IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 WP(C).No. 10599 of 2007(J) -------------------------------------- PETITIONER(S): ------------------------ 1. N.K.BALAKRISHNAN, S/O. KANDANKUTTY, RESIDING AT MOOTHEDATHKANDY HOUSE, POST MALAYAMMA, PULLANNOOR, KOZHIKODE. 2. SATHYABHAMA, W/O. VALSARAJ, RESIDING AT KUNNATH HOUSE, ELATHOOR, KOZHIKODE. BY ADVS. MR.V.V.SURENDRAN MR.P.A.HARISH RESPONDENT(S): ---------------------------- 1. KERALA WATER AUTHORITY, REPRESENTED BY MANAGING DIRECTOR, JALA BHAVAN, THIRUVANANTHAPURAM. 2. THE SENIOR ADMINISTRATIVE OFFICER, KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER, NORTHERN REGION, KERALA WATER AUTHORITY, MALAPARAMBA, KOZHIKODE. 4. THE SUPERINTENDING ENGINEER, P.H.CIRCLE, KERALA WATER AUTHORITY, CALICUT. 5. THE EXECUTIVE ENGINEER, P.H.DIVISION, KERALA WATER AUTHORITY, CALICUT. 6. THE ASSISTANT EXECUTIVE ENGINEER, HEAD WORK SUB DIVISION, KERALA WATER AUTHORITY, CALICUT. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/03/2009 , THE COURT ON THE SAEM DAY DELIVERED THE FOLLOWING: W.P.(C) NO.10599/2007 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE RELEVANT PAGES OF THE PROCEEDINGS OF THE 2ND RESPONDENT. P2:- COPY OF THE REPRESENTATION MADE BY THE IST PETITIONER. P3:- COPY OF THE JUDGMENT IN WPC. NO.11761/2006. P4:- COPY OF THE JUDGMENT IN WPC. NO.36127/2005. P5:- COPY OF THE COMMUNICATION IN WPC. NO.36127/05. P5:- COPY OF THE COMMUNICATION DT. 21.11.06. P6:- COPY OF THE COMMUNICATION DT. 28.12.05. TRUE COPY P.A. TO JUDGE TSS P.R.RAMACHANDRA MENON, J. ====================== W.P.(C) No. 10599 of 2007 ====================== Dated, this the 11th day of March, 2009 J U D G M E N T “C.R.” The petitioners have approached this Court challenging Exhibits P5 and P6 orders passed by the first respondent, whereby the representations preferred by them seeking to relinquish the promotions given to them as Full Time Contingent Employees (just before their retirement on attaining the age of 55 years) has been turned down without considering Exhibits P3 and P4 Judgments in the right spirit and perspective. 2. The petitioners were working as Part Time Sweepers in the Kerala Water Authority. As per Rule 15 of the Kerala Part Time Contingent Service “a member of the service shall retire on the last day of the month in which he completes the age of 70 years”. While the petitioners were working as above, the second respondent quite magnanimously issued Exhibit P1 order bringing the petitioners to regular service as Full Time Contingent W.P.(C) No.10599 of 2007 -:2:- employees. The petitioners, not aware of the relative merits and demerits of the promotion given being the members of the lowest strata of the service, readily accepted the promotion and started working as Full Time Contingent employees. 3. Just after few months of their joining the full time service, the petitioners realised that Exhibit P1 promotion given by the second respondent was in no way beneficial to them and rather detrimental in so far the age of the retirement of the full time contingent employees was 55 years, which was to be attained by them within no time. In other words, they were made to forgo 15 years' of their remaining service as part time contingent employees and further they would not be getting any pension or such other retirement benefits as payable to other regular employees, for having no quantifying service as contemplated under the relevant Rules. Immediately, the petitioners filed detailed representations before the first respondent seeking to relinquish the promotions given to them vide Exhibit P1 W.P.(C) No.10599 of 2007 -:3:- order and to permit them to continue as part time contingent employees as before. Since the representations were not acted upon, the petitioners approached this Court by filing W.P.(C) Nos.11761 of 2006 and 36127 of 2005, which led to Exhibits P3 and P4 judgments respectively, directing the respondents to consider the request made by the petitioners and to pass appropriate orders thereon as specified. 4. Pursuant to the above verdicts, the first respondent considered the representations and they were rejected vide Exhibits P5 and P6 proceedings, holding that the request for relinquishment of the promotion was not submitted within '7' days; that the retirement age of the concerned petitioner was over; that the petitioners were enjoying the benefits attached to the promoted post drawing the salary and such other benefits flowing therefrom and further that there was no rule in force for allowing the relinquishment of a full time employment to have a part time post, which in turn have been subjected to challenge in the present writ petition. W.P.(C) No.10599 of 2007 -:4:- 5. The respondents have filed a counter affidavit reiterating almost all the contentions in Exhibit P5 and P6, asserting that the request for relinquishment of promotion to the regular post could not be considered for not having submitted within '7' days. However, the sanctity of '7' days for submitting the representation for relinquishment is stated nowhere in the counter affidavit. Referring to Rule 38 of the Kerala State and Subordinate Service Rules, which might probably be the only provision available in the service Rules with regard to the “relinquishment” of rights of the members, the learned counsel for the petitioners submits that the only ingredient to be looked into by the concerned authority is whether such relinquishment is opposed to public interest or not and nothing more. The learned counsel further submits that the principle behind the said Rule might be extended to the case of the petitioners as well; particularly when the petitioners herein are rather illiterate persons eking out their livelihood by virtue of their menial employment as part time contingent employees, who found themselves to be in a blissful world on a fine morning W.P.(C) No.10599 of 2007 -:5:- upon passing Exhibit P1 order of promotion giving them the status of a full time contingent employee. 6. It is true that the petitioners accepted promotion without any demur and on realising the very grave consequence to be followed, they rushed to the respondents by filing representations seeking for permission to relinquish the same and to continue as part time contingent employees so that they could continue in such service till attaining the age of 70 years by virtue of Rule 15 of the Kerala Part Time Contingent Service Rules. This is more so, when they realised that Exhibit P1 order of promotion was to confer no tangible benefits on them; particularly when they would be made to retire on attaining the age of 55 years being a regular employee in a short-while, and further when they would not be eligible to obtain pension or such other retirement benefits for want of prescribed qualifying service. 7. The respondents have made no attempt to substantiate before this Court, in what way, Exhibit P1 W.P.(C) No.10599 of 2007 -:6:- order of promotion given to the petitioners would be advantageous to them. It is easily said that the petitioners could have refused to accept Exhibit P1 promotion, to continue as part time contingent employees. But it is also equally true to say that no law prevents the petitioners from relinquishing the benefits conferred on them, if turns to be detrimental to them, which course is not alien to service jurisprudence in view of Rule 38 of the K.S.& S.S.R., though the said Rule may not be applicable as such. 8. It is relevant to note the observations made by this Court while passing Exhibit P4 Judgment way back on 23-12-2005, that the promotion given to the petitioner was rather unsolicited and that she had to be retired on attaining the age of 55 years. It has also been observed in paragraph 1 of the said verdict that the petitioner had expressed her willingness to refund the entire emoluments, which she drew as full time employee and also to forgo whatever benefits she got on her promotion as full time employee. It was in the said circumstances, that this Court W.P.(C) No.10599 of 2007 -:7:- directed the respondents to consider the request for cancellation of the promotion and to pass appropriate orders. It is difficult to arrive at a finding that the first respondent has passed Exhibits P5 and P6 orders with proper application of mind; but for rejecting the request in a hyper-technical manner; that too, without reference to any Rule to hold that the application for relinquishment had to be submitted within '7' days. 9. The crucial question to be considered is whether the relinquishment sought for by the petitioners is likely to cause any prejudice or loss to the Government in any manner or is it opposed to public interest. This can only be answered in the negative, in view of the admitted facts and figures. But for Exhibit P1 order of promotion, the petitioners could have continued as part time contingent employees, till they attained the age of 70 years as per the Rule position. By relinquishing the promotion as full time contingent employee, the Government is not put to any disadvantage; particularly when both the petitioners, as pointed out by the learned counsel for the petitioners, W.P.(C) No.10599 of 2007 -:8:- assert that they are prepared to reimburse all the emoluments/benefits obtained by them by virtue of the short spell of service rendered as full time contingent employees, before they were made to retire at the age of 55 years. This Court finds that no such adverse circumstances as envisaged even under Rule 38 of the K.S. & S.S.R. can be attributed to the case of the petitioners and as such it is hereby declared that the petitioners are entitled to be permitted to continue as part time contingent employees, notwithstanding Exhibit P1 order of promotion and to continue in service accordingly, till they attain the age of 70 years as per Rule 15 of the Kerala Part Time Contingent Service Rules. It is also made clear that the respondents will be entitled to recover all the benefits given to the petitioners as full time contingent employees pursuant to Exhibit P1 order of promotion, except the amount which otherwise would have been payable to them as part time contingent employees during the relevant period from the date of promotion till they were made to retire from the service on attaining the age of 55 years. The period from W.P.(C) No.10599 of 2007 -:9:- the date from which they were sent out from the service, till the re-instatement as part time contingent employee, pursuant to the present Judgment, will not attract any wages as payable to the petitioners, they admittedly having not worked during the said period. 10. In the above facts and circumstances, the first respondent is hereby directed to pass necessary orders putting back the petitioners in service as part time contingent employees without any break in service, in cancellation of Exhibit P1 order of promotion, within a period of three months from the date of receipt of a copy of this Judgment. The petitioners shall produce a copy of this Judgment before the first respondent for taking further steps. The writ petition is allowed to the above extent. No costs. Sd/- P.R.RAMACHANDRA MENON, JUDGE. skr // True copy // P.A. to Judge.