Anitha M. & Others v. State of Kerala & Others (W.P.(C).No. 2830 of 2016 (C))

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **MONDAY, THE 7TH DAY OF NOVEMBER 2016/16TH KARTHIKA, 1938** ## **WP(C).No. 2830 of 2016 (C)** ## **---------------------------** ## **PETITIONER(S):** ## **-------------** ## **1. ANITHA M.** - **D/O KRISHNANKUTTY, GOVERNMENT QUARTERS, MUNDERI KALPETTA** - **VILLAGE, VYTHIRI TALUK, WAYNAD DISTRICT** ## **2. AYISHA M** - **D/O MARAKKAR, MEMANA HOUSE, ERANHIVAYAL, KALPETTA** - **VILLAGE, VYTHIRI TALUK, WAYNAD DISTRICT** ## **3. VALSALAKUMARI A** - **W/O G. VENUGOPALAN NAIR, "VAISHNAVAM' PAYYATTUVILA,** - **MANNOTHKONAM, BALARAPURAM VIA, THIRUVANANTHAPURAM** **4. SREEJA** - **W/O SURESH KUMAR.K, JYOTHI NIVAS, KAMBALAPUTTA, VENGANOOR PO, TRIVANDRUM** **5. DINESH BABU. B** - **S/O M. BARGHAVAN, PARAKKEDE VEEDU, KARIMINAL PO, TRIVANDRUM** **6. GEETHA KUMARI B** - **D/O KOCHU KRISHNA PILLAI, MADAVILAKKATTU VEEDU, VANCHIYOOR PO, TRIVANDRUM** **7. JAYANTHI KUMAR K** - **S/O SURESH KUMAR, PATTAMATHUR THEKKEKARA VEEDU, POOVATHUR PO, TRIVANDRUM** ## **BY ADVS.SRI.KALEESWARAM RAJ SRI.KALEESWARAM RAJ** ## **RESPONDENT(S):** - **--------------** **1. THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, DEPARTMENT OF** **INDUSTRY (K), SECRETARIAT, THIRUVANANTHAPURAM, PIN- 695 001** **2. THE KERALA KHADI GRAMA VYVASAYA BOARD THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, PIN-695 001** **3. P. P[ADMANABHAN** - **U.D. CLERK, PAYYANUR KHADI KENDRAM, PAYYANNUR, KANNUR DISTRICT** **4. ROY O.R** - **U.D. CLERK, KERALA KHADI GRAMA VYAVASAYS BOARD,** - **TRIVANDRUM** **5. LATHEESH KUMAR P.K** - **U.D CLERK, DISTRICT KHADI GRAMA VYAVASAYA OFFICE,** - **ERNAKULAM** **6. SABEENA BEEGUM** - **U.D CLERK, DISTRICT KHADI GRAMA VYAVASAYA OFFICE,** - **ERNAKULAM** **7. SATHYA NIRMALA P** - **U.D CLERK, DISTRICT KHADI GRAMA VYAVASAYA OFFICE,** - **PALAKKAD** **8. HEMAKUMAR S U.D CLERK, KERALA KHADI GRAMA VYAVASAYA BOARD, TRIVANDRUM** - **R2 BY ADV. SRI.TOM K.THOMAS, SC KERALA KHADI & VILLAGE INDUSTRIES B R3-R8 BY ADV. SRI.K.P.HARISH** - **R2 BY ADV. SRI.M.SHARAFUDHEEN, SC, KERALA KHADI AND VILLAGE INDUSTRIES** - **BY GOVERNMENT PLEADER SRI.N.UNNIKRISHNA KAIMAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 2830 of 2016 (C) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** **EXT.P1: TRUE COPY OF THE GOVERNMENT ORDER AS GO (P) NO, 18/99P & ARD DT. 13/10/99** **EXT.P2: TRUE COPY OF THE RESOLUTION DT. 20/1/2003 OF THE** **KHADI BOARD** **EXT.P3: TRUE COPY OF THE JUDGMENT IN WP 28620/15 OF THIS HON'BLE COURT DT. 21/10/15** **EXT.P4: TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DT. 15/12/15 AS NO K.B. 5954/12/E/(B)** **EXT.P5: TRUE COPY OF THE RELEVANT PAGES OF THE OFFICE NOTE DATED 04.08.2012.** **RESPONDENT(S)' EXHIBITS -----------------------** **EXT.R3(a): THE TRUE COPY OF THE LETTER NO.RIB(I) 22498/2001/GW DATED 04.08.2001 ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION.** **EXT.R3(b): A TRUE COPY OF THE PROCEEDINGS NO.KB.7737/98/E1(B) DATED 17.03.2003 OF THE SECRETARY.** **EXT.R3(c): TRUE COPY OF THE RELEVANT PAGES OF THE DRAFT GRADATION LIST AS ON 01.10.2010.** **EXT.R3(d): TRUE COPY OF THE RELEVANT PAGES OF THE NOTE FILE DATED 06.10.2012 RECEIVED AS PER RIGHT TO INFORMATION ACT.** **EXT.R3(e): TRUE COPY OF THE COMPLAINT PREFERRED BY THE 8TH RESPONDENT. EXT.R3(f): TRUE COPY OF THE REPRESENTATION DATED 02.07.2012 EXT.R3(g): TRUE COPY OF THE GOVERNMENT LETTER DATED 16.04.2015.** **EXT.R3(h): TRUE COPY OF THE COMMUNICATION NO.13787/K1/2015/IND DATED 28.07.2015 OF THE 1ST RESPONDENT TO THE PETITIONERS.** **//TRUE COPY//** **P.A.TO JUDGE** **sm** ## **A.K.JAYASANKARAN NAMBIAR, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - ## **W.P.(C) No.2830 of 2016** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7[th] day of November, 2016 ## **JUDGMENT** The petitioners are physically handicapped persons, who were appointed as LD Clerks in the services of the Khadi Board, initially for a period of 180 days, pursuant to their names being sponsored by the employment exchange. After the initial period of 180 days, they were re-engaged provisionally as LD Clerks, and while they were continuing as such, by Ext.P1 order, dated 13.10.1999, the Government directed regularisation of physically handicapped provisional employees, who were covered by the provisions of earlier Government Orders dated 28.09.1988 and 17.05.1999, with effect from the date on which they rejoined duty consequent to reappointment, or with effect from the date of the Government order, whichever was later. Inasmuch as the petitioners in the instant case had rejoined duty, consequent to reappointment, prior to the date of Ext.P1 Government Order, the benefit of regularisation in service took effect from the date of Ext.P1 Government Order, namely, 13.10.1999. The said benefit was extended to the petitioners by Ext.P2 Resolution passed by the respondent Khadi Board. The formal decision to this effect was W.P.(c).No. 2830 of 2016 : 2 : through a separate order dated 17.03.2003, which regularised the services of the petitioners as LD Clerk with effect from 13.10.1999 and also granted promotion to two of the petitioners as UD Clerks, with effect from 2002 and 2003 respectively. The facts in the writ petition would indicate that, between the period from 13.10.1999 to 20.01.2003, certain persons, including respondents 3 to 8 herein, were appointed as LD Clerks through Public Service Commission (PSC), by promotion from the category of Peon and through compassionate appointment. It is also not in dispute that, during the period subsequent to 20.01.2003, the other petitioners also came to be promoted as UD Clerks in the service of the respondent Board. The issue in the writ petition revolves around the inter se seniority between the petitioners, on the one hand, and respondents 3 to 8 on the other, in the cadre of LD Clerk. While the petitioners would contend that, on account of their regularisation in service with effect from 13.10.1999, their seniority in the cadre of LD Clerk would count from the said date, it is the stand of respondents 3 to 8 that, the petitioners can be seen as absorbed in the regular cadre of LD Clerks, only with effect from 17.03.2003, the date on which their services were formally regularised by the respondent Board, pursuant to Ext.P2 Resolution dated 20.01.2003. It is relevant to note, in this W.P.(c).No. 2830 of 2016 : 3 : connection that, when, pursuant to a communication received by the respondent Board from the Government, the issue of inter se seniority came to be disputed on an earlier occasion, some of the petitioners herein had approached this Court through W.P.(C).No.28620/2015, which was disposed by Ext.P3 judgment, relegating the petitioners to the Secretary of the respondent Board, for an adjudication of the dispute, making it clear that the petitioners had an effective remedy of approaching the Secretary of the Board first, and then the Board itself through an appeal. Pursuant to Ext.P3 judgment, and in compliance with the directions therein, the petitioners were heard by the Secretary of the respondent Board and by Ext.P4 order dated 15.12.2015, the Secretary of the Board found that the seniority of the petitioners in the cadre of LD Clerk could be counted only from 17.03.2003, the date on which the formal orders regularising their service were passed, pursuant to Ext.P2 resolution dated 20.01.2003 of the respondent Board. It is further stated that the services of the petitioners till 16.03.2003 would be treated only as provisional service. In the writ petition Ext.P4 order of the Secretary of the respondent Board is impugned, inter alia on the contention that, inasmuch as the services of the petitioners were regularised with effect from 13.10.1999, their seniority in the cadre of LD Clerk would W.P.(c).No. 2830 of 2016 : 4 : also have to be reckoned with effect from the said date, and when viewed so, the petitioners would be senior to respondents 3 to 8, who were appointed in the post of LD Clerks, only subsequently. It is also stated that respondents 3 to 8 had not impugned the orders regularising the services of the petitioners, and the first agitation of the issue of seniority was only on 16.10.2006, when representations were preferred before the respondent Board. It is further pointed out that, even in the said representation dated 16.10.2006, the dispute is only with regard to the inter se seniority in the cadre of LD Clerk and by the said time, the petitioners had already been promoted as UD Clerks. 2. A counter affidavit has been filed by the respondent Board, wherein, Ext.P4 order is sought to be justified on the grounds stated therein. It is in particular stated that, by Ext.P2 resolution, the respondent Board had resolved to regularise the petitioners retrospectively with effect from 13.10.1999, being the date of Ext.P1 Government Order. Inasmuch as in Ext.P1 Government Order itself it is stated that, candidates if any advised by the Public Service Commission, on the date of regularisation of the service of the physically handicapped provisional employees, will be declared as W.P.(c).No. 2830 of 2016 : 5 : their seniors, the petitioners cannot claim seniority over those persons, who were appointed through the Public Service Commission. It is stated that, when an issue arose with regard to the inter se seniority, the matter was referred to the Government and it was pursuant to the Government's observations, that a decision was taken after hearing the petitioners, and pursuant to the directions in Ext.P3 judgment of this Court. 3. In the counter affidavit filed on behalf of respondents 3 to 8, it is stated that the right of the petitioners to be regularised stems not from Ext.P1 Government Order, but from the respondent Board's resolution to regularise the services of the petitioners . Referring to the decision of the Supreme Court in **State of Haryana v. Vijaysingh [2012 (3) KLT SN 148]** , it is contended that the seniority of the petitioners can be reckoned only from the date of their actual regularisation, which in the instant case is 17.03.2003. It is pointed out that, as per the Rules prevailing under the respondent Board, since the appointment of the petitioners was in terms of Regulation 8, which corresponds to Rule 9 (a) of the KS & SSR, the petitioners would not be entitled to reckon the date of regularisation in service as 13.10.1999, for the purposes of claiming seniority over W.P.(c).No. 2830 of 2016 : 6 : respondents 3 to 8, who were appointed during the period between 13.10.1999 and 17.03.2003, the date on which the formal order regularising the services of the petitioners was passed by the respondent Board. It is the specific contention of the respondents that, the seniority of the petitioners could be reckoned only from 17.03.2003, which had to be deemed as the date of entry of the petitioners in the cadre of LD Clerks. The respondents also rely on Exts.R3 (a) to R3(h) documents for the purposes indicating that they had not remained silent when they came to know of the seniority accorded to the petitioners over them in the respondent Board, and they had been agitating the matter since 2006. It is also pointed out that, by Ext.P3 judgment, this Court had reserved liberty to the petitioners, if they were aggrieved by any orders to be passed by the Secretary of the Board, to approach the board itself by way of an appeal and, inasmuch as the petitioners have not resorted to the said remedy, the writ petition itself is premature. 4. I have heard Smt. A. Aruna, the learned counsel for the petitioner, Sri.Tom K. Thomas, the learned standing counsel for the respondent Board, Sri.K.P.Harish, the learned counsel for respondents 3 to 8 and the learned Government Pleader for the 1[st] respondent. W.P.(c).No. 2830 of 2016 : 7 : 5. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that, the petitioners, who are physically handicapped persons, were given the benefit of Ext.P1 Government Order and regularised in the services under the respondent Board with effect from 13.10.1999. Ext.P2 resolution of the respondent Board specifically refers to Ext.P1 Government Order, the terms of which clearly indicate that, the services of the physically handicapped provisional employees covered by the Government Orders dated 28.09.1998 and 17.05.1999, had to be regularised with effect from the date of the said Government Order or from the date on which the physically handicapped persons rejoined duty consequent on reappointment, whichever was later. The said Government Order also indicates that such regularisation had to be in the same category of post, and in the same department where the physically handicapped provisional employees were allowed to continue or re-appointed. In relation to PSC candidates, it is specified that candidates, if any advised by the Public Service Commission, on the date of regularisation of the service of the physically handicapped provisional employees will be declared as their seniors. Lastly, with regard to the inter se seniority of the physically handicapped W.P.(c).No. 2830 of 2016 : 8 : provisional employees, it is clarified that the said seniority would be fixed with reference to the length of the service in the same Department and in the same category of post. As already noted, it was pursuant to Ext.P1 Government Order that the respondent Board, by Ext.P2 resolution, and the decision dated 17.03.2003, regularised the services of the petitioners herein with effect from 13.10.1999. The regularisation in service was in the cadre of LD Clerk, in which cadre the petitioners were working as provisional employees at the time of issuance of Ext.P1 Government Order. Notwithstanding the fact that Ext.P2 resolution, and the decision of the Board regularising the services of the petitioners with effect from 13.10.1999, are dated 20.01.2003 and 17.03.2003 respectively, I am of the view that, inasmuch as the regularisation took effect, with effect from 13.10.1999, the said date should be taken as the date of entry into regular service of the petitioners in the cadre of LD Clerk. The question then arises as to the determination of inter se seniority with the PSC hands that is contemplated in Ext.P1Government Order, and the persons to whom such directions in the Government Order would apply. In my view, Ext.P1 Government Order is specific when it states that it is only those candidates advised by the Public Service Commission on the date of regularisation of the physically W.P.(c).No. 2830 of 2016 : 9 : handicapped provisional employees, who are deemed as seniors to the said physically handicapped provisional employees, whose services have been regularised. In other words, had there been persons who were advised by the Public Service Commission on 13.10.1999, the effective date of regularisation of the petitioners in this writ petition, then vis-a-vis the said candidates advised by the PSC, the petitioners would rank junior in the cadre of LD Clerk. Inasmuch as respondents 3 to 8 in the writ petition are persons, who were admittedly appointed subsequent to 13.10.1999 in the cadre of LD Clerk, I am of the view that the said persons cannot be treated as seniors to the petitioners, who through their regularisation by the order dated 17.03.2003, had obtained a regularisation of their actual service rendered under the respondent Board, with effect from 13.10.1999. Their entry into the cadre of LD Clerks has to be seen as effective from 13.10.1999 and when viewed so, they would certainly be senior to respondents 3 to 8 in the cadre of LD Clerk. In this connection, I must also state that, there is considerable force in the submission of the learned counsel for the petitioner that respondents 3 to 8 had not challenged the order of regularisation of the petitioners, be it Ext.P2 resolution dated 20.01.2003, or the formal order dated 17.03.2003, that was passed by the respondent Board W.P.(c).No. 2830 of 2016 : 10 : thereafter. The said respondents will have to be seen as persons who, having been aware of the regularisation of the petitioners with effect from 13.10.1999, did not take any steps to challenge the order of regularisation with effect from the said date, till 2006, when for the first time they raised the issue of seniority before the Government. While the conduct of respondents 3 to 8 would be hit by the 'sit back theory', that has been explained by this Court in the decision of the Full Bench in **Sajeev N.J. v. Union of India [ ILR 2009(4) Kerala 469]** and the Division Bench in **Lakshmi Devi v. Guruvayoor Devaswom [2015 (1) KLT SN 131] C.No.156** , it is also to be noted that, by 2006, the petitioners had already been promoted as UD Clerks and hence, it would have been an exercise in futility for respondents 3 to 8, who had also by that time been promoted as UD Clerks, to question the inter se seniority with the petitioners in the cadre of LD Clerks. Resultantly, I am of the view that, Ext.P4 order, which takes a view that respondents 3 to 8 would have to be treated as seniors to the petitioners in the cadre of LD Clerks, and further that, the services of the petitioners till 16.03.2003 would have to be treated as provisional services, cannot be legally sustained. The latter part of Ext.P4 order, which treats the services of the petitioners till 16.03.2003 as provisional service, goes against the grain of Ext.P2 W.P.(c).No. 2830 of 2016 : 11 : resolution of the respondent Board itself, and the formal order dated 17.03.2003, which recognised the services of the petitioners as regularised with effect from 13.10.1999. In the absence of any order cancelling Ext.P2, or the subsequent order dated 17.03.2003, the Secretary of the respondent Board could not have ignored the said orders passed by the respondent Board, regularising the services of the petitioners with effect from 13.10.1999. Under these circumstances, notwithstanding the fact that the petitioners could have approached the respondent board with an appeal against Ext.P4 order, I am of the view that, Ext.P4 order being legally unsustainable, ought to be quashed, and I do so. The writ petition is thus allowed, by declaring that the regular service of the petitioners in the cadre of LD Clerk would have to be deemed as commencing from 13.10.1999, for the purposes of all service benefits, including seniority. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** sm/