WP(C).Nos.11121 & 11947 of 2019: M.K. Raju v. State of Kerala & others; Prathapan K.D. and Mathew M.P. v. State of Kerala & others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 25TH DAY OF JANUARY 2021 / 5TH MAGHA, 1942** ## **WP(C).No.11121 OF 2019(M)** ## **PETITIONER:** ## **M.K.RAJU** **AGED 59 YEARS** **RETIRED DRAFTSMAN GRADE-1, KERALA WATER AUTHORITY, RESIDING AT RAJ BHAVAN, TAGORE NAGAR, TAGORE ROAD, MUVATTUPUZHA, ERNAKULAM-686 661.** **BY ADVS. DR.K.P.SATHEESAN (SR.) SRI.P.MOHANDAS (ERNAKULAM) SRI.S.VIBHEESHANAN SRI.K.SUDHINKUMAR SRI.S.K.ADHITHYAN SRI.MUHAMMED IBRAHIM ABDUL SAMAD SRI.SABU PULLAN** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, FINANCE (PRC-C) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE MANAGING DIRECTOR KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM-695 033.** - **3 THE SUPERINTENDING ENGINEER KERALA WATER AUTHORITY, P.H. CIRCLE, MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN-686661.** - **4 THE EXECUTIVE ENGINEER KERALA WARER AUTHORITY, PUBLIC HEALTH DIVISION, MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN-686 661.** **R2-4 BY SRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-122020, ALONG WITH WP(C).11947/2019(P), THE COURT ON 25-01-2021 DELIVERED THE FOLLOWING:** **WP(C).Nos.11121 & 11947 OF 2019** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 25TH DAY OF JANUARY 2021 / 5TH MAGHA, 1942** ## **WP(C).No.11947 OF 2019(P)** ## **PETITIONERS:** |**1**||**PRATHAPAN K.D.,**| |---|---|---| |||**AGED 59 YEARS**| |||**S/O.K.K.DIVAKARAN, ASSISTANT ENGINEER (RETIRED),**| |||**RESIDING AT PADINJARACHIRA (H), VARANAM P.O.,**| |||**CHERTHALA, ALAPPUZHA-688555.**| |**2**||**MATHEW M.P.,**| |||**AGED 59 YEARS**| |||**S/O.PHILIPOSE, FIRST GRADE DRAFTSMAN (RETIRED),**| |||**RESIDING AT MARUTHUMPARACKAL (H), RIVER VIEW ROAD,**| |||**THODUPUZHA, IDUKKI-685584.**| |||**BY ADV. SRI.VARUN C.VIJAY**| |**RESPONDENTS**<br>**:**||| |**1**||**STATE OF KERALA,**| |||**REPRESENTED BY SECRETARY TO GOVERNMENT,**| |||**DEPARTMENT OF WATER RESOURCES, SECRETARIAT,**| |||**THIRUVANANTHAPURAM-695001.**| |**2**||**KERALA WATER AUTHORITY**| |||**REPRESENTED BY MANAGING DIRECTOR, KERALA WATER**| |||**AUTHORITY, JALABHAVAN, THIRUVANANTHAPURAM-695033.**| |**3**||**THE MANAGING DIRECTOR,**| |||**KERALA WATER AUTHORITY, JALABHAVAN,**| |||**THIRUVANANTHAPURAM-695033.**| |**4**||**CHIEF ENGINEER (HRD AND GENERAL),**| |||**JALABHAVAN, VELLAMBALAM, THIRUVANANTHAPURAM-695033.**| |||**R2-4 BY ADV. SRI.MILLU DANDAPANI**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 0912-2020, ALONG WITH WP(C).11121/2019(M), THE COURT ON 25-01-2021 DELIVERED THE FOLLOWING:** **WP(C).Nos.11121 & 11947 OF 2019** **3** ## **ANU SIVARAMAN, J** **= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).Nos.11121 & 11947 of 2019 = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 25[th] day of January, 2021** ## **JUDGMENT** The issue raised in these writ petitions is with regard to the eligibility of the petitioners herein for time bound higher grade in the scale of pay of Assistant Engineer. The petitioner in W.P. (C).No.11121 of 2019 was appointed as Overseer Grade-III in the Kerala Water Authority on 15.01.1982. He was promoted as Second Grade Draftsman and subsequently as Draftsman Grade-I. The pay revision order which was implemented in the Water Authority by order dated 30.07.2007 provided for grant of 8, 16 and 23 years time bound higher grade. The petitioner claimed 23 years time bound higher grade in the scale of pay of Assistant Engineer with effect from 15.01.2005 when he completed 23 years of service. The claim for time bound higher grade was based on the contention that he was qualified for promotion to the post of Assistant Engineer. This claim was rejected on the ground that the petitioner had been promoted as **WP(C).Nos.11121 & 11947 OF 2019** **4** First Grade Overseer only on 21.02.2009 and had completed two years of service as First Grade Overseer only in 2011. The petitioner was granted the scale of pay Rs.8610-13480 which was the corresponding third time bound higher grade and was denied the scale of Rs.1141020680 which was the equivalent pay of Assistant Engineer with effect from 15.01.2005 on the ground that he was not qualified as on that date. The petitioner had been granted promotion as Overseer Grade-I only in 2009. However, the date of promotion had been reassigned and the assigned date for promotion as Overseer Grade-I was 26.10.1997. The petitioner therefore contended that the two years service as First Grade Overseer for promotion as Assistant Engineer should be reckoned from his assigned date of promotion, that is, 26.10.1997. If the assigned date is taken into account, the petitioner will be fully qualified for promotion as Assistant Engineer and would therefore be eligible for the scale of pay as Assistant Engineer as his third time bound higher grade with effect from 15.01.2005. 2. This Court, by Exts.P4 and P7 judgments, had considered the matter and had held that the rejection of the claim was bad. The respondents were directed to reconsider the claim of the petitioner **WP(C).Nos.11121 & 11947 OF 2019** **5** for grant of scale of pay of Assistant Engineer as his third time bound higher grade on completion of 23 years of service with effect from 15.01.2005, taking note of the assigned date for promotion as Draftsman/Overseer Grade-I. The claim has again been rejected and hence this writ petition. 3. The petitioners in W.P.(C).No.11947 of 2019 had entered service as third grade Overseer on 01.10.1982 and 04.12.1982 respectively. They were granted the benefit of third time bound higher grade only in the scale of pay attached to the post of first grade Draftsman with effect from 11.11.2000 and 04.12.2000 respectively. They had filed Exts.P3 and P4 representations seeking the grant of benefit of 23 years time bound higher grade with effect from 01.11.2005 and 04.12.2005 in the scale of pay of Assistant Engineer. They contend that their dates of promotion as first grade Overseer had been revised as 26.10.1997 and that the two years service as first grade Draftsman should therefore be reckoned from that date. It is contended that if the assigned date of promotion as first grade Overseer is taken into account, both the petitioners would be eligible for the third time bound higher grade in the scale of pay **WP(C).Nos.11121 & 11947 OF 2019** **6** of Assistant Engineer on the date on which they complete 23 years of service. The said benefit has been declined by the impugned order. 4. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the Kerala Water Authority. 5. It is contended by the learned counsel appearing for the petitioners that the assigned date of promotion as Overseer GradeI/Draftsman Grade-I is the relevant date for reckoning the two years of service which is a qualification for promotion to the post of Assistant Engineer. If the assigned date is taken into account, all the petitioners have completed the two years of service in 1999 itself and therefore they would be entitled to the scale of pay of the promoted post on the dates when they complete 23 years of aggregate service. Though this aspect was directed to be considered, it is submitted that the respondents are repeatedly denying the benefit to the petitioners without any justification. 6. It is further contended by the learned counsel for the petitioners that though the provisional seniority list produced as Ext.P6 in W.P.(C).No.11121 of 2019 where the reassigned dates had been assigned to the petitioners had been challenged before this **WP(C).Nos.11121 & 11947 OF 2019** **7** Court, the challenge had been repelled on the ground that the persons likely to be affected had not been made parties to the writ petition. The SLP filed against the said judgment was also rejected. Thereafter, the matter stands remanded to the learned Single Judge to hear on merits after impleading all the parties likely to be affected by the orders passed. It is submitted that, as of now, the assigning of dates of promotion in 1997 stands without any modification and that as such, the said dates are liable to be taken into account for all purposes. 7. A decision of a Division Bench of this Court in **State of Kerala and Others v. K.Indira and another [2019 (5) KHC 383]** is relied on by the learned counsel for the petitioners to contend that the period from the date of retrospective promotion is to be reckoned as qualifying service, where such service is prescribed as a qualification. It is further contended that this Court, in Ext.P7 judgment, had categorically found that the posts of Overseer Grade-II and Overseer Grade-I involved no change of duties and responsibilities. It is contended that Ext.P12 (wrongly mentioned as Ext.P10, which is produced along with the reply affidavit filed by the petitioner) **WP(C).Nos.11121 & 11947 OF 2019** **8** produced along with W.P.(C).No.11121 of 2019 would clearly show that the duties and responsibilities of both the posts are the same. It is contended that Exts.R2(d) and R2(e) communications relied on by the respondents are not Government Orders and cannot alter Ext.P12 in any manner. 8. A counter affidavit has been placed on record in these writ petitions. It is stated that only qualified candidates are entitled to the scale of pay attached to the promotion post as their third time bound higher grade and unqualified hands are eligible only for the next higher scale of pay with reference to the post that they were holding. It is stated that the petitioners were working as Draftsman Grade-II and were not qualified for appointment to the post of Assistant Engineer since they did not have two years experience as Draftsman Grade-I which is a qualification prescribed for promotion as Assistant Engineer. It is stated that the date of promotion of the petitioners as Draftsman Grade-I being in the year 2009, they would be eligible for the third time bound higher grade in the scale of Assistant Engineer only after two years from their date of appointment as Draftsman Grade-I, which has already been granted **WP(C).Nos.11121 & 11947 OF 2019** **9** to them. It is stated that as on the date of completion of 23 years of aggregate service, the petitioners would be eligible only for the scale of pay which is to be granted as higher grade in respect of the post of Draftsman. It is contended that though a retrospective promotion had been granted to the petitioners and an assigned date in the year 1997 had been assigned for promotion to the post of Draftsman Grade-I, the nature and duties and responsibilities of Draftsman Grade-II and Draftsman Grade-I were distinct and different and therefore the said assigned date could not be taken note of for considering the eligibility. 9. I have considered the contentions advanced on either side. It is not in dispute before me that the petitioners have completed 23 years of service in the year 2005. The question is only with regard to the grant of scale of pay of Assistant Engineer with effect from their eligible dates. It is also not in dispute that all the petitioners had been assigned prior dates, that is, in the year 1997 for their promotion as Draftsman Grade-I. The said situation continues. A Division Bench of this Court in **State of Kerala and others v. K.Indira and another (cited supra)** considered a similar factual **WP(C).Nos.11121 & 11947 OF 2019** **10** situation and held that, 'where a retrospective promotion had been granted with consequential arrears of pay and where there is no change in duties and responsibilities between the two posts, the qualifying service should start from the date of retrospective promotion granted to the incumbents'. On an appreciation of the facts and circumstances, the Division Bench found that the promotions granted in that case were not notional and that the petitioners are eligible to count the period from their assigned dates towards qualifying service for the purpose of grant of higher grade. Though the respondents have placed a detailed counter affidavit on record, there is no contention raised that the promotion of the petitioners from the earlier dates were purely notional and that no benefits would enure to them on the basis of the reassignment of seniority and dates of promotion as per Ext.P6. In this case as well, the assigning of prior dates to the promotions of the petitioners was on the finding that there were vacancies of first grade Overseers available in 1997 in the quota set apart for promotees. Taking note of the availability of vacancies, a provisional seniority list giving the promotees seniority reckoning the advice date of the direct recruits **WP(C).Nos.11121 & 11947 OF 2019** **11** had been issued. In the said seniority list, all the petitioners had been assigned 26.10.1997 as their date of appointment as Overseer GradeII. The said seniority list remains in force. 10. The Apex Court in **Bhakra Beas Management Board v. Krishan Kumar Vij and another** [2010 (8) SCC 701] held that a person would be eligible for higher pay scale as time bound higher grade only if he fulfills all eligibility criteria including length of service. However in **UOI and others v. K.B.Rajoria** [2000 (3)SCC 562], the Apex Court held that when the earlier date of promotion is granted to right a wrong done to an incumbent, the date of notional re-fixation of seniority should be taken into account for reckoning qualifying service for promotion. It was further held that 'qualifying service' for promotion cannot always be equated with actual service. 11. The finding in the impugned orders that the assigned dates are not liable to be taken into account for the purpose of deciding the eligibility of the petitioners is completely unwarranted. Though the question had been repeatedly directed to be considered, the respondents had again dismissed the claim raised by the petitioners on the ground that their actual date of promotion was only in 2009. **WP(C).Nos.11121 & 11947 OF 2019** **12** Ext.P12 in W.P.(C).No.11121 of 2019 has been produced by the petitioner to show that the duties and responsibilities of the posts of Overseer Grade-II and Overseer Grade-I are identical. If that be so, the contention that the qualifying service could be counted only from the actual date of promotion cannot be sustained. In the result, the impugned orders are set aside. There will be a direction to the respondents to grant the petitioners the scale of pay of Assistant Engineer as their third time bound higher grade on completion of 23 years of service. Necessary shall be done within a period of three months from the date of receipt of a copy of this judgment. **Sd/-** ## **ANU SIVARAMAN** **JUDGE** **NP** **WP(C).Nos.11121 & 11947 OF 2019** **13** ## **APPENDIX OF WP(C) 11121/2019** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGES OF THE PAY REVISION ORDER ISSUED BY THE FIRST RESPONDENT AS G.O.9P) NO.46/2007/WRD DATED 30.7.2007. EXHIBIT P2 TRUE COPY OF THE REPLY OBTAINED UNDER RIGHT TO INFORMATION ACT FROM THE STATE PUBLIC INFORMATION OFFICER OF KERALA WATER AUTHORITY AS NO.KWA/JB/E4(B)/6054/2012 DATED 10.7.2014.** **EXHIBIT P3 TRUE COPY OF THE GOVERNMENT ORDER G.O.(P) NO.234/2014/FIN. DATED 21.6.2014. EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 25.3.2015 IN WPC NO.33586/2014. EXHIBIT P5 TRUE COPY OF THE ORDER NO.KWA/JB/E4(B)233/2015 DATED 4.7.2015 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P6 TRUE COPY OF THE RELEVANT PAGES OF THE PROVISIONAL SENIORITY LIST PUBLISHED BY THE 2ND RESPONDENT DATED 5.1.2015. EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 12.4.2017 IN WPC NO.22059/2015. EXHIBIT P8 TRUE COY OF THE ORDER DATED 12.3.2018 IN R.P.NO.1066/2017 IN WPC NO.22059/2015. EXHIBIT P9 TRUE COPY OF THE ORDER NO.KWA/JB/E4(B)/12872/2015 DATED 13.11.2018 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 29.1.2019 IN CONT.CASE(C) NO.2065/2018 IN WPC NO.22059/2015. EXHIBIT P11 TRUE COPY OF THE ORDER DATED 6.3.2019 IN R.P.NO.172/2019 IN W.A.NO.1153/2018. EXHIBIT P12 TRUE COPY OF THE GOVERNMENT ORDER IN G.O. (P)NO.47/99/LR.D DATED 03-07-1999** **WP(C).Nos.11121 & 11947 OF 2019** **14** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT-R2(A) TRUE COPY OF THE G.O(P) 234/2014/FIN. DATED 21/06/2014** **EXHIBIT-R2(B) TRUE COPY OF THE SENIORITY LIST OF D'MAN GRADE 1 AS ON 15/11/2016 EXHIBIT-R2(C) TRUE COPY OF THE DETAILS OF TIME BOUND HIGHER GRADE AND PROMOTION SANCTIONED TO THE PETITIONER EXHIBIT-R2(D) TRUE COPY OF THE G.O(P) 20010/B3/09/WRD DATED 07/12/2010 EXHIBIT-R2(E) TRUE COPY OF THE CIRCULAR NO. KWA/JB/E4(B)/508/2011 DATED 28/01/2011 FROM THE MANAGING DIRECTOR** **WP(C).Nos.11121 & 11947 OF 2019** **15** ## **APPENDIX OF WP(C) 11947/2019** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER NO.KWA/JB/E4(A)/161/1994 DATED 3.10.15.** **EXHIBIT P2 TRUE COPY OF THE ORDER NO.KWA/JB/E4(B)/755/96 VOL.II DATED 17.04.2015.** **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 29.08.2018 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 29.08.2018 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 3RD RESPONDENT.** **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 12.4.2017 IN WP(C) NO.22059/2015. EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 12.3.2018 IN R.P.NO.1066/17 IN W.P.(C) NO.22059/2015. EXHIBIT P7 TRUE COPY OF THE LETTER NO.15530/E4(A)/2018/KWA DATED 10.12.2018.** **EXHIBIT P8 TRUE COPY OF THE RELEVANT PART OF THE FINAL SENIORITY LIST OF DRAFTSMAN GR.II IN KWA PUBLISHED VIDE ORDER DATED 22.6.2012.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT-R2(A) TRUE COPY OF THE G.O(P) NO.20010/B3/09/WRD DATED 07.12.2010** **EXHIBIT-R2(B) TRUE COPY OF THE CIRCULAR NO.KWA/JB/E4(B)/ 508/2011 DATED 28.01.2011**