Kerala High Court
Saffeeq M.P vs Kerala Water Authority on 13 August, 2021
W.P.(C).No.20069/2020
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
FRIDAY, THE 13TH DAY OF AUGUST 2021 / 22ND SRAVANA, 1943
WP(C) NO. 20069 OF 2020
PETITIONER:
SAFFEEQ M.P
AGED 44 YEARS
S/O. MUHAMMED M.P. PRESENTLY WORKING AS U.D.
CLERK, DISTRIBUTION SUB DIVISION-1,
KERALA WATER AUTHORITY,
WEST HILL, KOZHIKKODE, PIN - 673005, RESIDING AT
PUTHIYARAKKAL, M.I.E.,
KUNNAMANGALAM P O, KOZHIKODE - 673571.
BY ADVS.
R.RENJITH
SRI.M.T.SURESHKUMAR
RESPONDENTS:
1 KERALA WATER AUTHORITY
JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM,
PIN - 695033, REPRESENTED BY ITS MANAGING
DIRECTOR.
2 THE MANAGING DIRECTOR,
KERALA WATER AUTHORITY, JALA BHAVAN,
VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695033.
3 THE CHIEF ENGINEER
H.D.R. AND GENERAL, KERALA WATER AUTHORITY, JALA
BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN -
695033,
W.P.(C).No.20069/2020
2
4 THE EXECUTIVE ENGINEER
QUALITY CONTROL DIVISION, KERALA WATER AUTHORITY,
MALAPPARAMBU P.O, KOZHIKODE, PIN - 673009.
5 THE ASSISTANT EXECUTIVE ENGINEER
DISTRIBUTION SUB DIVISION - I, KERALA WATER
AUTHORITY, WEST HILL, KOZHIKODE, PIN - 673005.
6 THE FINANCE MANAGER AND CHIEF ACCOUNTS OFFICER
KERALA WATER AUTHORITY, JALA BHAVAN,
VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695033
BY ADV SRI.P.BENJAMIN PAUL, SC, KERALA WATER
AUTHORITY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 08.07.2021, THE COURT ON 13.08.2021 DELIVERED
THE FOLLOWING:-
W.P.(C).No.20069/2020
3
ANU SIVARAMAN, J.
= = = = = = = = = = = = = = =
W.P.(C).No.20069 of 2020.
= = = = = = = = = = = = = = = =
Dated this the 13th day of August, 2021
JUDGMENT
1. This writ petition is filed seeking the following reliefs:-
"i.Issue a writ in the nature of mandamus commanding the
respondents to disburse Rs.1,17,274/- to the petitioner with
interest at the rate of 8% from 13.6.2018 till the date of payment.
ii.Issue a writ in the nature of mandamus commanding the
respondents to take steps to recover the loss caused to the Water
Authority on account of payment of interest to the petitioner , from
the erring officials."
2. Heard the learned counsel for the petitioner and the learned
standing counsel appearing for the respondents.
3. The contention of the petitioner is that he is entitled to arrears
of salary in the post of U.D. Clerk in the Kerala Water
Authority on account of the reassignment of his promotion as
such. It is submitted that the petitioner had entered service as
W.P.(C).No.20069/2020
L.D.Clerk on 7.2.2006. There were several vacancies of
U.D.Clerks remaining unfilled. Moreover, on account of the
delay in implementing the revised pay, the petitioner suffered
loss in his emoluments. He had, therefore, preferred Exhibit
P1 representation dated 30.11.2009 seeking promotion and re-
fixation of pay. Later by order dated 26.8.2011, the petitioner
was promoted as U.D.Clerk. Though further representations
were submitted seeking retrospective promotion, no orders
were passed. The petitioner, therefore, approached this Court
filing W.P.(C).No.6354/2012. By Exhibit P4 judgment dated
14.3.2012, the writ petition was disposed of directing the
respondents to consider the grievance of the petitioner and to
pass orders thereon. Ext.P5 order was passed on 1.1.2014
reassigning the petitioner's date of promotion as UDC on
1.11.2008. The petitioner again approached the respondents
with Exhibit P6 request seeking disbursal of arrears on
account of notional promotion w.e.f. 1.11.2008. Since no
action was taken on Exhibit P6, W.P.(C).No.25428/2014 was
filed by the petitioner. By Exhibit P7 judgment, this Court
again directed the consideration of the representation.
W.P.(C).No.20069/2020
Exhibit P8 further representation was submitted requesting
disbursal of an amount of Rs.1,23,275/- to the petitioner as
arrears. It is submitted that Exhibit P9 arrear fund request for
an amount of Rs.1,17,274/- had been re-submitted by the 4 th
respondent on 6.3.2018 and the amount was duly sanctioned
by Exhibit P10. It is further contended by the petitioner that
identically situated persons had been granted the arrears of
salary on account of the revision of date of promotion and that
the refusal on the part of the respondents to grant the benefits
to the petitioner is completely untenable.
4. A statement has been placed on record by the respondents. It
is submitted therein as follows:-
" 1. It is respectfully submitted that the petitioner joined duty in
Kerala Water Authority as L.D. Clerk on 17.2.2006. He was promoted
as U.D. Clerk by order dated 26.8.2011 with effect from the date of
order. By order dated 1.1.2014, his promotion was reassigned to
1.11.2008.
2. It is submitted that the petitioner is entitled for monetary benefit
as reassignment arrears which is governed by GO[P]No.515/07/FIN
dated 19.10.2007, which reads as follows:-Retrospective effect to
promotion not involving change of duties. Government have
examined the matter in detail and are pleased to order that in cases
W.P.(C).No.20069/2020
of promotions which do not involve a change of duties, the
promotions will have notional effect from the date of occurrence of
vacancy or the date of acquiring eligibility for promotion as the case
may be, but monetary benefit will be admissible only for a maximum
period of one year prior to the date of order of promotion.
3. It is humbly submitted that the petitioner is eligible for monetary
benefit only for a period of one year."
5. A reply affidavit has also been placed on record and
documents produced to show that an identically situated
person had been granted the arrears. The learned counsel for
the petitioner would submit that since the petitioner had been
granted promotion w.e.f. 1.11.2008, the arrears of salary are
also due to be calculated and disbursed to the petitioner. It is
contended that the amounts had been made available by
Exhibit P10 and the refusal to pay the amounts to the
petitioner is illegal and unsustainable.
6. The learned counsel for the petitioner places reliance on
decisions of this Court in Valsala Kumari Devi M v. State of
Kerala and others [2011 (3) KLT 549], Rajappan Nair v.
State of Kerala [1984 KLT 141] and of the Apex Court in
W.P.(C).No.20069/2020
State of Kerala and others v. E.K.Bhaskaran Pillai [ 2007
(2) KHC 972] . It is submitted that in cases where promotion
is wrongly denied to a person, the principle of ' no work no
pay' has no application and that the petitioner would be
eligible for the benefits of arrears of salary for the period
during which the promotion was wrongly denied.
7. I have considered the contentions advanced. The specific
contention of the petitioner is that since promotion had been
wrongly denied to him, he is entitled to all the monetary
benefits when the promotion is ultimately granted. At the first
instance I notice that the two judgments which have been
rendered by this Court in the petitioner's case, which are
Exhibits P4 and P7 respectively, do not contain any finding
that promotion had been wrongly denied to the petitioner. The
two judgments only directed a consideration of the petitioner's
representations without going into the merits of the case.
Exhibit P5 is the order by which the promotion had been
granted to the petitioner from an earlier date. It is apparent
from a reading of Exhibit P5 that the reassignment of
W.P.(C).No.20069/2020
promotion was in compliance with the direction in the
judgments of this Court in other writ petitions to which the
petitioner does not claim to have been a party. It is, therefore,
clear that there were pending disputes with regard to the
assignment of seniority and the filling up of posts of Upper
Division Clerks in the Kerala Water Authority. It is apparent
that pursuant thereto, an exercise to identify the number of
posts and the vacancies available for promotion had been
undertaken by the authority and the eligible incumbents were
granted notional promotions taking note of the available
vacancies. The petitioner had repeatedly approached the
respondents seeking the release of amounts due to him. He
had pointed out that another officer by name Subhashini P had
been granted an amount of Rs.1,72,000/- as arrears of pay.
Reliance is also placed on Exhibits P9, P10 and P11 to contend
that the arrears due to the petitioner had been calculated and
the petitioner's eligibility had been found. However, it is
apparent that no orders had been issued to release the
amounts due to the petitioner, since it was found that the
arrears with regard to only one year is liable to be disbursed
W.P.(C).No.20069/2020
to the petitioner in terms of Rule 23(c) of Part 1 KSR. It is
specifically submitted by the learned standing counsel
appearing for respondents that the amounts admissible under
Rule 23(c) of Part I KSR had already been disbursed to the
petitioner.
8. Having considered the contentions advanced on either side, I
find that the promotion granted to the petitioner was only a
notional promotion and the order did not refer any
retrospectivity to the promotion or payment of the arrears on
account of the same. The judgments of this Court in Exhibits
P4 and P7 also did not contain any finding to the effect that
the due promotion had been wrongly denied to the petitioner
in time.
9. In the above view of the matter, the reliance placed by the
petitioner on the decisions of this Court and the Apex Court is
not justified in as much as there was no finding that the
promotion to which the petitioner was eligible had been
denied to him on account of the action of the respondents.
W.P.(C).No.20069/2020
Rule 23(c) of Part I KSR specifically provides that arrears shall
be limited to one year. The said benefits have, admittedly,
been released to the petitioner as well. In the absence of any
finding to the effect that the promotion had been wrongly
denied to the petitioner, I am of the opinion that the petitioner
cannot, as a matter of right, claim that a notional promotion
granted to him should carry arrears of pay for the entire
period as well. The mere fact that another officer had been
wrongly granted the benefits by itself will not be a reason to
hold that the petitioner is entitled to the benefits as well.
In the result, the prayers sought for cannot be granted. The
writ petition fails and the same is accordingly dismissed.
sd/-
Anu Sivaraman, Judge
sj
W.P.(C).No.20069/2020
APPENDIX OF WP(C) 20069/2020
PETITIONER EXHIBITS
EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE
REPRESENTATION DATED 30.11.2009
SUBMITTED BY THE PETITIONER BEFORE THE
2ND RESPONDENT.
EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE
REPRESENTATION DATED 3.3.2011 SUBMITTED
BY THE PETITIONER BEFORE THE 2ND
RESPONDENT.
EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE
REPRESENTATION DATED 5.09.2011 SUBMITTED
BY THE PETITIONER BEFORE THE 2ND
RESPONDENT.
EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE JUDGMENT
PASSED BY THIS HON'BLE COURT ON
14.03.2012 IN WPC NO.6354.2012.
EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE ORDER
NO.KWA/JB/E9/3947/2013 DATED 1/1/2014
PASSED BY THE 3RD RESPONDENT.
EXHIBIT P6 TRUE PHOTOSTAT COPY OF THE
REPRESENTATION DATED 08.1.2014 SUBMITTED
BY THE PETITIONER BEFORE THE 2ND
RESPONDENT.
EXHIBIT P7 TRUE PHOTOSTAT COPY OF THE JUDGMENT
PASSED BY THIS HON'BLE COURT ON
10.10.2014 IN WPC NO.25428/2014.
EXHIBIT P8 TRUE PHOTOSTAT COPY OF THE
REPRESENTATION DATED 17.10.2017
SUBMITTED BY THE PETITIONER BEFORE THE
2ND RESPONDENT.
W.P.(C).No.20069/2020
EXHIBIT P9 TRUE PHOTOSTAT COPY OF THE LETTER DATED
6.3.2018 SUBMITTED BY THE 4TH RESPONDENT
TO THE 6TH RESPONDENT.
EXHIBIT P10 TRUE PHOTOSTAT COPY OF THE REFERENCE
SHEET SHOWING THAT RS.1,17,274/- WAS
SANCTIONED TO THE PETITIONER.
EXHIBIT P11 TRUE PHOTOSTAT COPY OF THE REPLY DATED
13.03.2020 GIVEN BY THE PUBLIC
INFORMATION OFFICER, QUALITY CONTROL
DIVISION, KERALA WATER AUTHORITY,
KOZHIKODE TO THE PETITIONER.
EXHIBIT P12 TRUE PHOTOSTAT COPY OF THE COMMUNICATION
NO. HC 202/2014 DATED 15.09.2020 ISSUED
BY THE 4TH RESPONDENT TO THE 6TH
RESPONDENT.
EXHIBIT P13 TRUE PHTOTOSTAT COPY OF ORDER
NO.KWA/JB/E9/9000/99.VOL.II DATED
26/8/2011 PASSED BY THE SENIOR
ADMINISTRATIVE OFFICER OF THE WATER
AUTHORITY
EXHIBIT P14 TRUE PHOTOSTAT COPY OF THE CHART THAT
SHOWS THE NAME OF THE PETITIONER IN
EXHIBIT P5
True copy
PS to Judge
