Kerala High Court
M.K.Raju vs State Of Kerala on 25 January, 2021
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 09-12-
2020, 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:
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 09-
12-2020, 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 25th 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
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.11410-
20680 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
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
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 Grade-
I/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
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
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
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
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
had been issued. In the said seniority list, all the petitioners had been
assigned 26.10.1997 as their date of appointment as Overseer Grade-
II. 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
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
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
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
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
