M. Babu s/o Lasar v. State of Kerala & KSRTC & District Transport Officer, KSRTC Parasala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** ## **THURSDAY, THE 23RD DAY OF JUNE 2016/2ND ASHADHA, 1938** ## **WP(C).No. 39418 of 2015 (B)** ## **----------------------------** - **PETITIONER : ---------------------** **M. BABU S/O.LASAR, AGED 44 YEARS NOW NOT ALLOWED TO WORK AS EMPANELLED CONDUCTOR AND RESIDING AT PULIYARA PUTHENVEEDU, MARIAPURAM P.O., NEYYATTINKARA, THIRUVANANTHAPURAM – 695127.** ## **BY ADV. SRI.N.UNNIKRISHNAN** ## **RESPONDENTS :** **--------------------------** **1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT TRANSPORT (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001** **2. KERALA STATE ROAD TRANSPORT CORPORATION TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM- 695023, REPRESENTED BY THE CHAIRMAN & MANAGING DIRECTOR** **3. THE DISTRICT TRANSPORT OFFICER, KSRTC PARASALA, THIRUVANANTHAPURAM.** **R1 BY GOVT. PLEADER SRI. T.R. RAJESH R2 & R3 BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR, SC DR. THUSHARA JAMES, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-06-2016, THE COURT ON 23-06-2016 DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **WP(C).No. 39418 of 2015 (B)** ## **----------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS : ------------------------------------------** **EXT. P1:A TRUE COPY OF DISCHARGE SUMMARY OP NO. C22970 IP NO. 28885 DTD. 1/8/2009 EXT. P2:A TRUE COPY OF CASH RECEIPT NO. 98563 DTD. 23/10/1993. EXT. P3:A TRUE COPY OF RECORD NO. OP 169425/12 DTD. 2/7/2012 ISSUED BY MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM. EXT. P4:A TRUE COPY OF MEDICAL CERTIFICATE DTD. 20/4/2012 ISSUED BY THE DR R. SIVADASAN, CONCULTANT, NEUROLOGIST, NIMS EXT. P5:A TRUE COPY OF MEDICAL CERTIFICATE DTD. 26/8/2015. EXT. P6:A TRUE COPY OF FITNESS CERTIFICATE DTD 26/8/2015. EXT. P7:A TRUE COPY OF REPRESENTATION DTD. 23/3/2013. EXT. P8:A TRUE COPY OF ORDER NO. PL16/014915/2012 DTD. 9/9/2013. EXT. P9:A TRUE COPY OF ANOTHER REPRESENTAITON DTD. 15/11/2015 WITHOUT ANNEXURES. EXT. P10:A TRUE COPY OF THE ATTENDANCE DETAILS ISSUED TO THE PETITIONER FOR THE PERIOD FROM 3/1994 TO 12/1994 BY THE ADMINISTRATIVE OFFICER, OFFICE OF THE D.T.O., KSRTC, NEYYATTINKARA. EXT. P11:A TRUE COPY OF THE ATTENDANCE DETAILS OF THE PETITIONER FOR THE PERIOD FROM 2001-2008 ISSUED BY THE ADMINISTRATIVE OFFICER, OFFICE OF THE D.T.O., KSRTC, NEYYATTINKARA. EXT. P12:A TRUE COPY OF THE ATTENDANCE DETAILS OF THE PETITIONER FROM 1-2009 TO 6/2009 ISSUED BY THE DISTRICT TRANSPORT OFFICER, KSRTC, NEYYATTINKARA.** **EXT. P13:A TRUE COPY OF THE G.O.(MS) NO. 78/2011/TRAN DATED 22.12.2011.** **RESPONDENT(S)' EXHIBITS : NIL ----------------------------------------------------------** **//TRUE COPY//** **Mn** **P.S. TO JUDGE** ## **SHAJI P. CHALY, J.** ----------------------------------------------- **W.P.(C). No.39418 of 2015 ----------------------------------------------Dated this the 23[rd] day of June, 2016** ## **JUDGMENT** Petitioner has filed this writ petition seeking to quash Ext.P8 order passed by the 2[nd] respondent, whereby benefits pursuant to Ext.P3 order issued by the 1[st] respondent dated 22.12.2011 was declined to the petitioner and for other related reliefs. 2. Brief facts for the disposal of the writ petition are as follows; petitioner joined the service of the 2[nd] respondent Corporation as Empanelled Conductor on 23.10.1993 at Parasala Unit. He continued in service till June, 2009. According to the petitioner, he left the service due to heart attack and he was admitted in General Hospital, Thiruvananthapuram on 23.7.2009. That the petitioner, continued as an inpatient till 1.8.2009, evident from Ext.P1, discharge summary. That apart it is contended by the W.P.(C). No.39418 of 2015 2 petitioner that pursuant to heart attack suffered by him, he had to follow the treatment, evident from Exts.P3 and P4. According to the petitioner, petitioner was issued with a fitness certificate on 26.8.2015, evident from Ext.P6. Thereafter, petitioner has submitted Ext.P7 representation seeking regularization of service. Since no action was taken, petitioner has secured a judgment from this court in W.P.(C) No.10636/2013. In the said judgment dated 12.4.2013, 2[nd] respondent was directed to consider the representation in the light of Ext.P13 Government Order after hearing the petitioner and other petitioners in the said writ petition within a period of two months. 3. It is the contention of the petitioner that pursuant to the direction issued by this court, 2[nd] respondent has passed Ext.P8 order declining regularization on the ground that petitioner did not have 10 years of service, with 120 days duty per year in order to secure the benefit of the notification. It is thus challenging Ext.P8 petitioner has filed this writ petition. W.P.(C). No.39418 of 2015 3 4. The 2[nd] and 3[rd] respondents have filed a joint counter affidavit refuting the allegations and contentions raised by the petitioner in the writ petition It is urged in the counter affidavit that petitioner is not entitled to get any relief based on the Government Order dated 22.12.2011 since petitioner was not in service of the 2[nd] respondent Corporation when the said notification was introduced. That apart, 10 years completed service of the petitioner with 2[nd] respondent Corporation is admitted. However, it is contended that petitioner is not having 120 days duties per year as on 22.12.2011. That apart it is contended that 2[nd] respondent was not aware of the illness of the petitioner and the petitioner has not made any representation to the 2[nd] respondent claiming benefits of the aforesaid Government notification contending that he could not continue in service since he has suffered with heart attack. That apart it is contended that on verification, it was found that petitioner was absconding from June, 2009 onwards. Therefore, it was W.P.(C). No.39418 of 2015 4 not possible to re-engage or regularize the petitioner herein. Thrust of the contention raised in the counter affidavit is that petitioner does not have the requisite qualification in terms of the Government Order and the legal position pertaining to the matter of regularization. Therefore, the 2[nd] and 3[rd] respondents seek dismissal of the writ petition. 5. Petitioner has filed a reply to the counter affidavit filed reiterating the stand adopted in the writ petition and producing additional documents to prove the eligibility of the petitioner with respect to 120 days duty per year to secure the benefit of Ext.P13 Government Order dated 22.12.2011. It is also contended that merely because petitioner was not in service as on the date of Ext.P13 Government Order, same is not a criteria for declining benefits provided thereunder. That apart it is contended that during the period petitioner was undergoing treatment should be treated as continuance in service. 6. Heard learned counsel for the petitioner, learned W.P.(C). No.39418 of 2015 5 Government Pleader and learned Standing Counsel for respondents 2 and 3, perused pleadings and documents on record. 7. Question to be considered in this case is whether petitioner is entitled to get any relief sought for in the writ petition based on Ext.P13 order of the Government dated 22.12.2011? Learned counsel for the petitioner reiterated the stand adopted in the writ petition as well as the reply affidavit. According to the learned counsel for the petitioner, the period during which petitioner underwent treatment will have to be treated as duty of the petitioner. That apart it is contended that even though petitioner was not in service as on the date of Ext.P13 order, petitioner has completed 10 years of service which is the sole criteria applicable to confer benefits as per the scheme of Ext.P13 Government order. 8. Per contra learned Standing Counsel contended that on a perusal of Ext.P13 itself, it is categoric and clear that petitioner is not entitled to get regularization in service since W.P.(C). No.39418 of 2015 6 petitioner was not in service as on the date of Ext.P13 order. It is also contended by the counsel that petitioner has not approached the 2[nd] respondent to re-employ the petitioner or there was any information given to the 2[nd] respondent with respect to the illness suffered by the petitioner and therefore, petitioner cannot at this distance of time make any claim with respect to continuity in service during the period of illness. 9. Having considered the rival submissions made across the Bar and on perusal of the pleadings and evaluation of the facts and circumstances, I am of the considered opinion that even according to the petitioner, he left the service in the year 2009. No where petitioner has a case that he has approached the authority after 2009 and before Ext.P7 representation submitted on 23.3.2013 stating that he was undergoing treatment. Petitioner has also not approached the 2[nd] respondent seeking re-employment with the 2[nd] respondent. It is true in Ext.P7 petitioner has produced several medical records in order to establish that petitioner W.P.(C). No.39418 of 2015 7 was undergoing treatment. However learned counsel for the respondent Corporation has submitted that the regularization can be done strictly in accordance with Ext.P13 Government Order. Learned counsel has invited my attention to clause 5 of Ext.P13 which read thus: “Those employees who are continuing in Kerala State Road Transport Corporation as on the date of this order and those who have not attained the age of superannuation alone will be considered for regularisation as per this order.” 10. Going by the said clause it can be seen that the benefit of the order will be available to those employees who are continuing in service of the 2[nd] respondent Corporation on the date of the said order and those who have not attained the age of superannuation. Even though petitioner has claimed the benefit of Ext.P13 there is no case for the petitioner that clause 5 of Ext.P13 order is illegal, irrational or bad in any manner. Therefore, petitioner is bound by clause 5 of Ext.P13 and therefore, in my considered opinion, petitioner cannot at W.P.(C). No.39418 of 2015 8 this distance of time claim regularization with the 2[nd] respondent. That apart, according to the petitioner, petitioner has not approached the 2[nd] respondent ever, since 2009 till the year 2013 when he filed Ext.P17 representation. Petitioner has invited my attention to the judgment of this court in W.P.(C) No.25408/2013 dated 18.10.2013 and contended that petitioner is entitled to get similar treatment. However, on a reading of the said judgment, what I could gather is that petitioner in the said writ petition left the Corporation on 12.6.2011 on medical grounds. He was readmitted to duty w.e.f. 18.02.2012. The factual circumstances available in the said judgment is different from the contentions raised by the petitioner in the present writ petition. 11. So also learned counsel for the petitioner has invited my attention to the order in R.P.No.1033/2013 in the aforesaid writ petition and contended that the issue was considered elaborately in the review petition filed by the 2[nd] W.P.(C). No.39418 of 2015 9 respondent before this court and contended that in the said review order, this court has held that if an employee has 10 years of service, the employee is entitled to get the benefit of notification dated 22.12.2011. But however on a reading of the said review order also, I find that this court was considering the question with respect to an employee who was re-engaged after illness. Therefore, in my considered opinion petitioner is not entitled to get the benefit of principles of law laid down by this court, in the said review order also. Learned counsel for the petitioner vehemently contended that petitioner is also entitled to get the benefit of the principles of law laid down by this court in **Suresh Kumar v. State of Kerala** [2013 (2) KLT 258]. There the sole question considered was whether a person who has completed 10 years of service was entitled to regularization irrespective of 120 days duty per year. It is true that this court in the judgment in **Suresh Kumar** (supra) held that 10 years service alone is required and 120 days duties per year is W.P.(C). No.39418 of 2015 10 not a criteria for considering the benefit under the Government Order. Therefore, the said finding with respect to 120 duty per year is not sustainable. Therefore, the facts of the said case has no bearing at all to the facts and circumstances involved in the present writ petition. Learned counsel for the petitioner has also invited my attention to the judgment of the Apex Court in **Union of India and another v. Kartick Chandra Mondal and another** reported in [(2010) 2 SCC 422]. But I find that there the question considered was with respect to irregular appointees, casual workers etc. etc. Therefore, in my view, same has no bearing with respect to the facts, law and circumstances involved in the writ petition. Taking into account the entire facts and circumstances and the law involved, I am of the considered opinion that petitioner has not made out a case in order to secure the relief sought for in the writ petition by setting aside Ext.P8 order passed by the 2[nd] respondent. Moreover, I do not find any illegality, W.P.(C). No.39418 of 2015 11 irrationality or other legal infirmities warranting interference in Ext.P8 order passed by the 2[nd] respondent, by exercising the power of judicial review. 12. True, Ext.P8 passed by the 2[nd] respondent dated 9.9.2013 overlooking the directions contained in the judgment in **Suresh Kumar** (supra) that 120 duties per year is not a criteria for consideration for regularization. But even if the said aspect is taken into consideration, petitioner is not entitled to succeed for the reason that petitioner was not in service on the date of Ext.P13 order or thereafter. Resultantly, writ petition fails and accordingly the same is dismissed. smv 14.06.2016