IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR FRIDAY, THE 3RD OCTOBER 2008 / 11TH ASWINA 1930 WP(C).No. 35826 of 2005(M) -------------------------- PETITIONER(S): --------------- N.RAVEENDRANATHAN NAIR, RAVI VIHAR, PALIAKKARA NORTH, THIRUVALLA, EX-HEAD OPERATOR, KERALA WATER AUTHORITY, P.H.DIVISION, THIRUVALLA. BY ADV. SRI.M.R.GOPALAKRISHNAN NAIR SRI.B.SOMADASAN RESPONDENT(S): --------------- 1. THE KERALA WATER AUTHORITY, REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN, THIRUVANANTHAPURAM. 2. THE EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, P.H.DIVISION, THIRUVALLA. 3. THE RESIDENT AUDIT OFFICER, KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM. 4. THE ASSISTANT EXECUTIVE ENGINEER, P.H.SUB DIVISION I, THIRUVALLA. ADV. SRI.J.KRISHNA KUMAR, SC, KWA FOR R1 TO R4. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 35826/05 APPENDIX PETITIONER'S EXTS. EXT.P1 - THE TRUE COPY OF THE PROCEEDINGS NO.E1-605/89 DATED 11.1.1993 ISSUED BY THE SECOND RESPONDENT. EXT.P2 - THE TRUE COPY OF THE GOVERNMENT ORDER GO(P) NO.66/95/LAD DATED 24.4.1995. EXT.P3 - THE TRUE COPY OF THE AUDIT ENQUIRY NO.7 DATED 10.10.1995 ISSUED BY THE THIRD RES0PONDENT. EXT.P4 - THE TRUE COPY OF THE ORDER NO.E1 99/97 DATED 11.3.1998 ISSUED BY THE SECOND RESPONDENT. EXT.P5 - THE TRUE COPY OF THE REPRESENTATION DATED 28.5.1998 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P6 - THE TRUE COPY OF THE GO(P) NO.480/89/FIN. DATED 1.11.1989. EXT.P7 - THE TRUE COPY OF THE GO(P) NO.889/86 (112/FIN) DATED 12.12.1986. EXT.P8 - THE TRUE COPY OF THE JUDGMENT DATED 18.8.2005 IN O.P. NO.22/2000. EXT.P9 - THE TRUE COPY OF THE ORDER NO.1227/E5/2000/JB/KWA DATED 3.12.2005 ISSUED BY THE FIRST RESPONDENT. EXT.P10 - THE TRUE COPY OF THE JUDGMENT DATED 3.1.2007 IN OP NO.26794/2006 OF THIS HONOURABLE COURT. EXT.P11 - THE TRUE COPY OF THE ORDER NO.KWA/AO/ESTT/PEN.5570/833 DATED 22.2.2007. EXT.P12 - THE TRUE COPY OF THE ORDER NO.KWA/AO/ESTT/PEN. 5570/831 DATED 22.2.2007. RESPONDENTS' EXTS. EXT.R1(a) – TRUE COPY OF CIRCULAR DATED 31.10.1999. EXT.R1(b) – TRUE COPY OF LETTER DATED 13.11.1995. EXT.R1(c) – TRUE COPY OF LETTER DATED 4.1.2000. /TRUE COPY/ K.BALAKRISHNAN NAIR, J. ----------------------------------------- W.P.(C) NO. 35826 OF 2005-M ----------------------------------------- JUDGMENT The petitioner joined the erstwhile Public Health Engineering Department as N.M.R. Watcher on 4.2.1969. He was appointed as N.M.R. Operator on 27.11.1972. He was absorbed in the regular establishment on 12.10.1981. He was granted the first higher grade on 16.9.1985, for which he became eligible, on completion of 10 years' service. He was granted the second higher grade, on completion of 20 years' service, on 27.11.1992. The third higher grade was granted to him, on completion of 25 years' service, on 4.2.1994. Later, the second higher grade granted to the petitioner was reviewed, based on Ext.P3 audit objection. As per Ext.P4 order, the grant of second higher grade to him was cancelled, among other things. The aggrieved petitioner preferred Ext.P5 representation before the Managing Director of the 1st respondent Kerala Water Authority. The said representation was rejected by Ext.P9 communication dated 3.12.2005. This writ petition was filed challenging Ext.P9 and also seeking to WPC 35826/05 2 quash the consequential steps taken to recover the excess salary paid to him. 2. The only point in dispute is whether the petitioner's appointment as N.M.R. Operator is a promotion or an appointment by transfer. According to the petitioner, it is an appointment by transfer and not a promotion. If it is a promotion, the action of the Water Authority is correct. If it is not, the petitioner is entitled to succeed. 3. The respondents have filed a counter affidavit, stating that the petitioner, while working as N.M.R. Watcher, has been promoted as N.M.R. Operator. It is a clear case of promotion and therefore, the action of the Water Authority is correct, it is contended. 4. Heard the learned counsel on both sides. The learned counsel for the petitioner referred to the Kerala Public Health Engineering Subordinate Service Special Rules, which are applicable to the employees of the Water Authority. As per the said Rules, the method of appointment to the post of Assistant Operator/Operator/Shift Operator is direct recruitment or transfer. Therefore, the petitioner's appointment as N.M.R. Operator should be treated as appointment by WPC 35826/05 3 transfer, submitted the learned counsel for the petitioner. The learned counsel for the Water Authority, in answer, submitted that the Special Rules will govern only the post of Operator in the regular establishment and not the post of Operator in the N.M.R. Service. 5. The petitioner has not produced his appointment order. The appointment of an N.M.R. Watcher as N.M.R. Operator should, normally, be treated as promotion. The method of appointment to the posts in the regular establishment does not apply for appointments in the N.M.R cadre. Therefore, I find nothing illegal to interfere with the stand taken by the Water Authority that the petitioner's appointment as N.M.R. Operator was by promotion. If that be so, the challenge against Ext.P9 and the consequential proceedings fails. 6. But, the learned counsel for the petitioner submits that the recovery of the amount paid to the petitioner is unjustified, in view of the decisions of this Court. But, I notice that there are several decisions on this point, taking, apparently, differing views. I think the principle laid down by the Division Bench of this Court in Santhakumari v. State of Kerala [2005(4) KLT 649] is applicable in this case. The WPC 35826/05 4 petitioner has been paid public money, in excess without being eligible for the same. Therefore, if the respondents take steps to recover the said amount, the same cannot be described as an illegal action or something done without jurisdiction. Accordingly, the writ petition fails and it is dismissed. 3rd October,2008. K.BALAKRISHNAN NAIR, JUDGE. Nm/