IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 2ND SEPTEMBER 2011 / 11TH BHADRA 1933 WP(C).No. 3300 of 2007(P) -------------------------------- PETITIONER(S): --------------- E.P.RAMACHANDRAN, OPERATOR, P.H.SUB DIVISION, VADAKKEKARA. BY ADV. SRI.B.GOPAKUMAR RESPONDENT(S): --------------- 1. KERALA WATER AUTHORITY, REPRESENTED BY ITS MANAGING DIRECTOR, JALABHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, (HRD & G), KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM. 3. EXECUTIVE ENGINEER, P.H.DIVISION, KERALA WATER AUTHORITY, ALWAYE. ADV. SRI.J.KRISHNA KUMAR, SC, KWA FOR R1 TO 3 SMT.AMBIKA DEVI, SC, KWA FOR R1-3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/09 /2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 3300 of 2007(P) APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF JUDGMENT IN W.P.(C)NO.25576/2003-T DTD 21.12.2004 IN THE HIGH COURT OF KERALA. EXT.P2: COPY OF FIXATION STATEMENT ISSUED BY THE ASST.EXE.ENGINEER DATED 20.03.1998. EXT.P3: COPY OF LETTER NO.KWA/JB/E3-1584/01 DATED 6.12.2006 ISSUED BY R2 TO R3. EXT.P4: COPY OF LAWYER NOTICE DATED 12.1.2007 TO R3. EXT.P5: COPY OF ORDER DTD 8.1.2007 OF R3. EXT.P6: COPY OF ORDER NO.E1-08/1301/00 DTD 31.10.2008 ISSUED BY R3. EXT.P6(a): COPY OF STATEMENT OF FIXATION ORDER G.O.(P)NO.46/2007/WRD DT 30.07.2007. EXT.P6(b): COPY OF STATEMENT OF FIXATION ORDER G.O.(P)NO.46/2007/WRD DT 30.07.2007. RESPONDENTS' EXHIBITS: NIL EXT.R1: COPY OF G.O.(P)NO.499/95/(48) FIN DATED 19.8.1995. EXT.R2: COPY OF RULES RELATING TO TIME BOUND HIGHER GRADE. EXT.R3: COPY OF LETTER ADDRESSED TO THE COUNSEL OF THE PETITIONER DATED 22/2/2007. TRUE COPY PA TO JUDGE. acd S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.3300 OF 2007 ---------------------------------------------- Dated this the 2nd day of September, 2011 JUDGMENT The petitioner commenced service in the Kerala Water Authority as a Casual Labour Worker with effect from 9.11.1970. He was brought into NMR category with effect from 20.3.1973. The petitioner passed S.S.L.C. Examination, after he was brought in the category of NMR (skilled). The petitioner was working as an Operator thereafter. A dispute arose as to whether the petitioner is entitled to be designated as Operator and paid benefits arising therefrom. He filed W.P.(C)No.25576/2003 claiming the same. In the same, the Kerala Water Authority took the contention that, since the petitioner does not possess the qualifications prescribed in the Special Rules, the petitioner cannot be given the said benefits. In that writ petition, by Ext.P1 judgment this Court held thus: “xxx xxx xxx xxx xxx xxx xxx xxx 3. Heard counsel for the petitioner and the Standing Counsel for the respondent-Water Authority. Petitioner was promoted as skilled worker as per order dated 27-5-1985. In Exts.P3, W.P.(C)No.3300/07 2 P4, P6 and P11 his superior officers upto Chief Engineer had certified the fact that the petitioner has been doing the actual work of Operator. Had the respondents acted promptly, petitioner also would have got the benefit of the designation “Operator”, and enjoyed all incidental rights. It is not disputed by the respondents in the counter affidavit that Shri. Mohammed Ali whose educational qualification is only Standard IV and was promoted along with the petitioner as N.M.R. Skilled worker has been designated as Operator and is being paid the salary in the pay scale of Operator. If the judgements referred to in the counter affidavit filed by the respondents do not stand in the way of Shri. Mohammed Ali enjoying those benefits, it si sheer injustice to deny the benefit of the appropriate designation and the pay scale, to the petitioner alone, particularly in view of the fact that, he is admittedly discharging the duties of Operator. Respondents who extract the services of the petitioner as Operator from 1985 onwards are not justified in denying him the proper designation namely, Operator. Nor the refusal to pay him the emoluments for the work done in that capacity. If the Special rules do not stand in the way of the petitioner actually dong the duties attached to the post of Operator during the last two decades, it sounds illogical and unreasonable to rely on the Special Rules and contend that it is a hurdle in designating the petitioner as 'Operator' and paying him the pay and allowances for the work he does. 4. For the reasons stated above, I am of the view that the petitioner is entitled to the reliefs prayed for in this writ petition. Accordingly, the writ petition is allowed. There shall be direction to the respondents to grant the benefits due to him as Operator within three months from the date of receipt of a copy of this judgment”. 2. Thereafter, the petitioner was given higher grades. W.P.(C)No.3300/07 3 He was given 23 years higher grade pay in the scale of pay of Rs.6935-11460. Subsequently the same was sought to be revised and downgraded to Rs.4810-7935 on the ground that the petitioner does not possess the qualifications prescribed for the post of Operator. Exts.P3 and P5 are orders in this regard. The petitioner challenges the same. The petitioner's contention is that in view of Ext.P1 judgment, he has legally come into the post of Operator and thereafter the respondents cannot take the contention that the petitioner does not have the qualifications prescribed in the Special Rules for the post of Operator. After having accepted the petitioner as an Operator, the petitioner is entitled to higher grades in the scales of pay of the next promotion posts provided the petitioner has requisite qualifications for promotion to those posts. The petitioner submits that as per the Kerala Public Health Engineering Subordinate Service Rules which are being followed in Keala Water Authority also, the posts of Mechanical Superintendent/Chief Mechanical Foreman/Chief Driller and Master Driller can be filled up either by direct recruitment or promotion. For promotion, a pass in from V or equivalent W.P.(C)No.3300/07 4 and two years' experience in Tub Well Drilling Operation or in the Operation of Pumping Plant and Electrical Machinery, good physique and capacity for hard and continuous manual labour and not less than two years service in any of the posts under Category 3 or 11 are prescribed qualifications. The petitioner submits that the petitioner has already been given 18 year time bound higher grade in the scale of pay applicable to category 11 of the Kerala Public Health Engineering Subordinate Service Rules and that the petitioner has already put in more than two years service in that category. The petitioner, therefore, submits hat the petitioner has all the qualifications prescribed for the posts of Mechanical Superintendent/Chief Mechanical Foreman/Chief Driller and Master Driller. As such, he is entitled to 23 year time bound higher garde in the scale of pay of Rs.6935-11460 as applicable to the said posts, is the contention raised. 3. I have considered the rival contentions in detail. I am of opinion that, in view of Ext.P1 judgment, the respondents are estopped from taking the stand that the petitioner does not have the qualifications prescribed for the W.P.(C)No.3300/07 5 post of Operator and therefore, he is not eligible for the benefits attached to the post of Operator. The petitioner has been accepted as Operator, with the qualifications, he has, in view of Ext.P1 judgment and therefore, he must be treated as a full fledged Operator for all purposes of all service benefits. 4. Then the only next question is as to whether the petitioner is eligible for time bound higher grade in the scale of pay applicable to the posts of Mechanical Superintendent/Chief Mechanical Foreman/Chief Driller and Master Driller. The Kerala Water Authority is still following the special rules applicable to the Kerala Public Health Engineering Subordinate Service Rules. The posts of Mechanical Superintendent/Chief Mechanical Foreman/Chief Driller and Master Driller are in category 2 of the Special Rules and the post of Operator comes under category 12 and the post of Head Shift Operator/Head Operator comes under category 11. The petitioner has been given 18 years higher grade in the scale of pay applicable to Head Shift Operator/Head Operator. If the petitioner has the qualification prescribed for the next higher post, which is Mechanical Superintendent/Chief Mechanical Foreman/Chief W.P.(C)No.3300/07 6 Driller and Master Driller, he is entitled to 23 year higher grade in the scale of pay applicable to that post. The said post is to be filled up by promotion from the categories 3 and 11. The qualifications for the posts of Mechanical Superintendent/Chief Mechanical Foreman/Chief Driller and Master Driller by promotion are as follows: Mechanical Superintendent/Chief Mechanical Foreman/Chief Driller and Master Driller xxxx xxx xxxx Promotion Must possess the following qualifications: (i) a) Training in Central Drilling School, Dhanuari, U P; or (b) A diploma in Mechanical Engineering of a recognised Institution; or (c) A certificate in Mechanical Engineering of a recognised Institution followed by three years experience in an Engineering Workshop; or W.P.(C)No.3300/07 7 (d) Training in Drilling in the Department of Industries and Commerce, Madrass; or In the absence of candidates possessing the qualifications specified under (a) to (d) above: (e) A pass in form V or equivalent and two years' experience in Tube Well Drilling Operation or in the Operation of Pumping Plants and Electrical Machinery. (ii) Good physique and capacity for hard and continuous manual labour. (iii) Must have put in a service of not less than two years in any of the posts under Category 3 or 11. In the case of the petitioner, sub clause (e) is applicable. The petitioner has already been given 18 year higher grade in the scale of pay applicable to the Head Operator which is category 11. As such, if the petitioner possesses the qualifications prescribed as above, the petitioner is entitled to higher grade W.P.(C)No.3300/07 8 in the scale of pay applicable to Mechanical Superintendent/Chief Mechanical Foreman/Chief Driller and Master Driller. The petitioner has already passed SSLC. He has already two years experience of operation of pumping plant and Electrical Machinery. He has already two years service in the category 11 insofar as he is holding the scale of pay applicable to that post for more than two years. As such, I am satisfied that the petitioner is entitled to 23 year higher garde in the scale of pay applicable to Mechanical Superintendent/Chief Mechanical Foreman/Chief Drill and Master Driller, which is admittedly Rs.6935-11460. As such, Exts.P3 and P5 orders, whereby the scale of pay of the petitioner in the 23 year higher grade has been reduced to Rs.4810-7935, are illegal and therefore, quashed. It is declared that the petitioner is entitled to 23 year higher grade in the scale of pay of Rs.6935-11460. The petitioner is also entitled to retirement benefits as if the petitioner was holding the post in the scale of pay of Rs.6935-11460 at the time of retirement. Accordingly, the retirement benefits due to the petitioner based on the pay fixed as on the date of his W.P.(C)No.3300/07 9 retirement in that scale of pay shall be disbursed to the petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE acd W.P.(C)No.3300/07 10