IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 WP(C).No. 23133 of 2005(D) ----------------------------------------- PETITIONER(S): ---------------------- 1. P.A. KURIAN, RETIRED SUB ENGINEER (CIVIL), K.S.E. BOARD, PERINCHERY HOUSE, THALORE P.O., OLLUR, THRISSUR DIST. 2. R.AYYAPPAN PILLAI, RETIRED ASST.ENGINEER (CIVIL), K.S.E. BOARD, KOKKATHU SREENILAYAM, KANNIMALACHERRY, KAVANAD P.O., KOLLAM. **3. N. VIDYADHARAN, RETIRED SUB ENGINEER (CIVIL), K.S.E. BOARD, USHAS, EYYACODE, PULLUPANA P.O., KADAKKAL, KOLLAM.(DIED) LR'S IMPLEADED: 4. R. RAGHUNATHAN PILLAI, RETIRED ASST.ENGINEER (CIVIL), K.S.E.BOARD, MANJERI, PALLIPURAM P.O., CHERTHALA. 5. SMT.BABY GIRIJA (W/O.LATE K.THAMARAKSHAN RETIRED SUB ENGINEER (CIVIL), K.S.E. BAORD), THOTTATHIL PUTHEN VEEDU, VILAKKUPARA P.O., YEROOR, ANCHAL, KOLLAM DIST. 6. K. UNNIKRISHNAN, RETIRED EXECUTIVE ENGINEER (CIVIL), K.S.E.BOARD, KRISHNA VIHAR, DIWAN SANKARA WARRIER ROAD, OLLUR P.O., THRISSUR DIST., PIN-680 306. 7. P.K. OUSEPH, RETIRED SUB ENGINEER (CIVIL), K.S.E. BOARD, PENGIPARAMBIL HOUSE, PULLOOR P.O., IRINJALAKUDA, THRISSUR DIST. Kss ..2/- ...2... WPC.NO.23133/2005 D 8. V.RAMACHANDRAN, RETIRED SUB ENGINEER (CIVIL), K.S.E.BOARD, PADANTHALUMMOODU P.O., KANYAKUMARI DISTRICT, PIN-629 194. 9. K. SOMANATHAN, RETIRED ASST. ENGINEER (CIVIL), K.S.E.BOARD, SOMVAS, KOCHULLOOR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. 10. M.ARULAPPAN, RETIRED ASST. EXECUTIVE ENGINEER (CIVIL), K.S.E.BOARD, QUEEN MARY HOUSE, SAREL P.O., VIA. ASARIPALLAM, KANYAKUMARI DISTRICT, PIN-629 201. * 11. N. KRISHNAN, RETIRED ASST.ENGINEER (CIVIL), K.S.E. BOARD, KRISHNA BHAVAN, MANGATTUKONAM, KATTAIKONAM P.O., VIA. POTHENCODE, THIRUVANANTHAPURAM.(D I E D). LR'S IMPLEADED: 12. K. SUSEELA DEVI, RETIRED ASST.ENGINEER (CIVIL), K.S.E.BOARD, T.C.27/1259, SABADEEP, TANK ROAD, G.P.O., THIRUVANANTHAPURAM. 13. S. BALACHANDRAN, RETIRED ASST.ENGINEER (CIVIL), K.S.E.BOARD, "RESMI", TRIVANDRUM DIST. CO-OPERATIVE BANK BUILDING, THIRUVALLAM, THIRUVALLAM P.O., THIRUVANANTHAPURAM. 14. T.VIJAYAN, RETIRED ASST.EXECUTIVE ENGINEER (CIVIL), K.S.E.BOARD, PULLELIL HOUSE, PUTHUVASSERY, P.O. NEDUMBASSERY, ERNAKULAM DISTRICT, PIN-683 585. 15. V.PURUSHOTHAMAN NAIR, RETIRED ASST. ENGINEER (CIVIL), K.S.E. BOARD, USHA PRABHA, MELEPLAMTHOTTAM, AYIRA P.O., VIA. PARASSALA, THIRUVANANTHAPURAM DIST. Kss ..3/- ...3.... WPC.NO.23133/2005 D 16. V. GANAPATHY, RETIRED SUB ENGINEER (CIVIL), K.S.E. BOARD, T.C.NO.XL/785, NEAR AYODHYA NAGAR, SREE VARAHAM, MANACAUD, THIRUVANANTHAPURAM. *ADDL.P17 TO P20 IMPLEADED: P17: K.KRISHNAMMA, W/O.LATE N.KRISHNAN, KRISHNA BHAVAN, MANGATTUKONAM, KATTAIKONAM P.O., VIA. POTHENCODE, THIRUVANANTHAPURAM. P18: SUDHAMOL K.K., D/O.LATE N.KRISHNAN, ..DO..DO.... P19: SUJI K.K., D/O.LATE N.KRISHNAN, ..DO...DO..... P20: SUJAMOL K.K., D/O.LATE N.KRISHNAN, ..DO...DO.... (*ADDL.P17 TO P20 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 11TH PETITIONER AS PER ORDER DTD. 12/10/2010 IN I.A.NO.14185/2010) **ADDL.P21 TO P23 IMPLEADED: P21: VARADA.S., W/O.LATE N.VIDYADHARAN, USHAS, EYYACODE, PULLUPANA P.O., KADAKKAL, KOLLAM. P22: SEENA, D/O.LATE N.VIDYADHARAN, USHAS, EYYACODE, PULLUPANA P.O., KADAKKAL, KOLLAM. P23: SIMI, D/O.LATE N.VIDYADHARAN, USHAS, EYYACODE, PULLUPANA P.O., KADAKKAL, KOLLAM. (**ADDL.P21 TO P23 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 3RD PETITIONER AS PER ORDER DTD. 12/10/2010 IN I.A.NO.14186/2010) BY ADVS.SRI.ELVIN PETER P.J., SRI.S.RAMESH., SRI.P.N.SANTHOSH, SRI.NAVEEN.T, SRI.T.G.SUNIL (PRANAVAM), SRI.C.X.ANTONY BENEDICT, SMT.POOJA SURENDRAN. Kss ..4/- ...4.... WPC.NO.23133/2005 D RESPONDENT(S): ---------------------------- 1. KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. THE CHAIRMAN, KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. R1 & R2 BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.23133/2005 D APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF ORDER R.G.NO.EB.II.30755/76 DTD. 21/1/1977 ISSUED BY THE KSE BOARD. P2: COPY OF ORDER NO.N.E.B.II-4529/77 DTD. 10/01/1978 ISSUED BY THE KSE BOARD. P3: COPY OF JUDGMENT DTD. 16TH FEBRUARY, 1981 IN O.P.NO.240/80 OF THIS HON.COURT. P4: COPY OF ORDER NO.LAV.4547/80 DTD. 1/07/82 ISSUED BY THE SECRETARY, KSE BOARD. P5: COPY OF ORDER B.O.NO.LAV 4547/80 DTD. 7/02/1983 ISSUED BY THE KSE BOARD. P6: COPY OF COMMUNICATION NO.33070/ELA2/83/W&P DTD.1/10/1983 ISSUED BY THE GOVERNMENT. P7: COPY OF COMMUNICATION NO.LAV.4547/80 DTD.20/10/1983 ISSUED BY THE SECRETARY, KSE BOARD. P8: COPY OF ORDER (LETTER) NO.LAV.4547/80 DTD. 31/12/1983 ISSUED BY THE SECRETARY, KSE BOARD. P9: COPY OF ORDER (MEMO) NO.EBC(4) 16/81-82 DTD. 21/01/1984 ISSUED BY THE KSE BOARD. P10: COPY OF JUDGMENT DTD. 29TH AUGUST, 1986 IN O.P.NOS.1455 & 2799 OF 1984 OF THIS HON.COURT. P11: COPY OF JUDGMENT DTD. 26TH OCTOBER, 1987 IN O.P.NO.8415/87 (CONTEMPT) OF THIS HON.COURT. P12: COPY OF ORDER B.O.NO.LA-V/4547/80 DTD. 9/11/1987 ISSUED BY THE KSE BOARD. P13: COPY OF ORDER NO.LAC-V/4547/80 DTD. 15/01/1988 ISSUED BY THE KSE BOARD. Kss ..2/- ...2.... WPC.NO.23133/2005 D P14: COPY OF ORDER NO.EBC.II/III/PAY FIXATION DTD. 10/02/1988 ISSUED BY THE KSE BOARD. P15: COPY OF JUDGMENT DTD. 3RD AUGUST, 1992 IN O.P.NO.6925/88 ETC. OF THIS HON.COURT. P16: COPY OF JUDGMENT DTD. 21ST OCTOBER, 1999 IN W.A.NO.343/93 ETC. OF THIS HON.COURT. P17: COPY OF ORDER, B.O.NO.2455/2000/LA.I/11532/88 DTD. 3/10/2000 ISSUED BY THE KSE BOARD. P18: COPY OF ORDER, B.O.NO.3037/2000 (LA.I/11532/88) DTD. 15/12/2000 ISSUED BY THE KSE BOARD. P19: COPY OF ORDER NO.EBC/Jr/Sr/FIXN/2001-2002/74 DTD. 29/06/2001 ISSUED BY THE KSE BOARD TO THE 3RD PETITIONER. P20: COPY OF ORDER NO.LAS.I/11532/88 DTD. 6/06/2001 ISSUED BY THE 1ST RESPONDENT. P21: COPY OF COUNTER AFFIDAVIT FILED BY THE KSE BOARD IN OP.NOS. 7466 AND 7467 OF 1988 BEFORE THIS HON.COURT. P22: COPY OF ORDER NO.EBC/Jr/Sr. FIXN/2001-2002/76. DTD. 29/06/2001 ISSUED BY THE KSE BOARD TO THE 10TH PETITIONER. P23: COPY OF JUDGMENT DTD. 6TH OCTOBER, 2004 IN C.C.C.NO.1345 OF 2001 OF THIS HON.COURT. P24: COPY OF REPRESENTATION DTD. 30TH OCTOBER, 2004 FILED BY THE 1ST PETITIONER BEFORE THE KSE BOARD. P25: COPY OF ORDER NO.B.O.(MF)NO.1157/2005 (LAS.I/18526/04) DTD.12/4/2005 ISSUED BY THE KSE.BOARD. P26: COPY OF THE DEATH CERTIFICATE OF THE 3RD PETITIONER. P27: COPY OF THE DEATH CERTIFICATE OF THE 11TH PETITIONER. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S. SIRI JAGAN, J. ------------------------------ W.P.(C) No. 23133 OF 2005 ------------------------------- Dated this the 12th day of October, 2010 J U D G M E N T The petitioners were employees of the Kerala State Electricity Board. Consequent to pay revision, a question arose regarding the principles to be adopted for junior-senior fixation to be given to the petitioners and others. Complaining that the correct principle has not been adopted for junior-senior fixation made in 1973, the petitioners approached this Court and finally obtained Ext.P10 judgment. Therein certain directions were issued to the Electricity Board as to how the junior-senior fixation has to be made. Complaining that the judgment has not been complied with, the petitioners approached this Court by filing C.C.C.No.1345/2001, in which Ext.P23 order has been passed pursuant to which Ext.P25 order has been passed by the Board. The petitioners are challenging Ext.P25 order. 2. Now the contention of the petitioners is not on the principles to be adopted for junior-senior fixation but as to on the W.P.(c)No.23133/05 2 basis of which junior's salary the junior-senior fixation of the petitioners should be made. The petitioners contention is that they are entitled to junior-senior fixation on par with the salary given to Sri. P.G. Parameswaran Nair. But the same has been fixed on the basis of the salary of some others. It is under the above circumstances, the petitioners have filed this writ petition seeking the following reliefs: “i) issue a writ of certiorari or any other appropriate writ, direction or order calling for the records leading to Ext.P25 and quashing the same. ii) issue a writ of mandamus or any other appropriate writ, direction or order asking the respondents to fix the pay of petitioners 1 to 4, the husband of the 5th petitioner, petitioners 6 to 13 and the 16th petitioner on a par with that of Sri.P.G. Parameswaran Nair, their junior, with effect from 8-9- 1972 and to give them arrears of salary legitimately due to them with interest at 12% per annum as directed by this Hon'ble Court. iii) issue a writ of mandamus or any other appropriate writ, direction or order asking the respondents to fix the pay of the 13th petitioner on a par with that of Sri. P.G. Parameswaran Nair, his junior, with effect from 31-7-1971 and to give arrears of salary legitimately due to him with interest at 12% per annum as directed by this Hon'ble Court. iv) Issue a writ of mandamus or any other appropriate writ, direction or order asking the respondents to fix the pay of petitioners 14 and 15 on a par with that of Sri. K. Sadanandan, their junior, with effect from 8-9-1972, the date on which Sri. K. Sadanandan was given promotion as Ist Grade Overseer and to give them arrears of salary legitimately due to them with interest at 12% per annum as directed by this Hon'ble Court. v) issue a writ of mandamus or any other appropriate writ, direction or order declaring that the W.P.(c)No.23133/05 3 petitioners are entitled to have their pay fixed on a par with that of their junior in terms of Exts.P1 and P2 Orders going by the stipulation contained in Ext.P12 Order also. vi) issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents to forthwith give arrears of salary and all other benefits legitimately due to them in accordance with the directions contained in Ext.P15 judgment and Ext.P18 Order issued by he KSE Board. vii) issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents to refix the pensionary benefits of the petitioners and give arrears of pension with interest at 12% as directed by this Hon'ble Court” 3. I have heard the learned counsel for the petitioner as also the learned counsel for the Kerala State Electricity Board. As is clear from the prayers in the writ petition which are quoted above, the only contention raised by the petitioners in this writ petition is that the junior-senior fixation of the petitioners had not been made on par with the salary of Sri.P.G. Parameswaran Nair, their junior. I am of opinion that it is too late in the day for the petitioners to take such a contention. The reason is that, in none of the earlier writ petitions filed by the petitioners such a contention was ever raised. Admittedly, as is clear from Ext.P25 order, the junior- senior fixation of the petitioners were made on the basis of the salary drawn by their junior mentioned against their names in W.P.(c)No.23133/05 4 Ext.P25 order. That fixation was made as early as in 1977 and before. Ext.P10 is the judgment in the original petitions filed by the petitioners regarding the principles to be adopted for junior-senior fixation. In that judgment, the ultimate direction is as follows: “For the reasons stated above these two original petitions are allowed. The following paragraphs in Ext.P11 are quashed: 'They should be seniors in the category of second Grade Overseer (civil) to the persons with whom parity of pay is claimed'. In regard to Second Grade Overseers appointed by direct recruitment from the open market they will not be eligible for the benefit as they will not satisfy the third condition regarding equal or lesser regular service'. Ext.P12 dated 21.1.1984 is also quashed. The respondents are directed to examine the case of the petitioners and fix their pay in the cadre of First Grade Overseers applying Exts.P1, P2 and P5 and in the light of eluciations which we have made in the course of this judgment, within six months from this day – If the pay of any of the petitioners is fixed at a higher amount then what has already been fixed, they will be entitled to the difference in the salary from the date of their respective promotion to the cadre of First Grade Overseer, as per Ext.P1 and P2 and P5. It is obvious that if there are subsequent revision of pay scales, the same has to be taken into account for the purpose of working out the arrears of pay that the petitioners would become entitled to.” From a reading of that judgment, it is abundantly clear that the question as to which junior's salary should be adopted for the purpose of junior-senior fixation of the petitioners was not W.P.(c)No.23133/05 5 an issue at all therein. The junior-senior fixation adopting the junior for the purpose was made in 1977 and before. The petitioners have not at any time challenged that fixation on the ground that the basis for such junior-senior fixation should be the salary of Sri. P.G. Parameswaran Nair and not the juniors whose salaries have been adopted by the board for such fixation. 4. Of course, on the basis of Ext.P23 judgment in the C.C.C, the learned counsel for the petitioners points out that in that judgment, the Division Bench had specifically directed that the fixation should be untrammeled by the findings and observations if any, contained in Annexures 25 and 26 which are produced in this writ petition as Exts.P19 and P20 by which the claim for junior-senior fixation with reference to the salary of Sri. P.G. Parameswaran Nair was rejected and that of another junior was adopted. But the mere observation in Ext.P23 judgment in respect of the findings and observations contained in Exts.P19 and P20 will not enable the petitioners to claim a fixation on the basis of salary of Sri. P.G. Parameswaran Nair, in so far as in Ext.P10 judgment that W.P.(c)No.23133/05 6 question was not in issue at all. It is settled law that in a contempt case this Court would only direct compliance with the judgment of this Court and that this Court cannot issue any further or new directions not contained in the judgment non- compliance of which is complained of. Here, the judgment is Ext.P10, which does not contain any direction whatsoever to give junior-senior fixation to the petitioners on par with the salary of Sri. P.G. Parameswaran Nair. In fact, the juniors of the petitioners for junior-senior fixation were selected long back in 1977 and before. The petitioners cannot in 2005 file a writ petition claiming that the actual junior of the petitioners for the purpose of junior -senior fixation should have been taken as Sri. P.G. Parameswaran Nair and not the juniors mentioned in the fixation in 1977 and before. Therefore, the petitioners are guilty of delay and laches in raising such a contention appropriately before this Court at the appropriate time. Even otherwise, that was a contention which the petitioners might and ought to have raised in the writ petition filed before this Court. Since they have not raised that contention in that writ petition, the principles of constructive W.P.(c)No.23133/05 7 res judicata is applicable to the petitioners' contention in respect of that issue. Therefore, I am of opinion that the petitioners are not entitled to the reliefs prayed for in this writ petition. Accordingly, the writ petition is dismissed. S. SIRI JAGAN, JUDGE acd W.P.(c)No.23133/05 8