D.G. Krishnadas & others v. Director (Insp. & QC) Export Inspection Council of India & others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 10TH MARCH 2008 / 20TH PHALGUNA 1929 WP(C).No. 1433 of 2006(U) ------------------------- PETITIONER: - ------------ 1. D.G. KRISHNADAS, CLERK GRADE II, EXPORT INSPECTION AGENCY, KOCHI-11. 2. V. AJITHA, LAB.ASSISTANT EXPORT INSPECTION AGENCY, SUB OFFICE, KOLLAM. 3. T.P. SUDHEEP, CLERK GRADE II, EXPORT INSPECTION AGENCY, KOCHI-11. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.V.BINOY RAM RESPONDENTS: - ------------- 1. THE DIRECTOR (INSP.& Q/C) EXPORT INSPECTION COUNCIL OF INDIA (MINISTRY OF COMMERCE & INDUSTRY), 3RD FLOOR, NDYMCA CULTURAL CENTRE BUILDING, 1 JAI SINGH ROAD, NEW DELHI-110 001. 2. THE JOINT DIRECTOR, EXPORT INSPECTION AGENCY (MINISTRY OF COMMERCE & INDUSTRY) MANOHAR BUILDINGS, M.G. ROAD, ERNAKULAM, KOCHI-682 011. BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.GIRI, J** ------------------- ## W.P.(C).1433/2006 -------------------Dated this the 10[th] day of March, 2008 ## **JUDGMENT** Petitioners 1 and 3 are working as Clerk Grade-II and second petitioner is working as Lab Assistant in the Export Inspection Agency which functions under the Government of India. They were appointed under Exts.R2 (a), R2(b) and R2(c) with effect from 1.2.1988, 1.2.1988 and 4.11.1992 respectively. All the petitioners were appointed, on compassionate grounds, in as much as that the father of the first and second petitioners and the mother of the third petitioner were employed in the Export Inspection Agency and they died in harness. 2. It is the petitioners’ case that they were appointed on compassionate grounds, but nevertheless the orders of appointment indicated that the appointment is on a temporary or an adhoc basis. The tenure of appointment originally stipulated was six months, but it is the common case that the petitioners have continued in service without any break whatsoever. They were appointed W.P.(C)..1433/2006 2 against the scale of pay which was applicable to the post in question and the orders of appointment also stipulated that they will be governed by the service rules applicable to the employees of the Export Inspection Agency from time to time. 3. By Exts.P2, P3 and P4 representations, filed by the petitioners 1 to 3 respectively, they pointed out that at least three persons appointed on the same grounds have been treated as regular employees and have therefore, been granted benefit of ACP (Assured Career Progression) scheme. Petitioners therefore, prayed that they may be regularized in service from the date of appointment and they may be extended the benefit of ACP. 4. Petitioners refer to Ext.P5 communication, which was issued to the first petitioner on an earlier occasion referring to an earlier request made by him for regularization in service. It reads as follows:- W.P.(C)..1433/2006 3 “In this context, I am directed to inform you that necessary action has already been initiated by the competent authority to regularize the service of the adhoc employees” 5. According to the petitioners, notwithstanding the same, services have not been regularized and they have been not granted the benefit of ACP. Hence the writ petition. 6. Counter affidavit has been filed by the respondents. They contend that the petitioners were appointed purely on temporary/adhoc basis on compassionate grounds. They have been given the benefit as admissible and they are not eligible for the benefit of ACP, because they are temporary/adhoc employees. Only regular employees of the Export Inspection Agency are eligible for the benefit of ACP. 7. It is further contended that as per the subsequent work study conducted, it was found that the work load 4 W.P.(C)..1433/2006 of Export Inspection Agency, have been drastically reduced particularly in the wake of withdrawal of several compulsory preshipment inspections. It is contended that the petitioners’ claim for regularization cannot be considered in the light of law declared by the Supreme Court in **State of Haryana and others v. Piara Singh and others (AIR 1992 SC 2130).** 8. I heard learned counsel on both sides. 9. At the outset, I note that respondents do not deny the contention of the petitioners that the petitioners were appointed on compassionate grounds, ie, dying-inharness scheme nor do they deny the contention that they have been continuously in service from the respective dates of 1988 and 1992 and that they discharge the same kind of duties as regular employees. Nor is their any case for the respondents that there is some other factor which will attribute ineligibility to the petitioners being regularized in service. There is no denial of issuance of Ext.P5 nor is there a specific denial W.P.(C)..1433/2006 5 as to the assertion made by the petitioners that persons appointed subsequent to them on compassionate grounds ( details of which are given in Ext.P2) have been given ACP benefits and such persons have been regularized in service. 10. The recommendations contained in the nature of an office communication is produced as Ext.P10. It is stated therein that the employees appointed at a later stage to the same category on compassionate grounds, have become eligible for ACP. The distinction therein, pointed out by the learned counsel for the respondents is that such persons are appointed on regular basis though on compassionate grounds. But it is also stated in Ext.P10 that as per subsequent Government of India instructions dated 9.10.1998, compassionate appointment cannot be offered to an individual functionary on an adhoc basis. But it is also stated therein that the said order would not be applicable to the case of the first petitioner, as his appointment has taken place prior to the said order. W.P.(C)..1433/2006 6 11. In my view, the first and foremost factor is that the petitioners were appointed on compassionate grounds, taking into account the service of the father of petitioners 1 and 2 and the mother of the third petitioner and the fact that such persons had died in harness. It is therefore, admitted that the petitioners were appointed on compassionate grounds. The very purpose of appointment on compassionate grounds is to provide solace to a family which has lost his bread winner and it would be completely inconsistent with the very scheme of appointment on compassionate grounds if their services are terminated after six months, one year or two years. Therefore, though Exts.R2(a), R2(b) and R2(c) refer to the appointment offered to the petitioners as adhoc or temporary, going by the nature of the appointment, in my view, the appointments are eligible to be treated as regular. Apparently, Government of India had taken into consideration the necessity of treating appointments on compassionate grounds as regularized, going by the reference made in that regard in Ext.P10. But the rider incorporated therein that the W.P.(C)..1433/2006 7 petitioners are not entitled to the benefits thereof since they were appointed prior to 1999 is of no significance in as much as that the instructions must only be treated as clarificatory of the position which must have obtained even otherwise. 12. Second aspect, which supports the case of the petitioners is the fact that they have continued in service right from 1.2.1988 in the case of petitioners 1 and 2 and 4.11.1992 in the case of the third petitioner. There is no break in their service. They have otherwise discharged the same duties as persons who are regularly appointed in service. It is not the case of the respondents that the petitioners were appointed against non existing vacancies or that they were not qualified for appointment in the Export Inspection Agency. Thirdly, persons who were appointed subsequent to petitioners 1 and 2, on compassionate grounds have been treated as regular employees. Learned counsel for the respondents points out that this is because, such persons were even originally appointed on regular basis. In my view, W.P.(C)..1433/2006 8 petitioners were obviously not in a position to insist on a meticulous drafting of a letter of appointment, when the family is desperately in need of a job for one among them, in the wake of the loss of the bread winner. The question is whether there is any factor justifies the distinction between persons like the petitioners on one hand, and the persons who are referred to in Ext.P2 on the other hand, notwithstanding the fact that the latter were also appointed only on compassionate grounds. In my view, answer is in the negative. The justification offered by the respondents in the counter affidavit that the law declared by the Supreme Court stands in the way of regularization of service of the petitioners does not seem to be correct. Paragraph 53 of the judgment of the Supreme Court in **Umadevi v. State of Karnataka (2006 (4) SCC 1)** in fact supports the case of the petitioners, in as much as the petitioners were appointed, though on an adhoc basis, against posts which were available and have continued in service for more than ten years, without any break and without such service being rendered on the strength W.P.(C)..1433/2006 9 of orders passed by a Court of Law. In such cases, Supreme Court has called upon the appointing authorities to regularize the services of persons who have continued in service on a provisional/adhoc basis for a period of ten years or above, provided such appointments were against sanctioned posts, the incumbents were qualified to be appointed and they have continued in service otherwise than on orders of a Court. 13. It is therefore, found that the petitioners are entitled to be regularized in service. They should be treated on a par with other regular employees in the matter of making available the ACP benefits also. 14. In the result, the writ petition is allowed. It is declared that the petitioners are entitled to be regularized in service in their respective posts. Second respondent is directed to pass orders regularizing the service of the petitioners within two months from the date of receipt of a copy of this judgment. Petitioners 10 W.P.(C)..1433/2006 shall be entitled to all consequential benefits arising there from including the benefit of ACP on a par with the other regular employees. **V.GIRI, Judge** mrcs