IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 WP(C).No. 14422 of 2006(P) -------------------------------------- PETITIONER: ------------------- P.K.INDIRA, SWEEPER III, (HIGHER GRADE), C.E.GENERATION, KSEB, MOOLAMATTOM, IDUKKI (AGED 45), W/O.LATE K.T.VELAYUDHAN NAIR, K.S.E.B.COLONY, QUARTERS NO.F.84 A, MOOLAMATTOM, IDUKKI). BY ADVS. MR.K.S.MADHUSOODANAN, MR.T.V.JAYAKUMAR NAMBOODIRI. RESPONDENTS: ------------------------ 1. K.S.E.B., REP. BY SECRETARY, VYDYUTHI BHAVANAM, PATTAM, THIRUVANANTHAPURAM. 2. CHIEF ENGINEER (HRM), VYDYUTHI BHAVANAM, PATTAM, THIRUVANANTHAPURAM. 3. DEPUTY CHIEF ENGINEER, OFFICE OF THE CHIEF ENGINEER (GENERATION), MOOLAMATTOM, IDUKKI. 4. K.P.SUBAIDA, LINEMAN-II, QUARTERS NO.F.18 A, K.S.E.B.COLONY, MOOLAMATTOM, IDUKKI. 5. SELVI, LINEMAN-II, QUARTERS NO.F.64 B, K.S.E.B.COLONY, MOOLAMATTOM, IDUKKI. R1 TO R3 BY MR. ASOK M.CHERIYAN, SC, KSEB. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.14422/2006-P: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPOINTMENT ORDER DTD. 14/11/90 ISSUED BY THE CHIEF ENGINEER, ELE (GEN). EXT.P.2: COPY OF THE PROCEEDINGS DTD. 29/03/99 BEARING NO. EB5 (A) 55/98. EXT.P.3: COPY OF THE JUDGMENT IN W.P.(C).NO.17129/01 DTD. 08/06/2001. EXT.P.4: COPY OF THE ORDER B.O. NO. 1658/02 PSI.1167/95 DTD. 10/12/2002. EXT.P.5: COPY OF THE REPRESENTATION DTD. 20/12/2002. EXT.P.6: COPY OF THE FORWARDING LETTER NO. EB/CEH/ADMN/STAFF/2002. EXT.P.7: COPY OF THE ORDER EB5(A)/33/2000 DTD. 01/12/2003. EXT.P.8: COPY OF THE REPRESENTATION DTD. 29/10/05. EXT.P.9: COPY OF THE RELEVANT PAGES OF LONG TERM SETTLEMENT – 2000. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. V.K.MOHANAN, J. --------------------------------------------- W.P(C).No. 14422 of 2006 - P --------------------------------------------- Dated this the 7th day of July, 2009 J U D G M E N T The petitioner, who is working as Sweeper Grade-III (Higher Grade) in the Office of the Chief Engineer (Electricity- General), Kerala State Electricity Board, Moolamattom, preferred this writ petition praying inter alia to declare that the petitioner is to be treated as Electricity worker, the day on which the fourth and fifth respondents were regularised as Electricity workers as per Ext.P4 order dated 10.12.2002 and to disburse the consequential benefits. It is also prayed for consequential direction to the respondents to regularise the service of the petitioner as Electricity worker and disburse the consequential monetary benefits. 2. The case of the petitioner is that she is a widow of one K.T.Velayudhan Nair, who died on 13.8.1983 while in service of the K.S.E.B and the petitioner got appointment on compassionate ground as Sweeper Grade-III. Ext.P1 is the appointment WP(C) NO.14422 of 2006 :-2-: order. At the time of Ext.P1 appointment, she had only passed Std.VI and subsequently, she attended the S.S.L.C. Examination privately during the year 1993, but she failed. A request was made by the petitioner before the Board authorities for category change from Sweeper Grade-III to Office Attendant Grade-III and she approached this Court by filing O.P.No.392 of 2001 and this Court, by judgment dated 18.1.2001, directed the Board to consider and pass orders on the representation within two months. But, such request was rejected by the second respondent by order dated 7.4.2001 as evidenced by Ext.P2, which is under challenge in O.P.No.17129 of 2001 before this Court and this Court, by judgment dated 8.6.2001, dismissed the same on the ground that the petitioner could not substantiate the issue regarding the basis of the method of appointment in which an incumbent working in one category can be posted to another category . 3. Now, the petitioner produced Ext.P4 order by which the Board has regularised the persons who are WP(C) NO.14422 of 2006 :-3-: appointed, under the compassionate employment scheme, as Sweeper III and continuing as CLR workers and those among the CLR workers who do not possess the qualification to the post of Electricity Workers, but possess the qualification for direct recruitment of Office Attendant-II. Out of the 27 workers mentioned in Ext.P4, respondents 4 and 5 are respectively serial Nos.5 and 7 in Ext.P4. Respondents 4 and 5 were appointed during the year 1994 as C.L.R. workers on compassionate ground whereas the petitioner was appointed on 14.11.1990 as Sweeper Grade-III in regular service. The grievance of the petitioner is that as per Ext.P9 Long Term Settlement arrived during the year 2000, category changes were allowed. Article X of Ext.P9, under the caption 'General and Miscellaneous' deals with Compassionate Ground Appointment Scheme. Clause 2 says that dependants selected as Sweepers/Scavengers under the compassionate appointment scheme and presently working as CLR workers due to lack of vacancies shall be considered for WP(C) NO.14422 of 2006 :-4-: appointment as Office Attendants who are qualified for that post. The third clause further says that the Office Attendants who are appointed under this scheme and willing to be posted as Mazdoors shall be posted as Mazdoors provided they possess the qualification for the post of Mazdoors. According to the petitioner, respondents 4 and 5 were appointed as C.L.R.workers, much after the appointment of the petitioner, but their services, who are juniors to the petitioner, were regularised as Electricity Workers and subsequently, they were given the benefit of clause 3 in Ext.P9, whereas the petitioner was discriminated on the ground that originally she was appointed to the permanent post of Sweeper Grade-III. Therefore, she approached this Court with the above prayers against such hostile discrimination. 4. I have heard Mr.K.S.Madhusoodanan, learned counsel appearing for the petitioner as well as Sri.Asok.M.Cheriyan, learned Standing Counsel appearing for the Board. WP(C) NO.14422 of 2006 :-5-: 5. There is no dispute regarding the factual assertion made by the petitioner in this writ petition. The first respondent-Board has filed a counter affidavit disputing the contention of the petitioner for the category change. It is also pointed out that the petitioner was appointed on a regular post as Sweeper Grade-III and the petitioner had accepted the same and served the post for over ten years. According to the Board, at this stage, there is no provision permitting to allow the change of category and therefore, the prayer of the petitioner cannot be entertained. 6. I have carefully considered the contentions advanced by both the counsel for the petitioner as well as the respondents Board and also perused the materials on record. 7. Admittedly, the petitioner was appointed to the permanent post of Sweeper Grade-III by Ext.P1 appointment order on 14.11.1990 whereas respondents 4 and 5 were appointed as CLR Sweepers during the year 1994 as there were no permanent vacancies. The WP(C) NO.14422 of 2006 :-6-: petitioner as well as respondents 4 and 5 had got appointments on the same ground, viz., under compassionate scheme. As per Ext.P4 order, including respondents 4 and 5, the service of 27 persons, who were working as CLR Sweepers, were regularised as Electricity Workers. The request of the petitioner for change of category was rejected on the ground that there was no rule or provision for the same. But, in view of Ext.P9 settlement and based upon clauses therein, which are indicated above, the persons, those who are initially appointed as CLR Sweepers and whose services were subsequently regularised as Electricity Workers, are entitled to get the benefit of clause 3 of Ext.P9. From the above, the discrimination is manifest, for the reason that the petitioner was initially appointed to the permanent post of Sweeper Grade-III and as such, she was not given the change of category. 8. Though the petitioner and respondents 4 and 5 were appointed under the compassionate scheme, as there were no posts of Sweeper Grade III in 1994, WP(C) NO.14422 of 2006 :-7-: respondents 4 and 5 were appointed as C.L.R. workers, whose appointments were subsequently regularised as Electricity Workers and they are now conferred with better status including the payment, whereas the petitioner, who was appointed much earlier to respondents 4 and 5 on the same scheme, is constrained to remain in the same post, namely Sweeper Grade-III. The above disparity and discrimination will continue through out her service carrier, unless the same is rectified. 9. The petitioner has timely approached the respondents for the category change which was rejected as per Ext.P2, which was passed much earlier to Ext.P4. In the light of the provisions contained in Ext.P9 settlement, the petitioner's claim for category change cannot be rejected, especially when the request for category change by respondents 4 and 5, who are very junior to the petitioner and whose appointments were also initially under the scheme of compassionate ground of appointment, was granted. The denial of category WP(C) NO.14422 of 2006 :-8-: change to the petitioner will amount to hostile discrimination as the same is against the the very principles of equality before law and equal protection of law as embodied in Article 14 of the Constitution of India. In the light of the above facts and circumstances and the discussion, I am of the view that the petitioner is entitled to get category change as requested by her and the denial will amount to hostile discrimination. Therefore, there will be a direction to the respondents to permit the petitioner to change her category as Electricity Worker from the date of regularisation of respondents 4 and 5 as Electricity Workers and she is entitled to get all service benefits thereto and also entitled to get disbursed all consequential monetary benefits which shall be paid within three months from today. The writ petition is allowed as above. V.K.Mohanan, MBS/ Judge WP(C) NO.14422 of 2006 :-9-: V.K.MOHANAN, J. -------------------------------------------- WP(C) NO.14422 of 2006 :-10-: O.P.NO. OF 200 -------------------------------------------- J U D G M E N T DATED: -6-2009 WP(C) NO.14422 of 2006 :-11-: