Aniyan T.P. v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY, THE 24TH DAY OF SEPTEMBER 2014/2ND ASWINA, 1936 ## WP(C).No. 23582 of 2014 (W) ---------------------------------------- PETITIONER : - ---------------------- ANIYAN T.P, AGED 40 YEARS, S/O.PARAMESWARAN ACHARY, WORKING AS EMPANELLED CONDUCTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVALLA DEPOT AND RESIDING AT THIRUVAMPADI HOUSE, KAVUMBHAGAM P.O, THIRUVALLA-689 102. BY ADV. SRI.N.UNNIKRISHNAN RESPONDENTS : - --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, TRANSPORT (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. KERALA STATE ROAD TRANSPROT CORPORATION, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM-695 023, REPRESENTED BY THE CHAIRMAN AND MANAGING DIRECTOR. 3. THE MANAGER ACCOUNTS IN CHARGE OF EXECUTIVE DIRECTOR (ADMINISTRATOR), KERALA STATE ROAD TRANSPROT CORPORATION, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM-695 023. 4. THE DISTRICT TRANSPROT OFFICER, KERALA STATE ROAD TRANSPROT CORPORATION, THIRUVALLA-689 101. R2-4 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR, SC, KSRTC BY GOVERNMENT PLEADER SRI. V. VIJULAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24-09-2014. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 23582 of 2014 (W) ----------------------------------------- ## **APPENDIX** ## PETITIONER'S EXHIBITS : - ------------------------------------EXT.P1 : TRUE COPY OF THE CERTIFICATE NO.P2.1295/99/TVLA DATED 26/4/2002 ISSUED BY THE 4TH RESPONDENT. EXT.P2 : TRUE COPY OF STATEMENT OF ATTENDANCE DETAILS FOR THE PERIOD FROM 28/10/2002 TO 1/2003 ISSUED BY ASSISTANT TRANSPORT OFFICER, KSRTC PONKUNNAM. EXT.P3 : TRUE COPY OF STATEMENT OF ATTENDANCE DETAILS FOR THE PERIOD FROM 3/4/2003 TO 7/11/2008 ISSUED BY WORKS MANAGER, KSRTC, REGIONAL WORKSHOP, EDAPPAL. EXT.P4 : TRUE COPY OF STATEMENT OF ATTENDANCE DETAILS FOR THE PERIOD FROM 24/1/2008 TO 31/7/2014 ISSUED BY THE 4TH RESPONDENT. EXT.P5 : TRUE COPY OF G.O.(MS) NO.78/2011/TRAN DATED 22/12/2011. EXT.P6 : TRUE COPY OF MEMORANDUM NO.PL.12/025739/08 DATED 11/4/2012 ISSUED BY THE 2ND RESPONDENT. EXT.P7 : TRUE COPY OF REPRESENTATION DATED 15/11/2012. EXT.P8 : TRUE COPY OF JUDGMENT DATED 18/3/2013 IN WPC NO.7437/2013D EXT.P9 : TRUE COPY OF ORDER NO.PL.16/014915/2012 DATED 12//6/2013. RESPONDENTS' EXHIBITS : - NIL. --------------------------------------- // TRUE COPY // P.A. TO JUDGE DMR/- ## **DAMA SESHADRI NAIDU, J.** --------------------------------------- ## **W.P.(c) No. 23582 of 2014** ---------------------------------------- Dated this the 24[th] day of September, 2014 ## JUDGMENT This writ petition concerns itself with the issue of regularization of the services of the Empanelled Work Assistant on his completion of 10 years service. 2. The facts in brief are that the petitioner joined the service of the respondent Corporation as an unpaid Apprentice Mechanic in 2001. Once he completed his training, he was selected and appointed as Empanelled Work Assistant on 28.10.2002, since when he has been working as Mechanic owing to the change of designation. Having been transferred intermittently to different depots, the petitioner completed 10 years of service by 2011. In terms of Exhibit P5 Government Order, a policy decision was taken W.P.(c) No. 23582 of 2014 2 to regularize the services of Empanelled Conductors, Drivers, Mechanics, who have put in more than 10 years service as on 22.12.2011. The respondent Corporation, however, through Exhibit P6 added a rider to Exhibit P5 stating that those Empanelled workmen should also have 120 days duty annually in all those 10 years. When certain litigation ensued, the said rider attached to Exhibit P6 was declared to be illegal by this Court. 3. In the light of the above developments, the petitioner is said to have made representation on 15.11.2012 through Exhibit P7, with a request to the authorities to consider his case for regularization in terms of Exhibit P5. When the authorities did not dispose of Exhibit P7, the petitioner filed W.P. (C) No.7437 of 2013-D which was disposed by this Court through Exhibit P8 judgment dated 18.03.2013. In fact, this Court directed the respondent Corporation to consider the case of the petitioner in the light of Exhibit P5 policy. Under those circumstances in compliance with the direction of this Court in Exhibit P8, W.P.(c) No. 23582 of 2014 3 the second respondent passed Exhibit P9 order, declining to regularize the services of the petitioner. Thus once again, aggrieved by Exhibit P9 rejection, the petitioner approached this Court by filing the present writ petition. 4. The learned counsel for the petitioner has strenuously contended that at the earliest point of time this Court in **Suresh Kumar Vs. State of Kerala** [2013 (2) KLT 258] declared that the additional condition of 120 days duty annually as was sought to be introduced by Exhibit P6 was effectively interdicted by this Court, thus restoring Exhibit P5 without any modifications of whatever nature. The Writ Appeal and the subsequent revision petition filed thereon were also dismissed by this Court. Under these circumstances, the respondents, contends the learned counsel for the petitioner, have no justification in denying regularization to the petitioner. Eventually, the learned counsel for the petitioner has urged this Court to set aside Exhibit P9 and issue a positive direction to the second respondent to regularize the services of the petitioner in W.P.(c) No. 23582 of 2014 4 terms of Exhibit P5. 5. Per contra, the learned Standing Counsel for the respondent Corporation has opposed with equal vehemence the claims and contentions of the petitioner. She has submitted that notwithstanding the judgment of this Court in Suresh Kumar _(supra)_ , later the Government effected a modification to Exhibit P5 through G.O. M.S. No.105/2013 dated 21.11.2013. Accordingly, now Exhibit P6 condition of 120 duties per year has become part and parcel of Exhibit P5 in its modified form. As such there is every justification for the respondent Corporation to insist that each employee or workman has to complete the precondition of not only completing 10 years, but also putting in 120 duties annually for 10 years continuously. Thus, the learned Standing Counsel has urged this Court to dismiss the writ petition. 6. Heard the learned counsel for the petitioner and the learned Standing Counsel for the second respondent, apart from perusing the record. 7. At the outset it is an admitted fact that by 2011 the W.P.(c) No. 23582 of 2014 5 petitioner completed 10 years of service as an Empanelled Mechanic. The only issue that falls for consideration is whether in the light of the amendment effected to Exhibit P5 through G.O. M.S. No. 105/2013 dated 21.11.2013, the impediment of 120 days duty annually for 10 years is a pre-condition required to be fulfilled by the petitioner. The issue however is no longer res integra. A learned Division Bench of this Court in **KSRTC v. P. Ramadas and Others** though judgment dated 12.03.2014 (W.A. No.340 of 2014), addressed the issue and held that the said amendment could only be prospective. As could be seen from the record, the amendment was effected on 21.11.2013, whereas the petitioner completed 10 years of service by 22.11.2011 itself. As such there cannot be an impediment for the second respondent to regularize the services of the petitioner, especially by taking into account the definitive pronouncement of the learned Division Bench of this Court in Ramadas _(supra)._ 8. In the facts and circumstances, this Court allows the W.P.(c) No. 23582 of 2014 6 writ petition directing the second respondent to regularize the services of the petitioner in terms of Exhibit P5 by taking into account the decision of this Court in Ramadas (s _upra_ ). 9. It is further observed that the second respondent may complete the exercise of regularizing the service of the petitioner as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment. Accordingly, the writ petition is allowed. ## **DAMA SESHADRI NAIDU JUDGE** DMR/-