N.R.VIJAYAN v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 25TH AUGUST 2008 / 3RD BHADRA 1930 WP(C).No. 26799 of 2003(M) -------------------------- PETITIONER: ------------ N.R.VIJAYAN, NATTUVETTY HOUSE, KIZHUPPULLIKKARA P.O., THRISSUR DISTRICT 680 704. BY ADV. SRI.ASOK M.CHERIAN RESPONDENTS: - ------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LABOUR AND REHABILITION - (F) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 2. THE DIRECTOR, INSURANCE MEDICAL SERVICES THIRUVANANTHAPURAM 3. THE SUPERINTENDENT, - E.S.I HOSPITAL, OLARIKKARA. BY GOVERNMENT PLEADER T.B.REMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26799 of 2003 ## **APPENDIX** ## PETITIONER'S EXHIBITS - EXT.P1A TRUE COPY OF THE JUDGMENT OF THE HONOURABLE HIGH COURT IN O.P.2499 OF 1981 DATED 24.11.92 - EXT.P2A TRUE COPY OF THE CIRCULAR ISSUED BY THE PERSONNEL AND ADMINISTRATIVE REFORMS (ADVISE C) DEPARTMENT OF GOVERNMENT OF KERALA DATED 9.3.95 - EXT.P3A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 18.6.97. - EXT.P4A TRUE COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT TO ALL HEADS OF DEPARTMENTS DATED 17.3.98 - EXT.P5A TRUE COPY OF THE LETTER OF THE 1ST RESPONDENT ADDRESSED TO THE 2ND RESPONDENT DATED 25.4.98 - EXT.P6A TRUE COPY OF THE LETTER OF THE 2ND REPSONDENT DATED 25.9.01 ADDRESSED TO THE 3RD RESPONDENT AS FORWARDED TO THE PETITIONER BY THE 3RD RESPONDENT - EXT.P7A TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 30.9.01 TERMINATING THE SERVICES OF THE PETITIONER ON HIS COMPLETING 55 YEARS OF AGE. - EXT.P8A TRUE COPY OF THE CIRCULAR ISSUED BY THE 1ST RESPONDENT DATED 15.6.93 - EXT.P9A TRUE COPY OF THEJUDGMENT OF THE HONOURABLE HIGH COURT OF KERALA IN O.P.32781 OF 2001 DATED 24.9.02 - EXT.P10A TRUE COPY OF THE REPRESENTATION DTED 23.10.02 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT - EXT.P11A TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT DATED 7.5.03 CALLING UPON THE PETITIONER TO APPEAR FOR THE PERSONAL HEARING. - EXT.P12A TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 4.8.03. (TRUE COPY) P.A TO JUDGE ## **P.N.RAVINDRAN, J** ------------------- ## W.P.(C).26799/2003 -------------------Dated this the 25[th] day of August, 2008 ## **JUDGMENT** The petitioner was appointed as Electrician on a provisional basis in the ESI Hospital at Olarikkara in Thrissur district. At the time of appointment as Electrician on provisional basis, the petitioner had passed the S.S.L.C examination and also possessed a diploma in Electrical Engineering. The petitioner’s initial engagement was for a period of 89 days. However, his engagement was being extended from time to time. When steps were taken to terminate his service, he filed O.P.No.2499 of 1981 in this Court. By Ext.P1 judgment delivered on 24.11.1982 following the decision in ## **Umayammal v. State of Kerala (1982 KLT 829),** this Court held that the petitioner’s service can be terminated only in accordance with the provisions of the Industrial Disputes Act, 1947, subject to his being replaced by a regular hand. The Government thereafter amended the Kerala Public Services Act, 1968, by introducing Section 4 which provided that W.P.(C).26799/2003 2 notwithstanding anything contained in Chapter VA or in any other provision of the Industrial Disputes Act or in any other law for the time being in force or in any judgment, decree or order of any Court, the appointment of any person to any public service or post in connection with the affairs of the State of Kerala and the conditions of service including the termination of service of any person appointed to any such service or post shall be governed by the provisions of the Kerala Public Services Act, 1968 and the rules made or deemed to have been made thereunder. Ext.P1 judgment thus ceased to any efficacy. The petitioner however continued in service even thereafter. The Government thereafter issued Ext.P2 circular dated 9.3.1995 to the effect that as the Government is considering the question of regularizing provisional employees who have been continuing in service for a long time, provisional employees who have been appointed in public service before 1.11.1987 will be allowed to continue in the post held by them until further orders, on a provisional basis. W.P.(C).26799/2003 3 The petitioner was entitled to the benefit of Ext.P2 circular. There upon he submitted Ext.P3 representation to the Secretary to Government, Personel & Administrative Reforms Department, seeking regularization. While the said representation was pending, the State Government issued Ext.P4 circular dated 17.3.1998 to all Heads of Departments seeking details of all provisional employees in public service who have completed a minimum period of three years service as on 1.11.1997 and are continuing in service. There upon, the Superintendent of ESI Hospital, Olarikkara, where the petitioner was working, forwarded the service details of the petitioner to the Government. The Government by Ext.P5 letter dated 25.4.1998, informed the second respondent that till a final decision is taken in the matter, the petitioner may be continued in service. The second respondent thereafter, informed the third respondent of the said development. While the matters stood thus, the petitioner attained the age of superannuation and thereupon, his service was W.P.(C).26799/2003 4 terminated with effect from 30.9.2001. Since the petitioner did not get retirement benefits though he had served for more than 21 years in a sanctioned post in Government service, he filed O.P.32781 of 2001 in this Court. The respondents resisted the writ petition contending that in view of G.O.(P).No.39/2002/P&ARD dated 26.8.2002, the petitioner cannot claim regularization but can only continue in service till he attains the age of superannuation. Notwithstanding that objection, this Court by Ext.P9 judgment delivered on 24.9.2002, directed the Government to consider the claim of the petitioner for regularization in service for the limited purpose of granting him pensionery benefits. The petitioner there upon submitted Ext.P10 representation enclosing a copy of Ext.P9 judgment. In Ext.P10, petitioner requested the Government to regularize his services invoking Rule 39 of Part-II of the K.S. & S.S.R. On the petitioner’s request contained in Ext.P10, he was heard by the Joint Secretary to Government, Labour Department. Thereafter Ext.P12 W.P.(C).26799/2003 5 order was passed on 4.8.2003 turning down the petitioner's request on the short ground that G.O.(P). No.39/2002/P&ARD dated 26.8.2002 does not contemplate regularization of his service. Ext.P12 is under challenge in this writ petition. 2. I have heard Sri. Asok M.Cherian, the learned counsel appearing for the petitioner and Smt.M.R.Sreelatha, the learned Senior Government Pleader appearing for the respondents. The learned counsel for the petitioner contended that the reliance placed on G.O.(P).No.39/2002/P&ARD dated 26.8.2002 to deny regularization is patently illegal and arbitrary. The learned counsel for the petitioner contended that though this Court had in Ext.P9 judgment held that the Government order dated 26.8.2002 does not permit regularization, as the petitioner’s case is covered by Ext.P2 circular dated 9.3.1995, his claim for regularization deserves to be considered for the limited purpose of grant of pensionery benefits. The learned W.P.(C).26799/2003 6 counsel for the petitioner also relied on the observations contained in paragraph 53 of the decision of the Apex Court in **Secretary of State, State of Karnataka v. M.S.Umadevi (2006 (4) SCC 1)** to contend that as the petitioner’s appointment was not illegal, and as he possessed the requisite qualifications prescribed for the post and had continuously worked since 1981 till his service was terminated on 30.9.2001 on attaining the age of superannuation, he is entitled to have his service regularized. The learned Senior Government Pleader appearing for the respondents, on the other hand, relying on G.O.(P).No.39/2002/P&ARD dated 26.8.2002 contended that the petitioner had no right to be regularized in service and had only the right to continue in service till he attained the age of superannuation. 3. I have considered the submissions made at the Bar by the learned counsel appearing on either side. It is evident from Ext.P9 judgment that this Court had W.P.(C).26799/2003 7 directed the Government to consider the petitioner’s claim for regularization for the limited purpose of granting him pensionery benefits. By Ext.P12, petitioner’s claim for regularization was rejected on the short ground that the Government order dated 26.8.2002 does not contemplate regularization of service but only continuance in service till the provisional employee attains the age of superannuation. The respondents who are parties to Ext.P9 judgment are bound by the directions issued therein. It was not open to the respondents to rely on the Government Order dated 26.8.2002 to deny the petitioner the benefit of regularization at least for the limited purpose of granting him pensionery benefits. The Apex Court has, in **Umadevi,** noticed that a temporary employee who has been in service for long number of years is entitled to regularization in service if his appointment was only irregular and not illegal, provided he possesses the qualifications prescribed for the post. In the instant case, it is not in dispute that the petitioner was W.P.(C).26799/2003 8 appointed through the District Employment Exchange as an Electrician. It is also not in dispute that when he was appointed, he possessed the qualifications prescribed for the post. Therefore, the petitioner’s appointment cannot be said to be illegal. The petitioner continued in service without break from 28.6.1980 till 30.9.2001. In such circumstances, I am of the opinion that the Government ought to have exercised the power available to it under Rule 39 of Part-II of the K.S. & S.S.R and regularized the service of the petitioner for the limited purpose of granting him pensionery benefits. It is evident from Ext.P12 that the Government have not bestowed serious attention to the directions issued by this Court in Ext.P9 judgment, when it passed Ext.P12. 4. For the reasons aforesaid, I quash Ext.P12 and direct the first respondent to consider the request made by the petitioner in Ext.P10 afresh in the light of the directions issued by this Court in Ext.P9 judgment and by the Apex Court in **Umadevi** (supra). This shall be done W.P.(C).26799/2003 9 within three months from the date on which the petitioner produces a certified copy of this judgment. Needless to say that the petitioner shall also be heard in person before revised orders are passed in the matter. If the Government decides to regularize the service of the petitioner for the purpose of granting him pensionery benefits, the pensionery benefits shall be fixed and disbursed to him within a period of three months from the date on which revised orders are passed on Ext.P10. ## **P.N.RAVINDRAN, Judge** mrcs