Allowed

Ammini Amma M.P. v. Managing Director, Kerala Water Authority

Kerala HC30 Nov 2016WP(C)/22979/2012

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a writ petition seeking notional promotion and seniority. Despite previous orders granting regularization, the petitioner was denied promotion while junior colleagues were promoted. The court directed the respondent to assign seniority as if the petitioner had been promoted in notional order, without granting arrears of salary.

What did the court decide?

The petitioner is entitled to assignment of seniority in the Assistant Engineer cadre on the date her next junior was promoted and notional promotion in the Assistant Executive Engineer cadre, without

Ammini Amma M.P. Vs Managing Director, Kerala… — 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 K.VINOD CHANDRAN

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TUESDAY, THE 30TH DAY OF NOVEMBER 2016 / 9TH AGRAHAYANA, 1938

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W.P.(C).No.22979 of 2012 (V)

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PETITIONER(S):-

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AMMINI AMMA M.P., ASST. ENGINEER, KWA QUARTERS, OPP. PARVATHY MILLS, CHINNAKADA, KOLLAM - 691 001.

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BY ADVS.SRI.P.R.VENKETESH SRI.P.C.CHACKO (PARATHANAM).

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RESPONDENT(S):-

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MANAGING DIRECTOR, KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM - 695 001.

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KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS CHAIRMAN, THIRUVANANTHAPURAM - 695 001.

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R1 BY STANDING COUNSEL SRI.GEORGE MATHEW. R2 BY STANDING COUNSEL SRI.P.C.SASIDHARAN.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-11-2016, ALONG WITH CONT. CASE (C) NO.1159 OF 2016-S, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:-

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W.P.(C).No.22979 OF 2012-V

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APPENDIX

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PETITIONER(S)' EXHIBITS:-

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EXHIBIT P1: TRUE COPY OF THE JUDGMENT IN WA 1186 OF 1995 DATED 9-8-1996 OF THIS HON'BLE COURT.

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EXHIBIT P2: TRUE COPY OF THE PROCEEDINGS NO.KWA/JB/E1/17794/96 DATED 2-1-1997 OF THE RESPONDENT.

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EXHIBIT P3: TRUE COPY OF THE PROCEEDINGS NO.KWA/JB/E1/17794/96 DATED 8-4-1997 OF THE RESPONDENT.

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EXHIBIT P4: TRUE COPY OF THE JUDGMENT IN CC 168 OF 1997 DATED 30-6-1997 OF THIS HON'BLE COURT.

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EXHIBIT P5: TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE RESPONDENT ON 11-9-1997 BY THE PETITIONER.

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EXHIBIT P6: TRUE COPY OF THE COMMUNICATION BEARING NO.KEA/JB/E1-17794/96 DATED 10-2-1998.

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EXHIBIT P7: TRUE COPY OF THE PROCEEDINGS OF AE DEPARTMENT.

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EXHIBIT P8: TRUE COPY OF THE PROCEEDINGS NO.KWA/HO/17107/E4/86 DATED 22-12-1986 OF THE RESPONDENT.

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EXHIBIT P9: TRUE COPY OF THE PROCEEDINGS DATED 12-8-1997 OF THE RESPONDENT.

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EXHIBIT P10: TRUE COPY OF THE ORDER NO.27117/B3/97/IRD OF THE RESPONDENT DT.11.12.97.

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EXHIBIT P11: TRUE COPY OF THE JUDGMENT DATED 4-10-2006 IN OP 4179 OF 1998 OF THIS HON'BLE COURT.

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EXHIBIT P12: TRUE COPY OF THE REPRESENTATION DATED 20-11-2006 FILED BY THE PETITIONER BEFORE THE RESPONDENT.

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EXHIBIT P13: TRUE COPY OF THE ORDER DATED 7-7-2007 DECLINING THE BENEFIT TO THE PETITIONER.

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EXHIBIT P14: TRUE COPY OF THE JUDGMENT DATED 9-2-2011 IN WPC NO.30557/2007 OF THIS HON'BLE COURT.

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W.P.(C).NO.22979 OF 2012-V

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- 2 -

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EXHIBIT P15: TRUE COPY OF THE ORDER DATED 1-8-2011 OF 1ST RESPONDENT.

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EXHIBIT P16: TRUE COPY OF THE REPRESENTATION DATED 3-8-2011 ADDRESSED TO THE FIRST RESPONDENT BY THE PETITIONER.

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EXHIBIT P17: TRUE COPY OF THE PROCEEDINGS DATED 6-8-2011 OF THE FIRST RESPONDENT.

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EXHIBIT P18: TRUE COPY OF THE QUESTIONNAIRE SUBMITTED BY THE PETITIONER DATED 22-9-2011.

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EXHIBIT P19: TRUE COPY OF THE SAID REPLY ADDRESSED TO THE PETITIONER BY THE PUBLIC SERVICE COMMISSION.

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EXHIBIT P20: TRUE COPY OF THE REQUEST DATED 11-2-2012 SUBMITTED BY THE PETITIONER BEFORE THE INFORMATION OFFICER.

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EXHIBIT P21: TRUE COPY OF THE COMMUNICATION FROM THE INFORMATION OFFICER DATED 12-3-2012 TO THE PETITIONER.

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EXHIBIT P22: TRUE COPY OF THE APPLICATION DATED 26-4-2012 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT.

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EXHIBIT P23: TRUE COPY OF THE REPLY DATED 29-5-2012 RECEIVED BY THE PETITIONER FROM THE PSC.

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EXHIBIT P24: TRUE COPY OF THE GAZETTE NOTIFICATION NOTIFYING THE VACANCIES IN CATEGORY NO.194/92 DATED 29-12-1992.

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EXHIBIT P25: TRUE COPY OF THE JUDGMENT IN COC 684/2011 OF THIS HON'BLE COURT.

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RESPONDENTS' EXHIBITS:-

NIL.

Vku/

[true copy]

K. Vinod Chandran, J

------------------------------------------W.P.(C).No.22979 of 2012-V

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Dated this the 17^th day of November, 2015

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JUDGMENT

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The petitioner is aggrieved with the fact that

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despite long litigation, all of which ended in her favour, she has been denied the fruits of such orders, which essentially should have resulted in her services being regularised from the date of her initial appointment and she being entitled to promotions after the essential required duration in the lower post.

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The petitioner, admittedly, was appointed as Draftsman Grade II, for broken periods of service of 179 days

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and her appointment was through and sponsored by the Employment Exchange. The petitioner was appointed on 07.05.1986 as Draftsman Grade II and continued till 10.12.1989, with artificial break of service, when she took Maternity Leave. During the course of her Maternity Leave, she was terminated from service by order dated 25.01.1990;

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WP(C).No.22979 of 2012 - 2 -

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with retrospective effect from the date of commencement of the Maternity Leave, since by that time the appointments under the respondent-Kerala Water Authority [for brevity “Authority”] had been given to the Kerala Public Service Commission [for brevity “PSC”] and a candidate advised by the PSC joined the post.

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The petitioner filed a writ petition, seeking continuance, which was dismissed, against which an appeal was filed, which was allowed as per Exhibit P1 judgment. Before the Division Bench, the petitioner claimed benefit of the decision of the Hon'ble Supreme Court in Jacob v. Kerala Water Authority [1990 (2) KLT 673]. The Division Bench having considered the rival contentions, found that the petitioner being appointed between 1^st April, 1984 and 4^th August, 1986, that too through Employment Exchange, was entitled to reinstatement back to the service and regularisation, as declared in Jacob's case ( supra ). The Division Bench, by Exhibit P1 judgment, hence, directed reinstatement of the petitioner back to service and also directed all consequential reliefs, including regularisation of

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WP(C).No.22979 of 2012

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service to be granted.

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The petitioner was admittedly reinstated in

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service. The subsequent writ petition filed by the petitioner came to be allowed by Exhibit P14. The petitioner in the said writ petition had sought for quashing of an order which had declined her all consequential reliefs, viz., Maternity Leave salary, arrears of salary for the period during which the petitioner was kept out of service, regularisation from 07.05.1986 and also to reckon the prior service and her qualification for the purpose of considering the claim for promotion under the Departmental Quota. The writ petition,

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in fact, was allowed, quashing the order issued by the respondent, on the representation of the petitioner.

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Admittedly the petitioner had been paid the entire service benefits and her services were regularised with effect from 07.05.1986, her date of initial appointment. However, the respondent-Authority declined the promotion with retrospective effect, upon which a contempt was filed. In the judgment in the contempt case, the learned Single Judge who passed Exhibit P14 judgment, left open the remedy of

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WP(C).No.22979 of 2012 - 4 -

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the petitioner to challenge the order by which the claim of promotion was denied.

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It is to be noticed that the order passed inter alia declining promotion, was already set aside in the earlier judgment. In any event, since the question has been left open, the same has to be considered in the context of Exhibit P1 judgment. Even going by Exhibit P1 judgment, the petitioner was directed to be granted all consequential benefits. The petitioner having been re-appointed from 14.01.1997, had her services regularised from her initial date of appointment on 07.05.1986. The specific contention of the petitioner is that, she had been declined promotions when persons working with her and who joined after her, during the period when she was kept of service, have been promoted above the petitioner. Exhibit P1 having attained finality, since the Special Leave Petition is also said to be dismissed, the petitioner is entitled to such prayer; but, however, notionally.

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In the above circumstances, there shall be a direction to the respondent-Authority to assign seniority to the petitioner in the cadre of Assistant Engineer on the date

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WP(C).No.22979 of 2012 - 5 -

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on which her next junior was promoted, assigning her date of first entry into service as 07.05.1986. Now the petitioner is said to be working as Assistant Executive Engineer. So, her promotion in the category of Assistant Executive Engineer also be notionally assigned in the said cadre on the date on which her next junior in the cadre of Assistant Engineer would have been promoted. The same shall be done within a period of three months from the date of receipt of a certified copy of this judgment. It is made clear that the petitioner shall not be entitled to any arrears of salary; but, however, the benefits of seniority should be given with full effect.

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The writ petition is allowed to the above extent.

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No costs.

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Sd/- K.Vinod Chandran Judge.

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vku/-

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[ true copy ]

Ammini Amma M.P. v. Managing Director, Kerala Water Authority

Case brief

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Ammini Amma M.P. v. Managing Director, Kerala Water Authority

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