NADIRA S v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM FRIDAY, THE 26[TH] DAY OF NOVEMBER 2021 / 5TH AGRAHAYANA, 1943 OP(KAT) NO. 315 OF 2021** **AGAINST THE ORDER DATED 13.1.2021 IN TA 2009/2012 OF KERALA** ## **ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER:** NADIRA S, AGED 55 YEARS, W/O SHAHUL HAMEED, FORMERLY EMPLOYED AS AYAH NURSERY SCHOOL, ALAPPUZHA, RESIDING AT MALIKA PADEETTATHIL, CHERAVALLY, KAYAMKULAM P.O, ALAPPUZHA DISTRICT. BY ADVS. R.RAJASEKHARAN PILLAI SABINA JAYAN ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY SECRETARY, EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE DISTRICT COLLECTOR, ALAPPUZHA, CIVIL STATION WARD, ALAPPUZHA, KERALA-688001. 3 THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA-688001. ## **OTHER PRESENT:** SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 18.11.2021, THE COURT ON 26.11.2021 DELIVERED THE FOLLOWING: OP(KAT)No.315 of 2021 2 ## **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.** ================================================== ## **O.P (KAT) No.315 of 2021** [ _arising out of the impugned final order dated 13.01.2021 in T.A.No.2009/2012 of the KAT, TVM_ ] ## **===================================** Dated this the 26[th] day of November, 2021 ## **JUDGMENT** ## **Viju Abraham, J.** The above original petition is filed by the applicant in T.A.No.2009 of 2012 aggrieved by the order dated 13.1.2021 issued by the Kerala Administrative Tribunal, Thiruvananthapuram dismissing the same. 2. As averred in the original petition, the petitioner has passed the 7[th] Standard and belongs to the OBC community, and is having 40% physical disability as evidenced by Ext.P1 certificate issued by the Medical Board, attached to the Medical College Hospital, Alappuzha. The petitioner was sponsored by the Employment Exchange along with others for appointment as 'Ayah' and was appointed at Government Nursery School, Alappuzha as per order dated 13.6.1996. Apprehending termination from service, she approached this Court by filing O.P.No.18290 of 1996 and sought regularisation of service. 3. The said writ petition was disposed of by directing the 3rd ## **O.P (KAT) No.315 of 2021 3** respondent to consider the request of the petitioner for regularisation. However, the 3[rd] respondent as per order dated 26.12.1996 declined the request for regularisation of the petitioner’s service and on 1.1.1997 the 3[rd] respondent instructed the Asst. Education Officer, Alappuzha to terminate the service of the petitioner as the period of provisional employment had already expired. On 1.1.1997 the Asst. Educational Officer, Alappuzha as per Ext.P7 order removed the petitioner from service from the forenoon of 1.7.1997. In the meanwhile, the 1st respondent issued Ext.P2 Government Order, GO(P) No.32/98/P&ARD dated 28.9.1998 wherein orders were issued in connection with the Golden Jubilee of India's independence in the matter on regularisation of services of physically handicapped provisional (temporary) employees, who were engaged in service during the period from 1.1.1997 to 31.1.1997. Thereupon, the petitioner approached this Court again filing O.P.No.18408 of 1998, and this Court by Ext.P3 judgment directed the 3[rd] respondent to consider the claim of the petitioner for the appointment. Pursuant to the said direction the request of the petitioner was declined by the 3[rd] respondent as per Ext.P4 order. The said order of rejection was challenged in O.P.No.17742 of 2000, but this Court declined to interfere in the matter, and thereupon, an appeal was preferred as Writ Appeal No.1655 of 2000 and the said appeal was ## **O.P (KAT) No.315 of 2021 4** disposed of as per Ext.P5 judgment dated 26.9.2000 relegating the petitioner to approach the Government by filing a revision. In obedience to the said direction, a representation was submitted by the petitioner before the Government, which was ultimately rejected as per Ext.P6 order. It is challenging the same, the petitioner preferred O.P.No.29817 of 2002, which on the formation of the Kerala Administrative Tribunal was transferred to the Principal Bench at Thiruvananthapuram and renumbered as T.A.No.2009 of 2012. The Tribunal after considering the rival contentions rejected the request of the petitioner for regularization as per Ext.P3 order dated 13.1.2021 holding that the petitioner is not entitled to the benefit of Ext.P2 Government order as she was not in service as on 1.1.1997. It is challenging the said verdict of the Kerala Administrative Tribunal dated 13.1.2020 in T.A.No.2009 of 2012 that the present original petition is filed. 4. The contention of the petitioner is for continuance in service on the strength of Ext.P2 Government order GO(P) No.32/98/P&ARD dated 28.9.1998. Ext.P2 Government Order dated 28.9.1998 reads as follows:- ## “ _GOVERNMENT OF KERALA Abstract_ _Public services-physically handicapped provisional employees who were in service during the period from 1.1.1997 to 31.12.1997 -reappointment and continuance in service-instructions issued._ _PERSONAL AND ADMINISTRATIVE REFORMS (ADVICE (C) DEPARTMENT_ ## **O.P (KAT) No.315 of 2021 5** _G.O.(P) No.32/98/P & ARD Dated, Trivandrum 28.9.98_ _=========================================_ ## _O R D E R_ _THE question of regularising the services of the physically handicapped provisional (temporary) employees who were engaged in service during the period from 1.1.97 to 31.12.1997 has been engaging the attention of Govt. in connection with the Golden Jubilee of India's independence pending final decision in consultation with the Kerala Public Service Commission the following instructions are issued in the matter_ _1. The physically handicapped provisional (temporary) employees who were engaged in public service through the employment exchange under Rule 9(a)(i) of the KS &SSR less at any item during the period from 1.1.97 to 1.12.1997 and who are still continuing in service on a purely provisional basis until further orders_ _2. The physically handicapped (temporary) employee who were engaged in public service through the employment exchange under Rule 9(a)(i) of the Kerala State and Subordinate Service rules, 1958 during the period from 1.1.97 to 31.12.1997 and ousted from service (on completion of 180 days of service) or on account of the expiry of vacancies consequent on joining duty of nominees of PSC or for other reasons will be reappointed on a purely provisional basis and allowed to continue until further orders_ _3. The reappointment of the retrenched physically handicapped persons mentioned in sub para(ii) above will be in the same department and against the same category of posts._ _4. In case the retrenched persons as mentioned in sub para (I) above had worked in more than one department during the period from 1.1.97 to 31.12.97 the reappointment will be in the department where he/she had worked last_ - _By order of the Governor_ ## _Sd/-_ ## _M.MOHANKUMAR_ _Chief Secretary to Government”_ 5. The question for consideration in this Original Petition is as to whether the petitioner was in service during the period from 1.1.1997 to 1.12.1997 to make her eligible for the benefit of Ext.P2 Government order. Admittedly, the applicant was engaged on a provisional basis, which is for 180 days as per Rule 9(a)(i) of Part II of KS & SSR by order ## **O.P (KAT) No.315 of 2021 6** dated 31.5.1996 and the said 180 days was completed as on 1.12.1996. But the applicant continued on the strength of interim order issued by this Court and was relieved from service on the forenoon of 1.1.1997. Since the petitioner was relieved from service on the forenoon of 1.1.1997 she cannot claim that she was in service as on a 1.1.1997. A perusal of Ext.P7 order would clearly show that the petitioner was removed from service from forenoon of 1.1.1997. Ext.P4 order issued by the 3rd respondent will also prove that petitioner was removed from service from forenoon of 1.1.1997 and the emoluments due till 31.12.1997 are disbursed to her. To get the benefit of re-appointment on the strength of Ext.P2 Government Order the physically handicapped employees should be in service during the period from 1.1.1997 to 31.12.1997 and ousted on completed 180 days of service. Admittedly the applicant was relieved from forenoon of 1.1.1997 and the emoluments till 31.12.1997 have been paid and therefore petitioner cannot claim that she was in service as on 1.1.1997. Petitioner placed reliance on the decision of the Apex Court in _**Prabhu Dayal v. State of Rajasthan and another** [(1986) 4 SCC 59]_ to contend that she should be treated to have been in service as on 1.1.1997. The said decision will not apply to the facts and circumstances of this case in as much as in that case the Apex Court was considering the question as to the date on which one ## **O.P (KAT) No.315 of 2021 7** would complete or would attain a certain age in a matter regarding direct recruitment to Rajasthan Administrative Service and held that while calculating the person’s age, the date of his birth must be counted as a whole day and he attains the specific age on the day preceding the anniversary of his birthday and held that a legal day commences at midnight and continues until the same hour in the following night. But the question to be considered in this original petition is as to whether the petitioner was actually in service as on 1.1.1997 to claim the benefit of Ext.P2 Government Order. Admittedly, the petitioner was relieved from service on the forenoon of 1.1.1997 and had not worked on the said date. Therefore, the petitioner cannot claim the benefit of Ext.P2 Government Order in as much as she was not in service as on 1.1.1997. In view of the above, we do not find any reason to interfere with the order passed by the Tribunal on 13.1.2021 in T.A. No.2009 of 2012, and accordingly the original petition is dismissed. sd/- ## **ALEXANDER THOMAS, JUDGE** sd/- ## **VIJU ABRAHAM, JUDGE** pm **O.P (KAT) No.315 of 2021 8** ## **APPENDIX OF OP(KAT) 315/2021** ## **PETITIONER'S EXHIBITS** |Exhibit P1|TRUE COPY OF TA NO.2009/2012 FILED BY THE| |---|---| ||PETITIONER (AS WPC(C)/OP NO.29817/2003| ||BEFORE THE HON'BLE HIGH COURT OF KERALA)| ||BEFORE THE KAT.| |Exhibit P1|TRUE COPY OF THE CERTIFICATE DATED| ||9.5.1991 SHOWING THE DISABILITY OF THE| ||PETITIONER ISSUED BY THE MEDICAL BOARD| ||ALAPPUZHA.| |Exhibit P2|TRUE COPY OF THE ORDER NO.G.O (P)| ||32/98/P&ARD DATED 28.09.98 ISSUED BY THE| ||1ST RESPONDENT.| |Exhibit P3|TRUE COPY OF THE JUDGMENT DATED| ||18.02.2000 IN OP NO.18048/98 OF THIS| ||HON'BLE COURT.| |Exhibit P4|TRUE COPY OF THE ORDER NO.A4/25991/99| ||DATED 7.6.2000 ISSUED BY THE 3RD| ||RESPONDENT TO THE PETITIONER.| |Exhibit P5|TRUE COPY OF THE JUDGMENT DATED| ||26.09.2000 IN WA NO.1655/2000 OF THIS| ||HON'BLE COURT.| |Exhibit P6|TRUE COPY OF THE ORDER NO.GO(RT)| ||NO.2354/03 DATED 23.06.2003 OF THE 1ST| ||RESPONDENT.| |Exhibit P7|TRUE COPY OF THE RELIEVING ORDER OF THE| ||PETITIONER DATED 1.1.1997.| |Exhibit P2|TRUE COPY OF THE REPLY STATEMENT FILED BY| ||THE 3RD RESPONDENT IN T A NO.2009/2012.| |Exhibit P3|TRUE COPY OF THE ORDER DATED 13.01.2021| **O.P (KAT) No.315 of 2021 9** IN T A NO.2009/2012 OF THE KERALA ADMINISTRATIVE TRIBUNAL. RESPONDENTS' EXHIBITS: NIL