Partly allowed

Suresh Kumar C. & Another v. the Kerala Water Authority

Kerala HC16 Nov 2016WP(C)/37552/2010

Case brief

AI extract

What is this about?

A division bench dismissed a writ petition challenging the Kerala Water Authority's rejection of pay protection claims for two employees transferring from the Police Department. The court directed the authority to reconsider the cases based on Note 1 to Rule 28 of Part I KSR.

What did the court decide?

The first respondent (Kerala Water Authority) is directed to consider the petitioners' case for pay fixation in light of Note 1 to Rule 28 of Part I KSR and pass orders within three months.

Suresh Kumar C. & Another Vs the Kerala Water… — 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 SMT. JUSTICE P.V.ASHA

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WEDNESDAY, THE 16TH DAY OF NOVEMBER 2016/25TH KARTHIKA, 1938

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WP(C).No. 37552 of 2010 (T)

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PETITIONER(S):

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1. SURESH KUMAR C., AGED 41 YEARS, S/O.SRI.G.CHELLAPPAN, METER READER, KERALA WATER AUTHORITY,, WATER SUPPLY DIVISION, KOLLAM, RESIDING AT AMBADY, PATTARAZHIKAM, ASHRAMAM NAGAR - 94, KOLLAM.

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2. ARUN SAM S., AGED 36 YEARS, S/O.SRI.SADANANDAN.N., L.D.TYPIST, KERALA WATER AUTHORITY, P.H.SUB DIVISION, KOLLAM, RESIDING AT SAMS, KOOTTIKKADA, KOLLAM.

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BY ADV. SRI.M.R.GOPALAKRISHNAN NAIR

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RESPONDENT(S):

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THE KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN, THIRUVANANTHAPURAM.

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BY ADVS. SRI.GEORGE MATHEW, SC SRI.C.UNNIKRISHNAN, SC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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WP(C).No. 37552 of 2010 (T)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 TRUE COPY OF THE ORDER NO.G.O.(P) 452/2006/FIN DTD.6.11.2006.

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P2 TRUE COPY OF THE LETTER NO.E1.536/2000 DTD.8.12.2007.

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P3 TRUE COPY OF THE REPRESENTATION DTD.20.8.2009.

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P4 TRUE COPY OF THE REPRESENTATION DTD.17.2.2010 OF THE SECOND PETITIONER.

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P5 TRUE COPY OF THE ORDER NO.WAS/E1.6939/95 DTD.31.3.2001

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P6 TRUE COPY OF JUDGMENT DTD.18.8.2010 IN WPC.NO.26067/2010 OF THIS HONOURABLE COURT.

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P7 TRUE COPY OF ORDER NO.KWA/JB/E5/2327/2010 DTD.24.11.2010 OF THE RESPONDENT.

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P8 TRUE COPY OF ORDER NO.G.O.(RT) NO.964/98/IRD DTD.28.7.98.

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P9 TRUE COPY OF LETTER NO.WAS/E2/899/07 DTD.31.12.2009 OF THE CHIEF ENGINEER (SR) ADDRESSED TO THE SUPERINTENDING ENGINEER

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P10 TRUE COPY OF THE JUDGMENT DTD.13.8.1998 IN OP.NO.259/1993.

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RESPONDENT(S)' EXHIBITS

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EXT.R1(a): TRUE COPY OF THE GOVERNMENT ORDER NO.27987/C2/07/WRD DTD.1.1.2008.

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EXT.R1(b): TRUE COPY OF THE ORDER NO.KWA/E4/JB/15149/98 DTD.27.10.1999.

//TRUE COPY//

P.S.TO JUDGE

msv/

P.V.ASHA J.

-------------------------------------------W.P.(C).No.37552 of 2010

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--------------------------------------------- Dated this the 16^th day of November, 2016

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J U D G M E N T

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The petitioners are aggrieved by the denial of pay protection on their joining the Kerala Water Authority after getting relieved from the post of Police constable.

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The petitioners were working as Police constables in the scale of pay of Rs.3050-5230/- at the time when they joined the Kerala Water Authority as Meter Reader and LD Typist respectively in the scale of pay of Rs.3205-5135/-(pre-revised). They worked as Police constables for the period from 29.1.1996 to 16.08.2005 and 20.12.2003 to 23.05.2008 respectively. They joined the Kerala Water Authority on 17.08.2005 and 24.05.2008 respectively. After joining the Water Authority, they submitted Exts.P2 to P4 representations requesting for protection of pay as well as grade promotion reckoning the service rendered by them as Police constables pointing out Ext.P5 order dated 31.03.2001 passed by the Water Authority itself granting protection of pay to one Shri P.T.Anilkumar reckoning his services in the Police department. As representations submitted by the petitioners did not evoke any

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W.P.(C).No.37552 of 2010

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response, they approached this Court in W.P.(C).No.26067/10 and this Court by Ext.P6 judgment dated 18.8.2010 directed the Water Authority to consider their grievances in the representations. Thereafter, the Managing Director passed Ext.P7 order rejecting their representations stating that there were no rules/orders to reckon prior service under the State public undertakings along with State service and vice versa. It was further stated that the order dated 27.10.1999 according sanction to fix the pay of employees giving protection of pay drawn in the department/autonomous body where in they worked, before joining Kerala Water Authority, was applicable only to those who had entered the service of Kerala Water Authority between 01.04.1984 to 13.08.1998 and not thereafter, as in the case of the petitioners who joined the Water Authority in the year 2005 and 2008. The writ petition is filed challenging Ext.P7 order claiming that they are entitled to get their prior service reckoned for all benefits including protection of pay.

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It is pointed out that they were drawing a sum of Rs.3650/- in the scale of pay of 3050-5230/- at the time when they joined the Water Authority and on joining the Water Authority their pay was fixed in the minimum of the scale of pay i.e., Rs.3205/-.

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W.P.(C).No.37552 of 2010

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The respondents have a filed counter affidavit justifying the impugned order Ext.P7 and stating that the posts of police constables in the Police department and meter reader in Kerala Water Authority are entirely different with different scale of pay and different nature of duties. It was stated that Government had in their letter No.27987/C2/07/WRD dated 01.01.2008, clarified that there is no provision to reckon prior service under Public Sector undertaking with State service or vice versa. Regarding Ext.P5 order, it is stated that the benefits of pay protection was available for those who entered the service in Kerala Water Authority between 01.04.1984 to 13.08.1998.

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The second petitioner joined as Lower Division Typist on 24.05.2008. He worked as a police constable for the period from 20.12.2003 to 23.05.2008. Both the petitioners joined the Water Authority in a lower scale of pay. In the case of the 1^st petitioner the pay scale of Police Constable became higher only after he joining the Water Authority. At the time of his joining, the scale of pay in the Water Authority was higher. In the case of the second petitioner, he joined as L.D.Typist in the scale of pay of Rs.5300-9110/- after the scale of pay of police constable was revised as Rs.5930-9590/-. It is further stated that the Government have already amended Rule 37(b)

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W.P.(C).No.37552 of 2010

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of Part I KSR on 11.05.2005 and both the petitioners joined the Kerala Water Authority subsequent to the amendment and as per the revised provisions those who joined a lower post or a post to a lower time scale are not eligible for pay protection.

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Petitioners claim that they are entitled to get their pay protected reckoning the service rendered by prior to joining the Kerala Water Authority. Referring to Ext.P10 judgment and Ext.P5 order, it was argued that several persons were granted the benefit of pay protection by the Kerala Water Authority themselves and there was no justification for denying the benefit to the petitioners. It was stated that the scale of pay of Meter Reader as well as LD Typist was Rs.5300-9110, with effect from 1.7.2004. Scale of pay of Police Constable was revised with effect from 5930-9590 with effect from 1.7.2004, and therefore their request cannot be granted in view of the amendment brought about to Rule 37B of Part I KSR which was introduced as per G.O.(P) No.211/2005/Fin dated 11.05.2005, which is applicable to the petitioners who joined the Water Authority subsequent to the amendment. It is also stated that the orders relied on by the petitioners were not issued under identical circumstances.

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I heard the learned Counsel for the petitioners and the learned Standing Counsel.

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W.P.(C).No.37552 of 2010

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It is seen that respondents have rejected the claim of the petitioners on the ground that there is no provision for protection of pay when a person joins the Kerala Water Authority after rendering service under the Government of Kerala. The petitioners submit that under Rule 37 and Rule 28 they were entitled to get their pay protected. The claim of the petitioners is rejected on the ground that the amended Rule 37 (b) does not provide for protection of pay. Rule 37(b), as amended by G.O.(P) 211/2005/Fin. Dated 11/05/2005 which read as follows:

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In the case of officiating appointments others than those contemplated in the above rule, the officer's officiating pay in the new appointment shall be fixed at his officiating pay in the previous appointment if it is a stage in the new scale, or at the next lower stage, if it is not a stage in the new scale, the difference being treated as personal pay to be absorbed in future increases. This will not apply to cases of reversions.

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As per the amended provisions a person who is

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appointed by direct recruitment in a post having a lower time scale of pay can be fixed only at the minimum of the scale of pay of the new post and such higher scale of pay which he was drawing prior to his appointment can be considered only when such appointments are made in accordance with the special rules. It is also relevant to note that the unamended Rule 37(b)

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W.P.(C).No.37552 of 2010

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provided for fixing of pay of an officer at his officiating pay in the previous appointment, if it is a stage in the new scale, or at the next lower stage, if it is not a stage in the new time scale, the difference being treated as personal pay to be absorbed in future increases. Rule 37(b) which stood before the amendment effected on 11.05.2005 reads as follows:

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In the case of of officiating appointments from a higher time scale of pay to a lower time scale of pay, by direct recruitment, the officer's officiating pay in the lower time scale shall be fixed at the minimum of the scale of pay of the new post without considering his pay in the higher time scale except in the cases where such appointments are made in accordance with the Special Rules applicable to such appointment and in the case of such appointments, the officer's officiating pay in the new time scale shall be fixed at his officiating pay in the previous appointment, if it is a stage in the new time scale, or at the next lower stage, if it is not a stage in the new time scale, the difference being treated as personal pay to be absorbed in future increases. But nothing in this sub-rule shall apply to cases of reversions.

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The next provision which was relied on by the learned counsel for the petitioner is Rule 28. But Rule 28 provides for the initial substantive pay of an officer in a case where the officer holds on lien on a permanent post, to draw as initial pay the stage of the time scale next above his substantive pay in respect of the old post. But there are certain

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W.P.(C).No.37552 of 2010

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conditions stipulated for getting the pay fixed at a stage next above the substantive pay he was drawing. Under Note 1, it is provided that the provisions contained in Rule 28 will apply in cases of substantive appointments to higher time scales of pay only. In other cases it is stated that the pay in the new appointment shall be fixed at his pay in the previous appointment if it is a stage in the new scale or at next lower stage, if it is not a stage in the new scale. The difference being treated as personal pay.

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Next contention with reference to Rule 28 of Part I KSR. Rule 28 provides that the initial substantive pay of an officer who is appointed substantively to a post on a time scale of pay shall be regulated, in a case when he holds lien on a permanent post his initial pay would be fixed at the stage of time scale next above his substantive pay. Note I to Rule 28 provides that in cases other than the substantive appointments are not to higher time scale of pay, the officers pay in the new appointment shall be fixed at his pay in the previous appointment, if it is a stage in the new scale or in a lower stage if it is not a stage in the new scale the difference being treated as personal pay, such personal pay being absorbed in future increases of pay. Note I to Rule 28 reads as follows:

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The provisions in the above rule apply in cases of

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W.P.(C).No.37552 of 2010

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substantive appointments to higher time-scales of pay only. In other cases the officer's pay in the new appointment shall be fixed at his pay in the previous appointment, if it is a stage in the new scale or at next lower stage, if it is not a stage in the new scale, the difference being treated as Personal Pay, such personal pay, being absorbed in future increases of pay. This will not, however, apply to cases of reversions.

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It is seen that the case of the petitioners are rejected in the light of Rule 37 (b), as seen from the counter affidavit. But the impact of the Note 1 to Rule 28 part I KSR is not seen considered by the respondents.

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In the above circumstances, the first respondent shall consider the case of the petitioners to get their pay fixed in the light of the provisions contained in Note 1 to Rule 28 of Part I KSR and pass orders within a period of 'three months' from the date of receipt of copy of the judgment.

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Sd/-

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P.V.ASHA, JUDGE.

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Suresh Kumar C. & Another v. the Kerala Water Authority

Case brief

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Suresh Kumar C. & Another v. the Kerala Water Authority

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