The Chief Engineer, Irrigation Department, IDRB v. Vijayakumari P.S.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR** **FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932** **WP(C).No. 15495 of 2009(F)** **----------------------------------------** **WRIT PETITIONER/1ST RESPONDENT.** **------------------------------------------------------** **THE CHIEF ENGINEER, IRRIGATION DEPARTMENT, IDRB, VIKAS BHAVAN, THIRUVANANTHAPURAM.** **BY GOVT. PLEADER** ## **RESPONDENT/PETITIONER** **----------------------------------------** **VIJAYAKUMARI. P.S, R.V. HOUSE, PARANIYAM, POOVAR.P.O - 695 525.** **BY ADV. SRI.MANJU ANTONEY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/02/2010,THE COURT ON 01/10/2010 DELIVERED THE FOLLOWING:** ## **WP(C) NO. 15495/2009-F** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE NOTIFICATION DATED 27/02/2007.** **EXT.P2: COPY OF THE CIRCULAR DATED 16/06/2007.** **EXT.P3: COPY OF THE G.O.NO.78/08/FIN. DATED 11/02/2008.** **EXT.P4: COPY OF THE REQUEST DATED 16/08/2007.** **EXT.P5: COPY OF THE ORDER IN COMPLAINT NO.1210/2008.** ## **RESPONDENT'S EXHIBITS:** **EXT.R1: COPY OF THE ORDER/LETTER DATED 26/9/2007 ISSUED BY ADDITIONAL CHIEF SECRETARY FINANCE DEPARTMENT.** **EXT.R2: COPY OF THE ORDER DATED 06/11/2007 PASSED BY THE EXECUTIVE ENGINEER, PWD DEPARTMENT.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** **rs.** ## **C.T.RAVIKUMAR, J.** ---------------------------- W.P.(C)No.15495 of 2009 ---------------------------Dated 1[st] October, 2010 ## **JUDGMENT** The writ petitioner was the respondent in Complaint No.1210/2008 before the Kerala Lok Ayukta and the complainant therein is the respondent herein. The respondent retired from service on 31.1.2007 while working as LD Typist (Selection Grade) in the District Panchayat Office, Palakkad. The contentions of the petitioner are as hereunder:- In terms of Rule 86 of Part I of the Kerala Service Rules (for short `KSR'), an officer not in permanent employ would be eligible for earned leave in respect of the first year of service, for 1/22 of the period spent on duty. The benefit of the said rule was granted to the respondent. After her retirement from service, Ext.P1 notification was issued amending Rule 86A of Part I of KSR as hereunder:- _“86A. Notwithstanding anything contained in Rules, 84, 86, 88(ii) and 90, an officer not in permanent employ who has completed three years of continuous service shall be eligible for (i) commuted leave, (ii) earned leave and (iii) leave without allowances as would be admissible to him if he had held his post substantively.”_ In Rule 1(2) thereunder it reads thus:- _“They shall come into force at once.”_ WP(C).No.15495/2009 2 Thus, going by Ext.P1, the said amendment would not fetch any benefit to retired employees like the petitioner. Later, a clarification was issued as per Ext.P2 circular on 16.6.2007, to the effect that retired employees are also eligible for the benefit of the modified rule. The respondent has submitted an application on 16.8.2007 seeking the benefit of recasting the earned leave in the light of Ext.P2 circular. In the meanwhile, considering the fact that a large number of retired employees had submitted applications for recasting their earned leave and it would result in huge financial burden, the Government have issued Ext.P3 order cancelling Ext.P2 circular and restricting the benefit of recast of earned leave to those pensioners who retired on or after 27.2.007. Accordingly, Ext.P2 circular was cancelled with effect from the date of its issue viz., from 16.6.2007 itself. According to the petitioner, as per Ext.P1 amendment to Rule 86A of Part I of KSR, the respondent, being an employee who retired from service prior to the coming into force of Ext.P1 amendment, was not entitled to get the benefit of Ext.P1. When that be the position, the mere fact that Ext.P1 was modified by a circular dated 16.6.2007 would not and could not make the respondent entitled to get the benefit of Ext.P1, it is contended. In fact, it was alleging inaction to recast her earned leave in terms of Exts.P1 and P2 that the respondent has preferred the WP(C).No.15495/2009 3 above mentioned complaint before the Lok Ayukta. Ext.P5 is the order passed by the Upa-Lok Ayukta in the above complaint on 29.4.2009. It is challenging the said order that this writ petition has been filed. 2. Ext.P2 has been challenged on various grounds. Firstly, it is assailed on the ground that in view of Section 8(1) of the Kerala Lok Ayukta Act read with Clause (d) of the second schedule to the Kerala Lok Ayukta Act (for short `the Act'), Upa-Lok Ayukta was lacking jurisdiction to entertain Complaint No.1210/2008. It is contended that as per Ext.P5 the Upa-Lok Ayukta held the cancellation of Ext.P2 circular as unreasonable. Further, it is contended that as per Ext.P5, the Upa-Lok Ayukta directed the petitioner to extent the benefit of Ext.P2 circular to the respondent and to disburse the leave salary as per the said circular despite the fact that by that time Ext.P2 circular was cancelled by the Government and in its place Ext.P3 has been substituted. That apart, it is contended that since the respondent's application was defective it could not have been processed and allowed. As long as Exts.P1 and P3 are in force, being a Government servant, the petitioner was bound to follow the said circulars. Therefore, action taken in accordance with such circulars should not have been construed as amounting to maladministration. WP(C).No.15495/2009 4 3. A counter affidavit has been filed by the respondent in this writ petition to support and sustain Ext.P5 order. It is obvious from the counter affidavit that the contention of the respondent is that the action on the part of the petitioner as also the Government are illegal, unreasonable and arbitrary. Evidently, the respondent has grievance with respect to Ext.P3 as Ext.P2 was cancelled with effect from the very date of its issuance. Along with the counter affidavit the respondent has produced Exts.R1 and R2 which are respectively the orders dated 16.9.2007 and 6.11.2007 passed respectively by the Additional Chief Secretary, Finance Department and the Executive Engineer, Public Works Department. As per Ext.R1, it was made clear that all retired Government employees are entitled to the benefit irrespective of the date of retirement. As per Ext.R2, one Sri.S.Soman Pillai was allowed to surrender the balance portion of the earned leave after recasting the leave account from 1/22 to 1/11. According to the respondent, she had filed an application to get the benefits of Exts.P1 and P2 on 27.3.2007. The petitioner herein had not taken appropriate action thereon in accordance with the provisions and therefore, there was maladministration on the part of the petitioner. 4. In the context of the contentions it is relevant to refer to ground `B' of the writ petition and the same reads thus:- WP(C).No.15495/2009 5 - _“B. By order dated 24.3.2009 in Complaint No.1104/2008 a Bench consisting of the Lok Ayukta and Upa Lok Ayukta had, in an identical case held that the Lok Ayukta Act did not confer jurisdiction to decide a question of eligibility for Earned Leave.”_ Though a counter affidavit has been filed, the said position as obtained in view of ground `B' was not disputed. 5. Now, I may deal with the contention regarding the jurisdiction. As already noticed, the contention of the petitioner is that in view of Section 8(1) of the Act read with Clause (d) of the second schedule to the Act Upa-Lok Ayukta lacks jurisdiction to subject complaints involving grievance relating action taken in respect of appointment, removal, pay, discipline, superannuation or other matters relating to the conditions of service of public servants to investigation. Therefore, the issue to be decided is whether the grievance admittedly involved in the complaint filed by the respondent before the Lok Ayukta is outside the purview of the Lok Ayukta or UpaLok Ayukta. It is common case that the grievance of the respondent raised as per Complaint No.1210/2008 was relating to the failure/omission on the part of the petitioner in recasting her earned leave in terms of Exts.P1 and P2 despite the receipt of application in the prescribed form, as early as on 27.3.2007. 6. Section 2(a) of the Act defines the term “action”. It WP(C).No.15495/2009 6 reads thus:- _“2.(a) “action” means any action including administrative action taken by way of decision, recommendation or finding or in any other manner and includes willful failure or omission to act and all other expressions relating to such action shall be construed accordingly.”_ Evidently, a failure/omission to act would also be (action for the purpose of the Act) in terms of the above definition. Therefore, the question is whether the failure/omission on the part of the petitioner in recasting the earned leave in terms of Exts.P1 and P2 could have been subjected to investigation by Upa-Lok Ayukta in terms of the provisions referred above. Section 8(1) of the Act and Clause (d) of the second schedule to the Act are relevant for the purpose of deciding the issue. They read thus:- _“_ _**8. Matters not subject to investigation** :- (1) Except as hereinafter provided, the Lok Ayukta or an Upa-Lok Ayukta shall not conduct any investigation under this Act, in the case of a complaint involving a grievance in respect of any action, if such action relates to any matter specified in the Second Schedule._ _**Second Schedule** (d) Action taken in respect of appointment, removal, pay, discipline, superannuation or other matters relating to conditions of service of public servants but, not including actions relating to claims for pension, gratuity, provident fund or to any claims which arises on retirement, removal or termination of service.”_ WP(C).No.15495/2009 7 Going by Clause (d), action taken in respect of appointment, removal, pay, discipline, superannuation or other matters relating to conditions of service of public servants is outside the purview of Lok Ayukta or Upa-Lok Ayukta. (See also the decision of this Court in _**Kamalu**_ v. _**State of Kerala**_ (2000 (3) KLT 227) . There cannot be any doubt that the provisions under Rule 86A of Part I of KSR is a matter relating the conditions of service of public servants. Ext.P1 is an amendment brought into Rule 86A of Part I of KSR and the same was clarified as per Ext.P2. Invariably, Exts.P1 and P2 are thus matters relating to the conditions of service of public servants. As already noticed, the grievance of the respondent is regarding the failure/omission on the part of the petitioner in recasting the earned leave. The above discussion would undoubtedly show that the grievance raised in Complaint No.1210/2008 was one touching the action relating to the conditions of service and thereby in the light of Section 8(1) of the Act and Clause (d) of second schedule to the Act I have no hesitation to hold that the said grievance was one outside the purview of the jurisdiction of Lok Ayukta and Upa-Lok Ayukta. When such a conclusion is arrived at, Ext.P5 is liable to be set aside. Accordingly, Ext.P5 is set aside. Since Ext.P5 is set aside on the ground of lack of jurisdiction, I do not think it necessary to investigate further as to WP(C).No.15495/2009 8 whether the action or inaction on the part of the petitioner would amount to maladministration. 7. At the same time, the question is whether the respondent is entitled to the reliefs sought for in Complaint No.1210/2008, that is entitled to get recasting of her earned leave in terms of Exts.P1 and P2. Admittedly, as per Ext.P1 an amendment was brought into Rule 86A of Part I of KSR. Going by Ext.P1, retirees like the respondent are not entitled to get its benefit. It is only Ext.P2 clarification that brought them within the purview of the amended section. In other words, irrespective of the date of retirement, the pensioners are made eligible to the benefit in terms of Ext.P1. It is thereafter that Ext.P3 was issued whereby Ext.P2 was cancelled from the date of its issuance, that is from 16.6.2007. What is the legal effect of Ext.P3 and whether despite the issuance of Ext.P3 the petitioner could claim the benefit in the light of Exts.P1 and P2 are matters for consideration for deciding the entitlement of the respondent to the aforesaid benefit of recasting of her earned leave. Admittedly, in Complaint No.1210/2008 State was not a party. Exts.P1 to P3 are issued by the Government. Therefore, any decision relating to its impact or applicability has to be decided with State in the party array. Therefore, the question of entitlement of the respondent WP(C).No.15495/2009 9 to the relief of recasting of earned leave in the light of Exts.P1 and P2 is left open to be pursued by the respondent in appropriate proceedings. In other words, it is made clear that this judgment will not stand in the way of the respondent in pursuing the aforesaid issue in appropriate proceedings. The writ petition is disposed of accordingly. C.T.RAVIKUMAR Judge TKS