Ambika Kumari B, Priyadarshini, and Darsana M. Nair v. Kerala State Road Transport Corporation and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID** **FRIDAY, THE 16TH DECEMBER 2011 / 25TH AGRAHAYANA 1933** **WP(C).No. 26117 of 2011(L)** **--------------------------** ## **PETITIONER(S):** - **---------------** **1. AMBIKA KUMARI B, PRIYADARSINI, PERUMPAZHUTHOOR P.O, VANDANNOOR, PAPPACODE.** ## **2. PRIYANKA M.NAIR,** - **D/O.AMBIKA KUMARI, OF DO - DO** ## **3. DARSANA M.NAIR, D/O.AMBIKA KUMARI,** - **OF DO.** **BY ADV. SRI.R.T.PRADEEP SRI.SREEKANTH S.NAIR** **RESPONDENT(S):** **-----------------------** **1. THE KERALA STATE AND ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, TRANSPORT BHAVAN, EAST FORT, THIRUVANANTHAPURAM.** **2. THE MANAING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION OFFICE EAST FORT, THIRUVANANTHAPURAM.** ## **3. STATE OF KERALA** **REPRESENTED BY THE SECRETARY DEPARTMENT OF TRANSPORT, SECRETARIAT, THIRUVANANTHAPURAM.** **R1 TO R2 BY STANDING COUNSEL ADV. SRI.BABU JOSEPH KURUVATHAZHA AND R3 BY GOVERNMENT PLEADER SHRI V.K. RAFEEQ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-12-2011, THE COURT ON 16-12-2011 DELIVERED THE FOLLOWING:** **SKV** ## **WP(C).No. 26117 of 2011(L)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1. COPY OF CERTIFICATE OF DEATH DATED 15.3.2001 OF MANIKANTAN NAIR.** - **P2. COPY OF LEGAL HEIRSHIP CERTIFICATE DATED 13.3.2002 ISSUED BY TAHSILDAR, NEYYATTINKARA.** - **P3. COPY OF DUTY PASS VALID UPTO 31.12.2001 OF DECEASED S.MANIKANTAN NAIR.** - **P4. COPY OF CERTIFICATE DATED 1.7.1989 REGARDING THE TENURE OF IST PETITIONER'S HUSBAND FOR THE PERIOD FROM 25.5.79 TO 2.7.87.** - **P5. COPY OF MEMORANDUM DATED 3.8.90 BY WHICH IST PETITIONER'S HUSBAND WAS RE-APPOINTED WITH EFFECT FROM 30.8.90.** - **P6. COPY OF ORDER G.O (MS) .9/2001/TRAN/THIRUVANANTHAPURAM DATED 5.3.2001.** - **P7. COPY OF APPLICATION DATED 8.11.2006 SUBMITTED BY 2ND PETITIONER.** - **P8: COPY OF REPRESENTATION OF PETITIONERS DATED 13.11.2006 BEFORE RESPONDENT NO.2.** - **P9: COPY OF COUNTER AFFIDAVIT DATED 2.6.2008.** - **P10. COPY OF JUDGMENT IN WP(C)NO.31464/2006 DATED 24.6.2010.** - **P11. COPY OF REPRESENTATION OF PETITIONERS TO 3RD RESPONDENT .** - **P12. COPY OF ORDER DATED 8.6.2011 BY 3RD RESPONDENT – GOVERNMENT OF KERALA.** ## **RESPONDENTS' EXHIBITS : NIL** **/TRUE COPY/** **PA TO JUDGE** **SKV** ## **HARUN-UL-RASHID,J.** ## **------------------------------W.P.(C). NO.26117 OF 2011 ------------------------------DATED THIS THE 16TH DAY OF DECEMBER, 2011** ## **JUDGMENT** Writ Petition is filed seeking to quash Ext.P12 order and for a direction commanding the respondents to disburse the terminal benefits due to the deceased Manikantan Nair by treating him to have regular service from 22/5/79 and to provide compassionate employment to the 2[nd] petitioner. 2. Petitioners are the wife and daughters of the deceased Manikantan Nair, who died on 18/2/2001 while working as Conductor at Poovar Depot of the Kerala State Road Transport Corporation (KSRTC). The deceased was recruited to the KSRTC as provisional Conductor through Employment Exchange. The KSRTC decided to regularise the service of provisional conductors recruited through employment exchange during 1978-80 and they were continuing in service. The Managing Director of the KSRTC has requested Government sanction for the regularisation of 699 provisional **-2-** ## **W.P.(C).No.26117/2011** conductors and 6 painters recruited through employment exchange during 1978-80 considering their long service and over age limits. The regularisation of 699 conductors mentioned above were examined by the Government in consultation with the Public Service Commission. Taking into consideration the fact that the provisional conductors were recruited through employment exchange during l978-80 and are continuing with short breaks, that majority of them are between the age group of 35 and 55 years, the Government granted approval for regularisation of 699 conductors and 6 painters of KSRTC by Ext.P6 Order dated 5/3/2001 with effect from the date of the order. Petitioners submits that such regularised conductors were given pensionary benefits by reckoning their provisional service with effect from the date of their original appointment. 3. Petitioners earlier filed W.P.(C).No.31464/2006 before this Court seeking the benefits of regularisation and consequential retirement benefits and compassionate employment. **-3-** ## **W.P.(C).No.26117/2011** This Court in the judgment observed that going by Ext.P6 Government Order, the benefit of regularisation is conferred upon the persons, who were continuing as on the date of the order, that the case of the deceased Manikantan Nair even though is similar to that of the regularised persons, he could not get the benefit because of his premature death. This Court further observed that therefore, this is a matter for consideration by the Government in the light of the Government Order. This Court directed the Government to examine the claim of the deceased Manikantan Nair with notice to the petitioners and the Corporation. This Court also observed that similarly placed persons were granted benefits including pension, based on their regularisation from the date of initial appointment and directed the Government to examine this aspect, while passing orders. Ext.P10 is the copy of the judgment in W.P.(C) No.31464/2006. In compliance with the directions issued by this Court in ExtP10 judgment, the Government issued Ext.P12 order. The Government found that the deceased was not eligible for **-4-** ## **W.P.(C).No.26117/2011** regularisation in terms of the existing rules and the criteria fixed for regularisation. Consequently, the Government ordered that the lst petitioner is not eligible to receive pensionary benefits of her husband and also to claim for appointment under compassionate employment scheme. 4. Going by Ext.P12 order it is seen that the Government examined the claim of the lst petitioner on the basis of the stand taken BYthe K.S.R.T.C. In Ext.P10 judgment this Court directed the Government to consider the case of the petitioners, after noticing the fact that the deceased could not get the benefit because of his premature death. This Court in Ext.P10 judgment observed as follows: _“......The case of the deceased Manikantan Nair, even though is similar to that of the persons who are regularised, he could not get the benefit because of his premature death. Therefore, this is a matter for consideration by the Government in_ the light of the order now _passed in Ext.P6........”_ 5. According to the petitioners, this Court directed the **-5-** ## **W.P.(C).No.26117/2011** Government to consider the similar aspect of invoking Rule 31 of the Kerala State and Subordinate Service Rules to the extent the benefit of Ext.P6 to deceased Manikantan Nair in relaxation of the factum of his death. It is also pointed out that the contention raised by the Corporation that the name of the deceased was not included in the proposed list for regularisation, because he has not completed 12 years of active service with 240 days of duty in each year, is not a matter directed to be considered by the Government. The direction issued by this Court is to consider the claim of the petitioners, after noticing the fact that the deceased could not get the benefit because of his premature death. Therefore, noticing such fact, this Court directed the Government to consider whether the benefit under Ext.P6 Government Order can be extended to the deceased considering the fact that he was not in service as on the date of Ext.P6 order. This aspect was not considered by the Government while passing Ext.P12 order. The matter was decided on the basis of the contentions raised by the KSRTC pointing out **-6-** ## **W.P.(C).No.26117/2011** that the deceased did not complete the prescribed qualifying service of 12 years of duty out of which 3 years should be continuous and having 240 days of duty in each year. The claim of the petitioners was rejected accepting the contention of the that those candidates recruited as Corporation provisional conductors through employment exchange during 1978-80 having minimum 12 years of service with 240 days duty per year within the period from 1978-98 alone were in the list recommended by the Corporation to the Government for regularisation. 6. Learned Standing Counsel for the Corporation opposed the reliefs claimed by the petitioners. Standing Counsel relied on the decision reported in **District Transport Officer, KSRTC, Tvm. and another v. S. Kunchan (2009 (3) KHC 891)** wherein this Court held that “where a term of settlement, to which an instrumentality of a State is a party, provides for treating casual service also as part of regular service for all intents and purposes, then it will only be appropriate to treat only such casual service, **-7-** ## **W.P.(C).No.26117/2011** rendered by a person, who has already been advised by the Commission for regular appointment against the post in question as part of regular service. This Court also held that any other kind of casual service would only be casual service, that cannot be considered as synonymous with regular service.” In the aforesaid facts and circumstances, this writ petition is disposed of directing the 3[rd] respondent to consider the matter afresh and pass appropriate orders, taking into consideration the direction issued by this Court in Ext.P10 judgment, within a period of two months from the date of receipt of a copy of this judgment. Ext.P12 order is quashed. **HARUN-UL-RASHID, JUDGE.** **kcv.** **-8-** **W.P.(C).No.26117/2011**