IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 WP(C).No. 12353 of 2005(U) -------------------------- PETITIONER(S): --------------- N.N.SASIDHARAN NAIR, N.M.R.OPERATOR, KERALA WATER AUTHORITY NO.II SECTION, THODUPUZHA. BY ADV. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.SABU SREEDARAN SRI.VIMAL KUMAR.A.V. SRI.A.G.GIRISH KUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE KERALA WATER AUTHORITY, 'JALA BHAVAN', VELLYAMBALAM, REPRESENTED BY ITS MNAGING DIRECTOR. 3. THE MANAGING DIRECTOR, KERALA WATER AUTHORITY, 'JALA BHAVAN', VELLAYAMBALAM, TRIVANDRUM. 4. THE CHIEF ENGINEER, KERALA WATER AUTHORITY, 'JALA BHAVAN', VELLAYAMBALAM, TRIVANDRUM. 5. THE EXECUTIVE ENGINEER, KERALA WATER AUTHORITY DIVISION, THODUPUZHA. 6. THE ASSISTANT EXECUTIVE ENGINEER, P.H.SUB DIVISION, KERALA WATER AUTHORITY, THODUPUZHA. ADV. SRI.SUNIL CYRIAC, SC, KWA FOR R2 TO R6 SRI.J.KRISHNA KUMAR, SC, KWA FOR R2 TO 6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).12353/05 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:- COPY OF LETTER ISSUED BY R4 DT.25.1.88 EXT.P2:- COPY OF PERFORMA DT.NIL EXT.P3:- COPY OF ORDER OF R2 DT.2.5.91 EXT.P4:- COPY OF ORDER OF R2 DT.16.8.91 EXT.P5:- COPY OF LETTER ISSUED BY R2 DT.1.11.94 EXT.P6:- COPY OF JUDGMENT OF THIS COURT IN OP.34375/02 DT.20.11.02 EXT.P7:- COPY OF LETTER ISSUED BY R4 DT.31.1.03 EXT.P8:- COPY OF LETTER ISSUED BY R3 DT.23.6.03 EXT.P9:- COPY OF RESOLUTION DT.30.7.03 EXT.P10:- COPY OF ORDER PASSED BY R2 DT.2.4.04 EXT.P11:- COPY OF ORDER PASSED BY R4 DT.14.5.04 EXT.P12:- COPY OF ORDER PASSED BY R2 DT,.10.9.04 EXT.P13:-COPY OF REPRESENTATION SUBMITTED TO R2 DT. NIL EXT.P14:- COPY OF LETTER ISSUED BY R4 DT.22.11.04 EXT.P15:-COPY OF ORDER PASSED BY R2 DT.7.1.05 EXT.P16:- COPY OF ORDER BY THIS COURT IN WP(C).6634/05 DT.25.2.05 RESPONDENT'S EXHIBITS:- NIL okb //True Copy// P.A. to Judge C.K.ABDUL REHIM, J. ------------------------------ W.P.(C)No. 12353 OF 2005 ------------------------------ Dated this the 4th day of August, 2009 J U D G M E N T ---------------------- Challenge in this writ petition is against Exts.P12 and P15 orders issued by the 3rd respondent upsetting regularisation granted to the petitioner in the category of NMR Operator. The petitioner was engaged under the erstwhile Public Health Engineering Department (PHED) as a casual labourer (CLR worker) from the year 1982 onwards, exactly from 4.5.1982 onwards. He was doing the work of 'Operator' since then continuously. The petitioner was recommended for absorption into NMR service through Ext.P1 letter issued by the 5th respondent, wherein it is certified that the petitioner was working as CLR in between the period from 16.6.1980 and 31.3.1984. Pursuant to Ext.P1, the 2nd respondent issued Ext.P3 proceedings permitting absorption of CLR hands engaged by the former PHED who had worked for 240 days within a continuous period of 12 months in between 16.6.1980 to 31.3.1984, with effect from 1.4.1984 with monetary benefits available from 5.1.1991 onwards, in relaxation of the qualification, age and method of appointment. Through Ext.P3 order 548 CLR workers were thus absorbed into NMR service, with effect from 1.4.1984. W.P.(C).12353/05-U 2 Eventhough the petitioner has got 240 days continuous service within the above said period, his name was omitted to be included in the list appended to Ext.P3. Through a subsequent proceedings, Ext.P4, the petitioner was absorbed, including him in the category of CLR workers who have completed 240 days service after 1.4.1984, i.e: within the period from 1.4.1984 to 30.7.1988. Persons included in Ext.P4 were absorbed into NMR service with effect from 22.5.1990 with monetary benefits available from 5.1.1991 onwards. The petitioner's name was shown as Sl:No:173 in the list attached to Ext.P4, wherein his category of service was shown as 'Worker' and his period of service in the CLR category as '1.1.1983 to 31.12.1983'. 2. Since the petitioner had continuous CLR service from 1982 onwards, he should have been absorbed with effect from 1.4.1984. Further, since the petitioner was working continuously as CLR Operator he should have been appointed as NMR Operator. The above anomalies were brought to the notice of the 3rd respondent through a letter dt:22.6.1994 issued by the 5th respondent. The 3rd respondent thereupon issued Ext.P5 order by which designation of the petitioner was corrected as “NMR Operator” with effect from 22.5.1990. But the petitioner's grievance that he ought to have been absorbed with effect from W.P.(C).12353/05-U 3 1.4.1984 including his name in the list appended to Ext.P3, was not considered. Since the various representations submitted in this regard fetched no result, the petitioner approached this Court and in Ext.P6 Judgment this Court directed the 3rd respondent to take a decision in the matter within a time limit. Pursuant to Ext.P6 Judgment the 5th respondent again recommended the petitioner for absorption in NMR category with effect from 1.4.1984, through Ext.P7, since the petitioner had continuous service in the CLR category from 1.1.1983 to 31.12.1983. On the basis of Ext.P7 the 4th respondent also recommended him for absorption with effect from 1.4.1984. 3. On the basis of the above said recommendations, the Director Board of the 2nd respondent Authority took resolution dt: 30.7.2003 to absorb the petitioner along with two others as 'NMR Operator' with effect from 1.4.1984. Exts.P10 and P11 are the consequential orders issued by respondents 3 and 5 implementing the above decision and absorbing the petitioner as NMR Operator with effect from 1.4.1984. Accordingly the petitioner was continuing in the category of “NMR Operator”. 4. But after Ext.P9 decision and P10 and P11 proceedings, the 3rd respondent unilaterally issued Ext.P12 order dated 10.9.2004, deleting name of the petitioner and another W.P.(C).12353/05-U 4 from the list of regularised candidates absorbed in NMR service as Operator with effect from 1.4.1984, and including their name in the category of 'NMR worker' eligible to be regularised only with effect from 1.1.1989. The reason shown in Ext.P12 is that the petitioner is not qualified to the post of Operator. The petitioner thereupon submitted Ext.P13 request for reconsidering the decision, narrating the history of the proceedings of regularisation. Eventhough Ext.P13 representation was forwarded by the 4th respondent to the 3rd respondent through Ext.P14 letter in Ext.P15 order the 3rd respondent refused to consider the request, reiterating the reason that the petitioner does not possess requisite qualification for the post of 'Operator' as stipulated in Kerala Public Health Subordinate Service Rules. Petitioner is challenging Exts.P12 and P15 mainly on the ground that the 3rd respondent has no authority to reverse the decision taken by the Board, and also on the ground that the reasoning stated in Exts.P12 and P15 orders are not correct and proper because the petitioner was absorbed into NMR service in relaxation of the qualification as per the decision in Ext.P3 which was prevailing during the relevant time. 5. Heard Sri.Nagaraj Narayanan, learned counsel for the W.P.(C).12353/05-U 5 petitioner and Standing Counsel appearing for the respondents. In the counter affidavit of respondents 2 and 3 it is contended that the recommendation for absorption of the petitioner as 'NMR Operator' was based merely on the fact that he was performing duties of 'Operator', but he was not holding the requisite qualification for posting in the category of 'NMR Operator'. It is contended that for regularisation of the incumbent he should possess the requisite qualification. It is stated that those persons who were absorbed to NMR service by virtue of Government Order (G.O(MS).5/91/LAD dated 5.1.91) is permitted exemption in qualification, age and method of appointment, because Government ordered for such relaxation. But when NMR hands who completed 5 years were regularised as on 1.4.1989 the relaxation in qualification was not ordered, though relaxation in age and method of appointment were permissible. The respondents are relying on the Government Order, G.O(MS).62/98/IRD dt:12.6.98 in support of the above argument. It is therefore contended that the petitioner can be absorbed in the regular establishment only in the category to which he possesses qualification. 6. It is pertinent to note that the petitioner who was engaged in the CLR category was continuously discharging W.P.(C).12353/05-U 6 duties of 'Operator'. Therefore when he was absorbed to NMR service, by virtue of Exts.P3 and P4 orders, he was given absorption in the category as 'NMR Operator'. At that time the absorption was effected in relaxation of qualification, in terms of Ext.P3. Once the petitioner was absorbed into the category as 'NMR Operator', it cannot be said that he could not be granted regularisation based on the allegation that he does not possess required qualification. It may be true that the petitioner may not be eligible for direct appointment to the post of 'NMR Operator', as per qualification stipulated in the Special Rules. But once the absorption is made in relaxation of the requisite qualifications, the petitioner cannot be denied regularisation on the ground that he does not possess the required qualification. Further the benefit of Ext.P3 order was granted to the petitioner confirmed through Exts.P9, P10 and P11 orders by a resolution adopted by the Board of 2nd respondent. It is not proper or justifiable on the part of the 3rd respondent to take away those benefits granted on the basis of the policy prevailing as on that date. Further it is evident from Ext.P3 that, persons who were having 12 months continuous service as in the CLR category in the period from 16.6.1980 to 31.3.1984, were given absorption in the NMR service. From the list appended to Ext.P3 it is evident that many W.P.(C).12353/05-U 7 of the persons were absorbed in the category of 'NMR Operator'. Subsequently those who have completed the requisite service of 240 days after 1.4.1984 and before 30.7.1988 were also absorbed into NMR service, including 'NMR Operators'. Therefore there is no justification or reasoning for denying such benefits to the petitioner which will eventually result in discriminating him from similarly placed others. Therefore I do not find any convincing reason to justify Exts.P12 and P15 proceedings issued by the 3rd respondent. In the result the writ petition is allowed quashing Exts.P12 and P15, and declaring that the petitioner is entitled to continuation and regularisation in service as 'NMR Operator' by virtue of Exts.P9, P10 and P11 with effect from 1.4.1984 with monetary benefits available from 5.1.1991 onwards. C.K.ABDUL REHIM, JUDGE. okb