High Court of KeralaSingle JudgeWrit petitions allowed; impugned orders quashed...
W.P.(C). Nos. 2675/2021, 12716/2021 and 12820/2021
Case / Petition Number:WP(C) Nos. 2675/2021, 12716/2021 and 12820/2021
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- V.G. ARUN
- Judgment Date
- 2022-05-24
- Court Decision / Holding
- Writ petitions allowed; impugned orders quashed. Respondents 2 to 7 are directed to disburse pension, commuted value of pension, gratuity, provident fund and other retirement benefits within two months of receipt of a copy of the judgment.
- Final Disposition
- Writ petitions allowed; impugned orders quashed; retirement benefits to be disbursed within two months.
Parties to the Case
Appellants / Petitioners
- Lagi P.C.
- Sathian K.C.
- Sajeev S.
Respondents
- State of Kerala
- Kerala Water Authority
- The Managing Director, Kerala Water Authority
- The Deputy Chief Engineer (HR & GL), KWA
- The Executive Engineer, Public Health Division, KWA
- The Assistant Executive Engineer, KWA
- The Accounts Officer (Pay Slip & Pension), KWA
Legal Representation & Advocates
Counsels for Petitioners
- • George Mathew
- • M.D. Sasikumaran
- • Praveen S.
- • Sunil Kumar A.G.
- • Dipu James
- • Mathew K.T.
- • George K.V.
- • Stephy K Regi
Counsels for Respondents
- • Mary Benjamin
- • P. Benjamin Paul
Case Synopsis & Summary
The petitioners, former Head Operators of the Kerala Water Authority, challenged delays in disbursal of terminal benefits—pension, commuted value of pension, gratuity, provident fund—and a proposed re-fixation of salary after time-bound higher grade promotions conferred upon regularisation of their daily-wage service. They rely on the Supreme Court’s Jacob v. Kerala Water Authority decision and the Rafiq Masih doctrine on retirement-benefit protection, and cite this Court’s earlier decision in W.P(C).No.16066 of 2020. The State and the Kerala Water Authority contend that the higher grades were granted under Government Orders later found to contravene Part III of the Kerala Service Rules; those orders were cancelled (Exhibit R2(a)) prior to the present decision. After hearing, the petitioners obtained a clarificatory letter (WS-B37/2022-WRD) dated 12.4.2022 stating that while CLR/SLR service may be used for Time-Bound Higher Grades, those periods shall not be reckoned in future, and that no recovery should be effected from retirement benefits in line with Rafiq Masih. The court agrees with the earlier W.P(C).16066/2020 rationale, holds that no recovery is permissible, and directs respondents to disburse full retirement benefits within two months.
Provisions of Law Cited
Kerala Service Rules, Part III – Rules 10, 57, 64 and 70
Legal Doctrines & Maxims
- Rafiq Masih principle (no recovery from retirement benefits)
- Jagdev Singh principle (consideration of retirement benefits in light of Supreme Court decisions)
Submissions & Arguments
Contentions of Appellants / Petitioners
The petitioners argued that they were regularised from daily wage work and had been subjected to delays in disbursal of terminal benefits. They argued that time-bound higher grades were granted in reliance on government orders later found to contravene the KSR, and that the State cannot recover any over-payments. They relied on Jacob v. Kerala Water Authority and the Rafiq Masih dictum to protect retirement benefits, and pointed to this Court’s earlier decision in W.P(C).No.16066/2020. They contended that the clarificatory WS-B37/2022-WRD letter acknowledges that CLR/SLR service can count for Time-Bound Higher Grades but should not be used for future calculations, and that no recovery should be effected. They urged immediate disbursement of pension, gratuity, provident fund and related benefits.
Contentions of Respondents
The respondents contended that the time-bound higher grades were granted under GO P. No.17/99/IR and GO Rt. No.279/2006, which were later found to contravene Rules 10, 57, 64 and 70 of Part III KSR and were cancelled by Exhibit R2(a). They argued that the earlier W.P(C).16066/2020 judgment did not entitle the petitioners to benefits under the cancelled orders. They asserted that the state’s position is to disburse retirement benefits in accordance with law and that the possibility of recovery should be assessed in line with the court’s rulings and the clarificatory letter.
Cited Precedents (4)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| Jacob v. Kerala Water Authority | 1990 (2) KLT 673 | Positive | Cited as the basis for regularisation of daily-wage employees and for entitlement to time-bound higher grades. |
| State of Punjab and Others v. Rafiq Masih (White Washer) | (2015) 4 SCC 334 | Positive | Cited for the dictum on non-recovery of retirement benefits in relevant contexts. |
| High Court of Punjab and Haryana and Others v. Jagdev Singh | (2016) 14 SCC 267 | Positive | Cited as part of the jurisprudence considered with Rafiq Masih in related cases. |
| W.P(C).No.16066/2020 and connected cases | WP(C) No.16066/2020 | Positive | Earlier decision followed/agreed with by the present judgment; used to justify disbursement of benefits rather than recovery. |
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Extracted Judgment Text
Exact text extracted from official judgment records.
_**WP(C).2675/21 & connected cases**_
1
**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE V.G.ARUN TUESDAY, THE 24[TH] DAY OF MAY 2022 / 3RD JYAISHTA, 1944**
**WP(C) NO. 12820 OF 2021**
## **PETITIONER/S:**
LAGI P.C. AGED 56 YEARS S/O P.P.CHELLAPPAN, PARAYIL HOUSE, THANKALAM, KOTHAMANGALAM-686 691, HEAD OPERATOR (RETD), KERALA WATER AUTHORITY, KOTHAMANGALAM SUB DIVISION, ERNAKULAM DISTRICT BY ADVS. GEORGE MATHEW M.D.SASIKUMARAN PRAVEEN S. SUNIL KUMAR A.G DIPU JAMES MATHEW K.T. GEORGE K.V. STEPHY K REGI
## **RESPONDENT/S:**
|1|STATE OF KERALA|
|---|---|
||REPRESENTED BY ITS SECRETARY, WATER RESOURCES DEPARTMENT,|
||GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.|
|2|KERALA WATER AUTHORITY|
||REP. BY ITS MANAGING DIRECTOR, JALA BHAVAN,|
||THIRUVANANTHAPURAM-695 033.|
|3|THE MANAGING DIRECTOR|
||KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM-695|
||033.|
|4|THE DEPUTY CHIEF ENGINEER (HR & GL),|
||KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM-695|
||033.|
|5|THE EXECUTIVE ENGINEER,|
||KERALA WATER AUTHORITY, PUBLIC HEALTH DIVISION,|
||MOOVATTUPUZHA-686 691|
|6|THE ASSISTANT EXECUTIVE ENGINEER|
||KERALA WATER AUTHORITY, P.H.SUB DIVISION, KOTHAMANGALAM-686|
_**WP(C).2675/21 & connected cases**_ 2
661.
7 THE ACCOUNTS OFFICER (PAY SLIP & PENSION) KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM-695 033. BY ADVS. MARY BENJEMIN SHRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.3.2022 ALONG WITH WP(C).2675/2021, 12716/2021, THE COURT ON 24.5.2022 DELIVERED THE FOLLOWING:
_**WP(C).2675/21 & connected cases**_
3
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE V.G.ARUN**
**TUESDAY, THE 24[TH] DAY OF MAY 2022 / 3RD JYAISHTA, 1944**
**WP(C) NO. 2675 OF 2021**
## **PETITIONER/S:**
SATHIAN K.C, AGED 57 YEARS S/O P.C.CHANDRASHEKARA MENON, KAVALAMPILLIL HOUSE, JUNIOR JANATHA ROAD, VYTTILA P.O.ERNAKULAM-682 019, HEAD OPERATOR (SUPERVISOR), (RETD) SEWERAGE SUB DIVISION, KERALA WATER AUTHORITY, ELAMKULAM, KOCHI-682 020. BY ADVS. GEORGE MATHEW SRI.M.D.SASIKUMARAN SHRI.PRAVEEN S. SHRI.SUNIL KUMAR A.G SRI.DIPU JAMES SHRI.MATHEW K.T. SHRI.GEORGE K.V.
## **RESPONDENT/S:**
1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 KERALA WATER AUTHORITY, REP BY ITS MANAGING DIRECTOR, JALA BHAVAN, THIRUVANANTHAPURAM-695 033. 3 THE MANAGING DIRECTOR, KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM-695 033. 4 THE DEPUTY CHIEF ENGINEER (HR AND GL), KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM-695 033. 5 THE ASSISTANT EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, SEWERAGE SUB DIVISION, KOCHI-682 020. 6 THE FINANCE MANAGER,
_**WP(C).2675/21 & connected cases**_
4
KERALA WATER AUTHORITY , JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM-695 033.
7 THE ACCOUNTS OFFICER, PAYSLIP AND PENSION, KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM-695 033.
BY ADVS. MARY BENJEMIN SHRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.3.2022 ALONG WITH WP(C).12820/2021 AND CONNECTED CASES, THE COURT ON 24.5.2022 DELIVERED THE FOLLOWING:
_**WP(C).2675/21 & connected cases**_
5
# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE V.G.ARUN TUESDAY, THE 24[TH] DAY OF MAY 2022 / 3RD JYAISHTA, 1944**
**WP(C) NO. 12716 OF 2021**
## **PETITIONER/S:**
SAJEEV S AGED 56 YEARS S/O P.N.SIVASANKARAN NAIR,EDALAYIL HOUSE, AROOKUTTY.P.O, CHERTHALA,ALAPPUZHA, HEAD OPERATOR,(RETD.),KERALA WATER AUTHORITY,HEAD WORKS SUB DIVISION, CHERTHALA,ALAPPUZHA-688555. BY ADVS. GEORGE MATHEW M.D.SASIKUMARAN STEPHY K REGI
## **RESPONDENT/S:**
|1|STATE OF KERALA|
|---|---|
||REPRESENTED BY ITS SECRETARY,WATER RESOURCES|
||DEPARTMENT,GOVERNMENT SECRETARIAT,|
||THIRUVANANTHAPURAM-695001.|
|2|KERALA WATER AUTHORITY|
||REPRESENTED BY ITS MANAGING DIRECTOR,JALA|
||BHAVAN,THIRUVANANTHAPURAM-695033.|
|3|THE MANAGING DIRECTOR|
||KERALA WATER AUTHORITY,JALA BHAVAN,|
||THIRUVANANTHAPURAM-695033.|
|4|THE DEPUTY CHIEF ENGINEER(HR AND GL),|
||KERALA WATER AUTHORITY,JALA BHAVAN,|
||THIRUVANANTHAPURAM-695033.|
|5|THE EXECUTIVE ENGINEER|
||PUBLIC HEALTH DIVISION,KERALA WATER AUTHORITY,|
||ALAPPUZHA-688003.|
|6|THE ASSISTANT EXECUTIVE ENGINEER,|
||KERALA WATER AUTHORITY,HEAD WORKS SUB|
_**WP(C).2675/21 & connected cases**_ 6
DIVISION,CHERTHALA,ALAPPUZHA DISTRICT-688524.
7 THE ACCOUNTS OFFICER(PAY SLIP AND PENSION), KERALA WATER AUTHORITY,JALA BHAVAN, THIRUVANANTHAPURAM-695033.
BY ADVS. MARY BENJEMIN SHRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.3.2022 ALONG WITH WP(C).12820/2021 AND CONNECTED CASES, THE COURT ON 24.5.2022 DELIVERED THE FOLLOWING:
## **V.G.ARUN, J.**
## **---------------------------------------------------------W.P(C).Nos.2675, 12716 and 12820 of 2021 ----------------------------------------------------------Dated this the 24[th] day of May, 2022**
## **JUDGMENT**
The petitioners have retired from the post of Head Operator in the Kerala Water Authority on different dates. The petitioner in W.P(C).No.2675 of 2021 retired on 31.1.2020 and the petitioners in W.P(C).No.12716 and 12820 of 2021, on 31.3.2021. They were initially engaged on daily wage basis through employment exchanges and regularised, pursuant to the judgment of the Apex Court in _**Jacob v. Kerala Water Authority**_ [1990 (2) KLT 673]. The petitioners are aggrieved by the delay in disbursal of their terminal benefits like pension, commuted value of pension, gratuity, provident fund etc. and the proposal to refix their salary and effect recovery of the alleged excess salary from their retirement benefits. The reason for refixation and recovery is the grant of time bound higher grade promotions to the petitioners, reckoning their temporary service prior to regularisation. Petitioners rely on the decision in _**State of Punjab and Others v. Rafiq Masih (White**_
_**WP(C).2675/21 & connected cases**_
8
_**Washer) and Others**_ [(2015) 4 SCC 334] and the judgment rendered by this Court in the writ petitions (W.P(C).No.16066 of 2020 and connected cases) filed by identically placed Head Operators.
2. In the counter affidavit filed on behalf of the Kerala Water Authority, it is stated that the petitioners were granted time bound higher grades and consequential monetary benefits, based on G.O(P).No.17/99/IR dated 18.3.1999 and G.O(Rt).No.279/2006/WRD dated 1.3.2006. The above mentioned Government Orders were later found to have been issued in contravention of Rules 10, 57, 64 and 70 of Part III KSR. Thereupon the Government issued Exhibit R2(a) order dated 31.3.2021 cancelling G.O(P).Nos.17/99 and G.O(Rt).No.279/2006. The judgment in W.P(C).No.16066 of 2020 and connected cases was rendered on 26.2.2021, prior to the issuance of Exhibit R2(a) Government Order. Therefore, the petitioners are not entitled to the benefits under the cancelled Government Orders.
3. After the writ petitions were finally heard, learned Counsel for the petitioners made available a copy of Letter No. WS-B37/2022-WRD dated 12.4.2022 issued from the Government to the Managing Director, Kerala Water Authority, stating that, even though the CLR/SLR service of employees was being taken into account for granting Time Bound Higher Grades as per the existing rules, such periods shall not be reckoned in
_**WP(C).2675/21 & connected cases**_
9
future. The letter also states that no recovery should be effected from the employees who have retired after availing the benefit, as that would go against the dictum in _**Rafiq Masih**_ .
4. It is pertinent to note that in the judgment in W.P(C).No.16066 of 2020, after elaborate consideration of the decisions of the Apex Court in _**Rafiq Masih (White Washer)**_ (supra) and _**High Court of Punjab and Haryana and Others v. Jagdev Singh**_ [(2016) 14 SCC 267], the learned single Judge held as under;
_“In the above circumstances, I order these writ petitions and set aside the impugned orders and notices for recovery of the amounts from the petitioners by the KWA; with a consequential direction to the said Authority to disburse the entire retirement benefits to them, reckoning their earlier service on daily wage basis, adverting to Ext.P2 in WP(C).No.8670/2020; Ext.P1 in WP(C).No.16004/2020; WP(C).No.16066/2020 and WP(C).No.1852/ 2020; Ext.P3 in WP(C).No.18314/2020.”_
5. I am in respectful agreement with the above finding. Further, in view of the clarificatory Letter No. WS-B37/2022-WRD dated 12.4.2022, no recovery can be effected from the retirement benefits due to the petitioners, even though G.O(P).17/99/IR and G.O(Rt).279/2006/WRD stands cancelled by Exhibit R2(a) Government Order.
_**WP(C).2675/21 & connected cases**_
10
For the aforementioned reasons, the writ petitions are allowed and the impugned orders quashed. Respondents 2 to 7 are directed to disburse the pension, commuted value of pension, gratuity, provident fund and other terminal benefits, if any due to the petitioners, within two months of receipt of a copy of this judgment.
Sd/-
## **V.G.ARUN, JUDGE**
_vgs_
_**WP(C).2675/21 & connected cases**_
11
## **APPENDIX OF WP(C) 2675/2021**
|PETITIONER EXHIBITS||
|---|---|
|EXHIBIT P1|TRUE COPY OF GO(RT0 NO 1205/08/WRD DATED|
||22.11.2008 ISSUED BY 1ST RESPONDENT|
|EXHIBIT P2|TRUE COPY OF CIRCULAR NO KWA/PE/E1/4505/01|
||VOL-11 DATED 21.1.2009 ISSUED BY 3RD|
||RESPONDENT|
|EXHIBIT P3|TRUE COPY OF CIRCULAR NO KWA/JB/E.1-4505/01|
||VOL.11 DATED 20.10.2009 ISSUED BY 3RD|
||RESPONDENT|
|EXHIBIT P4|TRUE COPY OF CIRCULAR NO KWA/JB/E.516792/05|
||DATED 20.10.2009 ISSUED BY 3RD RESPONDEN T|
|EXHIBIT P5|TRUE COPY OF CIRCULAR NO KWA/JB/E.5/6497/2912|
||DATED 6.11.2014 ISSUED BY 3RD RESPONDENT|
|EXHIBIT P6|TRUE COPY OF PROCEEDINGS NO EW1-2714/03 DATED|
||31.3.2015 ISSUED BY 5TH RESPONDENT|
|EXHIBIT P7|TRUE COPY OF LETTER NO E1/24/18 DATED|
||19.12.2019 ISSUED BY 5TH RESPONDENT TO|
||EXECUTIVE ENGINEER|
|EXHIBIT P8|TRUE COPY OF LETTER NO|
||KWA/AO(PENSION)/10194/9224 DATED 22.2.2020|
||ISSUED BY 7TH RESPONDENT|
|EXHIBIT P9|TRUE COPY OF LETTER NO KWA/AO(PEN)|
||PEN/10194/COM(NON MEDICAL) 9224 DATED|
||9.12.2020|
|EXHIBIT P10|TRUE COPY OF RELEVANT PAGES SERVICE BOOK OF|
||PETITIONER|
_**WP(C).2675/21 & connected cases**_
12
## **APPENDIX OF WP(C) 12716/2021**
|PETITIONER EXHIBITS||
|---|---|
|Exhibit P1|TRUE COPY OF MEMO NO.B-756/87 DTD.17.04.1990|
||ISSUED BY 6TH RESPONDENT.|
|Exhibit P2|TRUE COPY OF ORDER NO.AB1.134/95|
||DTD.30.09.1997 ISSUED BY 6TH RESPONDENT.|
|Exhibit P3|TRUE COPY OF ORDER NO.A6-478/98|
||DTD.05.07.2020 ISSUED BY 5TH RESPONDENT.|
|Exhibit P4|TRUE COPY OF JUDGMENT DTD.09.04.2012 IN W.P.|
||(C)NO.21989 OF 2017|
|Exhibit P5|TRUE COPY OF ORDER NO.A5/439/012|
||DTD.24.08.2012 ISSUED BY 5TH RESPONDENT|
|Exhibit P6|TRUE COPY OF ORDER NO.A5/439/12|
||DTD.11.03.2013 ISSUED BY 5TH RESPONDENT.|
|Exhibit P7|TRUE COPY OF LETTER NO.KWA/A.O.|
||(PEN)10434/9450 DTD.01.12.2020 ISSUED BY 7TH|
||RESPONDENT.|
|Exhibit P8|TRUE COPY OF LETTER N,O.A4-3001/2020|
||DTD.16.04.2021 ISSUED BY 5TH RESPONDENT TO|
||6TH RESPONDENT.|
|Exhibit P9|TRUE COPY OF LETTER NO.TKY/PENSION/1056/14|
||DTD.25.05.2021 OF BY 6TH RESPONDENT TO 5TH|
||RESPONDENT.|
|RESPONDENT EXHIBITS||
|Exhibit R2(a)|COPY OF GOVERNMENT ORDER GO(P)10/2021/WRD|
||DATED 31/03/2021.|
_**WP(C).2675/21**_
_**& connected cases**_
13
## **APPENDIX OF WP(C) 12820/2021**
|PETITIONER EXHIBITS||
|---|---|
|Exhibit P1|TRUE COPY OF NTC NO 186723 DATED NIL ISSUED|
||BY NATIONAL COUNCIL OF FOR VOCATIONAL|
||TRAINING|
|Exhibit P2|TRUE COPY OF ORDER NO E2-3528/87 DATED|
||7.3.1990 ISSUED BY EXECUTIVE ENGINEER, PUBLIC|
||HEALTH (PH) DIVISION, KWA, THODUPUZHA|
|Exhibit P3|TRUE COPY OF RELEVANT PAGES OF ORDER NO|
||KWA/JB/E1-4505/2001 DATED 26.9.2001 ISSUED BY|
||3RD RESPONDENT|
|Exhibit P4|TRUE COPY OF GO9RT0 NO 1205/08/WRD DATED|
||22.11.2008 ISSUED BY 1ST RESPONDENT|
|Exhibit P5|TRUE COPY OF CIRCULAR NO KA/PE/E1/4505/01|
||VOL-1 DATED 21.1.2009 ISSUED BY 3RD|
||RESPONDENT|
|Exhibit P6|TRUE COPY OF CIRCULAR NO KWA/JB/E 1-4505/01|
||VOL.11 DATED 20.10.2009 ISSUED BY 3RD|
||RESPONDENT|
|Exhibit P7|TRUE COPY OF CIRCULAR NO KWA/JB/E.5-16792/05|
||DATED 20.10.2009 ISSUED BY 3RD RESPONDENT|
|Exhibit P8|TRUE COPY OF ORDER NO 1026/99 DATED 24.3.2009|
||ISSUED BY 6TH RESPONDENT|
|Exhibit P9|TRUE COPY OF ORDER NO A2-217/30 VOL V DATED|
||6.11.2013 OF 6TH RESPONDENT|
|Exhibit P10|TRUE COPY OF CIRCULAR NO KWA/JB/E.5/6497/2012|
||DATED 6.11.2014 ISSUED BY 3RD RESPONDENT|
|Exhibit P11|TRUE COPY OF ORDER NO AB1-215/2010 VOL.IV|
||DATED 12.11.2018 OF 6TH RESPONDENT|
|Exhibit P12|TRUE COPY OF SLIP NO 301 OF 2020 DATED|
||23.12.2020 ISSUED BY 3RD RESPONDENT|
_**WP(C).2675/21**_
_**& connected cases**_ 14
Exhibit P13
TRUE COPY OF LETTER NO KWA/AO(PENSION)10543/9558 DATED 30.3.2021 FROM 7TH RESPONDENT TO SUPERINTENDING ENGINEER, PH CIRCLE, MUVATTUPUZHA