IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 2ND FEBRUARY 2009 / 13TH MAGHA 1930 WP(C).No. 29986 of 2007(T) ----------------------------------- PETITIONER(S): --------------------- K.S.OMMACHAN, S/O.LATE K.J.SEBASTIAN, AGED 56 YEARS, NMR OPERATOR (RETIRED), P.H.SECTION, KERALA WATER AUTHORITY, KOTTAYAM, RESIDING AT KUNNEPPARAMBIL HOUSE, KUMARANELLOOR P.O., KOTTAYAM. BY ADV. SRI.O.V.RADHAKRISHNAN, SENIOR ADVOCATE SMT.K.RADHAMANI AMMA SRI.ANTONY MUKKATH SRI.K.V.JOY SRI.K.RAMACHANDRAN (THYKOODAM) RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, WATER RESOURCES (WATER SUPPLY B) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. KERALA WATER AUTHORITY, REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN, THIRUVANANTHAPURAM. 3. EXECUTIVE ENGINEER, PH DIVISION, KERALA WATER AUTHORITY, KOTTAYAM. 4. ACCOUNTS OFFICER (ESTT), KERALA WATER AUTHORITY, THIRUVANANTHAPURAM. ADV. SRI.J.KRISHNA KUMAR, SC, KWA FOR R2 TO 4 GOVT. PLEADER SMT. ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 29986/2007 APPENDIX PETITIONER'S EXHIBITS : EXT.P1. COPY OF THE LETER NO. PHE. 2(A) 25884/83 DT. 25/27/10/83 OF THE CHIEF ENGINEER. EXT.P2. COPY OF THE ORDER NO. AB6/7648/77/IV/ DT. 30/3/93 OF THE R3. EXT.P3. COPY OF THE JUDGMENT DT. 26/09/01 IN WA NO. 1782/98 AND CONNECTED CASES. EXT.P4. COPY OF THE GO MS NO. 53/2005/WRD DT. 21/10/2005 OF THE R1. EXT.P5. COPY OF THE ORDER NO. KWA/JB/E3/10911/2003 DT. 28/10/05 OF THE R3. EXT.P6. COPY OF THE ORDER KWA/JB/E3/12006/97 DT. 24/3/2006 OF THE R2. EXT.P7. COPY OF THE GOVT. LETTER NO. 62021/R3/81/LA&SRD DT. 20/11/81 OF THE R3. EXT.P8. COPY OF THE ORDER NO. AB5/7648/77 VOL .II DT. 13/07/2006 OF THE R3. EXT.P9. COPY OF THE ORDER NO. PPD/K/E1/311/99 DT. 19/7/06 OF THE ASST. EXE. ENGINEER. EXT.P10. COPY OF THE ORDER NO. AB2/1638/2006 DT. 1/12/2006 OF THE R3. EXT.P11. COPY OF THE LETTER NO. KWA/AO/(ESTT)/PEN 55/09/1405 DT.22/03/04-04-2007 OF THE R4 TO THE R3. EXT.P12. COPY OF THE ORDER NO. PHSD/K/E1/390/07 DT. -06-07 OF THE ASST. EX. ENGINEER. EXT.P13. COPY OF THE ORDER NO. AB5/7648/77 VOL.II DT. 6/08/2007 OF THE R3. EXT.P14. COPY OF THE JUDGMENT DT. 5/1/09 IN OP NO. 17633/2001 OF THIS COURT. RESPONDENTS' EXHIBITS : NIL. / TRUE COPY / tga T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 29986 of 2007-T - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of February, 2009. JUDGMENT The petitioner, a former NMR operator under the administrative control of the third respondent, has approached this court aggrieved by Ext.P11 order issued by the Accounts Officer who has ordered to review the promotion already given to him with effect from 1.4.1993. It has also been stated that the fixation of pay should be reviewed accordingly. Ext.P13 is the proceedings of the Executive Engineer, PH Division, Kottayam directing to recover the excess pay and allowances already granted to him. 2. The petitioner has retired from service on attaining the age of superannuation, on 30.9.2006. The particulars in respect of him show that he was initially engaged as NMR Worker in the Municipal Common Service with effect from 11.1.1978. Later on, when Water Supply Distribution System was transferred from local bodies to the Kerala Water Authority, 17 NMR/CLR workers including the petitioner were transferred to Kerala Water Authority with effect from 1.3.1991, without sanctioning any posts under the regular service. He was granted 1st Higher Grade with Wpc 29986/07 2 effect from 1.4.1989 as per GO(Ms) No.7/93/LAD dated 11.1.1993. Pursuant to a general decision taken by the Government in the year 1983 that all NMR workers would be brought into regular establishment for the Kerala Water Authority as and when they complete five years of service, the Chief Engineer (R & GL), Public Health Engineering Department, Trivandrum by letter dated 27.10.1983 informed that a Conference was held by the Hon'ble Minister for Irrigation on 6.10.1983 to discuss the problems of NMR workers of Public Health Engineering Department. One of the decisions taken in the conference is that experience of 10 years of unskilled NMR hands for appearing for Practical Test for the purpose of ranking for promotion to skilled category as laid down in the Office Circular dated 26.3.1979 will be reduced to 5 years. Another decision taken was that whenever NMR vacancy arises in skilled categories, those vacancies are to be filled up by promoting eligible unskilled NMR hands only, following the prescribed Recruitment Rules and those decisions are to be implemented with immediate effect. The above letter of the Chief Engineer is produced herewith as Ext.P1. In implementation of Ext.P1, the petitioner was promoted as NMR Operator on regular basis as per Ext.P2 order of the third respondent dated 30.3.1993. On such promotion, he was placed in the pre-revised scale of Rs.1090-1695 admissible in the category of operator. Wpc 29986/07 3 On revision of pay made subsequently with effect from 1.3.1997 he was placed in the revised scale of Rs.3440-5385. According to him, he continued in service till retirement on superannuation. 3. There was an earlier dispute raised by some other workers which culminated in Ext.P3 judgment of a Division Bench of this Court in W.A. No.1792/1998 and connected cases. The petitioner was respondent No.20 in the above Writ Appeal which arose from O.P.No.2885/1992. The above writ appeals were dismissed by stating that the Water Authority is bound to follow the Special Rules and the qualification laid down therein. It was observed that the circumstances under which special concession was given, is not under challenge. Ultimately, relief was refused therein. 4. Shri O.V. Radhakrishnan, learned Senior Counsel appearing for the petitioner submitted that in the light of the binding judgment of this court, the Accounts Officer could not have issued a proceedings like Ext.P11 seeking to review the promotions. It is pointed out that by Ext.P14 judgment in O.P.No.17633/2001 this court upheld the claim of the petitioners and directed the respondents to give the scale of pay applicable to NMR workers (skilled) to the petitioners therein. It is pointed out that those petitioners are similarly placed as that of the petitioner herein. It may also be mentioned herein that by Ext.P8 order dated 13.7.2006, the 3rd Wpc 29986/07 4 Higher Grade was granted to the petitioner. 5. It cannot be disputed that the petitioner was granted the benefits of higher grade on the basis of competent orders passed by the authorities concerned from time to time. Ext.P11 is one dated 22.3.2007 issued after his retirement. 6. The respondents have filed a counter affidavit. The stand taken in para 2 of the counter affidavit is that the petitioner became an NMR worker in the Kerala Water Authority with effect from 1.3.1991 along with another 16 persons and going by Ext.P2, he had not completed five years of NMR service as on the date of Ext.P2. 7. In the light of the judgment of the Division Bench, it cannot be disputed that the same will bind the respondents herein. It was observed that the special concession granted is not challenged. Permission has not been sought to review the earlier orders, before the Bench. In that view of the matter, grant of higher grade to the petitioner at the relevant point of time cannot be said to be irregular. The petitioner being a beneficiary of Ext.P3 judgment, he cannot be denied the benefit of the declaration made by the Division Bench as per the same. Going by Ext.P14 judgment also, the petitioners therein have been granted the benefit of scale of pay applicable to NMR workers (skilled). Wpc 29986/07 5 8. In the light of the above, the petitioner is entitled to succeed in this writ petition. Exts.P11 and P12 are quashed. It is pointed out that the petitioner has not been disbursed with the retirement benefits, viz. regular pension, DCRG and other benefits. What is granted to him is only provisional pension. Therefore, there will be a direction to respondents 2 to 4 to see that the admissible benefits due to the petitioner based on the findings rendered above, will be disbursed within a period of three months from the date of receipt of a copy of this judgment. Even though the petitioner has prayed for grant of interest, since the issue was pending before this court, it cannot be said that there was any willful denial of the benefits. If the amount is disbursed within the period mentioned above, the same will not carry any interest. If the disbursement is delayed further, the respondents will pay interest at the rate of 8% from today till the amounts are disbursed to the petitioner. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/