IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 30TH MAY 2008 / 9TH JYAISHTA 1930 WP(C).No. 735 of 2004(K) ----------------------------------- PETITIONER: ------------------- 1. T. ACHUTHAN, HEALTH INSPECTOR GRADE I, GURUVAYOOR MUNICIPALITY, GURUVAYOOR. 2. D.M. DEVARAJAN, HEALTH INSPECTOR GRADE I, CHERTHALA MUNICIPALITY, CHERTHALA. 3. P.N. WILSON, HEALTH INSPECTOR GRADE II, COCHIN CORPORATION, ERNAKULAM. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI RESPONDENTS: ----------------------- 1. STATE OF KERALA REP. BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. DIRECTOR OF URBAN AFFAIRS, TRIVANDRUM. 3. SRI.P. SUBRAMANIAN, HEALTH SUPERVIOR, IRINGALAKKUDA MUNICIPALITY, IRINGALAKKUDA, THRISSUR DISTRICT. BY ADV. SRI.N.SUBRAMANIAM - R3 SRI.M.S.NARAYANAN - R3 SRI.P.T.GIRIJAN - R3 SRI.PRAMODH.R - R3 SMT.USHA NARAYANAN - R3 GOVERNMENT PLEADER SRI.NANDAKUMAR - R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/05/2008, ALONG WITH WP(C) NO.4903 OF 2007 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.735/2004 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE GOVERNMENT ORDER GO(MS) 356/72/H&FWD DT. 16.12.1972. EXT.P2:- COPY OF THE GOVERNMENT ORDER GO(MS) 246/98/LAD DT. 24.11.98. EXT.P3:- COPY OF THE GO(RT) NO.2370/2003/LSGD DT. 1.7.03. EXT.P4:- COPY OF THE ORDER NO.B4-2929/03 D. 17.10.03 ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS EXT.R3(1):- COPY OF THE GOVERNMENT ORDER DT. 16.12.1972 BEARING NO.G.O.(MS) NO.356/72/LA & SWD. EXT.R3(2):- COPY OF THE RELEVANT PORTION OF KERALA PANCHAYATH MANUAL, VOL. II SHOWING G.O. NO.2108/PH. EXT.R3(3):- COPY OF THE GOVERNMENT CIRCULAR DT. 23.1.1968 BEARING NO.J-1220- L1/15260/68. EXT.R3(4):- COPY OF THE NOTIFICATION DT. 30.4.19643 BEARING G.O.(MS) 319/64/DD. EXT.R3(5):- COPY OF THE QUESTION PAPER NO.1220/85 DT. 5.4.86 ISSUED BY THE PUBLIC SERVICE COMMISSION. EXT.R3(6):- COPY OF THE GOVERNMENT ORDER DT. 2.1.59 AND BEARING NO.(MS) NO.6/59/L& LAD. EXT.R3(7):- COPY OF THE GOVERNMENT ORDER AND COMBINED GRADATION LIST DT. 31.10.1968 AND BEARING NO.G.O.(MS) 482/68/DD. EXT.R3(8):- COPY OF THE GOVERNMENT ORDER DT. 9.6.69 AND BEARING NO.G.O.(P) 290/69/FIN. EXT.R3(9):- COPY OF THE GOVERNMENT ORDER DT. 6.1.1962 AND BEARING NO.G.O. (MS) 30/62/HLD. EXT.R3(10):- COPY OF THE GOVERNMENT ORDER DT. 9.8.1954 AND BEARING NO.G.O. (MS) NO.2237/HEALTH. EXT.R3(11)(a):- COPY OF THE GOVERNMENT ORDER DT. 3.2.87 AND BEARING NO.G.O. (MS) NO.25/87/LAD. EXT.R3(11)(b):- COPY OF THE GOVERNMENT ORDER DT. 19.9.87 AND BEARING NO.G.O. (MS) NO.213/87/LAD. EXT.R3(11)(c):- COPY OF THE GOVERNMENT ORDER DT. 6.11.1987 AND BEARING NO.G.O.(MS) NO.249/87/LAD. W.P.(C) NO.735/2004 EXT.R3(12):- COPY OF THE LETTER DT. 22.2.1991 AND BEARING NO.E3/59514/87 BY THE DIRECTOR OF PANCHAYATHS. EXT.R3(13):- COPY OF THE RELEVANT PORTION OF FILED NO.8789/H2/91.LAD DT. 6.4.1991. EXT.R3(14):- COPY OF THE GOVERNMENT ORDER DT. 26.5.1967 AND BEARING NO.G.O. (RT) NO.2124/67/HLD. EXT.R3(15:- COPY OF THE GOVERNMENT LETTER DT. 30.9.1983 AND BEARING NO.19501/D2/82/LA & SWD. EXT.R3(16):- COPY OF THE GOVERNMENT ORDER DT. 27.9.1985 AND BEARING NO.G.O. (RT) 199/85/LAD. EXT.R3(17):- COPY OF THE ORDER DT. 5.2.2004 AND BEARING NO.B4/10400/2000 OF THE DIRECTOR , URBAN AFFAIRS. /TRUE COPY/ P.A. TO JUDGE tss V. GIRI, J. ------------------------------- WP(C).NOs.735/2004,4903 &23949 of 2007 and 7117 of 2008 --------------------------------- Dated this the 30th day of May, 2008. JUDGMENT Similar issues arise for consideration in these cases. They have been heard together and are being disposed of by this common judgment. WPC.No.7117/2008 is taken as the leading case. 2. The petitioner was working as Sanitary Inspector in the Kalpetta Panchayat. While so, the Kalpetta Panchayat was upgraded as Kalpetta Municipality on 1.4.1990, the petitioner opted for the Municipal Common Service as Sanitary Inspector but he was posted as Junior Health Inspector. According to the petitioner, there is functional parity in the duties of the Sanitary Inspector in the Panchayat and Health Inspector in the Municipality. Reference is made in this regard to GO.(MS) 356/72/LA &SWD dated 16.12.1972. Aggrieved by the fact that he was posted as Junior Health Inspector in the Municipal Common Service, the petitioner approached this court by filing WPC.735 /2004 & conn.cases. 2 OP.No.2809/92 praying that Sanitary Inspectors absorbed in the Municipal Common Service consequent on conversion of Panchayat into Municipality should be equated to Health Inspector and their pay and seniority must be fixed accordingly. The said writ petition was disposed of by Ext.P2 judgment. Since much of the controversy turns around the scope and ambit of the directions issued by this court in Ext.P2 judgment, I consider it advantageous to extract the operative portion of the judgment. “ (1) There will be a direction to the first respondent to consider Ext.P13 representation. It will be open to the petitioner to furnish subsequent materials before the first respondent. (2)(2) The first respondent will afford an opportunity for hearing to the petitioner. (3) While passing orders on Ext.P13, the Government will take into consideration the contentions advanced by the petitioner with regard to the functional parity. (4) If it is found that the first respondent had accommodated and posted sanitary Inspectors as Health Inspectors Grade II WPC.735 /2004 & conn.cases. 3 in similar circumstances, the petitioner also will be extended the same benefits.” 3. Taking note of the directions in Ext.P2 judgment, the Government passed Ext.P3 order. It was found in Ext.P3 that the petitioner was holding the post of Sanitary Inspector in Panchayat Common Service in the scale of Rs.950-1590 before his absorption in Municipal Common Service. But consequent on the conversion of the Kalpeptta Panchayat into Kalpetta Municipality, he was absorbed in the Municipal Common Service but was authorised the scale of Rs.845-1370 as on 1.4.1990. It was found by the Government that in the event of conversion of the Panchayat into Municipality the post of Sanitary Inspector attached to the Panchayat Common Service should be treated as Health Inspector or Junior Health Inspector. That in the present case the petitioner was assigned the post of Junior Health Inspector on a lower time scale and this was not proper. It was further found as follows:- “The precedent pointed out was also examined. Sri.Laxmi Narayana Rao was assigned the post of Health Inspector Grade II when Kasaragod Panchayat was upgraded WPC.735 /2004 & conn.cases. 4 as Municipality. The contention of the petitioner to extend the benefit to him also merit consideration.” 4. The Government accordingly ordered that the petitioner be assigned the post of Health Inspector with effect from 1.4.1990, the date on which he was absorbed in the Municipal Common Service. His pay and allowances were fixed accordingly. 5. It seems that taking note of Ext.P2 judgment and Ext.P3 order, similarly situated persons including the petitioners in WP (C).Nos.4903/2007 and 23949/2007 had approached this court and claimed similar benefits. Their cases were directed to be considered by the Government in the light of Ext.P3 Government Order. 6. Apparently, one of the beneficiaries of such a direction was one M.Vijayan Nambiar, the petitioner in WPC.No.13550/2006. The said writ petition was disposed of on 29.8.2006 directing that monetary benefits due to the petitioner under orders passed in his case shall be worked out and disbursed as early as possible. Sri. Vijayan Nambiar moved this court in COC.No.851/2007. At that point of time the Government WPC.735 /2004 & conn.cases. 5 apparently realised that Sanitary Inspector in a Panchayat Service can be accommodated in the Municipal Common Service on upgradation of a Panchayat to a Municipality only in the post of Junior Health Inspector and not in the higher post of Health Inspector. Accordingly Ext.P7 notice was issued by the Government stating that the petitioner is entitled to be equated as Junior Health Inspector with effect from the date of absorption of the petitioner in the Municipal Common Service and would be entitled to protection of higher pay , if any drawn in the parent department. 7. The Government proposed to correct the said discrepancy in Ext.P3 Government order and gave an opportunity to the petitioner to show cause why the said order Ext.P3 should not be reviewed. The petitioner submitted Ext.P8 objection. The same was rejected and Ext.P10 order was passed holding that the petitioner will be absorbed the Municipal Common Service as Junior Health Inspector. The Director of Urban Affairs directed fixation of pay and allowances and seniority accordingly and arrears, if any, due to the petitioner was also directed to be paid. Ext. P10 has been challenged in this writ petition. WPC.735 /2004 & conn.cases. 6 8. A counter affidavit has been filed in WPC.No.4903/2007 and 23949/2007 and the same contentions have been adopted in the present case also. 9. I heard learned counsel for the petitioner Sri.N.Subramaniam, learned senior Government Pleader Sri.Nandakumar and Sri.Jaju Babu, learned counsel for the petitioners in WPC.No.735/2004. 10. WPC.No.735/2004 is filed by certain employees of the Municipal Common Service who have challenged Ext.P3 order in WPC.No.7117/2008 on the premise that Sanitary Inspectors in the erstwhile Panchayat Service are entitled to absorption in Municipal Common Service only as Junior Health Inspectors and not as Health Inspectors. 11. Learned counsel for the petitioner in WPC.No.7117/2008 Sri.Subramanyan submits that Ext.P10 order passed by the Government is vitiated on several grounds. It is first submitted that the Government had passed Ext.P3 order in compliance with the directions issued by this court in Ext.P2 judgment. The Government has no power to review the same. Assuming without admitting that the Government is competent to review the order, WPC.735 /2004 & conn.cases. 7 he submits that Ext.P3 order was passed by a Deputy Secretary to Government and the reviewed order is seen to have been passed by the Under Secretary to Government. He further submits that one of the issues which should be treated as settled by Ext.P2 judgment of this court was a direction issued by this court to extend the petitioner the benefit of absorption in Municipal Common Service as Health Inspector, provided a similar treatment has been afforded to any other similarly situated persons. It is contended that the Government has in Ext.P3 order found that one Laxmi Narayana Rao, originally working as Sanitary Inspector in Kasaragod District was absorbed into Municipal Service as Health Inspector and therefore, this court specifically directed that the petitioner would be entitled to similar treatment if he is similarly situated. Ext.P2 judgment has become final and Ext.P3 order has been passed in compliance thereof. If at all the Government felt that there was a mistake in Ext.P3, it should be rectified only by a review of Ext.P2 judgment and not by recalling Ext.P3 order as such. 12. Learned Government Pleader submits that this court had in Ext.P2 judgment only directed the Government to take a WPC.735 /2004 & conn.cases. 8 decision on the claim made by the petitioner. The decision taken by the Government is Ext.P3 was realised to be one passed on a wrong premise of facts. The Government unfortunately lost sight of Ext.P1 Government order and subsequent Government order dated 24.11.1998. The post of Sanitary Inspector in the Panchyat Service can be equated only with the post of Junior Health Inspector Gr.I in the Municipal Common service and in some cases it can be equated with the post of Junior Health Inspector Grade I . This was a decision which was required to be taken by the Government while passing orders pursuant to Ext.P2 judgment. The mistake was later realised and sought to be rectified. The case of Laxmi Narayana Rao stands on a different footing. It is pointed out that Laxmi Narayana Rao was absorbed into Municipal Service and not Municipal Common Service and this was effected before Ext.P1 Government Order was issued in the year 1972. There was no precedent of the Government directing absorption of Sanitary Inspector of the Panchayat Service as Health Inspector in the Municipal Common Service. While passing Ext.P10 order, the Government has rectified its mistake. WPC.735 /2004 & conn.cases. 9 13. The first issue to be considered is whether the Government is competent to recall Ext.P3 order or review the same, without a review of the judgment Ext.P2. Mr.Subramaniam submits in this context that the basis of the exercise of review undertaken by the Government is Ext.P1 Government Order dated 16.12.1972 and the subsequent Government Order dated 24.11.1998. Both these orders were in existence when Ext.P2 judgment was passed and subsequently when Ext.P3 order was issued. That the petitioner was entitled to be absorbed only as a Junior Health Inspector was a contention which should have been raised by the Government in the course of disposal of OP.No.2809/1992 leading to Ext.P2 judgment or while passing Ext.P3 order. Having not done so, he submits, the present stand taken by the Government is violative of the principles of res judicata or constructive res judicata. 14. This court had in Ext.P2 judgment only directed the Government to pass an order on Ext.P13 representation, marked in Ext.P2 judgment. The question as to what was the equated category to the post of Sanitary Inspector was not considered by this court on merits. It was left to be considered WPC.735 /2004 & conn.cases. 10 by the Government. In effect therefore there was no finding on the merits of the contentions raised by the petitioner. In fact the Government was to find what was the equated category to the post of Sanitary Inspector. The principles of res judicata or constructive res judicata do not therefore have any application in the present context. Sri.Subramaniam refers to the decision of this court in Ramachandran vs. Food Corporation of India (1989 (2) KLT 112) in support of his contention. A Division Bench of this court had on facts found in the said case that the stand taken by the respondent Corporation in an earlier litigation was correct on the facts of the case and based on the stand taken by the Corporation this court also directed the Corporation to reopen the earlier stand. This court went into the merits of the contentions raised by the rival parties and accepted the case put forward by the appellant in this case. I do not think that any binding principle has been laid down by the Bench of this court in Ramachandran as suggested by Mr.Subramaniam. 15. Sankar Debacharya and others vs. Biswanath Chakraborty and others (2007 (1) SCC 309) was referred to by Subramaniam. Reference was made to paragraph 20 of the WPC.735 /2004 & conn.cases. 11 said judgment. But the present case is not one where this court had indicated that any particular benefit be granted to the petitioner. This court had in Ext.P2 judgment only directed the Government to take a decision. The Government had also passed Ext.P3 order. The Government later felt that a mistake was committed. A subsequent order passed by the Government can be found to be illegal only if it is found that it is against any specific direction issued by this court in Ext.P2 judgment. As such, except to a limited extent, there is no finding by this court in Ext.P2 judgment. On the merits of the contentions raised by the petitioner the directions in Ext.P2 was one to the Government to pass an order on the petitioner's claim. The Government was competent to pass an order. Even otherwise this court was only asking the Government to exercise the power. Subsequent exercise undertaken for the rectification of a mistake does not in any manner come into conflict with any binding direction issued by this court in Ext.P2 judgment. 16. Sri. Subramaniam then contended that the Government has no power of review as such. He refers to the following judgment in support of his contentions. WPC.735 /2004 & conn.cases. 12 “ P.N. Thakershi vs. Pradyumansinghji (AIR 1970 S.C.1273), State of Orissa vs, Commissioner of Land Records and settlement(1998(7) SCC 162), Bhupatsinh vs. President Sumer Sports Club, Jamnagar (1996 AIHC 578), J.C.Rishi vs. Union of India (AIR 1968 Madhya Pradesh 42) and Natarajan vs. The State of Tamil Nadu ( 2002 (2) MLJ 717). “ 17. No doubt the power of review can be exercised only when it is conferred and not by implication. But this principle is essentially applicable in the case of exercise of statutory power. The order passed by the Government Ext.P3 was not in exercise of any statutory power as such. It was a decision taken by the Government as part of its general executive power. Every administrative authority conferred with the power to take a decision in any particular matter will also have the power of rectification of any mistake which it has committed. The decision of this court in Sasidharan vs. Reserve Bank of India (1990(2) KLT 573) supports this proposition. In fact WPC.735 /2004 & conn.cases. 13 this court in the said decision had relied on the judgment of State of Punjab vs. Jagdip Singh (AIR 1964 S.C.521) to come to the said conclusion. The principle was essentially laid down with reference to the wrong orders being passed by the administrative authority in such a manner as to affect third party interests. But it is an authority for the proposition that whenever an administrative authority passes a wrong order it should be vouchsafed the power to correct its mistake to prevent miscarriage of justice. The petitioner claimed absorption in the Municipal Common Service and it is governed by the provisions of the statutory rules or orders like Ext.P1 Government order and the Government order dated 24.11.1998 which takes the place of a rule in the absence of the same. In that view of the matter, pursuant to Ext.P2 judgment the Government was obliged to pass a correct order and not an order which was in ignorance of earlier binding orders as such. The power of the Government to rectify its own mistake cannot be denied. 18. Sri.Subramaniam then contended that what was interfered in the present case is a settled right of the petitioner and a power of review in such cases cannot be implied. The WPC.735 /2004 & conn.cases. 14 petitioner's right flowing out of Ext.P2 judgment was to compel the Government to pass an order with regard to the absorption in Municipal Common Service. The Government was only required to exercise the power. Therefore, while passing Ext.P3 order the Government was exercising the said power. In my view, the nature of the power exercised by the Government is identified and the power of the Government to correct its own defect is to be upheld. The fact that the petitioner's right to receive emoluments consequent upon absorption into an appropriate equated category in the Municipal Common Service is affected by reason of the orders passed by the Government will not derogate the actual exercise of power by the Government to correct its own mistake. 19. The next question is to be considered is whether the Government has come to a correct conclusion that the equated category to the post of Sanitary Inspector in the Panchayat Common Service is that of Junior Health Inspector or Health Inspector. This issue has been dealt with the Government in paragraphs 6 and 7 of the Government Order which is impugned in this writ petition. I am constrained to take note of the fact WPC.735 /2004 & conn.cases. 15 that there is no contrary materials made available by the petitioner to hold that the factual finding in paragraphs 6 and 7 of the judgment is otherwise vitiated. But I do not express any final opinion in this regard. 20. While therefore upholding the power of the government to review Ext.P3 order for correcting its own mistake and while rejecting the contention that the Government has no jurisdiction to pass an order in the nature of Ext.P10 without getting Ext.P2 judgment reviewed, I am constrained to take note of two factors which emanate from Ext.P2 judgment. Firstly, Ext.P2 judgment has become final and therefore the direction contained therein will have to be treated as conclusive. In my view there are two aspects in Ext.P2 judgment which have not been correctly or adequately considered by the Government. The Government was directed to take into consideration the contentions advanced by the petitioner with regard to the functional parity while passing order on Ext.P13. This court had also specifically held that if the Government had accommodated and posted Sanitary Inspectors as Health Inspectors Grade II in similar circumstances, the petitioner also will be extended the WPC.735 /2004 & conn.cases. 16 same benefit. While passing Ext.P3 order the Government had specifically held that Sri.Laxmi Narayana Rao was assigned the post of Health Inspector Grade II when Kasaragod Panchayat was upgraded as Municipality. Learned Senior Government Pleader contends that this was on wrong premise of facts and referred to Ext.R3(14) in WPC.No.735/2004. May be, this is so. But there is no mention regarding the same when the Government passed Ext.P10 order. This court had in Ext.P2 judgment specifically directed the Government to extend the petitioner the benefit of absorption as Health Inspector Grade II if a similar benefit had been granted to similarly situated persons. While passing Ext.P3 order, the Government specifically found that Laxmi Narayana Rao, a Sanitary Inspector in Panchayat Service was absorbed as Health Inspector Grade II on the Panchayat being upgraded as Municipality. If the said finding of fact in Ext.P3 is a mistake, then it should have been so specifically stated by the Government in Ext.P10 order. But there is no reference at all to this fact in Ext.P10. Even in Ext.P7 show cause notice, there is no reference to the benefit granted to Laxmi Narayana Rao nor is there any statement that the finding in that regard in Ext.P3 was WPC.735 /2004 & conn.cases. 17 rested on incorrect factual premises. Apart from any other fact, the petitioner must be treated as absorbed as Health Inspector Grade II in the Municipal Common Service with effect from the date of absorption in the Municipal Service, if similar benefit had been granted to another person in similar circumstances. The said direction is binding on the Government. What was left to be considered by the Government is whether on facts a similar benefit had been afforded to any other person. It was found in the affirmative in Ext.P3 order. If the Government is of the opinion that it is a mistake, it must be so specifically found in any subsequent order passed by the Government. Ext.P10 is vitiated on that count. 21. I also find that the Government has not considered the contention of functional parity in deciding upon the equated category to the post of Sanitary Inspector, though it is a specific factor, that is directed to be kept in mind as per the direction in Ext.P2 judgment. 22. There is one other contention raised by Sri.Subramaniam to the effect that Ext.P3 order passed by the Government was authorised by the Deputy Secretary to WPC.735 /2004 & conn.cases. 18 Government. But Ext.P10 has been passed by the Under Secretary to the Government. According to him, this vitiates Ext.P10 order. I am afraid I am unable to accept this submission. Both orders are issued by the order of the Government and therefore will have to be treated as orders issued by the Government in exercise of the executive power in terms of Article 162 of the Constitution. The exercise of power is not statutory and therefore the order is eligible to be treated as one issued by the Government itself. 23. In the result, WPC.7117/2008 is allowed in part. Ext.P10 order is quashed. But it is made clear that the Government has jurisdiction to recall Ext.P3 and pass a fresh order. The contention of the petitioner that the Government has no power to do so in the absence of a review of Ext.P2 judgment is repelled. The Government shall pass a fresh order after issuing a notice incorporating the grounds on which they propose to recall Ext.P3 order. The petitioner shall be given an opportunity to file objections thereto except in relation to the jurisdiction of the Government to pass an order. The petitioner shall be heard and fresh orders shall be passed within six months WPC.735 /2004 & conn.cases. 19 from the date of receipt of a copy of this judgment. WPC.No.23949/2007 The direction issued in WPC.No.7117/2008 is applicable to the case of the petitioner herein also. Accordingly, a fresh order shall be passed in the case of the petitioner also. WPC.No.4903/2007 The direction issued in WPC.No.7117/2008 is applicable to the case of the