IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 9TH FEBRUARY 2011 / 20TH MAGHA 1932 WP(C).No. 30557 of 2007(K) --------------------------------- PETITIONER(S): ------------------- AMMINI AMMA, M.P. ASST.ENGINEER, KWA QUARTERS, OPP.PARVATHY MILLS, CHINNAKADA, KOLLAM 691 001. BY ADV. SRI.P.R.VENKETESH RESPONDENT(S): -------------------- THE MANAGING DIRECTOR, KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM. BY ADV. SRI. J. KRISHNAKUMAR, SC., K.W.A. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs WP(C).No. 30557/2007(K) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE JUDGMENT IN WA 1186/1996 DATED 09/08/1996. P2: COPY OF THE PROCEEDINGS NO.KWA/JB/EI/17794/96 DATED 02/01/1997. P3: COPY OF THE PROCEEDINGS NO.KWA/JB/EI/17794/96 DATED 08/04/1997. P4: COPY OF THE JUDGMENT IN CCC 168/1997 DATED 30/06/1997. P5: COPY OF THE REPRESENTATION DATED 11/09/1997. P6: COPY OF THE COMMUNICATION NO.KWA/JB/EI-17794/96 DATED 10/02/1998. P7: COPY OF THE ADVICE MEMO ISSUED BASED ON SELECT LIST PREPARED DURING 1993. P8: COPY OF THE PROCEEDINGS BEARING NO.KWA/HO/17107/E4/86 DATED 22/12/1986. P9: COPY OF THE PROCEEDINGS DATED 12/08/1997. P10: COPY OF THE ORDER OF THE GOVERNMENT NO.27117/B3/97/IRD. P11: COPY OF THE JUDGMENT IN OP NO.4179/1998. P12: COPY OF THE REPRESENTATION DATED 20/11/2006. P13: COPY OF THE ORDER NO.KWA/JB/E4-14057/2001 DATED 07/07/07. RESPONDENT'S EXHIBITS NIL /TRUE COPY/ P.A. TO JUDGE svs S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 30557 of 2007 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of February, 2011 J U D G M E N T The petitioner is working as an Assistant Engineer in the Kerala Water Authority, the 1st respondent herein. Originally she was appointed provisionally through employment exchange in the cadre of Draftsman Grade- II on 07.05.1986. She applied for maternity leave with effect from 10.12.1989. While she was on maternity leave, her services were terminated by order dated 25.01.1990 with retrospective effect from the date of commencement of maternity leave. Challenging that order of termination of service, the petitioner filed a writ petition before this court which was dismissed. The petitioner filed W.A. No.1186/1995 which was allowed by Ext.P1 judgment, wherein a Division Bench of this court directed the respondent to reinstate the petitioner in service and granted her all consequential reliefs including regularisation of her service. She was reinstated in service W.P.(C)No. 30557 of 2007 -2- but was not given the other benefits as directed in Ext.P1 judgment. The petitioner filed O.P. No.4179/1998 which was disposed of by Ext.P11 judgment directing the respondent to consider the matter afresh and pass appropriate orders. Pursuant thereto Ext.P13 order has been passed rejecting the claims of the petitioner. It is challenging Ext.P13 this writ petition has been filed by the petitioner seeking the following reliefs: “a. Call for the records leading to Exhibit P.13 and quash the same by the issuance of a writ in the nature of certiorari quashing Exhibit P.13. b. issue a writ in the nature of mandamus commanding the respondent to give consequential reliefs to the petitioner as per Exhibit P.1 such as maternity leave salary, arrears of salary for the period kept out of service consequent upon illegal termination of service during maternity leave and allied service benefits like re fixation of pay annual increment etc with reasonable interest. c. issue a writ in the nature of mandamus commanding the respondent to regularise the service of the petitioner from the date of initial appointment i.e. 7.5.1986 or at least from the date of resolution i.e. 30.1.1987. d. issue a writ in the nature of mandamus commanding the respondent to reckon the prior service and graduation for the purpose of considering the claim of the petitioner for departmental quota promotion as Asst Engineer by restoring the seniority ignoring the period the petitioner was kept out of service.” 2. A counter affidavit is stated to have been filed by W.P.(C)No. 30557 of 2007 -3- the respondent, which does not find a place in the records of this case, although a reply affidavit filed by the petitioner is in the file. A copy of the counter affidavit has been made available to me by the counsel for the petitioner which seeks to justify the action of the respondent on the same grounds as in the impugned order, Ext.P13. When the matter was taken up for hearing today none appears for the Water Authority. Therefore, I was constrained to hear and dispose of this writ petition on the basis of the arguments of the learned counsel for the petitioner and the records available. 3. In Ext.P1 judgment a Division Bench of this court has directed thus: “In this view, we are left with no option but to set aside the judgment under appeal and consequently direct the authorities concerned to reinstate the appellant back to the service and grant all such consequential reliefs, including the regularisation of her service. We hope and trust, the action for reinstatement shall not be detained by the Authorities concerned any longer and be taken forthwith without any loss of time. The appeal is, accordingly, allowed. But, there shall be no order as to costs.” Ext.P13 order reads thus: “The Hon'ble High Court in the judgment dated, 04.10.2006 in OP No.4179 of 1998 by Smt. M.P. Ammini Amma, has directed W.P.(C)No. 30557 of 2007 -4- to consider the matter afresh with notice to the petitioner and pass appropriate orders in the light of Ext.P-10 vide reference 3rd cited. The petitioner shall also be afforded an opportunity for hearing. It will be open to the petitioner to file a supplementary representation. In compliance to the above direction, the petitioner Smt. M.P. Ammini Amma was afforded a personal hearing on 31.01.2007. The averments of the petitioner contained in the representation dated, 20.11.2006 as well as at the personal hearing viz.- (1). to sanction Maternity Leave Salary for 90 days with effect from 10.12.1989 (2). to grant to promote to the cadre of Assistant Engineer with effect from 16.08.1993 and (3) to promote her to the cadre of Assistant Executive Engineer reckoning the seniority in the cadre of Assistant Engineer with effect from 16.08.1993 were examined in detail and the petitioner is informed as follows: On verification of the petitioner's Service Book, it is noticed that the petitioner was provisionally appointed as Draftsman Grade II through Employment Exchange, Kollam on 24.04.1986 for 179 days. On completion of every 179 days the petitioner's service was broken and she continued up to 10-12-1989. She was terminated from service on 11-12-1989 while a PSC hand reported for duty as per Rule 9a(1) of KS & SSR. Based on the Hon'ble High Court Judgment in WA 1186/95.B dated 09-08-1996 she was re-instated in service vide order No.KWA /HO/E1-199/95 dated. 25.01.1997 of the Managing Director, Kerala Water Authority allowing all consequential relief and in view of the Hon'ble Supreme Court Judgment No WP (C) No WP(C) No.112 of 1990, her provisional service regularised with effect from 19.09.1990 and joined duty on 14-01-1997. As per Note 4 below Rule 100 Part 1 KSR, Maternity Leave under Rule 100 and Rule 101 shall be admissible to provisional female recruits containing in service in a single Department beyond one year provide they would continue in service but for proceeding on such leave. Since, the petitioner had no continuous service as per Rule as she was ousted from service on joining a PSC hand, the vacancy ceased to exist, she is not eligible for Maternity Leave Salary for 90 days for the said period. The petitioner has claimed, that she had passed B.Sc Engineering (Civil) Degree in First Class during 1984. As per clarification issued by Government on 11-12-1997 (Expt 10) there is no specific provision to the effect that persons who acquired degree in Engineering prior to entry to the lower post like D'man are not eligible for department quota of 6%. As W.P.(C)No. 30557 of 2007 -5- such all the graduate Engineers who are working in the lower post are entitled to the benefit of ratio promotion to the category of Assistant Engineer by virtue of Government Order dated 16/01/1978 irrespective of the date of acquirement of superior qualification. By the above clarification the petitioner was eligible to be considered for the post of Assistant Engineer. But as she was out of service from 10.12.1989 to 13.01.1997 she became ineligible to be considered for the post of Assistant Engineer, as she could not apply for the post under In-service quota. During the personal hearing, the petitioner has stated that she was unable to apply for the post of Assistant Engineer under open quota. Since Kerala Public Service Commission have not invited application, meanwhile she had lost her chance to apply as a departmental candidate to the post of Assistant Engineer as her service was not regularized then. Thirdly she has requested to assign her seniority in the cadre of Assistant Engineer with effect from 16.08.1993. On verification of the seniority list of Assistant Engineers it has been noticed that the Assistant Engineers both under open quota and department quota were appointed in Kerala Water Authority through Kerala Public Service Commission during 1985-to 1988, 1991 to 1994 and 1995 to 1997. Hence, the statement of the petitioner that she lost her chances to apply to the post of Assistant Engineer is incredible. Moreover, the seniority of an incumbent is determined in accordance with the date of advice of Kerala Public Service Commission as per KS&SSR. It may be noted that in service candidates are appointed through K.P.S.C only. Hence, Kerala Water Authority is not in a position to assign her seniority beyond the actual date of advice to the existing post of Assistant Engineer assumed by her. Accordingly her claim for promotion to the post of Asst. Executive Engineer reckoning her seniority in the cadre of Asst. Engineer with effect from 16-08-1993 is devoid of merit. In the circumstances, the request of Smt.Ammini Amma, Assistant Engineer (now) to sanction salary for the Maternity Leave said to be availed while she had been a provisional Draftsman Grade II and to assign the seniority in the cadre of Assistant Engineer, with effect from 16.08.1993, ie., beyond the actual date of Kerala Public Service Commission advice to the present post cannot be considered favourably. Accordingly the above judgment is implemented.” From Ext.P13, I find that the respondent has proceeded as W.P.(C)No. 30557 of 2007 -6- if the issue relating to the claims of the petitioner are still open and he is bound to consider the matter afresh, which is not so. Ext.P1 judgment has become final and the petitioner is entitled to the fruits of that judgment, which includes every benefits like not only reinstatement but all service benefits as if the petitioner was regularly appointed on 07.05.1986. Therefore the petitioner is entitled to the leave salary for the period of maternity leave, increments every year, promotions when due considering her service from 07.05.1986 and all other benefits. As such, Ext.P13 is clearly in violation of Ext.P1 judgment. In fact it amounts to contempt of court. Accordingly Ext.P13 is quashed and the writ petition is allowed as prayed for. I was inclined to direct the respondent to pay costs also. But taking a lenient view, I refrain from ordering costs. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/