Dismissed

State of Kerala v. G.Sathyaseelan Assari

Kerala HC5 Aug 2016OP(KAT)/94/2016

Case brief

AI extract

What is this about?

This judgment dismisses an original petition by the State challenging a Tribunal order that favored a retired government employee. The High Court upheld the Tribunal's ruling that the employee was entitled to benefits under a specific Government Order, preventing discrimination based on a prior High Court direction (Ext.P23), despite a later restrictive order (Ext.P9) and prior payments to retired

What did the court decide?

Original Petition dismissed; Interference declined; Tribunal order upheld.

State of Kerala Vs G.Sathyaseelan Assari — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON &

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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FRIDAY, THE 5TH DAY OF AUGUST 2016/14TH SRAVANA, 1938

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OP(KAT).No. 94 of 2016 (Z)

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AGAINST THE ORDER/JUDGMENT IN TA 4114/2012 OF

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KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 25.11.2013

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PETITIONERS/RESPONDENTS:

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STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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THE CHIEF ENGINEER (ADMINISTRATION),

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PUBLIC WORKS DEPARTMENT, ROADS & BUILDINGS, PUBLIC OFFICE, THIRUVANANTHAPURAM.

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THE ACCOUNTANT GENERAL (A & E),

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KERALA, THIRUVANANTHAPURAM.

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BY GOVERNMENT PLEADER SRI.T.RAJASEKHARAN NAIR

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RESPONDENT/APPLICANT:

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G.SATHYASEELAN ASSARI,

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PWD ENGINEERING WORKSHOP, CHAKKA (RETD), S/O.GOVINDAN ASSARI, AGED 59 YEARS, CHAMAVEILA PUTHENVEEDU, MULATHUMELE, MANIKANDESWARAM PO, VATTIYOORKKAVU, THIRUVANANTHAURAM -13.

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BY SRI.ALEXANDER JOSEPH

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THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 05-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(KAT).No. 94 of 2016 (Z)

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APPENDIX

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PETITIONER(S)' EXHIBITS ----------------------Annexure I. TRUE COPY OF THE TA No.4114/12. Annexure II TRUE COPY OF THE ORDER OF THE TRIBUNAL DTD.25.11.2013. Annexure III TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND RESPONDENT. Annexure IV TRUE COPY OF THE G.O.(MS)No.27/92/PW & T DTD.25.3.1992. Annexure V TRUE COPY OF GO(MS)No.2/78/PW&E DTD.6.1.1978. RESPONDENT'S EXHIBITS :- Nil. ---------------------

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True copy

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P.A to Judge

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P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.

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O.P.(KAT)No.94 of 2016

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Dated this the 5^th day of August, 2016

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JUDGMENT

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Ramachandra Menon, J.

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State is the 1^st petitioner in this Original Petition which has

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been preferred joining hands with the concerned Chief Engineer, PWD and the Accountant General, (A&E). The grievance is against the verdict passed by the Tribunal in T.A.No.4114/2012 way back on 25.11.2013, whereby the claim put forth by the applicant to have the benefit of Ext.P7 has been entertained, giving appropriate direction in terms of Ext.P23 judgment passed by a Single Bench of this Court. The contention is that, Ext.P7 is no more in existence, having been replaced/modified by Ext.P9 order dated 27.9.1993.

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Heard the learned Senior Government Pleader in

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detail.

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The sequence of events revealed from the proceedings

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is that the respondent/applicant joined service as a Blacksmith on daily wage basis in the PWD Engineering Workshop, Chackai, Thiruvananthapuram and was continuing as above from 1.1.1966

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O.P.(KAT)No.94 of 2016

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onwards. As per the G.O.bearing No.61/79/PW&E dated 26.5.1979, the said workshop got amalgamated with the newly formed Kerala State Engineering Works Ltd. with effect from 1.6.1979; by virtue of which all the employees in the workshop got transferred to the newly formed Company. However, the Company could not survive for long, which was wound up and the employees were brought back into the PWD, as per the G.O.bearing No.105/85/PW, F&P dated 13.9.1985.

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While so, the Government sanctioned '1983 N.M.R scales' to the employees of the Kerala State Engineering Works Ltd., with effect from 1.7.1983 also providing for the arrears from 1.4.1985, vide G.O.(MS)No.27/92/PW&T dated 25.3.1992; a copy of which has been produced as Ext.P7. Benefits were paid to other similarly situated persons like the respondent herein. It is stated that, pursuant to an 'audit objection' by the Accountant General (3^rd petitioner herein), Ext.P7 Government Order has been modified as per Ext.P9 Government Order dated 27.9.1993. It is stated that, there were several rounds of litigations challenging the orders passed by the Government; including by

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O.P.(KAT)No.94 of 2016

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the respondent herein by way of O.P.No.37514/2001. The contention put forth from the part of the State in the said case, to resist the claim put forth, was that Ext.P7 order was no more in existence and that the same was modified as per Ext.P9. Pursuant to the observation made by the Accountant General that the absorbed employees will be getting about 200-₹ ₹300/- over and above the pay rate of regular employees, it was suggested to have the fixation to be done as on 1.4.1982 and 1.7.1983 notionally, with monetary benefits flowing only from 20.11.1985; which in fact was sought to be achieved by issuing Ext.P9 Government Order on 27.9.1993. It is stated that the intention of the said Government Order was to extend the benefit of fixation

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to the employees of the Company, on par with the regular employees of the PWD and never to extend any additional or extra benefits to such employees.

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The case projected by the applicant before the learned Single Judge of this Court was that there was absolutely no rhyme/reason for denying the benefit to him; the State/Department having extended such benefits to several other

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O.P.(KAT)No.94 of 2016

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similarly situated persons. It was accordingly, that the matter was finalised by the learned Single Judge of this Court as per Ext.P23 judgment, making it clear that in case any employees (referred to in paragraph 12 of the Writ Petition) of the Kerala State Engineering Works had been granted the benefit of Ext.P7, the petitioner shall not be discriminated. The submissions made by the learned Government Pleader with reference to Exts.P7 and P9 Government Orders were adverted to, in the opening paragraphs. The instances of alleged discrimination with reference to the employees concerned have been dealt with in paragraph 2. Operative portion of the judgment is contained in paragraph 3, which is in the following terms:-

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“3. This writ petition is hence disposed of making it clear that in case any employees referred to above of Kerala State Engineering Works has been granted the benefit of Ext.P7 the petitioner shall not be discriminated. The impugned orders in the case of the petitioner shall be ignored and the petitioner shall also be given a similar treatment. The needful shall be done within two months from the date of production of a copy of this judgment.”

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O.P.(KAT)No.94 of 2016

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It was pursuant to the above verdict, that the matter was considered by the Government, who passed Ext.P24 G.O. dated 7.8.2006, holding that the applicant was not entitled to have the benefit of Ext.P7, in view of the modification of the same by Ext.P9 G.O. dated 27.9.1993. The instances of payment effected to other similarly situated persons and the retirement of the said persons much prior to issuance of Ext.P9 Government Order were also adverted to and drawing a distinction, the course pursued in respect of the respondent was sought to be justified. This was subjected to challenge by filing the T.A. before the Tribunal. After hearing both the sides, the Tribunal accepted the case projected by the applicant; in turn allowing the T.A. as per Annexure-II order which is sought to be challenged by the State raising the very same contentions as originally put forth before the learned Single Judge of this Court.

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After hearing the matter in detail, this Court finds that the only case projected before this Court is with reference to Ext.P9 Government Order, which had modified Ext.P7 Government Order. It is true that, as per Ext.P9 Government

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Order, the petitioner or any other similarly situated person is not entitled to get any benefit as sought for. But the question is something else. Exactly similar contention was raised earlier before this Court in O.P.No.8273/1999, as taken note of by the learned Single Judge in the opening paragraph of Ext.P23 judgment. The said version put forth by the Government was not accepted by the learned Single Judge and on the other hand, it was ordered that, if the benefit of Ext.P7 was already extended to any of the other similarly situated persons in the Company, the benefit flowing from Ext.P7 was to be given to the writ petitioner (respondent herein) as well; lest he should be discriminated.

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In other words, there is already an 'inter-party judgment' between the petitioners herein and the respondent, by way of Ext.P23. The case projected from the part of the Government with reference to Ext.P9 Government Order, having not been accepted by the learned Single Judge while passing Ext.P23 judgment, the Government ought to have confined the scrutiny to pass consequential order within the specified parameters, that is to see whether benefit of Ext.P7 Government

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O.P.(KAT)No.94 of 2016

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Order was extended to any other employee of the Company and if so, to have similar benefit extended to the writ petitioner as well. Instead of confining the scrutiny to the said extent, the Government proceeded further on a wider tangent and passed Ext.P24 Government Order, seeking to deny the benefit to the writ petitioner/respondent herein. This by itself indicates that, benefit of Ext.P7 was extended to some other employees; however pointing out the circumstances, whereby such payment effected could not be/cannot be recovered by the Government; the employees concerned having retired from the service. That cannot be a ground at all to deny the benefit to the applicant, in so far as the direction given by the learned Single Judge, vide Ext.P23, was something else. If the Government was aggrieved in any manner (of Ext.P23), it was for them to have challenged the direction given by the learned Single Judge as per Ext.P23 by way of appropriate proceedings in accordance with law. Admittedly such a course has not been pursued and as such, Ext.P23 has become final, which cannot be re-opened at this distance of time.

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O.P.(KAT)No.94 of 2016

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We find that Annexure-II verdict passed by the Tribunal is perfectly within the four walls of the law, being in conformity with the direction given by the learned Single Judge of this Court vide Ext.P23 and that the same is not liable to be assailed under any circumstance. Interference is declined and the Original Petition is dismissed.

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We make it clear that the respondent is eligible to have the benefit of Ext.P23 inter-party judgment. However, this will not be treated as a precedent in respect of others, who do not occupy a similar pedestal.

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Sd/-

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P.R.RAMACHANDRA MENON, JUDGE

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Sd/- ANIL K.NARENDRAN, JUDGE

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skj

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True copy

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P.A to Judge