IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 WA.No. 731 of 2007 ----------- -------------------- AGAINST THE JUDGEMENT IN OP.24791/2001 Dated 01/11/2006 .................... APPELLANT//: PETITIONER ------------------ S.CHELLAPPAN, FROM VATTAVILA PUTHEN VEEDU, KALLIYOOR, NEMOM P.O., TRIVANDRUM DIST., NOW RESIDING AT M/S. ASWATHI FURNITURE, ANNUR P.O., PAYYANNUR, KANNUR DIST. BY ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE SRI.B.UNNIKRISHNA KAIMAL RESPONDENT// RESPONDENT: ------------------- THE KERALA KHADI AND VILLAGE INDUSTRIES BOARD, VANCHIYOOR, TRIVANDRUM-35, REP. BY THE SECRETARY. BY STANDING COUNSEL SRI. K.P. HARISH. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2009, THE COURT ON 23/06/2009 DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. ------------------------------------ W.A. No.731 of 2007 ------------------------------------ Dated, this the 23rd day of June, 2009 JUDGMENT Balakrishnan Nair, J. The appellant is the writ petitioner. The writ petition was filed by him challenging Ext.P15 order, as per which the respondents have rejected his claim for fixation of salary in the scale of pay of Cutter and payment of arrears from 1973 as was granted in the case of Sri.V.T.Bhaskaran, who was his colleague. The brief facts of the case are the following: 2. The respondent invited applications for appointment to the post of Cutter in its garment making unit at Thrissur. The appellant was selected and appointed as per Ext.P1 order dated 9.6.1971. Pursuant to another notification, Sri.V.T. Bhaskaran was also appointed as Cutter in the year 1972. The garment making unit at Thrissur was found to be not viable and it was decided to close down the unit and simultaneously, it was decided to transfer the employees working in the said unit to the garment making unit of the respondent at Payyannur. Pursuant to the decision of the WA. No.731/07 - 2 - respondent-Board dated 9.7.1979, by Ext.P2 order, the appellant and his colleague, Sri.V.T.Bhaskaran were transferred as Cutters to the Payyannur Khadi Centre. On a representation filed by Mr.V.T.Bhaskaran, the Deputy Director of Payyannur Khadi Centre, by Ext.P3 dated 28.11.1979 informed him that, if they opt, Sri. V.T.Bhaskaran and the appellant could be absorbed as Class IV employees. Alternatively, it was suggested that, they will be absorbed in the post of Cutter proposed to be created in the Payyannur Khadi Centre, with a consolidated pay equivalent to the present pay. By Ext.P4 dated 25.2.1980 they were asked to accept the post of Class IV employees. It was also ordered that unless they opt within one week, the future pay will not be drawn and disbursed. But the appellant and his colleague, did not opt as Class IV employees and it is evident from Ext.P5 order of the respondent dated 17.9.1982. As per that, their pay was fixed in the scale of pay of Rs.130-270 applicable to the post of Cutters under the Board. It was the pre-revised scale in which the appellant was posted as per Ext.P1. As evident from Ext.P6 dated 16.9.1983, they were continuing in the post of Cutter only. WA. No.731/07 - 3 - Ext.P7 dated 16.9.1985, also would show that the appellant and Sri.V.T.Bhaskaran were continuing in the post of Cutter. While so, the appellant's colleague, Sri.V.T.Bhaskaran, approached this Court by filing O.P.No.1141 of 1989, claiming absorption as Cutter. In the said Original Petition, he is described as a Class IV employee. This Court, as per Ext.P8 judgment, directed the Board to consider his claim for absorption in the post of Cutter. On coming to know of the said judgment dated 11.3.1993, the appellant filed Ext.P9 representation dated 10.12.1993 before the Board claiming that he may also be absorbed in the post of Cutter. Pursuant to Ext.P8 judgment in favour of Sri.Bhaskaran, he was absorbed in the post of Cutter temporarily in the Scale of Pay of Rs.1200-2040 with effect from 8.7.1994 in anticipation of Government sanction. Later, the Government sanctioned the post of Cutter in the Payyannur Khadi Centre as per Ext.P11 in the scale of pay of Rs.1200-2040. Sri.V.T.Bhaskaran approached this court again claiming arrears of salary. The said writ petition was allowed by Ext.P12, directing to pay the entire arrears of salary from the date he joined the Payyannur Khadi Centre. WA. No.731/07 - 4 - Simultaneously, the writ petition filed by the appellant was disposed of by this Court, by Ext.P13 judgment, directing the Board to consider his claim. Though an appeal was attempted by the appellant against the said judgment, it was disposed of directing the respondent Board to consider his claim. Pursuant to that direction, by Ext.P15, his claim for regularisation in the post of Cutter was rejected. Therefore, the present writ petition was filed challenging Ext.P15 order. The respondent did not file any counter affidavit in the writ petition. Learned Single Judge noticed that the appellant was drawing the scale of pay applicable to peons with all timely pay revisions as per his option without any objection. Therefore, it was held that, the appellant's case cannot be treated as similar to that of Sri.V.T.Bhaskaran. Based on that finding, the writ petition was dismissed. Feeling aggrieved by the said judgment, this writ appeal is preferred. 3. The learned Senior Counsel, Sri.K.R.B.Kaimal, who appeared for the appellant, submitted that the appellant did not opt for the scale of pay of peon as directed in Ext.P4. That will be evident from Exts.P5 and P6. Later, the appellant and WA. No.731/07 - 5 - Sri.V.T.Bhaskaran, were paid salary in the scale of pay of peon with revision from time to time, though they were working all along as Cutters. Therefore, the case of the appellant is identical to that of Sri.V.T.Bhaskaran, it is submitted. Therefore, the finding of the learned Single Judge is not supported by any materials on record. 4. We heard Sri.K.R.Harish, learned Standing Counsel for the respondent. In this appeal also, the respondent has chosen not to file any counter affidavit. But, learned Standing Counsel tried to support the finding in Ext.P15 that the appellant opted to work as a Peon. But the said statement, which is made relying on the finding in Ext.P15, is not supported by any pleadings. But the same runs counter to the materials on record, like Exts.P5 and P6. So, it has to be accepted that the appellant did not opt to work as Peon, but it is a fact that the appellant and his colleague, Sri.V.T.Bhaskaran, were paid salary in the scale of pay of peons. So, the case of the appellant is identical to that of his colleague, Sri.V.T.Bhaskaran. So, there was no justification for not treating him like Sri.V.T.Bhaskaran, for regularisation in WA. No.731/07 - 6 - the post of Cutter. Accordingly, Ext.P15 is set aside and the judgment of the learned Single Judge is reversed. The appellant shall be put in the scale of pay of Cutter, granted to Sri.V.T.Bhaskaran, with effect from the date he joined Payyannur Khadi Centre. He shall be paid arrears of salary only from the date of Ext.P9, that is from 10.12.1993. Since the appellant has already retired from service in 1997, the respondent shall revise and refix his terminal benefits and also release the arrears of salary from 10.12.1993 till the date of retirement, after adjusting the amounts already paid, within four months from the date of receipt of this judgment. The Writ Appeal is allowed as above. Sd/- K. BALAKRISHNAN NAIR, JUDGE. Sd/- C.T. RAVIKUMAR, JUDGE. DK. (TRUE COPY)