30.11.2009| ||SUBMITTED BY THE PETITIONER BEFORE THE| ||2ND RESPONDENT.| |EXHIBIT P2|TRUE PHOTOSTAT COPY OF THE| ||REPRESENTATION DATED 3.3.2011 SUBMITTED| ||BY THE PETITIONER BEFORE THE 2ND| ||RESPONDENT.| |EXHIBIT P3|TRUE PHOTOSTAT COPY OF THE| ||REPRESENTATION DATED 5.09.2011 SUBMITTED| ||BY THE PETITIONER BEFORE THE 2ND| ||RESPONDENT.| |EXHIBIT P4|TRUE PHOTOSTAT COPY OF THE JUDGMENT| ||PASSED BY THIS HON'BLE COURT ON| ||14.03.2012 IN WPC NO.6354.2012.| |EXHIBIT P5|TRUE PHOTOSTAT COPY OF THE ORDER| ||NO.KWA/JB/E9/3947/2013 DATED 1/1/2014| ||PASSED BY THE 3RD RESPONDENT.| |EXHIBIT P6|TRUE PHOTOSTAT COPY OF THE| ||REPRESENTATION DATED 08.1.2014 SUBMITTED| ||BY THE PETITIONER BEFORE THE 2ND| ||RESPONDENT.| |EXHIBIT P7|TRUE PHOTOSTAT COPY OF THE JUDGMENT| ||PASSED BY THIS HON'BLE COURT ON| ||10.10.2014 IN WPC NO.25428/2014.| |EXHIBIT P8|TRUE PHOTOSTAT COPY OF THE| ||REPRESENTATION DATED 17.10.2017| ||SUBMITTED BY THE PETITIONER BEFORE THE| ||2ND RESPONDENT.| W.P.(C).No.20069/2020 12 EXHIBIT P9 - TRUE PHOTOSTAT COPY OF THE LETTER DATED 6.3.2018 SUBMITTED BY THE 4TH RESPONDENT TO THE 6TH RESPONDENT. - EXHIBIT P10 TRUE PHOTOSTAT COPY OF THE REFERENCE SHEET SHOWING THAT RS.1,17,274/- WAS SANCTIONED TO THE PETITIONER. - EXHIBIT P11 TRUE PHOTOSTAT COPY OF THE REPLY DATED 13.03.2020 GIVEN BY THE PUBLIC - INFORMATION OFFICER, QUALITY CONTROL DIVISION, KERALA WATER AUTHORITY, KOZHIKODE TO THE PETITIONER. - EXHIBIT P12 TRUE PHOTOSTAT COPY OF THE COMMUNICATION NO. HC 202/2014 DATED 15.09.2020 ISSUED BY THE 4TH RESPONDENT TO THE 6TH RESPONDENT. - EXHIBIT P13 TRUE PHTOTOSTAT COPY OF ORDER NO.KWA/JB/E9/9000/99.VOL.II DATED 26/8/2011 PASSED BY THE SENIOR ADMINISTRATIVE OFFICER OF THE WATER AUTHORITY EXHIBIT P14 TRUE PHOTOSTAT COPY OF THE CHART THAT SHOWS THE NAME OF THE PETITIONER IN EXHIBIT P5 True copy PS to Judge