T. V. Gopalan v. State of Kerala, Kerala Water Authority and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **SATURDAY, THE 3RD DECEMBER 2011 / 12TH AGRAHAYANA 1933 WP(C).No. 18019 of 2006(T) --------------------------** **PETITIONER(S):** **--------------** **T.V.GOPALAN, S/O. CHEKKINI NAIR, THAZHATHUVEETIL, NADUVANNUR P.O., CALICUT - 673 614.** **BY ADV. SRI.THOMAS ANTONY** **RESPONDENT(S):** **--------------** **1. STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, WATER RESOURCES (W S-B) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE KERALA WATER AUTHORITY, REPRESENTED BY ITS MANAGING DIRECTOR, THIRUVANANTHAPURAM.** **3. THE EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, WATER P.H.DIVISION, VADAKARA, QUILANDY.** **R1 BY GOVT. PLEADER R2 & R3 BY ADV. SMT. AMBIKA DEVI, SC, KWA ADV. SRI.SAJAN MANNALI, SC KWA SRI.J.KRISHNA KUMAR, SC, KWA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BKA** ## **WP(C).No. 18019 of 2006(T)** ## **APPENDIX** ## **PETITIONER'(S) EXHIBITS:** |**EXT.P1**|**THE ADDITIONAL COUNTER AFFIDAVIT FILED BY THE 2ND**| |---|---| ||**RESPONDENT IN OP NO.3477/1992 DATED 19.11.1994.**| |**EXT.P2**|**TRUE COPY OF THE JUDGMENT IN OP NO.3477/1992 DATED**| ||**28.03.1996.**| |**EXT.P3**|**COPY OF THE PROCEEDINGS OF THE DEPUTY CHIEF ENGINEER**| ||**OF THE 2ND RESPONDENT DATED 18.06.1992.**| |**EXT.P4**|**COPY OF THE REPRESENTATION OF THE PETITIONER DATED**| ||**17.03.1995.**| |**EXT.P5**|**COPY OF THE REPRESENTATION DATED 10.09.1996 SENT BY**| ||**THE PETITIONER TO THE 2ND RESPONDENT THROUGH PROPER**| ||**CHANNEL.**| |**EXT.P6**|**COPY FO THE LETTER OF THE 2ND RESPONDENT DATED**| ||**08.04.1997 REJECTING THE CLAIM OF THE PETITIONER.**| |**EXT.P7**|**COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF**| ||**KERALA IN OP NO.14140/87 DATED 26.09.1997.**| |**EXT.P8**|**COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED**| ||**14.02.2000.**| |**EXT.P9**|**COPY OF THE PETITION FILED BY THE PETITIONER TO THE**| ||**2ND RESPONDENT THROUGH PROPER CHANNEL DATED**| ||**04.08.2000.**| |**EXT.P10**|**COPY OF THE ORDER OF THE AQSSISTANT ENGINEER QUILANDY**| ||**DATED 09.01.2001.**| |**EXT.P11**|**COPY OF THE LETTER OF THE MANAGING DIRECTOR DATED**| ||**29.08.2003 ADDRESSED TO THE 1ST RESPONDENT.**| |**EXT.P12**|**COPY OF THE ORDER OF THE 1ST RESPONDENT DATED**| ||**16.11.2000.**| |**EXT.P13**|**COPY OF THE JUDGMENT IN OP NO.2548/2001 DATED**| ||**27.03.2006.**| ## **WP(C).No. 18019 of 2006(T)** **EXT.P14 COPY OF the ORDER OF THE 1ST RESPONDENT DATED 16.06.2006. EXT.P15 COPY OF THE LETTER NO.KWA/AO(ESTT.)/PEN.5469/14378 ISSUED BY the FINANCE MANAGER & CHIEF ACCOUNTS OFFICER OF KWA TO THE PH DIVISION VADAKARA. EXT.P16 COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND AND 3RD RESPONDENTS IN OP NO.2548/2001 C DATED 21.03.2006.** ## **RESPONDENT'(S) EXHIBITS: NIL** **//TRUE COPY// PA TO JUDGE** ## **BKA** ## **S. SIRI JAGAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.18019 of 2006** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 3[rd] day of December, 2011** ## **J U D G M E N T** The petitioner worked as a CLR Assistant Operatorcum-Cleaner in the Public Health Section of the erstwhile Public Health Engineering Department of the Government of Kerala, on 27.12.1982. On 1.4.1984 the Kerala Water Authority was constituted under Section 3 (1) of the Kerala Water Supply and Sewerage Act, 1986. By virtue of Section 19 of the said Act, employees under the Public Health Engineering Department became employees of the Water Authority. On 30.01.1987 the Authority resolved to recommend to the State Government regularisation of the service of the persons recruited by the Public Health Engineering Department who are still working under the Authority. By virtue of those orders the petitioner was entitled to continue in the service of the Water Authority. But his services were not continued and he happened to be ## W.P.(C)No.18019 of 2006 **-2-** disengaged from service in May, 1987. As per Circular dated 19.8.1987, the Water Authority decided that all labourers who were engaged on CLR basis prior to 1.4.1984 and subsequently engaged on hand receipt basis are to be allowed to continue on CLR basis in the Kerala Water Authority. Later on, by Ext.P3 order dated 18.6.1992, the petitioner was re-engaged as a CLR Pump Operator in the Kerala Water Authority. By Ext.P4 representation, the petitioner requested for regularisation of his service retrospectively. By Ext.P2 judgment in O.P. No.3477/1992, this Court recorded the submission of the Water Authority that the petitioner's services have already been regularised. By Ext.P5 representation, the petitioner again sought retrospective regularisation. By the judgment in O.P.No.18575/1996 the Managing Director of the Water Authority was directed to consider the representation of the petitioner. The petitioner's representation was rejected by Ext.P6 order, which was challenged by the petitioner in O.P. No.14140/1997. That Original Petition was disposed of recording the submission of the Water Authority that action W.P.(C)No.18019 of 2006 **-3-** was being taken to regularise the service of the petitioner along with that of others. By Ext.P8, the petitioner's service was regularised with effect from 1.1.1994. Therein it was directed that the salary of the petitioner would be fixed in the minimum of the NMR pay scale. In accordance with same, arrears of salary was paid to the petitioner on 05.05.2000. On 4.8.2000, the petitioner filed a representation seeking regularisation retrospectively with effect from 1.4.1984, which is the date on which his juniors were regularised in service. While so, by Ext.P10, the petitioner was intimated that the petitioner is not entitled to the monetary benefits with effect from 1.01.1994, and he is entitled to the same only with effect from 25.1.2000. He was also directed to refund an amount of Rs.1,48,841/allegedly drawn as excess. In the meanwhile, by Ext.P12 dated 16.11.2000, the Government requested the Water Authority to furnish clarification on certain aspects relating to the claim of the petitioner. By Ext.P11, the Water Authority informed the Government that the petitioner was entitled to be regularised with effect from 1.4.1984 and it ## W.P.(C)No.18019 of 2006 **-4-** was not because of any fault on the part of the petitioner that he was not so regularised. Since nothing happened the petitioner again approached this Court by filing O.P.No.2548/2001. This Court disposed of the same by Ext.P13 judgment directing the State Government to take a decision on the petitioner's claim. While so, the petitioner retired from service on 31.5.2006. By Ext.P14 order dated 16.6.2006 the Government declined the request of the petitioner for regularisation with effect from 1.4.1984. Ext.P14 is under challenge in this writ petition. On 25.11.2006 the petitioner was again directed by Ext.P15 letter to refund the amount of Rs.1,48.842/-. The petitioner seeks the following reliefs: - “i) issue a writ of certiorari for quashing Exts.P6, P10 and P14 orders of the respondents. - ii) issue a writ of mandamus to the 1[st] and 2[nd] respondents to consider the case of the petitioner and to regularize him in the service with effect from 1.4.1984 following the finding in Ext.P11 and P12.” 2. A counter affidavit has been filed by the ## 1[st] respondent supporting Ext.P14. 3. I have considered the rival contentions in detail. 4. The question of regularisation of service of the W.P.(C)No.18019 of 2006 **-5-** employees of the Kerala Water Authority was finally decided by the Hon'ble Supreme Court in **Jacob v. Kerala Water Authority [1990 (2) KLT 673]** . In paragraph 13 of that judgment it was stated thus: “13. From the pleadings in this case one thing that clearly emerges is that the Authority had taken a decision on 30th January, 1987 to regularise the services of those who were employed by the erstwhile PHED and whose services stood transferred to the Authority by the thrust of the statute. According to the resolution extracted earlier, the Authority recommended to the State Government that the services of the employees recruited in the erstwhile PHED and who continued to work on the establishment of the Authority should be regularised. The learned counsel for the State Government contended that since these employees were now borne on the establishment of the Authority on the statutory transfer of their services, it was for the Authority to regularise their services, and it was quite unnecessary to make a recommendation to the State Government in that behalf. To put it differently, the stand of the State Government through its counsel is that the question of regularisation of the services of ex-PHED employees now borne on the establishment of the Authority is exclusively within the purview of the Authority and the State Government has no role to play. That means it was wholly unnecessary on the part of the Authority to make the recommendation it made by the resolution of 30th January, 1987 to the State Government for the regularisation of the ex-PHED employees serving on its establishment on that date. To us the position, therefore, appears crystal clear that it is for the Authority and the Authority alone to regularise the services of such employees without waiting for a nod from the State Government. The sphinx-like silence on the part of the State Government for now over three years from the date of the resolution is indeed disturbing and betrays total lack of concern for this pressing human problem.” Going by that decision, the decision as to regularisation of service of the employees is the province of the Water Authority and Water Authority alone and the Government cannot interfere with the same. ## W.P.(C)No.18019 of 2006 **-6-** 5. The question of eligibility of the petitioner for regularisation in service was considered by the Kerala Water Authority in Ext.P11 and by Ext.P11 the Water Authority categorically recommended that the petitioner is entitled to be absorbed with effect from 1.4.1984 to the post of Operator. It was recommended thus in Ext.P11: “In the above circumstances salary orders may be issued to absorb Sri. T.V. Gopalan as operator with effect from 1.4.1984 as per Government Order 5/91/LAD dated 5.1.1991 with monetary benefit with effect from 20.6.1992 only, ie, the date of his reengagement.” In view of that recommendation and the judgment in Jacob's case (supra) quoted above, the Government has no option but to accept the said recommendation since the Kerala Water Authority who according to the Supreme Court was the authority to finally decide on the question of regularisation of service of its employees had categorically held that the petitioner is entitled to absorption with effect from 1.4.1984. Therefore Ext.P14 order of the Government which refuses to accept Ext.P11 recommendation of the Water Authority is clearly unsustainable. Accordingly Ext.P14 is quashed. In view of the same, I hold that the W.P.(C)No.18019 of 2006 **-7-** petitioner is entitled to be notionally regularised in service with effect from 1.4.1984. The petitioner's retirement benefits shall be notionally fixed taking into account his entire service with effect from 1.4.984 for the purpose of retirement benefits. The petitioner shall be paid future pension based on that calculation with effect from 1.12.2011. That means, the petitioner is not entitled to arrears of salary or arrears of retirement benefits up to 30.11.2011. But the amount of Rs.1,48,842/- already paid to the petitioner cannot be recovered from the petitioner. It is declared so. The 2[nd] respondent shall pass orders in implementation of the above directions, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/