IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 9TH JUNE 2010 / 19TH JYAISTHA 1932 WP(C).No. 16789 of 2008(W) --------------------------------------- PETITIONER(S): ----------------------- 1. R. SIVARAMAN, OPERATOR, KERALA WATER AUTHORITY, RURAL SUB DIVISION, MALAPARAMBA, KOZHIKODE DIVISION. 2. K.P. HARIDASAN, OPERATOR, KERALA WATER AUTHORITY, MALAPARAMBA HEAD WORKS, SUB-DIVISION, KOZHIKODE, KOZHIKODE DIVISION. 3. C.P.HARIDASAN, OPERATOR, P.H.SECTION, RAMANATTUKARA, P.H.SUB-DIVISION, KONDOTTY, P.H.DIVISION, MALAPPURAM. BY ADV. SRI.P.J.MATHEW, SRI.K.B.ARUNKUMAR. RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, WATER RESOURCES DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE KERALA WATER AUTHORITY, REPRESENTED BY THE MANAGING DIRECTOR, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER, KERALA WATER AUTHORITY, THIRUVANANTHAPURAM. 4. THE EXECUTIVE ENGINEER, P.H.DIVISION, KERALA WATER AUTHORITY, MALAPARAMBA, KOZHIKODE DISTRICT. 5. THE EXECUTIVE ENGINEER, P.H.DIVISION, KERALA WATER AUTHORITY, MALAPPURAM. R1 BY SR.GOVT. PLEADER MR.P. NANDAKUMAR. R2 TO R5 BY ADV. SRI.J.KRISHNA KUMAR, SC, KWA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 16789/2008-W APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE APPOINTMENT ORDER OF THE 1ST PETITIONER DATED 03/03/1982. EXT.P2: COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK OF THE 2ND PETITIONER. EXT.P3: COPY OF THE APPOINTMENT ORDER NO.1066/81 DATED 19/02/1983 OF THE 3RD PETITIONER AS CLR PUMP OPERATOR. EXT.P4: COPY OF THE S.S.L.C. MARK LIST OF THE 1ST PETITIONER OF SEPTEMBER, 1972. EXT.P5: COPY OF THE NATIONAL TRADE ERTIFICATE OF THE 1ST PETITIONER IN THE TRADE OF MECHANIC (MOTOR VEHICLE) HELD ON JULY, 1974. EXT.P6: COPY OF THE S.S.L.C. MARK LIST OF THE 2ND PETITIONER OF OCTOBER, 1975. EXT.P7: COPY OF THE NATIONAL TRADE CERTIFICATE OF THE 2ND PETITIONER IN THE TRADE OF MECHANIC (MOTOR VEHICLE) HELD ON JULY, 1978. EXT.P8: COPY OF THE S.S.L.C. MARK LIST OF THE 3RD PETITIONER OF MARCH 1980. EXT.P9: COPY OF THE NATIONAL TRADE CERTIFICATE OF THE 3RD PETITIONER IN THE TRADE OF MEHANIC (MOTOR VEHICLE) HELD ON JULY, 1982. EXT.P10: COPY OF THE ORDER DATED 05/01/2000 ISSUED BY THE 2ND RESPONDENT. EXT.P11: COPY OF THE ORDER DATED 21/03/2003 IN H.R.M.P NO.2044/2002 ISSUED BY THE KERALA STATE HUMAN RIGHTS COMMISSION, THIRUVANANTHAPURAM. EXT.P12: COPY OF THE LETTER DATED 30/04/2003 BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT. EXT.P13: COPY OF THE LIST OF ABSORPTION OF QUALIFIED NMRS INTO REGULAR ESTABLISHMENT, WITH COVERING LETTER DATED 28/02/2006. EXT.P14: COPY OF THE LETTER DATED 01/08/2006 OF THE 2ND RESPONDENT TO 1ST RESPONDENT. EXT.P15: COPY OF THE JUDGMENT DATED 08/12/2006 IN WRIT PETITION NO.32365/2006. EXT.P16: COPY OF THE ORDER DATED 04/10/2007 IN I.A. NO.12189/2007 IN WP(C) NO. 32635/2006. EXT.P17: COPY OF THE G.O.(RT)NO.508/08/WRD DATED 20/05/2008. EXT.P18: COPY OF THE LIST OF 86 PERSONS TAKEN TOGETHER FOR CONSIDERATION BY THE 1ST RESPONDENT. WP(C) NO. 16789/2008-W EXT.P18 (I.A.2916/2010): COPY OF THE GOVERNMENT ORDER DATED 12/06/2009. EXT.P19: COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 22/07/2009. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.16789 OF 2008 (W) -------------------------------------------------- Dated this the 9th day of June, 2010 J U D G M E N T Petitioners joined Water Authority as CLR Pumb Operators on daily wages. They became NMR Pumb Operators with effect from 1.4.1984. By resolution No.4239 dated 31.3.1997, Water Authority made a proposal to the Government to absorb all eligible NMR workers, who have completed 5 years of service into the regular service of Water Authority with effect from 1.4.1989. Petitioners submit that they were eligible for the benefit of the said resolution. However, in the list forwarded by the Kerala Water Authority to the Government for regularization of their services, petitioners names were accidentally omitted. It would appear that, the list was accepted and the persons were regularized as proposed by the Water Authority. However, for the reason that they were not included in the list seven persons including the petitioner were left out of service. 2. Petitioners approached the Kerala State Human Rights Commission. From Ext.P11 proceedings it would appear that the Managing Director of the Water Authority had conceded that it WPC.No. 16789/08 :2 : was by omission that the petitioners were not included in the list and that the list containing the name of the petitioners will be forwarded to the Government. Accordingly, by Ext.P12 letter dated 30.4.2003, the Managing Director of the Water Authority informed the Government that the issue relating to the petitioners were placed in its 243rd meeting held on 29.3.2003 and that vide resolution No.6300 it was resolved to recommend the matter to the Government to regularize them with effect from 1.4.1989, creating 7 posts in the respective category by abolishing equal number of posts in NMR cadre. In the list enclosed to Ext.P12, the petitioners names are shown at Sl.Nos.2, 3 and 4. 3. Subsequently, the Managing Director of the Water Authority made Ext.P13 request reiterating Ext.P12. This was followed by Ext.P14, when again the Managing Director took up the matter with the Government . In Ext.P14, it has been specifically stated thus. “Kind attention is invited to the references cited. The petitioners Sri. R. Sivaraman, Sri. K.P.Haridasan and Sri. C.P. Haridas are NMR Operators and are under continuous engagement as NMR Operators WPC.No. 16789/08 :3 : with effect from 1.4.1984. As per the general decision of Government, They are to be absorbed into Regular Establishment service of Kerala Water Authority with effect from 1.4.1989 ie on completion of 5 years of NMR service. Necessary proposal for regularization of 45 NMR hands was submitted to Government on 30.4.2003. The memos appear as Sl.No.35 and 37 respectively in the letter first cited.” 4. There was no progress in the matter and therefore the petitioners approached this court by filing WP(c).NO.32635/06. That writ petition was disposed of by Ext.P15 judgment directing the Government to pass orders on the request made by the Water Authority. Though belatedly, Ext.P17 order has been passed rejecting the claim. The reason stated in Ext.P17 reads as under. Government have examined the legal and financial implications involved in the issue in detail. It was noticed that a large number of workers have been engaged by KWA in spite of the instructions given by the Government not to continue such practice WPC.No. 16789/08 :4 : any further. Hence the regularization of those included in the present proposal of the KWA would given raise to a demand for regularization of all the existing causal employees in Kerala Water Authority, which is not desirable. Moreover such a practice would amount to the denial of opportunity to qualified hands applying through the PSC and will also set a very bad precedent. 5. It is challenging Ext.P17 that this writ petition is filed. 6. The contention raised by the counsel for the petitioners is two fold. One is that the petitioners were eligible for the benefit of the resolution passed by the Water Authority on 31.3.1997 and that their exclusion from the list was only an accidental omission of the Water Authority for which they should not have been penalized. Second contention is that even among the 7 persons referred to above, the person at Sl.No.6 in Ext.P12 who stands on an identical footing with that of the petitioners has been regularized by Ext.P18 order dated 12.6.2009 and therefore there is no reason to have discriminated the petitioners. WPC.No. 16789/08 :5 : 7. Admitted fact is that the petitioners' case is covered by resolution No.No.4239. If that be so, the fact that the petitioners have not been included in the list by way of an omission of the Water Authority could not have acted to the prejudice of the petitioners. In my view, the reasons stated in Ext.P17 are totally unsustainable. This is all the more for the reason that many NMR workers including the unqualified ones have been absorbed in the regular services of the water authority giving them the benefit of the aforesaid regularization. Further, Ext.P12 list contains the list of 7 persons who were omitted by the Water Authority from the list. Sl. No.6 in the list is Sri. E.M. Padmaraj. Ext.P18 order dated 12.6.2009 produced by the petitioners along with I.A.No.2916/2010 shows that Sri. Padmaraj was regularized in service with effect from 21.10.2005 and on a representation made by him, the regularization was allowed to be made with retrospective effect from 1.4.1989. On that basis, his service was ordered to be regularized giving monetary benefits with effect from 12.6.1998. By Ext.P19 order of the Managing Director Ext.P18 order was also implemented. A reading of Ext.P18 and P19 orders shows that the case of Sri. Padmaraj is similar in all WPC.No. 16789/08 :6 : respects with that of the petitioners. Therefore, there is absolutely no reason for taking a different view in so far as the petitioners are concerned. Therefore Ext.P17 is quashed. First respondent is directed to pass orders regularizing the service of the petitioners, on a par with Sri. E.M. Padmaraj in whose case Exts.P18 and P19 orders have been passed. Consequential orders will be passed as expeditiously as possible and at any rate within 8 weeks from the date of production of a copy of the judgment. (ANTONY DOMINIC) JUDGE vi/