Kerala High Court
Suresh.K vs The State Of Kerala on 1 October, 2021
W.P(C).25890/2017
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
FRIDAY, THE 1ST DAY OF OCTOBER 2021 / 9TH ASWINA, 1943
WP(C) NO. 25890 OF 2017
PETITIONER:
SURESH.K, AGED 43 YEARS, S/O KARUNAKARAN,
CHARIVUKALAYIL HOUSE,RANNI-PERUNAD PO, PIN.689711,
PRESENTLY WORKING AS PUMP OPERATOR AT PERUNAD PUMP
HOUSE, P.H SECTION,KERALA WATER AUTHORITY,
VADASSERIKKARA.
BY ADV SRI.V.SETHUNATH
RESPONDENTS:
1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO
WATER RESOURCES(IRRIGATION & WATER SUPPLY B)
DEPARTMENT,SECRETARIAT,
THIRUVANANTHAPURAM.PIN.695001.
2 THE CHAIRMAN, KERALA WATER AUTHORITY, JALA BHAVAN,
VELLAYAMBALAM,THIRUVANANTHAPURAM.PIN.695033.
3 THE MANAGING DIRECTOR, KERALA WATER AUTHORITY, JALA
BHAVAN,VELLAYAMBLAM, THIRUVANANTHAPURAM.PIN.695033.
4 THE EXECUTIVE ENGINEER, PUBLIC HEALTH DIVISION,
KERALA WATER AUTHORITY,PATHANAMTHITTA. PIN.689645.
5 THE ASST. EXECUTIVE ENGINEER, PUBLIC HEALTH
DIVISION, KERALA WATER AUTHORITY, RANNI.PIN.689673.
6 THE ASST. ENGINEER, PUBLIC HEALTH DIVISION, KERALA
WATERAUTHORITY, VADASSERIKKARA, PIN.689662.
BY ADVS. GOVERNMENT PLEADER
SRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY
OTHER PRESENT:
W.P(C).25890/2017
2
GP. ADV.PARVATHY KOTTOL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 07.09.2021, THE COURT ON 01.10.2021 DELIVERED THE FOLLOWING:
W.P(C).25890/2017
3
JUDGMENT
The petitioner has been working as the Pump Operator of
Perunad Pump House under the respondents from 01.03.1995
onwards. According to the petitioner, from 2003 onwards, the work of
the petitioner was changed to contract employment. However, he was
not allowed to sign in the register after 2003, but he was directed to
continue to work on contract employment. He relies on Ext.P1
certificate issued by the Assistant Engineer of Water Authority and
true copy of the extracts of the attendance register from 01.03.1995
to 2002, which is produced as Ext.P2, to substantiate his employment
from 1995 onwards.
2. Claiming that he had completed 20 years of service in
Kerala Water Authority as Pump Operator and on the basis of a
contention that the employees similar to the petitioner were granted
favourable orders, directing them to be absorbed in regular service,
by virtue of Ext.P4 and Ext.P5 judgments of this court, the petitioner
applied for absorbing him as a permanent employee. He submitted
Ext.P7 representation. Since it was not disposed of, he submitted
W.P(C).No.26390 of 2015 before this Court. It was disposed of by
Ext.P8 judgment, directing the authorities to pass orders after hearing
the petitioner. Accordingly, Ext.P9 order was passed declining his
request for absorption. It was held in Ext.P9 that, he was a labourer
W.P(C).25890/2017
supplied by the contractor for pumping duty and his engagement was
not on CLR basis. As per the then existing Rule, only CLR hands could
be converted to NMR on completion of 240 days of CLR service within
a period of 12 months. Accordingly, Ext.P7 representation was
rejected.
3. Challenging it, petitioner approached this Court by filing
W.P(C).No.1860 of 2016. It was disposed of by Ext.P10 judgment
directing the authority to consider afresh. Ext.P11 is the order passed
accordingly,. This is under challenge in this proceeding.
4. The prayer sought in the Writ Petition is to quash Exts.P9
and P11 and to direct respondent 1 to 3 to regularize petitioner as
Pump Operator in the light of Exts.P4 and P5 judgments of this Court
and Ext.P6 Government Order, without insisting for possession of a
qualification, with effect from 01.01.1995.
5. Ext.P9 shows that, Ext.P7 representation was rejected on
the ground that, he was a labourer supplied by the contractor for
pumping duty and his engagement was not on CLR basis. It was held
that, as per the existing Rules, CLR hands could only be converted to
NMR on completion of 240 days of CLR service within a continuous
period of 12 months. Ext.P11 order shows that, as per Government
Orders referred to in Ext.P11, only those persons in NMR category
appointed prior to 22.05.1990 alone were entitled to benefit of order
W.P(C).25890/2017
No.77/2015 dated 12.08.2015. Since the petitioner was engaged from
1995 onwards under various contractors and receiving wages directly
from contractors, he was not included in CLR service. Hence, he is
not governed by the Government Order dated 12.08.2015.
6. Evidently, in Exts.P9 and P11, the respondents proceeded
on the basis that, he was engaged from 1995 under the contractor.
This seems to be factually incorrect. Ext.P1 clearly shows that, he
was working in the Water Authority. There is no reference that, he
was working under a contractor. Further, Ext.P2 records maintained
in the Water Authority itself shows that, from 01.03.1995 to November
2002, petitioner had signed the records of the Water Authority and his
name, the starting time and stopping time with hours of pumping and
signature were seen recorded in the register. There is absolutely no
indication in Ext.P2 that, he was employed under the contractor. Even
if assuming that, he was posted directly under the contractor after
2001, it is not clear under what circumstance such records were
generated. That liability cannot be cast on the employee. It is for the
Water Authority to explain, and if they are unable to explain, no
presumption against the employee can be drawn. The nature of his
employment after 2001 is also not clearly discernible. Evidently, in
the light of these factual aspects, I feel that, the first respondent is
liable to consider this in the light of Exts.P4 and P5 judgments,
W.P(C).25890/2017
coupled with Ext.P12 order produced in the Writ Petition. The first
respondent shall specifically consider these aspects and pass orders
afresh within a period of one month from the date of receipt of a copy
of this judgment. The petitioner shall also be given a reasonable
opportunity of being heard, either physically and if not possible,
through virtual mode. Ext.P11 stands set aside to this extent.
Writ Petition is accordingly disposed of, with directions.
Sd/-
SUNIL THOMAS
JUDGE
Sbna
W.P(C).25890/2017
APPENDIX OF WP(C) 25890/2017
PETITIONER EXHIBITS
EXHIBIT P1 THE TRUE COPY OF T HE CERTIFICATE ISSUED BY THE
THEN ASST. ENGINEER, P.H SECTION, KERALA WATER
AUTHORITY, VADASSERIKKARA.
EXHIBIT P2 THE TRUE COPY OF THE SOME OF THE EXTRACTS OF THE
ATTENDANCE REGISTER FROM 1.3.1995 TO 2002 KEPT
AT PERUNAD PUMP HOUSE.
EXHIBIT P3 THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE
VICE PRESIDENT OF THE RANNI-PERUNAD GRAMA
PANCHAYAT.
EXHIBIT P4 THE TRUE COPY OF THE JUDGMENT OF THIS COURT IN
O.P NO.24590 OF 1998.
EXHIBIT P5 THE TRUE COPY OF THE JUDGMENT OF THIS COURT IN
WP(C) NO.28851 OF 2013(F) DATED 24.4.2010.
EXHIBIT P6 THE TRUE COPY OF THE G.O(MS) NO.77/15/WRD DATED
12.8.2015.
EXHIBIT P7 THE TRUE COPY OF THE REPRESENTATIONS FILED
BEFORE THE RESPONDENTS 1 TO 3
EXHIBIT P8 THE TRUE COPY OF THE JUDGMENT OF THIS COURT IN
WP(C) NO.26390 OF 2015.
EXHIBIT P9 THE TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT
AS G.O.(RT) NO.1101/2015/WRD DATED 18.12.2015.
EXHIBIT P10 THE TRUE COPY OF THE JUDGMENT OF THIS COURT IN
WP(C) NO.1860 OF 2016.
EXHIBIT P11 THE TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT
DATED 11.1.2017.
EXHIBIT P12 THE TRUE COPY OF TEH G.O.(MS) NO.53/2005/WRD
DATED 21.10.2005.
W.P(C).25890/2017
EXHIBIT P13 THE TRUE COPY OF THE G.O(MS)NO.37/2017/WRD DATED
2.6.2017 ALONG WITH THE CABINET NOTING FOR THE
G.O.
EXHIBIT P14 THE TRUE COPY OF THE G.O(MS) NO.18/2017/WRD
DATED 7.4.2017.
EXHIBIT P15 TRUE COPY OF THE JUDGMENT OF THIS COURT IN WP9C)
NO.21700 OF 2009.
EXHIBIT P16 THE TRUE COPY OF THE APPLICATION UNDER RIGHT TO
INFORAMTION ACT, 2005 BY MADHU.E.K. AND THE
ANSWER GIVEN BY THE CONCERNED EXECUTIVE
ENGINEERS OF THE WATER AUTHORITY.
EXHIBIT P17 THE TRUE COPY OF THE LETTER DATED 3.3.2003
PREPARED AND SIGNED BY THEN ASSISTANT ENGINEER
TO THE RANNI PERUNAD GRAMA PANCHAYATH
EXHIBIT P18 THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE
PRESIDENT OF THE RANNI PERUNAD GRAMA PANCHAYATH
DATED 10.9.2015
EXHIBIT P19 THE TRUE COPY OF THE LETTER ISSUED BY THE
MEMEBER OF LEGISLATIVE ASSEMBLY OF RANNI
CONSTITUENCY DATED 19.9.2017
EXHIBIT P20 THE TRUE COPY OF THE SECOND LETTER ISSUED BY THE
MEMBER OF LEGISLATIVE ASSEMBLY OF RANNI
CONSTITUENCY DATED 21.11.2018
EXHIBIT P21 THE TRUE COPY OF THE LETTER ISSUED BNY THE
PANCHAYATH MEMBER OF THE RANNI PERUNAD GRAMA
PANCHAYATH DATED 19.11.2015
EXHIBIT P22 THE TRUE COPY OF THE GO(MS) NO 06/2013 DATED
16.1.2013
RESPONDENTS EXHIBITS
EXHIBIT R1(a) : TRUE COPY OF THE AFFIDAVIT SUBMITTED BY
SRI.R.NEELAKANDAN, ASSISTANT ENGINEER, KERALA
WATER AUTHORITY, P H SECTION
