IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 WP(C).No. 9210 of 2008(U) ------------------------------------- PETITIONER: ------------------- K.GULAM HUSSAIN, HEAD OPERATOR, OFFICE OF THE ASSISTANT ENGINEER, KERALA WATER AUTHORITY, HEAD WORK SECTION, MAVOOR, KOZHIKODE DISTRICT. BY ADVS. MR.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI, MR.T.R.SADEESAN. RESPONDENTS: ------------------------ 1. THE ASSISTANT ENGINEER, KERALA WATER AUTHORITY, HEAD WORK SECTION, MAVOOR, KOZHIKODE -673 009. 2. THE EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, P.H.DIVISION, KOZHIKODE-673 009. 3. KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, TRIVANDRUM-695 033, REPRESENTED BY ITS MANAGING DIRECTOR. R1 TO R3 BY MR. J. KRISHNA KUMAR, S.C. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/03/2009, ALONG WITH W.P.(C). NO.19776/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.9210/2008-U: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO. E2.4246/84 DTD. 07/10/92 ISSUED BY THE R.2. EXT.P.2: COPY OF THE ORDER NO. E3.2836/99 DTD. 30/10/2000 ISSUED BY THE R.2. EXT.P.3: COPY OF THE LETTER NO. AB1.517/02 DTD. 17/10/05 ISSUED BY THE ASST. EXECUTIVE ENGINEER TO THE R.2. EXT.P.4: COPY OF THE ORDER NO. AB1.517/00 DTD. 10/02/06 ISSUED BY THE ASST. EXECUTIVE ENGINEER, KWA, HEAD WORKS SUB DIVISION, CALICUT. EXT.P.5: COPY OF THE COVERING LETTER DTD.10/10/07 ISSUED BY THE R.1. ALONG WITH PETITIONER'S OPTION DTD. 09/10/07. EXT.P.6: COPY OF THE ORDER NO. DWA/PHDN/KDE/E3/3759/2007 DTD. 11/10/07 ISSUED BY THE R.2. EXT.P.7: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE R.3. ON 02/11/07. EXT.P.8: COPY OF THE JUDGMENT DTD. 13/11/07 IN W.P.(C).NO.33381/07 OF THIS HONOURABLE COURT. EXT.P.9: COPY OF THE ARGUMENT NOTE DTD. 04/03/08 SUBMITTED BY THE PETITIONER BEFORE THE R.3. EXT.P.10: COPY OF THE ORDER NO. KWA/JB/E5-6092/07 DTD. 07/03/08 ISSUED BY THE R.3. EXT.P.11: COPY OF THE COMMUNICATION NO.AB1-967/2007 DT.D 19/09/08 ISSUED BY THE R.1. EXT.P.12: COPY OF THE COMMUNICATION NO. E1/4399/2008 DTD. 04/11/08 ISSUED BY THE EXECUTIVE ENGINEER, KWA TO THE R.1. EXT.P.13: COPY OF THE COMMUNICATION NO. E3/2770/2006 DTD. 14/08/07 ISSUED BY THE EXECUTIVE ENGINEER, KWA TO THE R.1. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. V.GIRI, J ------------------- W.P.(C)s. 9210 & 19776/2008 -------------------- Dated this the 23th day of March, 2009 JUDGMENT Common contentions are raised in these two writ petitions. Therefore they have been heard together and are being disposed of by a common judgment. I will refer to the facts in Writ Petition No.9210/2008 and since the facts are similar, same will govern the other writ petition also. 2. Petitioner entered service as CLR cleaner on 27.11.1978 and was then designated as NMR cleaner on 16.6.1980. He was appointed by transfer as NMR Operator in the erstwhile Public Health Engineering Department on 19.8.1982 and was absorbed into regular establishment on 16.6.1985. By the time Water Authority had been constituted in 1984. 3. By Ext.P1 order, petitioner was granted first time bound higher grade, which he was otherwise eligible on completion of ten years of service with effect from 9.8.1992 in the category of Operator. This is taking into account the completion of ten years service as NMR Operator with effect W.P.(C).9210 &19776/2008 2 from 19.8.1982. Subsequently by Ext.P2, affirming that the petitioner has already been granted first time bound higher grade on completion of ten years of service, it was noted that he has completed 18 years of service, he was granted second time bound higher grade with effect from 19.8.2000. The commencement of service of the petitioner, is related to the commencement of service as NMR Operator on 19.8.1982. The proposal to grant him the third time bound higher grade on completion of 23 years of service with effect from 19.8.2005, was recommended and the petitioner's option in this regard was accepted as per Ext.P4 order, with effect from 20.8.2005. Petitioner then requested for fixation of pay in the revised scale consequent upon the enforcement of pay revision order which came into force in 2005, and at this point of time, Ext.P6 order was issued by the Executive Engineer canceling the sanction of all the three time bound higher grades effected under Exts.P1, P2 and P4 and directing a fresh fixation of pay under Rule 28A of Part-I of K.S.R, commensurate with his appointment/promotion as NMR Operator with effect from 19.8.1982 and further directing the grant of two time bound higher grades, one, on completion of 20 years of service and another on completion of 23 years of service. This was challenged by W.P.(C).9210 &19776/2008 3 the petitioner by means of a representation before the Managing Director, who affirmed the same as per Ext.P10 order. Exts.P6 and P10 are challenged in this writ petition. 4. What has taken place under Ext.P6 is cancellation of the time bound higher grades already sanctioned, first one as per Ext.P1 order dated 7.10.1992, second one as per Ext.P2 order dated 30.10.2000 and the third one as per Ext.P4 order dated 10.2.2006. The sole reason discernible from Exts.P6 and P10 for cancellation of the time bound higher grades is that the petitioner was already granted a fixation of pay in terms of Rule 28A of Part-I of K.S.R, when he was appointed/promoted as an NMR Operator with effect from 19.8.1982 and therefore, he was not entitled to a grant of first time bound higher grade on completion of ten years of service or second time bound higher grade on completion of 18 years of service or third time bound higher grade on completion of 23 years of service. 5. The premise on which such cancellation of the time bound higher grade, already granted is effected, is erroneous for two reasons. Firstly, petitioner was appointed as an NMR Operator on 19.8.1982 and there is nothing on W.P.(C).9210 &19776/2008 4 record to show that his appointment as an NMR Operator entails a promotion and consequent fixation of pay under Rule 28A of Part-I of K.S.R. 6. Significantly, Rule 28A of Part-I of K.S.R is not applicable to NMR Workers as Part-I of K.S.R is applicable only to regular establishment employees. 7. I also take note of the fact that the ten years time bound higher grade has been sanctioned to the petitioner only on completion of ten years of service counted with reference to the date on which he was appointed as NMR Operator on 19.8.1982. That is to say, the post of NMR Operator was taken as the post of entry and the first time bound higher grade was sanctioned only on completion of ten years of service in the post of NMR Operator. Earlier service of the petitioner as CLR Cleaner or NMR Cleaner was not taken into account for the purpose of computing ten years of service for the grant of first time bound higher grade, or for that matter, second time bound, or third time bound higher grade, as the case may be. W.P.(C).9210 &19776/2008 5 8. In these circumstances, there was obviously no error in either Exts.P1, P2 or P4. Consequently, the option exercised by the petitioner to be fitted in the revised scale consequent upon the 2005 Pay Revision, ought to have been accepted. 9. Learned counsel for the petitioner submits that there cannot be a revision of the pay already drawn by an incumbent, after a long lapse of time even if a mistake in the original of fixation is detected later. He relies on the decision of this Court in Narayanan v. State of Kerala (2008 (3) KLT 188). The principle laid down in the said case would also support the case of the petitioner. But as I stated above, there was nothing wrong in the fixation already granted by Exts.P1, P2 and P4. 10. For all these reasons, petitioner is entitled to succeed. The writ petition is allowed. Exts.P6 and P10 are quashed and the Water Authority is directed to further proceed with Ext.P5 for the purpose of computing his retirement benefits treating the grant of higher grade under Exts.P1, P2 and P4 as legal and proper. W.P.(C).9210 &19776/2008 6 W.P.(C).19776/2008 Discussion in relation to W.P.(C). 9210/2008 would apply in the case of the petitioner herein also, the difference only being that the petitioner herein is still in service. Orders impugned in the present case are Exts.P4 and P9 and on a parity of reasoning, Exts.P4 and P9 are quashed and the Water Authority is directed to consider the grant of first, second and third time bound higher grade in favour of the petitioner as per Exts.P1 and P2, as legal and proper and further proceed with the petitioner's application for fixation in the revised scale brought into force with effect from 2005 Pay Revision Order and grant him such consequential benefits. V.GIRI, Judge mrcs