Remanded

Suresh.K v. the State of Kerala

Kerala HC1 Oct 2021WP(C)/25890/2017

Case brief

AI extract

What is this about?

This court addressed a writ petition challenging the rejection of a pump operator's application for permanent employment regularisation. The judge questioned the respondents' assumption that the petitioner was a contractor's labourer, citing attendance records showing direct registration with the Water Authority. The court directed the authority to consider this evidence and pass afresh orders wit

What did the court decide?

Extension to file endless to consider the petitioner's service length and relevant judgments, and pass fresh orders after hearing him, within one month of the judgment.

Suresh.K Vs the State of Kerala — Public Procurement and Tenders | Kerala HC (2021)

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W.P(C).25890/2017

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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 SUNIL THOMAS

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FRIDAY, THE 1^ST DAY OF OCTOBER 2021 / 9TH ASWINA, 1943

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WP(C) NO. 25890 OF 2017

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PETITIONER:

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SURESH.K, AGED 43 YEARS, S/O KARUNAKARAN, CHARIVUKALAYIL HOUSE,RANNI-PERUNAD PO, PIN.689711, PRESENTLY WORKING AS PUMP OPERATOR AT PERUNAD PUMP HOUSE, P.H SECTION,KERALA WATER AUTHORITY, VADASSERIKKARA.

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BY ADV SRI.V.SETHUNATH

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RESPONDENTS:

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1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO WATER RESOURCES(IRRIGATION & WATER SUPPLY B) DEPARTMENT,SECRETARIAT,

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THIRUVANANTHAPURAM.PIN.695001.

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2 THE CHAIRMAN, KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM,THIRUVANANTHAPURAM.PIN.695033.

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3 THE MANAGING DIRECTOR, KERALA WATER AUTHORITY, JALA BHAVAN,VELLAYAMBLAM, THIRUVANANTHAPURAM.PIN.695033.

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4 THE EXECUTIVE ENGINEER, PUBLIC HEALTH DIVISION, KERALA WATER AUTHORITY,PATHANAMTHITTA. PIN.689645.

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5 THE ASST. EXECUTIVE ENGINEER, PUBLIC HEALTH DIVISION, KERALA WATER AUTHORITY, RANNI.PIN.689673.

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6 THE ASST. ENGINEER, PUBLIC HEALTH DIVISION, KERALA WATERAUTHORITY, VADASSERIKKARA, PIN.689662.

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BY ADVS. GOVERNMENT PLEADER

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SRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY

OTHER PRESENT:

W.P(C).25890/2017

GP. ADV.PARVATHY KOTTOL

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.09.2021, THE COURT ON 01.10.2021 DELIVERED THE FOLLOWING:

W.P(C).25890/2017

JUDGMENT

The petitioner has been working as the Pump Operator of Perunad Pump House under the respondents from 01.03.1995 onwards. According to the petitioner, from 2003 onwards, the work of the petitioner was changed to contract employment. However, he was not allowed to sign in the register after 2003, but he was directed to continue to work on contract employment. He relies on Ext.P1 certificate issued by the Assistant Engineer of Water Authority and true copy of the extracts of the attendance register from 01.03.1995 to 2002, which is produced as Ext.P2, to substantiate his employment from 1995 onwards.

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Claiming that he had completed 20 years of service in Kerala Water Authority as Pump Operator and on the basis of a contention that the employees similar to the petitioner were granted favourable orders, directing them to be absorbed in regular service, by virtue of Ext.P4 and Ext.P5 judgments of this court, the petitioner applied for absorbing him as a permanent employee. He submitted Ext.P7 representation. Since it was not disposed of, he submitted W.P(C).No.26390 of 2015 before this Court. It was disposed of by Ext.P8 judgment, directing the authorities to pass orders after hearing the petitioner. Accordingly, Ext.P9 order was passed declining his request for absorption. It was held in Ext.P9 that, he was a labourer

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W.P(C).25890/2017

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supplied by the contractor for pumping duty and his engagement was not on CLR basis. As per the then existing Rule, only CLR hands could be converted to NMR on completion of 240 days of CLR service within a period of 12 months. Accordingly, Ext.P7 representation was rejected.

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Challenging it, petitioner approached this Court by filing W.P(C).No.1860 of 2016. It was disposed of by Ext.P10 judgment directing the authority to consider afresh. Ext.P11 is the order passed accordingly,. This is under challenge in this proceeding.

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The prayer sought in the Writ Petition is to quash Exts.P9 and P11 and to direct respondent 1 to 3 to regularize petitioner as Pump Operator in the light of Exts.P4 and P5 judgments of this Court and Ext.P6 Government Order, without insisting for possession of a qualification, with effect from 01.01.1995.

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Ext.P9 shows that, Ext.P7 representation was rejected on the ground that, he was a labourer supplied by the contractor for pumping duty and his engagement was not on CLR basis. It was held that, as per the existing Rules, CLR hands could only be converted to NMR on completion of 240 days of CLR service within a continuous period of 12 months. Ext.P11 order shows that, as per Government Orders referred to in Ext.P11, only those persons in NMR category appointed prior to 22.05.1990 alone were entitled to benefit of order

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W.P(C).25890/2017

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No.77/2015 dated 12.08.2015. Since the petitioner was engaged from 1995 onwards under various contractors and receiving wages directly from contractors, he was not included in CLR service. Hence, he is not governed by the Government Order dated 12.08.2015.

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Evidently, in Exts.P9 and P11, the respondents proceeded on the basis that, he was engaged from 1995 under the contractor. This seems to be factually incorrect. Ext.P1 clearly shows that, he was working in the Water Authority. There is no reference that, he was working under a contractor. Further, Ext.P2 records maintained in the Water Authority itself shows that, from 01.03.1995 to November 2002, petitioner had signed the records of the Water Authority and his name, the starting time and stopping time with hours of pumping and signature were seen recorded in the register. There is absolutely no indication in Ext.P2 that, he was employed under the contractor. Even if assuming that, he was posted directly under the contractor after 2001, it is not clear under what circumstance such records were generated. That liability cannot be cast on the employee. It is for the Water Authority to explain, and if they are unable to explain, no presumption against the employee can be drawn. The nature of his employment after 2001 is also not clearly discernible. Evidently, in the light of these factual aspects, I feel that, the first respondent is liable to consider this in the light of Exts.P4 and P5 judgments,

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W.P(C).25890/2017

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coupled with Ext.P12 order produced in the Writ Petition. The first respondent shall specifically consider these aspects and pass orders afresh within a period of one month from the date of receipt of a copy of this judgment. The petitioner shall also be given a reasonable opportunity of being heard, either physically and if not possible, through virtual mode. Ext.P11 stands set aside to this extent.

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Writ Petition is accordingly disposed of, with directions.

Sd/-

SUNIL THOMAS

JUDGE

Sbna

W.P(C).25890/2017

APPENDIX OF WP(C) 25890/2017

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PETITIONER EXHIBITS

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EXHIBIT P1	THE TRUE COPY OF T HE CERTIFICATE ISSUED BY THE THEN ASST. ENGINEER, P.H SECTION, KERALA WATER AUTHORITY, VADASSERIKKARA.
EXHIBIT P2	THE TRUE COPY OF THE SOME OF THE EXTRACTS OF THE ATTENDANCE REGISTER FROM 1.3.1995 TO 2002 KEPT AT PERUNAD PUMP HOUSE.
EXHIBIT P3	THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE VICE PRESIDENT OF THE RANNI-PERUNAD GRAMA PANCHAYAT.
EXHIBIT P4	THE TRUE COPY OF THE JUDGMENT OF THIS COURT IN O.P NO.24590 OF 1998.
EXHIBIT P5	THE TRUE COPY OF THE JUDGMENT OF THIS COURT IN WP(C) NO.28851 OF 2013(F) DATED 24.4.2010.
EXHIBIT P6	THE TRUE COPY OF THE G.O(MS) NO.77/15/WRD DATED 12.8.2015.
EXHIBIT P7	THE TRUE COPY OF THE REPRESENTATIONS FILED BEFORE THE RESPONDENTS 1 TO 3
EXHIBIT P8	THE TRUE COPY OF THE JUDGMENT OF THIS COURT IN WP(C) NO.26390 OF 2015.
EXHIBIT P9	THE TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT AS G.O.(RT) NO.1101/2015/WRD DATED 18.12.2015.
EXHIBIT P10	THE TRUE COPY OF THE JUDGMENT OF THIS COURT IN WP(C) NO.1860 OF 2016.
EXHIBIT P11	THE TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 11.1.2017.
EXHIBIT P12	THE TRUE COPY OF TEH G.O.(MS) NO.53/2005/WRD DATED 21.10.2005.

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W.P(C).25890/2017

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EXHIBIT	P13	THE TRUE COPY OF THE G.O(MS)NO.37/2017/WRD DATED 2.6.2017 ALONG WITH THE CABINET NOTING FOR THE G.O.
EXHIBIT	P14	THE TRUE COPY OF THE G.O(MS) NO.18/2017/WRD DATED 7.4.2017.
EXHIBIT	P15	TRUE COPY OF THE JUDGMENT OF THIS COURT IN WP9C) NO.21700 OF 2009.
EXHIBIT	P16	THE TRUE COPY OF THE APPLICATION UNDER RIGHT TO INFORAMTION ACT, 2005 BY MADHU.E.K. AND THE ANSWER GIVEN BY THE CONCERNED EXECUTIVE ENGINEERS OF THE WATER AUTHORITY.
EXHIBIT	P17	THE TRUE COPY OF THE LETTER DATED 3.3.2003 PREPARED AND SIGNED BY THEN ASSISTANT ENGINEER TO THE RANNI PERUNAD GRAMA PANCHAYATH
EXHIBIT	P18	THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE PRESIDENT OF THE RANNI PERUNAD GRAMA PANCHAYATH DATED 10.9.2015
EXHIBIT	P19	THE TRUE COPY OF THE LETTER ISSUED BY THE MEMEBER OF LEGISLATIVE ASSEMBLY OF RANNI CONSTITUENCY DATED 19.9.2017
EXHIBIT	P20	THE TRUE COPY OF THE SECOND LETTER ISSUED BY THE MEMBER OF LEGISLATIVE ASSEMBLY OF RANNI CONSTITUENCY DATED 21.11.2018
EXHIBIT	P21	THE TRUE COPY OF THE LETTER ISSUED BNY THE PANCHAYATH MEMBER OF THE RANNI PERUNAD GRAMA PANCHAYATH DATED 19.11.2015
EXHIBIT RESPOND	P22 ENTS	THE TRUE COPY OF THE GO(MS) NO 06/2013 DATED 16.1.2013 EXHIBITS
EXHIBIT R	1(a)	: TRUE COPY OF THE AFFIDAVIT SUBMITTED BY SRI.R.NEELAKANDAN, ASSISTANT ENGINEER, KERALA WATER AUTHORITY, P H SECTION

Suresh.K v. the State of Kerala

Case brief

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Suresh.K v. the State of Kerala

Case brief

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