Kerala High Court
M.Prabhakaran Nadar vs State Of Kerala on 4 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942
WP(C).No.32604 OF 2011(A)
PETITIONERS:
1 M.PRABHAKARAN NADAR, WEAVING INSTRUCTOR
KHADI PRODUCTION CENTRE,NJANDOORKONAM,,
CHEMPAZTHANTHI P.O.,(MANI BHAVAN, EDACKODE,,
NEMOM P.O.,THIRUVANANTHAPURAM )695020
2 S.SUSEELA KUMARI (DECEASED)
SUMITHAM T.C.NO.10, 1333(1),MELATHUMELE,
VATTIYOORKAVU P.O.,, THIRUVANANTHAPURAM-605013
3 A.P.NALINI, AGED 53 YEARS
W/O.VIJAYAKUMAR,NALINA BHAVAN, CHENKODE,,
OOKKODE P.O.,THIRUVANANTHAPURAM-695020
4 R.SUGANDHY, LURDH BHAVAN
CHENKOTTUKONAM, CHEMPAZHANTHI P.O.,,
THIRUVANANTHAPURAM-695587
*5 R.SASIDHARAN NAIR, AGED 64 YEARS, S/O RAGHAVAN
PILLAR, RESIDING AT SUMITHAM, T.C.NO.10,
1333(1),MELATHUMELE, VATTIYOORKAVU P.O.,,
THIRUVANANTHAPURAM-605013
*6 S.S.AMITHKUMAR, S/O SASIDHARAN NAIR,
AGED 29 YEARS, SUMITHAM, T.C.NO.10,
1333(1),MELATHUMELE, VATTIYOORKAVU P.O.,,
THIRUVANANTHAPURAM-605013
(ADDITIONAL PETITIONERS 5 AND 6 ARE IMPLEADED AS PER
ORDER DATED 04.11.2016 IN I.A.16945/16)
BY ADVS.
SRI.D.SAJEEV
SRI.K.R.HARIDAS
SMT.LIGEY ANTONY
RESPONDENTS:
1 STATE OF KERALA, REP.BY THE PRINCIPAL SECRETARY TO
GOVERNMENT,, INDUSTRIES(K) DEPARTMENT,, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM 695 001
WPC 32604/11
2
2 THE SECRETARY, KERALA KHADI & VILLAGE INDUSTRIES
BOARD,, VANCHIYOOR, THIRUVANANTHAPURAM 695 035
BY ADVS.
SRI.TOM K.THOMAS, SC,
SRI.M.SHARAFUDHEEN, SC
SRI.N.RAJAGOPALAN NAIR, SC,
SRI. SUNIL KUMAR KURIAKOSE - GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC 32604/11
3
JUDGMENT
At the time when this writ petition was
filed, the petitioners were stated to be
working in the services of Kerala Khadi and
Village Industries Board (hereinafter
referred to as 'the Board' for short) and
they claim the benefits equivalent to the
post of Lower Division Clerks (LDC),
asserting that such benefits have already
been granted to certain others who were
similarly situated.
2. I notice that pending this Writ
Petition, the second petitioner died and her
legal heirs have been brought on record.
3. The specific case of the petitioners
is that, while working as Weaving Instructors
in the Board, they were regularised through a
Government Order and that their existing post
was equated to that of 'Amber Instructor's.
They assert that they are, therefore,
WPC 32604/11
entitled to be granted the monetary benefits
of Amber Instructors/LDC, but that this has
been denied through Ext.P6 order, which
records that their positions are not
equivalent to Amber Instructors/LDC, but are
on par with 'Weaving Instructors', which is a
lesser post.
4. The petitioners submit that the
findings in Ext.P6 are wholly incorrect, both
in law and on facts, because, as is evidenced
by Exts.P6, P7 and P8, petitioners 2 and 3
have been addressed by the Board themselves
as 'Amber Instructors' and it is clearly
stated therein that both of them were
appointed as 'Amber Instructors' on daily
wages, as early as in the year 1981.
5. The petitioners further point out
that, as is limpid from Ext.P9, while
granting certain monetary benefits, the
category of Amber Instructors and Weaving
WPC 32604/11
Instructors has been shown to be
interchangeable and therefore, that Ext.P6
order of the Government, which says that
these are two different posts, cannot be
found favour with. They, therefore, pray that
Ext.P6 be set aside and that the respondents
be directed to grant them the benefits as are
applicable to LDC in the services of the
Board.
6. In response, Sri.N.Rajagopalan Nair
- learned Standing Counsel for the Board,
submitted that a counter affidavit has been
filed on record, wherein, it has been averred
that 346 persons, including the petitioners,
were regularised as 'Spinning/Weaving
Instructors' and not as 'Amber Instructors'.
He submitted that the petitioners were
appointed, on being regularised, to a Scale
of Pay that was specified for
'Spinning/Weaving Instructors', which posts
WPC 32604/11
were not available in the cadre but created
solely on humanitarian grounds to accommodate
them and that said pay scale was completely
at variance to the one applicable to 'Amber
Instructors/LDC'. He, therefore, prayed that
this Writ Petition be dismissed.
7. The learned Government Pleader -
Sri.Sunil Kumar Kuriakose, submitted that the
petitioners' contention - that their posts
are equivalent to Amber Instructors/LDC - is
untenable even going by Ext.P1 judgment,
wherein, all of them have described
themselves either as 'Spinning Instructors'
or as 'Weaving Instructors'. He submitted
that as is manifest from Ext.P2, the
Government, in addition, had sanctioned
certain posts having the Scale of Pay
equivalent to LDCs, while regularising the
services of the 'Amber Instructors', which
posts were available only in the Payyannur
WPC 32604/11
Khadi Centre; while in the case of
'Spinning/Weaving Instructors' like the
petitioners, they were regularised
sanctioning them posts having the pay of
1750/- plus D.A. Only.
8. Sri.Sunil Kumar Kuriakose added that
Ext.P9 cannot obtain any benefit to the
petitioners, since what was granted therein
was an additional benefit to two categories
of employees, namely 'Amber Instructors' and
'Weaving Instructors', but that these two
posts were not equated therein. He,
therefore, prayed that this Writ Petition be
dismissed.
9. I have considered the afore
submissions and have also gone through the
materials available on record very carefully.
10. It is no doubt true that the
petitioners were originally working on daily
wages and that they were subsequently
WPC 32604/11
regularised. However, the question is not
whether they were entitled to be regularised
but whether they have been regularised in the
post of 'Amber Instructors/LDC'. The
petitioner say that though they were
designated as 'Spinning/Weaving Instructors',
they were, in fact, appointed as 'Amber
Instructors' evidenced by Exts.P7 and P8,
which relates to two among them. They say
that this is further fortified by the fact
that when additional benefits were given
through Ext.P9, the Board treated both 'Amber
Instructors' and 'Weaving Instructors' to be
one category. I also notice that it is the
specific case of the petitioners that though
the two posts carry two different scales of
pay, their functions are identical and that
they were, for all purposes, seen to be under
one category.
11. When I examine Ext.P6 in the
WPC 32604/11
background of the afore facts and assertions,
it is evident that Government has not
considered the impact of Exts.P7, P8 or P9,
but has gone ahead to reject the petitioners'
claims, saying that the posts of
'Spinning/Weaving Instructors' are not borne
in cadre, while regularisation of the
petitioners were affected and that these
posts were created on humanitarian
consideration. The said order then goes on to
say that the petitioners cannot be found to
be similarly placed as that of
Smt.L.Radhamani, who was an 'Amber
Instructor' and therefore, that they cannot
claim the benefits afforded to her, since
these two posts are incapable of comparison.
12. That said, however, as I have
already said above, Government has not
considered the specific contention of the
petitioners that they were, in fact,
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appointed as 'Amber Instructors' while they
were regularised in service, which is sought
to be substantiated by them through Exts.P7
and P8; and further that both these posts
were treated as one when Ext.P9 order has
been issued.
13. I am, therefore, of the view that
Government must reconsider the matter, after
affording necessary opportunity of being
heard to all the parties, so that the rival
contentions can be properly evaluated and
answered.
In the afore circumstances, I order this
writ petition and set aside Ext.P9; with a
consequential direction to the competent
Secretary of the Government to rehear the
matter, after affording an opportunity of
being heard to the petitioners or their legal
representatives, as also to the authorised
officer of the 3rd respondent-Board, - either
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physically or through videoconferencing -
thus culminating in an appropriate order
thereon, also adverting to my observations
above and to Exts.P7, P8 and P9, as
expeditiously as is possible, but not later
than four months from the date of receipt of
a copy of this judgment.
Sd/-
DEVAN RAMACHANDRAN
RR JUDGE
WPC 32604/11
APPENDIX
RESPONDENT'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED
8.1.2001 IN O.P.NO.18620/1995 OF
THIS HON'BLE COURT.
EXHIBIT P2 TRUE COPY OF THE ORDER
NO.KB.7504/99/E1(B) DATED 28.4.2001
OF THE 1ST RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED
31.7.2007 IN WP(C)13905/2005 OF
THIS HON'BLE COURT.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED
13.2.2008 IN O.P.NO.26051/2001 OF
THIS HON'BLE COURT.
EXHIBIT P5 TRUE COPY OF THE REPRESENTATION
DATED 19.4.2008 FILED BY THE 1ST
PETITIONER BEFORE THE 1ST
RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE ORDER NO.G.O.
(RT)NO.203/2011/ID DATED 9.2.2011
OF THE 1ST RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS DATED
13.8.1981 WHEREBY THE 3RD
PETITIONER WAS APPOINTED IN THE
CATEGORY OF AMBER INSTRUCTOR.
EXHIBIT P8 TRUE COPY OF THE PROCEEDINGS DATED
13.8.1981 WHEREBY THE 3RD
PETITIONER WAS APPOINTED IN THE
CATEGORY OF AMBER INSTRUCTOR IS
PRODUCED.
EXHIBIT P9 TRUE COPY OF THE ORDER
NO.KB.3202/93 K 5 DATED 30.6.1997
OF THE 1ST RESPONDENT IS PRODUCED.
WPC 32604/11
RESPONDENTS EXTS:
EXHIBIT R2(A) TRUE PHOTOCOPY OF ORDER DATED
07.07.1999
EXHIBIT R2(B) TRUE PHOTOCOPY OF THE JUDGMENT
DATED 03.03.2016.
