The Managing Director, Kerala Water Authority, Thiruvananthapuram v. Kerala Lok Ayukta, Thiruvananthapuram & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ## **`&`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN FRIDAY, THE 17[TH] DAY OF MARCH 2023 / 26TH PHALGUNA, 1944 ``` ## **`WP(C) NO. 14290 OF 2016`** ## **`PETITIONER/S:`** ``` THE MANAGING DIRECTOR KERALA WATER AUTHORITY,JALA BHAVAN,THIRUVANANTHAPURAM, REPRESENTED BY S.SETHUKMAR, S/O.LATE SIVAPRASADHAN PILLAI,AGED 47 YEARS, DEPUTY CHIEF ENGINEER,CENTRAL REGIONA,LEGAL CELL,KERALA WATER AUTHORITY,KOCHI- 11 AS LEGALLY AUTHORIZED. ``` ``` BY ADV SRI.JOSEPH JOHN, SC, KERALA WATER AUTHORITY GEORGIE JOHNY, SC ``` ## **`RESPONDENT/S:`** - **`1 THE KERALA LOK AYUKTHA THIRUVANANTHAPRAM-695 001`** - **`2 A.P.REMA 1ST GRADE SRVEYOR (HG),P.H.SECTION,KERALA WATER AUTHORITY,P.O.ASHTAMICHIRA,THRISSUR DISTRICT,PIN680 741`** - **`3 PAUL JOSEPH 1ST GRADE SRVEYOR (HG),KSUDP,SEWERAGES DIVISION,KERALA WATER AUTHORITY,P.O.MALAPARAMBA,KOZHIKODE-673 009.`** - **`4 K.NARAYANA`** - **`S/O.K.KUNJAPPAN,AGED 52 YEARS,1ST GRADE SURVEYOR (HG),OFFICE OF THE ASSISTANT ENGINEER,WAS SECTION NO.II,KERALA WATER ATHORITY,KANNUR-670 001.`** ``` BY ADVS. ``` ``` SMT.RENU. D.P., SC, LOK AYUKTA SRI.M.SASINDRAN SRI. T. S. BHARATH KRISHNAN ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W. P. (C) No. 14290 of 2016 -2- ## **J U D G M E N T** ## S. Manikumar, C. J. Instant writ petition has been filed challenging the interim order of the Kerala Lok Ayukta in I. A. No. 1926 of 2015 in complaint No. 1043 of 2015, which reads thus:- “The prayer in this application in that as the Government has already given provisional promotion to several Surveyors Grade-1 in the Water Resources Department who are similarly circumstanced as the complainants, provisional promotion may be directed to be given to the complainants also. Along with the affidavit two documents are seen produced. The first are in copy of G.O (Rt) No.1625/06/WRD dated 28/12/06 wherein the Government has ordered that all qualified Surveyor Grade I who were in service from 01/03/1984 having Civil Engineering Diploma and who have put in a minimum service of 8 years as first grade Surveyor shall be included in the feeder category for promotion as Assistant Engineer in the Diploma quota. In response to our query regarding the duration of service of the complainants Mr. P. Sasi, answered that all the complainants were in service from 11/03/1984 and all the complainants were having civil Engineering Diploma and have put in minimum service of 8 years on First Grade Surveyor. The other document which is produced in a copy of the Judgment of the Hon'ble High Court in WP(C) No.35307/11. According to Mr. Sasi this W. P. (C) No. 14290 of 2016 -3- judgment has become final. Under this Judgment, the first respondent in the writ petition (the state of Kerala) in directed to finalize the special rules for the employees in the Water Resources Department by including the post of Surveyor Grade I also in the feeder category for promotion to the post of Assistant Engineer Grade I in this diploma quota, Mr. Sasi presses for interim orders directing grant of provisional promotion. Mr. Rojas Sebastian would oppose the request. Despite the opposition of Mr Rojas Sebastian, we find every justification for issuing a direction with respect to the Second Complainant - Second Petitioner Sri Paul Joseph who is retiring from service on attaining the age of superannuation within three months from today. Accordingly, we pass an interim order directing the respondents to grant provisional promotion to the second petitioner Sri. Paul Joseph who is Surveyor Grade I, as Assistant Engineer. This order shall be implemented and provisional promotion will be granted with in two weeks of receipt of this order.” 2. Impugned order is challenged on various grounds, inter alia the jurisdiction of the Lok Ayukta to entertain a complaint regarding denial of promotion to the post of Assistant Engineer. 3. It is further contended that the petitioner herein has filed a statement before the Lok Ayukta contending that Technical Special Rules proposed by the Kerala Water Authority is pending approval of W. P. (C) No. 14290 of 2016 -4- the Government of Kerala and as such the G.O. (Rt) No. 1625/06/WRD dated 28.12.2006 cannot be implemented for want of finalization and notification of Technical Special Rules. The Kerala Water Authority have included those Surveyors Grade I, who were in service from 01.03.1984, having Civil Engineering Diploma, and who have a minimum service of 8 years, as 1[st] Grade Surveyor in the feeder category for promotion as Assistant Engineer in Diploma quota in the draft Technical Special Rules, which has not been yet approved and notified by the Government. Therefore, the request of the complainants to promote them as Assistant Engineers, cannot be allowed in view of the fact that as such there is no rule providing feeder category including the 1[st] Grade Surveyors to be promoted as Assistant Engineers. 4. It is also contended that the Lok Ayukta have directed the Kerala Water Authority to grant provisional promotion to Mr. Paul Joseph, the 2[nd] complainant, as Assistant Engineer, within 3 months. This order is based on the above said G.O. (Rt) No. 1625/06/WRD and judgment of the this Court in W. P. (C) No. 35307 of 2011. It is submitted that promotion cannot be given to the 2[nd] complainant in W. P. (C) No. 14290 of 2016 -5- view of the fact that the directions in said G.O. can be implemented only on finalization of Technical Special Rules by the Government and order of the this Court is only to the effect that it contains only a direction to the Government of Kerala to finalize the said special rules. It is submitted that unless the Technical Special Rules as proposed by the Water Authority is not approved and notified by the Government of Kerala, the qualified 1[st] Grade surveyors cannot be promoted, as there is no existing rules mandating such promotion. 5. Reference has been made to a decision of the Hon’ble Division Bench in **M/s Malabar Cements Ltd. v. K. Baburajan and another [2019 (3) KLT 609]** , wherein it is held thus:- “10. Can the Commission make any recommendation or direction which would have the effect of nullifying the spirit of Ext.P1 judgment of this Court? We shall consider this question with reference to the provisions contained in the Protection of Human Rights Act, 1993 (hereinafter referred to as 'the Act'). ………. 14. The Act has been enacted to provide for better protection of human rights by constituting a National Human Rights Commission and also State Human Rights Commissions and Human Rights Courts. Even if it is accepted that the denial of employment to the first respondent in the company amounts to violation of human rights, the question is whether the Commission could have passed Ext.P8 order by overturning the W. P. (C) No. 14290 of 2016 -6- decision rendered by this Court in the matter as per Ext.P1 judgment. ………. 17. In **Remdeo Chauhan** (supra), the Apex Court has categorically held that the Commission cannot function as a parallel seat of justice to rectify or correct or comment upon any order passed by any court of competent jurisdiction. Therefore, Ext.P8 order passed by the Commission is liable to be quashed, solely on the ground that it tends to interfere with Ext.P1 judgment passed by this Court in the same matter between the same parties. ………… 19. Clause (f) of Regulation 17 specifically provides that, the Commission may dismiss in limine a complaint, if the issue raised relates to service matters. The issue raised by the first respondent in Ext.P6 petition relates to his appointment as a Mazdoor in the company and it is a service matter. The Commission should have dismissed the complaint in limine especially in the light of Ext.P1 judgment of this Court in the same matter between the same parties, which had attained finality.” 6. As per Section 9(5)(c) of the Kerala Lok Ayukta Act, 1999, the Lok Ayukta or an Upa Lok Ayukta may, in his discretion, refuse to investigate or discontinue investigation of, any complaint involving a grievance or an allegation, if in his opinion, other remedies are available to the complainant and in the circumstances of the case it would be more proper for the complainant to avail of such remedies. W. P. (C) No. 14290 of 2016 -7- 7. That apart, reading of the impugned order indicates that by way of an interim order, the main relief sought for by the complainant itself has been granted. It is well settled that interim order should not be issued in the guise of the main relief itself. Reference can be made to a few decisions:- (i) In **The State of Orissa v. Madan Gopal Rungta [AIR 1952 SC 12]** , a Constitution Bench of the Hon'ble Apex Court clearly spelt out the contours within which interim relief can be granted, and held as under:- "..........An interim relief can be granted only in aid of and as ancillary to the main relief which may be available to the party on final determination of his rights in a suit or proceeding. If the Court was of opinion that there was no other convenient or adequate remedy open to the petitioners, it might have proceeded to investigate the case on its merits and come to a decision as to whether the petitioners succeeded in establishing that there was an infringement of any of their legal rights which entitled them to a writ of mandamus or any other directions of a like nature; and pending such determination it might have made a suitable interim order for maintaining the status quo ante. But when the Court declined to decide on the rights of the parties and expressly held that they should be investigated more properly in a civil suit, it could not, for W. P. (C) No. 14290 of 2016 -8- the purpose of facilitating the institution such suit, issue directions in the nature of temporary injunctions, under Art.226 of the Constitution. In our opinion, the language of Art.226 does not permit such an action. On that short ground, that judgement of the Orissa High Court under appeal cannot be upheld." ## (ii) In **Deoraj v. State of Maharashtra** reported in **AIR 2004** **SC 1975** , the Hon'ble Supreme Court, at para 12, held as under:- "Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case - of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of case totally in favour of the applicant may persuade the Court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in W. P. (C) No. 14290 of 2016 -9- injustice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the Court may put the parties on such terms as may be prudent." (iii) In **State of U.P v. Ram Sukhi Devi [(2005) 9 SCC 733]** the Hon'ble Apex Court observed that final relief cannot be granted by way of interim relief. Paragraph 8 of the said decision is extracted hereunder: "To say the least, approach of the learned Single Judge and the Division Bench is judicially unsustainable and indefensible. The final relief sought for in the writ petition has been granted as an interim measure. There was no reason indicated by learned Single Judge as to why the Government Order dated 26.10.1998 was to be ignored. Whether the writ petitioner was entitled to any relief in the writ petition has to be adjudicated at the time of final disposal of the writ petition. This Court has on numerous occasions observed that the final relief sought for should not be granted at an interim stage. The position is worsened if the interim direction has been passed with stipulation that the applicable Government Order has to be ignored. Time and again this Court has deprecated the W. P. (C) No. 14290 of 2016 -10- practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that of a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations. [See _Assistant Collector of Central Excise, West Bengal v. Dunlop India Ltd. (1985 (1) SCC 260 at p. 265), State of Rajasthan v. M/s Swaika Properties (1985 (3) SCC 217 at p.224), State of U.P. and Ors. v. Visheshwar (1995 Supp (3) SCC 590), Bharatbhushan Sonaji Kshirsagar (Dr.) v. Abdul Khalik Mohd. Musa and Ors. (1995 Supp (2) SCC 593), Shiv Shankar and Ors. v. Board of Directors, U.P.S.R.T.C. and Anr. (1995 Supp (2) SCC 726) and Commissioner/Secretary to Govt. Health and Medical Education Department Civil Sectt., Jammu v. Dr. Ashok Kumar Kohli (1995 Supp (4) SCC 214_ ).] No basis has been indicated as to why learned Single Judge thought the course as directed was necessary to be adopted. Even it was not indicated that a prima facie case was made out though as noted above that itself is not sufficient. We, therefore, set aside the order passed by learned Single Judge as affirmed by the Division Bench without expressing any opinion on the merits of the case we have interfered primarily on the ground that the final relief has been granted at an interim stage without justifiable reasons. Since the controversy lies within a very narrow compass, we request the High Court to dispose of the W. P. (C) No. 14290 of 2016 -11- matter as early as practicable preferably within six months from the date of receipt of this judgment." 8. Having regard to the statutory provisions and the decisions considered, we are in agreement with the submissions of the learned counsel for the petitioner. Hence, the interim order passed by the Lok Ayukta in I. A. No. 1926 of 2015 in complaint No. 1043 of 2015, has to be set aside. Accordingly, set aside. Though Mr. T. S. Bharath Krishnan, learned counsel for the 2[nd] respondent, submitted that the party respondents have already retired from service, and the benefits owned by them should not be disturbed, we are not inclined to make any observation on the above. Accordingly, the writ petition is allowed. **Sd/S. MANIKUMAR CHIEF JUSTICE** **Sd/MURALI PURUSHOTHAMAN JUDGE** Eb ///TRUE COPY/// P. A. TO JUDGE W. P. (C) No. 14290 of 2016 -12- ## **`APPENDIX OF WP(C) 14290/2016`** ``` PETITIONER EXHIBITS EXHIBIT P1TRUE COPY OF AUTHORISATION DATED 30/3/16 EXHIBIT P2TRUE COPY OF THE COMPLAINT NO. 1043/2015A FILED BEFORE THE HON'BLE LOKAYUKTHA EXHIBIT P3TRUE COPY OF THE STATEMENT FILED BY THE KERALA WATER AUTHORITY BEFORE THE LOKAYUKTHA IN COMPLAINT NO. 1043/2015 A EXHIBIT P4TRUE COPY OF THE ORDER IN I.A NO 1926/2015 IN COMPLAINT NO. 104/2015A OF THE LOK AYUKTA DATED 26/11/15 ```