W.P.(C) No. 29885 of 2014 (I)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** ## **THURSDAY, THE 13TH DAY OF NOVEMBER 2014/22ND KARTHIKA, 1936** ## **WP(C).No. 29885 of 2014 (I)** ## **----------------------------------------** ## **PETITIONER(S):** ## **-----------------------** **1. JOLLY C.A, AGED 46 YEARS, S/O.K.M.ANTONY, SUB ENGINEER (ELECTRICAL), 110KV SUB STATION, IRINJALAKUDA P.O., NADAVARAMBA, THRISSUR, PIN - 680 661.** **2. A.P.SEBASTIAN, AGED 45 YEARS,** - **SUB ENGINEER, SUB REGIONAL STORE, ELECTRICAL CIRCLE, THRISSUR - 4.** **3. E.VIJAYAKUMAR, AGED 56 YEARS,** - **S/O.KUNJAN NAIR, ASSISTANT ENGINEER (RTD.), ELECTRICAL CIRCLE, KASARGODE, RESIDING AT EDAYATTILPALLATHU, ANALLOOR P.O., THRISSUR - 680 731.** **4. GOPINADHAN U.G., AGED 53 YEARS,** - **S/O.UNNIYARAMPURAKKAL GOPALAN, ASSISTANT ENGINEER, ELECTRICAL SECTION, PERINGOTTUKARA, THRISSUR DISTRICT.** **5. P.J.PAULY, AGED 47 YEARS,** - **S/O.P.P.JOHNY, ASSISTANT ENGINEER, ELECTRICAL SECTION, PARAPPUKKARA.P.O., PARAPUKKARA, THRISSUR DISTRICT - 680 310.** **6. SUNNY P.SAMUEL, AGED 53 YEARS, S/O.P.I.SAMU, ASSISTANT ENGINEER, ELECTRICAL SECTION, PAZHANJI, THRISSUR DISTRICT.** **7. SURESH.K., AGED 45 YEARS,** - **S/O.KUNJU NAIR, SUB ENGINEER, ELECTRICAL SECTION, PATTIKKADU, THRISSUR, RESIDING AT KOMBATHU HOUSE, PUTHUR P.O., THRISSUR - 680 014.** **8. T.K.PAULY, AGED 56 YEARS,** - **S/O.T.V.KUNJU VAREED, SUB ENGINEER (RTD), IRINJALAKUDA SECTION, IRINJALAKUDA, RESIDING AT THEKKINYEDATH HOUSE, P.O.PULLUR, THRISSUR DISTRICT - 680 683.** **9. THOMAS ANTONY, AGED 44 YEARS, ASSISTANT ENGINEER, 220KV SUB STATION, KANHIRODE, KANNUR.** **...2...** **-2-** **10. DAVIS A.R., AGED 54 YEARS, S/O.RAPPAI, ASSISTANT ENGINEER, ELECTRICAL SECTION, KODAKARA.** ## **BY ADV. SRI.RAJIT** **RESPONDENT(S):** - **----------------------------** **1. KERALA STATE ELECTRICITY BOARD,** - **REPRESENTED BY SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM - 695 004.** **2. THE CHIEF ENGINEER (HUMAN RESOURCES MANAGEMENT), VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695004.** **R BY SRI.JAICE JACOB,SC,KERALA STATE ELECTRICITY BOARD** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 29885 of 2014 (I)** ## **--------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **-------------------------------------** **EXHIBIT P1: COPY OF THE JUDGMENT IN OP NO.21479/2000 OF THIS HON'BLE COURT.** **EXHIBIT P2: COPY OF THE ORDER NO.EB4-120(C)/1999 DATED 7.2.2013 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P3: COPY OF THE JUDGMENT IN WPC NO.15995/2003 OF THIS HON'BLE COURT.** **EXHIBIT P4: COPY OF THE BOARD ORDER (CM)NO.2866/2009 (LAS III/4152/2003) DATED 7.11.2009 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P5: COPY OF THE COMMUNICATION NO.LAS III/4944/2003) DATED 14.6.2011 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P6: COPY OF THE ORDER NO.EB.4(B)/CCC 1229/2009 DATED 7.6.2011 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P7: COPY OF THE JUDGMENT DATED 2.7.2013 IN WPC NO.3672/2012 OF THIS HON'BLE COURT.** **EXHIBIT P8: COPY OF THE REPRESENTATION FILED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT** - **EXHIBIT P8(A): COPY OF THE REPRESENTATION FILED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT** - **EXHIBIT P8(B): COPY OF THE REPRESENTATION FILED BY THE 3RD PETITIONER BEFORE THE 2ND RESPONDENT** - **EXHIBIT P8(C): COPY OF THE REPRESENTATION FILED BY THE 4TH PETITIONER BEFORE THE 2ND RESPONDENT** **EXHIBIT P8(D): COPY OF THE REPRESENTATION FILED BY THE 5TH PETITIONER BEFORE THE 2ND RESPONDENT** **EXHIBIT P8(E): COPY OF THE REPRESENTATION FILED BY THE 6TH PETITIONER BEFORE THE 2ND RESPONDENT** - **EXHIBIT P8(F): COPY OF THE REPRESENTATION FILED BY THE 7TH PETITIONER BEFORE THE 2ND RESPONDENT** - **EXHIBIT P8(G): COPY OF THE REPRESENTATION FILED BY THE 8TH PETITIONER BEFORE THE 2ND RESPONDENT** - **EXHIBIT P8(H): COPY OF THE REPRESENTATION FILED BY THE 9TH PETITIONER BEFORE THE 2ND RESPONDENT** **...2...** **-2-** **EXHIBIT P8(I): COPY OF THE REPRESENTATION FILED BY THE 10TH PETITIONER BEFORE THE 2ND RESPONDENT** **EXHIBIT P9: COPY OF THE JUDGMENT DATED 30.1.2014 IN WPC NO.5493/2012 OF THIS HON'BLE COURT.** **RESPONDENT(S)' EXHIBITS: NIL** **---------------------------------------** **/TRUE COPY/** **P.A. TO JUDGE** **AK** ## **DAMA SESHADRI NAIDU, J.** --------------------------------------- ## **W.P.(c) No. 29885 of 2014** ---------------------------------------- Dated this the 13[th] day of November, 2014 ## JUDGMENT This writ petition is filed by the employees of the first respondent seeking monetary benefits with effect from 23.07.2000 consequent upon their promotion as Overseer (Electrical) with retrospective effect from 15.11.1999. Incidentally, owing to the subsequent developments, some of the petitioners in this writ petition have been further promoted as Assistant Engineers and Sub Engineers. In any event, the claim is concerning their position as Overseers. 2. Briefly stated, all the petitioners were recruited as Meter Readers, the feeder category in the first respondent Board, in and around the year 1996. Next promotion post being Overseer Grade II, it has four feeder categories, namely, (1) Meter Reader, (2) Lineman Grade I, (3) Lineman Grade II and (4) Electrical Worker/Mazdoor. The W.P.(c) No. 29885 of 2014 2 respondent Board effected promotions in the light of the judgment rendered by this Court in O.P.No.21479/2000. The judgment rendered on 01.01.2002, directed the respondent Board to fill up the promotional vacancies. 3. Drawing up from all the four feeder categories, the respondents effected promotions through Exhibit P2 dated 07.02.2003. Later, there arose certain disputes regarding the _inter se_ seniority of the promoted employees. Accordingly, the disparity that is said to have crept in to Exhibit P2 was challenged in W.P. (C) No.15995/2003, which was allowed by this court through Exhibit P3 judgment. Though the said judgment was appealed against, the writ appeal was dismissed by a learned Division Bench. In compliance with the direction given in Exhibit P3, the respondent Board re-cast the seniority list of the promoted employees through Exhibit P6 dated 07.06.2011. The note appended to Exhibit P6 reiterated that the promotions shall have retrospective effect from 15.11.1999. But a specific reference to monetary benefits to be given with effect from 23.07.2000, as had been originally agreed to by the respondent Board, though found in Exhibit P2, has been 3 W.P.(c) No. 29885 of 2014 omitted in Exhibit P6. Aggrieved thereby, the petitioners have approached this Court by filing the present writ petition. 4. Essentially, the writ petitioners simply claimed the application of the judgment of this Court in Exhibits P1 and P3, which was rendered at the behest of similarly placed employees. In both the judgments, this Court has categorically observed that the financial benefit ought to be given with retrospective effect to the employees who had been promoted through Ext.P6. 5. The learned counsel for the petitioners has submitted that the petitioners have been identically placed as those petitioners in W.P.(C) Nos. 5493 & 3672 of 2012 and 1004 & 9717 of 2014. He has brought to the notice of this Court that in all those cases, this Court issued directions through different judgments that the petitioners therein be paid salary with effect from 23.07.2000, though they have been actually promoted to the post of Overseer through order dated 07.06.2011. In the submission of the learned counsel, there is no differentiating element disentitling the petitioners to the same benefit retrospectively, as has been W.P.(c) No. 29885 of 2014 4 done in the case of the petitioners in the writ petition referred to above. 6. At this juncture, the learned Standing Counsel for the respondent Board has made submissions in tune with the defence the Board has taken in the counter affidavit filed by the 2[nd] respondent. To begin with, the learned Standing Counsel has contended that there are about 375 persons, who have been seeking the same benefit retroactively. According to him, none of these persons actually worked in the cadre of Overseer between 23.07.2000 and 07.06.2011. Their claim to be given retroactive benefit is squarely hit by the well settled judicial dictum of “no work no pay”, as has been upheld in _**Union of India v. B.M. Jaha**_ (2007(11) SCC 632). The learned Standing Counsel has further stressed that if the present writ petition is to be allowed, all the other employees, who are also similarly situated, would be knocking the doors of this Court seeking the same benefit, which in turn would impose a huge financial burden of Rs. 6,28,98,000/- on the Board. In this regard, the learned counsel has drawn the attention of this Court to a judicial observation in W.P.(C) No. 19133 of 2003, an W.P.(c) No. 29885 of 2014 5 unreported judgment dated 02.03.2009. 7. In the end, the learned counsel, addressing the issue of extending the benefits retroactively to the employees, who came before this Court in W.P.(C) No. 5493 of 2012 and connected writ petitions, has submitted that they were paid only on account of the judgment rendered by this Court, but not for any other reasons. 8. Heard the learned counsel for the petitioners and the learned Standing Counsel for the Kerala State Electricity Board, apart from perusing the record. 9. It is too well established to be re-agitated that once an employee has a particular legal right to be asserted and a legal remedy to be taken recourse to, he shall not be denied the said benefit on the premise that it would entail hardship to his employer. In other words, the right of a person has to be recognised and upheld notwithstanding the consequences that flow therefrom. 10. The submission of the learned Standing Counsel that between 12.03.2000 and 07.06.2011, the petitioners had not been borne in the cadre of Overseer and as such, they would not be entitled to any benefit retroactively on W.P.(c) No. 29885 of 2014 6 the principle of 'no work no pay', in my considered view, is fallacious. The doctrine of 'no work no pay' finds place in service jurisprudence, especially in the realm of disciplinary proceedings. When a delinquent has been prima facie charged with misconduct, the subsequent exoneration would not wipe out the entire past and any restoration of the benefit would be in the discretion of the authorities or the court as the case may be. Thus, by weighing options and thereby adjusting the equities, the courts usually take recourse to the dictum of 'no work no pay'. In the present instance, the petitioners, who had been eminently suited to be promoted to the post, were denied the said opportunity for no fault of theirs. It is a very well established principle of law that once a clear vacancy is in existence and a particular employee is entitled to be promoted, the denial of promotion on administrative laxity could not work to the prejudice of the employee, and at the end, if the promotion is to be effected, in the facts and circumstances, the benefit could be extended retroactively. That is what this Court has precisely done in the judgment rendered in W.P.(C) No. 5493 of 2004 and connected cases. W.P.(c) No. 29885 of 2014 7 11. The other contention of the learned Standing Counsel for the respondent Board that the petitioners in W.P.(C) No. 5493 of 2012 and connected cases have been extended the benefit wholly based on the judgment. This contention is, to my mind, unsound. It is well to remember that a judicial decision is not legislative in nature. It only recognises the rights that inhere in a person, or those that have been in existence, but ignored to be taken note of. In the batch of writ petitions referred to above, this Court has held that the petitioners therein were entitled to be promoted but were not promoted. Since the delay in effecting the promotion could not be attributed to the petitioners, this Court, thus, adjusting the equities, has directed the authorities to restore the benefits retroactively. As such, it is not correct to contend that the respondent authorities have been made to extend the benefit based on the judgment, but not otherwise. In the facts and circumstances, I do not see any discernible differentiation between the petitioners in the present writ petition on one hand, and those in W.P.(C) No. 5493 of 2012 and batch on the other, to deny what is 8 W.P.(c) No. 29885 of 2014 otherwise a legitimate benefit to be given to the petitioners retroactively, though. Thus, the writ petition is allowed. No order as to costs. It is made clear that given the administrative exigencies and inevitable delays, this Court desires to fix a time frame in this regard. Accordingly, this Court directs the respondent Board to pay all the monetary benefits to the petitioners with effect from 23.07.2000 within three months from the date of receipt of a copy of this judgment. **DAMA SESHADRI NAIDU JUDGE** DMR/-