IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 2ND JANUARY 2009 / 12TH POUSHA 1930 WP(C).No. 25674 of 2008(F) -------------------------------------- PETITIONER: ------------------- K.J. GEORGE, S/O. JOSEPH, AGED 49 YEARS, HEAVY EQUIPMENT OPERATOR, (PAYLOAD OPERATOR), 'KALAPURACKIAL HOUSE' CHUTTUPADUKARA, EDAPALLY P.O., KOCHI. BY ADV. SRI.V.RAMKUMAR NAMBIAR. RESPONDENTS: ----------------------- 1. THE TRAVANCORE COCHIN CHEMICALS LTD., UDYOGAMANDAL P.O., REPRESENTED BY IT'S MANAGING DIRECTOR, ERNAKULAM. 2. THE PERSONNEL MANAGER, THE TRAVANCORE COCHIN CHEMICALS LTD. UDYOGAMANDAL P.O., ERNAKULAM. 3. THE STATE OF KERALA, REPRESENTED BY SECRETARY, INDUSTRIES DEPARTMENT, SECRETARIAT, TRIVANDRUM. R1 & R2 BY ADVS. SRI.E.K.NANDAKUMAR, SRI.A.K.JAYASANKAR NAMBIAR, SRI.K.JOHN MATHAI, SRI.P.BENNY THOMAS, SRI.ANIL D. NAIR, SRI.V.J.ANAND. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/11/2008, THE COURT ON 02/01/2009 DELIVERED THE FOLLOWING: prv. P.N.Ravindran, J. ===================== W.P(C) No.25674 of 2008 ===================== Dated this the 3rd day of January, 2009. JUDGMENT The petitioner is presently working as Pay Load Operator in the Travancore Cochin Chemicals Limited, hereinafter referred to as the “Company” for short. He was originally appointed through the Employment Exchange as Driver on a temporary basis as per appointment order dated 4.8.1992. The petitioner states that while he was working as Driver, the Company acquired heavy equipment like Bull Dozers, Forklifts, Cranes, Pay loaders, etc., that as Drivers were not available to operate the equipment, posts of Operators to operate the above equipment were sanctioned, that thereupon temporary Drivers were interviewed for appointment as Heavy Equipment Operator and that he was selected and appointed as Heavy Equipment Operator as per memo dated 25.3.1994. He further states that though his appointment as per Ext.P1 was on a temporary basis, the post of Heavy Equipment Operator was a permanent post, that when there was an attempt to terminate his service, he had filed O.P.No.13227 of 1994, that the said Original Petition was heard and disposed of along with other connected cases by Ext.P2 judgment delivered on 22.8.1996 wherein this Court declared that the petitioners are entitled to continue in service on a permanent basis, that though the Company filed W.A.No.1672 of 1996 WP(C) 36726/08 -: 2 :- challenging the judgment in O.P.No.13227 of 1994 the said appeal was dismissed by Ext.P3 judgment delivered on 23.10.2001, that pursuant to Ext.P3 judgment, the Company issued Ext.P4 memo dated 13.11.2001 appointing him as Heavy Equipment Operator, that he has successfully completed his probation and was confirmed as Heavy Equipment Operator with effect from 22.2.1998 as per Ext.P5 memo dated 15.5.2002 and that by Ext.P6 memo dated 8.3.2006 he was placed in the scale of pay of Rs.1384-2785 with effect from 22.2.2006. The grievance voiced by the petitioner in the Writ Petition is that though he was thus appointed as Heavy Equipment Operator, he is being paid salary in the scale of pay of Helper. He submits that the scale of pay of Heavy Equipment Operator is Rs.1385-40-1585-45-50-2785, as can be seen from Ext.P7 memorandum of settlement arrived at between the Company and its employees, that as a Heavy Equipment Operator, he is entitled to be given the scale of pay of Rs.1310-30-1460-35-1810-40-2410 which is the scale of pay of Helper, that he is entitled to be placed in the scale of pay of Rs.1385-40-1585-45-2035-50-2785 with effect from 22.2.1998, that he was confirmed as Heavy Equipment Operator till 21.2.2006 when he was given a personal grade as per Ext.P6 memo dated 8.3.2006 with effect from 22.2.2006. He submits that when he moved the Company, he was informed that he was confirmed in the post of Heavy Equipment Operator by Ext.P4 memo dated 13.11.2001 with a consolidated pay of Rs.150/- per mensem that after he completes his probation, he will be WP(C) 36726/08 -: 3 :- confirmed in the post of Heavy Equipment Operator in the scale of pay of Rs.1310-30-1460-35-1810-40-2410 and that as the petitioner has accepted the said appointment, he cannot claim the scale of pay of Operator, that on completion of eight years of service, since there was no vacancy in the promotion post and against which the petitioner could be accommodated, he was given the personal grade by Ext.P6 memo dated 8.3.2006. The petitioner further submits that aggrieved by the scale of pay, according to him, he had moved the Personal Manager of the Company in Ext.P9 representation, that he was promoted as Pay Load Operator (Operator Grade) with effect from 21.2.2008, that he had again submitted Ext.P11 representation before the Personnel Manager of the Company on 8.3.2008 and thereafter filed W.P.(C) No.11918 of 2008 in this Court. By Ext.P12 judgment delivered on 8.4.2008, this Court disposed of the said Writ Petition with a direction to the Personnel Manager of the Company to pass orders on Exts.P9 and P11 representations (marked as Exts.P11 and P12 in W.P.(C) No.11918 of 2008) within a period of two months from the date of receipt of a copy of the judgment. The petitioner forwarded a copy of Ext.P12 judgment to the Personnel Manager of the Company along with Ext.P13 letter dated 27.5.2008. Thereupon, the Personnel manager of the Company informed the petitioner in Ext.P14 letter dated 26.11.2008 that the petitioner's claim cannot be accepted for the reason that his appointment as Heavy Equipment Operator was against the vacancy of Helper in the scale of pay WP(C) 36726/08 -: 4 :- of Helper and that as the petitioner had accepted the offer of appointment evidenced by Ext.P4 by counter signing the duplicate copy thereof, he cannot claim the scale of pay of Operator. Ext.P14 is under challenge in this Writ Petition. 2. The petitioner contends that he is entitled to be paid salary in the scale of pay of Operator and not in the scale of pay of Helper, that in view of the directions issued by this Court in Exts.P2 and P12 judgments, the petitioner is entitled to the scale of pay of Heavy Equipment Operator. The petitioner contends that Helper and Heavy Equipment Operator are separate and different categories of post and that as the appointment was as Heavy Equipment Operator, he is entitled to the salary of Operator and not that of Helper. 3. Respondents 1 and 2 have filed a counter affidavit contending inter alia that the petitioner was initially appointed as Driver on a temporary basis through the Employment Exchange on 4.8.1992 that while thus continuing as Deriver, he was considered for appointment for driving heavy equipment and was appointed on a temporary basis as Heavy Equipment Operator as per Ext.R1(a) dated 18.2.1993 on a consolidated payment of Rs.1450/- per mensem, which is the consolidated wages payable to the temporary employees in the grade of Helper. Respondents 1 and 2 submit that under Ext.R1(b) settlement dated 21.8.1992, temporary workers are entitled only to consolidated wages of Rs.1450/- per mensem, that pursuant to the directions issued WP(C) 36726/08 -: 5 :- by this Court in Ext.P2 judgment, which was upheld by the Division Bench of this Court in Ext.P3, Ext.P4 order was passed appointing the petitioner as Heavy Equipment Operator with a consolidated wages of Rs.1900/- per mensem till he is regularised in service and thereafter, in the scale of pay of Rs.1310-30-1460-35-1810-40-2410, that such scale of pay is the scale of pay of Helper fixed in Ext.P7 memo of settlement dated 25.3.1997 by which the scale of pay of Rs.910-1560 fixed in R1(b)settlement was revised as Rs.1310-2410 on a completion of eight years of service. The petitioner was given a personal grade in the scale of pay of Pay Load Operator which is the next promotion post from Helper and that when a vacancy arose, he was also promoted as Pay Load Operator by Ext.P10 order dated 29.2.2008. The respondents contend that no post of Heavy Equipment Operator was created in the Company as contended by the petitioner, though the petitioner and some other temporary Drivers were selected and appointed on a temporary basis as Heavy Equipment Operator. It is contended that such appointments were made in the category of Helper and they were paid a consolidated wages of Rs.1450/- payable to the category of Helper placed in the scale of pay of Rs.910- 1560. Respondents 1 and 2 further contended that in Ext.P7 settlement the post of Heavy Equipment Operator is not referred to, that the petitioner was appointed as Heavy Equipment Operator in the scale of pay of Helper only and that he cannot therefore claim the scale of pay of Operator. The respondents further contended that as the post of Heavy WP(C) 36726/08 -: 6 :- Equipment Operator has not been created and as the petitioner was appointed as Heavy Equipment Operator, he cannot claim or be granted the reliefs prayed for in the Writ Petition. It is further contended that the next promotion post of Helper is Pay Load Operator and that the petitioner was given the scale of pay of Pay Load Operator on completion of eight years of service and was actually promoted as Pay Load Operator on completion of 10 years. The respondents further contended that the petitioner who accepted his appointment, cannot now turn round and challenge the scale granted to him. 4. I have considered the submissions made at the Bar by Sri.V.Ramkumar Nambiar, the learned counsel appearing for the petitioner and Sri.E.K.Nandakumar, the learned standing counsel appearing for respondents 1 and 2. The learned counsel for the petitioner contends relying on Ext.P7 memorandum of settlement that as Heavy Equipment Operator is also Operator, the petitioner is entitled to be placed in the scale of pay of Rs.1385-40-1585-45-50-2785 from 22.2.1998 to 21.2.2006 from which date onwards he was given personal grade in the scale of pay of Pay Load Operator. The learned counsel for the petitioner contends that as the petitioner was appointed as Heavy Equipment Operator pursuant to the direction issued by this Court in Ext.P2 judgment, he is entitled to be paid salary in the scale of pay of Operator and not that of Helper. The learned counsel also referred to and relied on the directions issued in Ext.P12 judgment wherein it is WP(C) 36726/08 -: 7 :- observed that as the petitioner was appointed as Heavy Equipment Operator, he is entitled to the scale of pay applicable to the said post. Per contra, Sri.A.Jayasankar, the learned counsel appearing for the petitioner contended that as the petitioner has accepted his appointment made as per Ext.P4 on the terms and conditions stipulated therein, he cannot now turn round and challenge the scale of pay granted to him long after he accepted the appointment. The learned counsel for respondents 1 and 2 refers to and relies on the decision of the Apex Court in M.P. State Textiles Corpn. Ltd. v. Mahendra and Ors - JT 2005 (4) SC 324 and P.S. Gopinathan v. State of Kerala and others - (2008) 7 S.C.C. 70 in support of their contentions. The pleadings and evidence in the case on hand disclose that the petitioner was temporarily appointed as Heavy Equipment Operator initially for a period of six months by Ext.R1(a) memo dated 18.2.1993. Later, pursuant to the directions issued by this Court in Ext.P2 judgment by Ext.P4 memo dated 13.11.2001, it was ordered that he will be deemed to have been on temporary appointment for one year from 22.8.1996 to 21.8.1997 on a consolidated pay of Rs.1900/- per mensem during the said period. It was also ordered that he will draw a basic wages of Rs.1260/- plus D.A. per month for the period from 22.8.1997 to 20.8.2000 and after at the rate of Rs.1310/- plus D.A. per month from 21.8.2000 onwards. It was further stipulated that the petitioner will be on probation for a period of six months with effect from 23.10.2001 and that if his performance, conduct WP(C) 36726/08 -: 8 :- and attendance during the probationary period are found to be satisfactory, he will be confirmed in the post of Heavy Equipment Operator in the scale of pay of Rs.1310-30-1460-35-1810-40-2410 with effect from 22.2.1998. It is not in dispute that the said scale of pay is the scale of pay of Helper. What the petitioner now claims is that with effect from 22.8.1998 he is entitled to be placed in the scale of pay of Rs.1385-40-1585-45-2035-50-2785 which is the scale of pay of Operator. The respondents dispute the said claim on the ground that the petitioner who has accepted the offer made in Ext.P4 cannot turn round and claim the scale of pay of Operator. The Apex Court has in M.P.State Textiles Corpn. Ltd. v. Mahendra and Ors (supra) held that when the workmen accept the appointment on the terms and conditions set out in the letter of appointment and did not challenge it for more than a decade, they cannot demand the pay scale that may be applicable to similarly situated workmen. In P.S. Gopinathan v. State of Kerala and others (supra), the Apex Court has held that the appellant therein who accepted his temporary appointment and did not object to though he was aware of his own right and infringement of that right, cannot claim permanent appointment and seniority based on his initial temporary appointment. in the instant case, the appellant was appointed as Heavy Equipment Operator in the scale of pay of Helper. That appointment was made as per Ext.P4 memo dated 13.11.2001. The appellant accepted the said appointment. In my opinion, the appellant who accepted the offer of WP(C) 36726/08 -: 9 :- appointment made in Ext.P4 in the scale of pay of Helper, cannot turn round and contend that his appointment ought to have been in the scale of pay of Operator. Such being the situation, the claim made by the petitioner who has acquiesced in the matter cannot now turn round and say that his appointment ought to have been in the scale of pay of Operator and not that of Helper. The reliefs sought for by the petitioner cannot therefore be granted. Accordingly the Writ Petition fails and is dismissed. P.N.Ravindran, Judge. ess 10/12