IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 WP(C).No. 1998 of 2006(K) --------------------------------------- PETITIONER(S): ------------------------- P.KESAVAN NAIR, S/O.LATE K.N.PARAMESWARA N NAIR, AGED 64 YEARS, RESIDING AT SARALA MANDIRAM PIRAMALA, PUNNALA P.O., PATHANAPURAM, KOLLAM., BY ADV. MR.R.SREERAJ RESPONDENT(S): -------------------------- 1. STATE OF KERALA REP. BY THE COMMISSIONER AND SECRETARY, IRRIGATION DEPARTMENT, GOVERNMENT SECRETRIATE, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, (ADMINISTRATION), PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER (IIRIGATION), PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM. R1 TO R3 BY GOVERNMENT PLEADER MR.ARAVINDAKUMAR BABU T.K. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss V.K.MOHANAN, J. --------------------------------------------- W.P(C).No. 1998 of 2006 - K --------------------------------------------- Dated this the 21st day of August, 2009. J U D G M E N T The petitioner, who retired from the Irrigation Department on 30.6.1999, preferred this writ petition mainly challenging Ext.P6 order and also with a prayer to issue a writ of mandamus or appropriate writ, order or direction, directing the respondents to refix the salary and other benefits due to the petitioner with effect from 1.4.1982 in the scale of pay, applicable to the direct recruits, who are having the same qualification and who are appointed as Fitters in the Irrigation Department through the P.S.C. and also in the scale of pay given to such Fitters consequent on the revision of pay effected with effect from 1.7.1988 and subsequent pay revisions and accordingly, fixed the pensionary benefits due to the petitioner and disbursed the arrears due to him with interest at the rate of 18% per annum from the WP(C) NO.1998 of 2006 :-2-: dates on which the petitioner is entitled to get the amount without any further delay. 2. According to the petitioner, while he was holding the post of Fitter in Kallada Irrigation Project, Mechanical Section No.II, Adoor, he retired from service on 30.6.1999. He entered in the service as NMR worker on 9.8.1967. Subsequently, his service was regularised on the basis of G.O(P) No.106/85/PW&T dated 17.9.1985 with effect from 1.4.1982. According to the petitioner, the starting pay of Fitters, who were selected through the P.S.C. and appointed in the Department, was higher than the starting pay of the petitioner, whose services had been regularised. According to the petitioner, the qualification, required to regularise the NMR worker and also that of the direct recruits through P.S.C. in the same post, are same and the nature of work and workload is also same. But, the scale of WP(C) NO.1998 of 2006 :-3-: pay applicable is different. In effect, the contention of the petitioner is that for equal work, wages are being paid differently. 3. On several occasions, the petitioner approached this Court to rectify the alleged defect and this Court directed the concerned authorities to consider his grievance and to pass orders. Ext.P6 is thus passed by the Government on the basis of the judgment of this Court dated 4.8.2004 in O.P.No.27113 of 1999. By Ext.P6 order, it was held that the NMR workers were regularised in service absorbing them in two categories, i.e., Worker Grade-I (Skilled) and Worker Grade -II (Unskilled) based on the nature of work assigned to them. According to the Government, the petitioner was regularised not as Fitter, but as Worker Grade-I (Skilled) even though he was called as NMR Fitter before regularisation for the purpose of easy WP(C) NO.1998 of 2006 :-4-: identification of his work. It is also stated that there is no post of Fitter Grade-I in Irrigation Department and therefore, there is no provision to give him promotion as Grade I Fitter and thus, the request of the petitioner was rejected. It is the above order of the Government i.e., Ext.P6, challenged in this writ petition. 4. The Government has filed a detailed counter affidavit wherein by producing Ext.R1(a) order, it is contended that the petitioner was appointed and his service was regularised on the basis of Ext.R1(a) Government Order. According to the Government, the said order was issued so as to extend the Governmental assistance to N.M.R.workers without adhering the rules of communal rotation, qualification etc. It is also pointed out that in the above Government Order itself, the scale of pay has been fixed for WP(C) NO.1998 of 2006 :-5-: regularisation of the NMR workers. It is also stated in the Government Order that as NMR workers are regularised in three specified scales of pay, category wages shall not be given to them. Thus, the Government stoutly opposed the prayer of the petitioner in the writ petition. 5. I have heard Sri.R.Sreeraj, learned counsel appearing for the petitioner and also the learned Government Pleader and I have perused the available materials. 6. Learned counsel for the petitioner emphatically submits that though the petitioner was appointed and was regularised as Worker Grade-I, he was doing the work of Fitter and in the service book of the petitioner, the same was incorporated. In support of the above contention, the learned counsel invited my attention to a proceedings No.A1-A2/2009 of the Assistant Executive Engineer, WP(C) NO.1998 of 2006 :-6-: Mechanical Sub Division, Perumbavoor, which is the proceedings issued by the said Officer in terms of letter dated 6.4.2009 submitted by the petitioner, as per the provisions of Right to Information Act. By the above said letter, the petitioner was informed that on verification of his service book, it is seen that his designation is written in the service book as Fitter with effect from 1.4.1982. Learned counsel for the petitioner submits that this Court, on three occasions, directed the Government to consider the contention of the petitioner and his grievance, that though he was working in the category of Fitter, the salary was denied to him, which is applicable for the incumbent working in the post of Fitter. In Ext.P6 also, it is pointed out that no reference was made to the service book of the petitioner and simply the earlier version is repeated, as contained in the earlier orders of the Government, which are passed WP(C) NO.1998 of 2006 :-7-: pursuant to the earlier direction issued by this Court. 7. I have gone through Ext.P6 order of the Government. In paragraph (3) of Ext.P6, it is stated that the Chief Engineer, I& A, in his letter read as 3rd paper above reported that Sri.P.Kesavan Nair, the petitioner herein entered service as NMR Fitter on 9.8.1967. In paragraph 7 of Ext.P6 also, it is held that the petitioner was regularised not as Fitter, but as Worker Grade-I (Skilled), even though he was called as NMR Fitter before regularisation for the purpose of easy identification of his work. From the above statement contained in Ext.P6, it appears to me that there is some force in the argument of the counsel for the petitioner in this regard, especially when in the letter issued by the Executive Engineer mentioned above, it is stated that in the service book of the petitioner, the designation is written as WP(C) NO.1998 of 2006 :-8-: Fitter with effect from 1.4.1982. But, in Ext.P6 order, there is no reference to the service book of the petitioner and in the absence of any such reference to the service book, it cannot be said that Ext.P6 was passed after perusing the service book of the petitioner, which was the grievance highlighted by the petitioner before this Court and the authorities concerned during the previous occasions. If that be so, I am of the view that without entering into the merits of the case of the petitioner at this stage, the Government can be directed to consider the contention and request of the petitioner, after specifically perused the service book of the petitioner and also giving him an opportunity of being heard and to file any document etc., if he is so advised. In the result, this writ petition is disposed of directing the first respondent-Government to WP(C) NO.1998 of 2006 :-9-: reconsider the request of the petitioner in the light of the above observation contained in this judgment and after examining the service book of the petitioner and after giving an opportunity of being heard to the petitioner. Thus, fresh orders shall be passed by the Government within three months from the date of receipt of a copy of this judgment, which will be produced by the petitioner. For enabling the Government to pass fresh orders as indicated above and without entering into the merits of Ext.P6, the same is quashed. V.K.Mohanan, Judge MBS/ WP(C) NO.1998 of 2006 :-10-: V.K.MOHANAN, J. ----------------------------------------- --- Crl.R.P.NO. OF 200 -------------------------------------- WP(C) NO.1998 of 2006 :-11-: ------ J U D G M E N T DATED: -2-2008 WP(C) NO.1998 of 2006 :-12-: