IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 11TH NOVEMBER 2009 / 20TH KARTHIKA 1931 WP(C).No. 8991 of 2008(U) ------------------------- PETITIONER(S): --------------- 1. E.O. SEBASTIAN, AGED 50 YEARS, S/O. OUSEPH, 3RD GRADE OVERSEER, PERIYAR VALLEY IRRIGATION PROJECT, SUB DIVISION NO.VI,PERUMBAVOOR 2. K.S. VIJAYAN, 3RD GRADE OVERSEER, MINOR IRRIGATION SECTION, KURUPPANTHARA, KOTTAYAM DISTRICT. 3. K.K. RAVEENDRAN, 3RD GRADE OVERSEER, IRRIGATION SECTION, KADUTHURUTHY. 4. E.J. ROCKY, 3RD GRADE OVERSEER, PERIYAR VALLEY IRRIGATION PROJECT, SECTION NO.III/I, BOOTHATHANKETTU P.O., KOTHAMANGALAM. 5. T.P. THOMACHAN, 3RD GRADE OVERSEER, PERIYAR VALLEY IRRIGATION PROJECT, SECTION NO.III/I, BOOTHATHANKETTU P.O., KOTHAMANGALAM. 6. P.V. JOSE, 3ARD GRADE OVERSEER, MINIOR IRRIGATION SECTION, PERUMBAVOOR. 7. K.A. RASSAC, 3RD GRADE OVERSEER, MINIOR IRRIGATION SECTION, PERUMBAVOOR. 8. T.O. JOHN, RETIRED 3RD GRADE OVERSEER, IDAMALAYAR IRRIGATION PROJECT SECTION NO.III/III, MALAYATTOOR,ERNAKULAM. 9. P.C. PETER, 3RD GRADE OVERSEER, PERIYAR VELLY IRRIGATION PROJECT, SECTION NO.1/1, BOOTHATHANKETTU P.O., KOTHAMANGALAM. BY ADV. DR.GEORGE ABRAHAM WPC NO.8991/2008 RESPONDENT(S): --------------- 1. SECRETARY TO GOVERNMENT, IRRIGATION DEPARMENT, TRIVANDRUM. 2. CHIEF ENGINEER, IRRIGATION & ADMINISTATION, TRIVANDRUM. 3. STATE OF KERALA, REP. BY CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM. MR.P.NANDAKUMAR, GOVERNMENT PLEADER FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/11/2009, ALONG WITH WPC NO. 15063 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.8991/2008 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF GOVERNMENT ORDER GO(MS) NO.6/2006 DATED 30/01/2006. P2 : COPY OF JUDGMENT IN WPC NO.14996/2006 DATED 27/09/2006. P3 : COPY OF REPRESENTATION DATED 20/11/2006 SUBMITTED BY 4TH PETITIONER TO R2. P4 : COPY OF REPRESENTATION DATED 15/12/2006 SUBMITTED BY 6TH PETITIONER TO R2. P5 : COPY OF REPRESENTATION DATED 10/10/2006 SUBMITTED BY 8TH PETITIONER TO R2. P6 : COPY OF JOINT REPRESENTATION DATED 22/05/2007 SUBMITTED BY THE PETITIONERS TO R1. P7 : COPY OF JUDGMENT DATED 21/06/2007 IN WPC NO.16428/2007. P8 : COPY OF GOVERNMENT ORDER RO(Rt.) NO.140/08/WRD DATED 02/02/2008. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) Nos.8991 of 2008 & 15063 of 2009 --------------------------------- Dated, this the 11th day of November, 2009 J U D G M E N T Common issues are raised in these writ petitions. Therefore, these cases are heard and disposed of together. 2. The petitioners herein are JTSSLC holders. They were recruited as Third Grade Overseers in 1974 in the Public Works Department and they continued as such. While so, in 1991, the Public Works Department was bifurcated into Irrigation Department and Public Works Department. At that time, there were 41 JTSSLC holders like the petitioners. 25 of them opted for Public Works Department and 16 including the petitioner opted for Irrigation Department. 3. The higher post in the hierarchy is Second Grade Overseer, and the qualification prescribed in the Special Rules is ITI or Diploma, which the petitioners do not possess. Therefore, they could not earn any promotion, and hence they continued as Third WP(C) Nos.8991/2008 & 15063/2009 -2- Grade Overseers. In the meanwhile, the petitioners in WP(C) No.15063/2009 attained the age of superannuation and have retired from service. 4. In these writ petitions, grievance raised is that on the ground that they were unqualified for promotion to the higher post, the petitioners were not extended the scale of pay of the promotion post as time bound higher grade. It is their contention that Third Grade Overseers like them, who opted for Public Works Department, represented the matter before the Government and they were given the benefit of the scale of pay of the promotion post as time bound higher grade by Ext.P1 order dated 30/01/2006. Thereupon, the petitioners also represented to extend the benefit of Ext.P1 to them, which was directed to be considered by this Court in Ext.P7 judgment in WP(C) No.16428/2007 dated 21/06/2007, produced in WP(C) No.8991/2008. The matter was ultimately considered and by Ext.P8 order dated 02/02/2008 produced in WP(C) No.8991/2008, their claim has been rejected on the ground that only those who are eligible for promotion to the higher post alone are eligible for the pay of the higher post as time bound higher grade. In so far as Ext.P1 order issued in favour of similar employees of the PWD is WP(C) Nos.8991/2008 & 15063/2009 -3- concerned, it is stated in Ext.P8 order that relaxation of the conditions of pay revision order in favour of some categories will lead to demands from similarly placed employees in other departments, and that such relaxation will create a bad precedent. It is challenging Ext.P8 order these writ petitions are filed. 5. A counter affidavit has been filed by the 1st respondent in WP(C) No.8991/2008. Although the fact that Ext.P1 was issued and that the benefit extended in the Public Works Department is admitted, the respondent is placing reliance on the provisions of the pay revision order, which makes, only to those who are qualified for promotion, eligible for the scale of pay of the higher post as time bound higher grade. 6. True, under the pay revision order, only those who are eligible for promotion to the higher post are eligible for the scale of pay of that post as time bound higher grade. However, in so far as the similarly situated employees in the Public Works Department are concerned, they have been extended the benefit by Ext.P1 order, and consequential monetary benefits also have been disbursed. The reason stated in Ext.P1 is that the employees working as Third Grade Overseer in the Public Works Department is a vanishing WP(C) Nos.8991/2008 & 15063/2009 -4- category and deserving sympathetic and humanitarian consideration. The petitioners in the Irrigation Department are similarly situated in all respects. If that be so, there is no reason why similar sympathetic and humanitarian consideration should not be extended to the petitioners also. Therefore, denial of their claim evidenced by Ext.P8 cannot be sustained and is quashed. In view of the above, these writ petitions are disposed of directing the 1st respondent to issue orders invoking its powers under Rule 39 of Part-II KS & SSR, extending the benefit similar to what is extended to Third Grade Overseers of the Public Works Department vide Ext.P1, GO(MS) No.6/2006/PWD dated 30/01/2006. Orders as above shall be passed as expeditiously as possible, at any rate, within eight weeks of production of a copy of this judgment. The petitioners shall produce a copy of this judgment before the 1st respondent for compliance. These writ petitions are disposed of as above. (ANTONY DOMINIC, JUDGE) jg