State of Kerala represented by Secretary to Government, Department of Labour and Rehabilitation, Thiruvananthapuram, and The Director of Insurance Medical Services v Aminath P.K.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 13TH DAY OF FEBRUARY 2020 / 24TH MAGHA, 1941** **OP(KAT).No.211 OF 2019** **AGAINST THE ORDER IN OA NO.1689/2016 DATED 06-03-2018 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS 1 & 2:** **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF LABOUR AND REHABILITATION, SECRETARIAT, THIRUVANANTHAPURAM, KERALA-695001. 2 THE DIRECTOR OF INSURANCE MEDICAL SERVICES, DIRECTORATE OF INSURANCE MEDICAL SERVICE, THIRUVANANTHAPURAM, KERALA-695014. BY SR.G.P. SRI.T.RAJASEKHARAN NAIR** ## **RESPONDENT/APPLICANT:** **AMINATH.P.K., AGED 53 YEARS, W/O. DR.A. SHAJAHAN, PHARMACIST GR.II, E.S.I DISPENSARY, KULASEKHARAPURAM, KARUNAGAPPALLY, KOLLAM-690544, RESIDING AT PALLARSSERIL, KULASHEKARAPPURAM, KARUNAGAPPALLY, KOLLAM-690544.** **R1 BY ADV. SRI.KALEESWARAM RAJ R1 BY ADV. SRI.VARUN C.VIJAY R1 BY ADV. KUM.A.ARUNA R1 BY ADV. SMT.RIYA RAYMOL IYPE R1 BY ADV. SMT.MAITREYI SACHIDANANDA HEGDE R1 BY ADV. KUM.THULASI K. RAJ** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 13-02-2020, THE COURT ON 13-02-2020 DELIVERED THE FOLLOWING:** OP(KAT).No.211 OF 2019 2 ## **JUDGMENT** ## **K. Vinod Chandran, J.** **The petitioner State, challenges the order of the Tribunal, granting regularization to the applicant/respondent, from 01.07.1995 onwards, from which date she was allegedly continued uninterruptedly. The Tribunal also relied on the judgment of the Division Bench of this Court in** _**Laila T.M. and Others v. State of Kerala and Others (2014 (3) KLT 754]**_ **to allow regularization from an earlier date, only for the purpose of enabling the applicant to get at least minimum pension. The Tribunal directed that the applicant's provisional service as Pharmacist Grade-II in the Medical Insurance service be reckoned for the purpose of qualifying service for pension.** ## **2. The learned Government Pleader submits** **that no such regularization can be granted,** OP(KAT).No.211 OF 2019 3 **especially since the applicants long continuance was on the basis of the orders of this Court. The learned Counsel for the respondent points out that the applicant's case is a solitary case and the Tribunal has specifically found that it does not give rise to any apprehension of opening the floodgates of litigation. It is also pointed out that even without a Court order, the Government had extended her provisional service as per Ext.R1(b) dated 09.10.2002. In such circumstances, she was entitled to regularisation at least from that date, which, the learned Counsel says, can be notional so as to permit her to draw pension after reckoning the service from at least 2002 onwards; when Exhibit R1(b) was issued.** **3. The facts of the applicant's case are relevant in consideration of whether the applicant can be permitted regularization from a prior date. The applicant states that even prior to 1995, she had been appointed on various spells as a** OP(KAT).No.211 OF 2019 4 **Pharmacist Grade-II; which is not substantiated. We also have to notice that the claim of the applicant is only from 01.07.1995, from which date she had been continued in the post of Pharmacist Grade-II. We called for the Judges Papers of the Original Petitions she filed earlier since the State asserts that she was continued only on the basis of the orders issued by this Court. We see from the records that after her appointment, provisionally, she approached this Court with O.P 8950 of 1995, claiming that she is entitled to the benefit of a Circular dated 09.03.1995 which was issued for regularisation of provisional employees. This Court directed consideration of her representation as per judgment dated 13.06.1995. Later however a termination order was issued, which was challenged in O.P. No.15454 of 1995 seeking consideration of the representation as per the earlier judgment and continuance till then. An interim order was passed on 29.09.1995 allowing the** OP(KAT).No.211 OF 2019 5 **applicant to continue in the post of Pharmacist Grade-II in the ESI Hospital, Mynagappalli till her representation dated 22.08.1995 is disposed of. Obviously, she continued on the basis of the same. Subsequently by Annexure R1(a) she was permitted to be continued provisionally, but her application for regularisation, stood declined. A further termination by Annexure R1(b) was challenged in O.P. No.9710 of 1998, and she was directed to be continued as per order dated 29.05.1998. Hence it cannot be said that the continuance was for reason of the Government having decided to continue her provisionally.** **4. Later, while she was so continued, Ext.R1(b) was passed in the year 2002. By virtue of the said order, the applicant on 08.11.2002, on the basis of such provisional continuance, withdrew O.P. No.9710 of 1998. Later in the year 2004, O.P. No.15454 of 1995 was also withdrawn. Essentially by the withdrawal of the original petitions, the** OP(KAT).No.211 OF 2019 6 **applicant waived her right, if any, to claim regularization. Ext. R1(b) specifically referred to Ext. R1(a) order; which was issue specific and unequivocally spoke of no regularization being possible and continuance on provisional basis.** **5. Ext.R1(a) was with respect to regularization of provisional hands as had been directed in W.A. No.105 of 2001. When the Government initiated collection of data of the provisional, temporary and contractual employees for the purpose of regularization, there was a writ petition filed in which observations were made against the proposal to regularize provisional hands. An appeal was filed in which this Court permitted the Government to proceed with the matter and finalize it. The Government then decided not to regularize those provisional hands continuing in service as per Government Circulars of 1995 and 1998 and decided to consider only continuance of their provisional service on a case to case basis,** OP(KAT).No.211 OF 2019 7 ## **as herein below:** _**“Government have examined the matter in detail and are pleased to order that the services of the provisional employees continuing in service as per the Circular No.9516/Adv. C1/92/P&ARD dated 9-3-1995 and Government letter No.9516/Adv. C1/92/P&ARD dated 17-3-1998 will not be regularised. It is also ordered that each case of the provisional employees continuing in service as per the Circular No.9516/Adv. C1/92/P&ARD dated 9-3-1995 will be examined and those deserving exceptional consideration on humanitarian grounds may be permitted to continue in service purely on a provisional basis, invoking Rule 39 of the Kerala State and Subordinate Service Rules without regularising their services. The concerned Administrative Departments will take necessary further action in the matter accordingly.”**_ **6. The applicant obviously was continued on provisional basis on humanitarian grounds. Here we have to notice that her claim for reguarisation in the year 1995 was based on the above referred Circular of 09.03.1995, which though not applicable** OP(KAT).No.211 OF 2019 8 **in her case she was permitted by Annexure R1(a) [produced in the O.A.] to continue provisionally, only by reason of this Courts direction. Annexure R1(a) specifically indicated that her continuance will not give rise to a claim for regularisation. Later when she was sought to be terminated by Annexure R1(b) [produced in the O.A.] in 1998 there was a stay granted in the writ petition filed, on the basis of which she continued, till Exhibit R1(b) [produced in the O.P.] order was issued. The specific prayer made in the O.P of 1998 was a direction to forward the name of the petitioner as per the Circular of 09.03.95 and the ground raised was that she had completed the period of seven years provisional service, as required in the said Circular, for regularisation. The applicant by the withdrawal of the O.P acquiesced to continuance on provisional basis and there could be no claim of retrospective regularisation made, thereafter.** **7. The applicant while thus continuing in** OP(KAT).No.211 OF 2019 9 **provisional service again approached the Government with a representation based on** _**State of Karnataka Vs. Umadevi AIR 2006 SC 1806**_ **which was rejected. However on further representation dated 20.06.2011,** **Government granted her regularization on 27.03.2012, prospectively.** **8. We notice that** _**Laila**_ **[supra] was a case in which after six months training, the writ petitioners were appointed as provisional Leprosy Inspectors on a temporary basis for a period of ten years, which temporary service they had undertaken to discharge. Having completed 45 years of age, they sought for regularisation, which was then granted, but not reckoning the temporary service, which by that time extended over two decades. It was in such circumstances that the Division Bench directed their regularization, especially noticing that there was a Leprosy Eradication Programme, initiated by the Central Government and the staff for that programme was to be appointed through** OP(KAT).No.211 OF 2019 10 **Public Service Commission on condition that they would be integrated with General Health staff as and when the Government of India winds up the programme. The programme was also found to be one intented to ensure sustained integrated high quality leprosy services, rather than mere elimination. There too the lerned Single Judge had found acquiescence to reject the claim of regularisation which the Division Bench reversed finding that there was a concerted attempt by the provisional hands over a period, for regularisation and when regularisation orders were passed they had immediately contested the condition of non reckoning of their earlier service. The case of the applicant, stand distinct and different in so far as her acquiescence is concerned.** **9. The applicant, though had been appointed on a provisional basis, was attempted to be terminated twice, in the year of her first appointment and then after three years. On both** OP(KAT).No.211 OF 2019 11 **occasions the applicant approached this Court and got interim orders for continuance. Later the writ petitions were withdrawn, since the Government had decided to provisionally continue her in service. While she was so continued she made a representation based on** _**Umadevi**_ **which stood rejected, which was never challenged. It was only later in the year 2011, nine years after Annexure R1(b), the petitioner made a request for regularisation, which was considered and herself regularised as per Ext.P1.** **10. The petitioner accepted such** **regularisation and filed an Original Application in 2014, for reckoning her past provisional service, in which there was a consideration directed, later declined by the Government. It is the challenge against that order which stood allowed by the Tribunal in the impugned order. We find that the applicant's continued service was not on account of the Government having continued her provisionally** OP(KAT).No.211 OF 2019 12 **for long, but more on account of the applicant having approached this Court and obtained orders for continuance, which later was agreed to be continued only on a provisional basis as per Ext.R1(b). A further claim for regularization also stood declined and then the present order at Annexure A1, which was prospective. We are of the opinion that the petitioner cannot have any case for regularization of her services from 2002 [Exhibit R1(b)], since it was specifically in lieu of regularization.** **We hence set aside the order of the Tribunal and allow the original petition. Parties shall suffer their respective costs.** ## **Sd/-** **K. VINOD CHANDRAN, JUDGE. Sd/-** ## **P.V. KUNHIKRISHNAN, JUDGE.** //True Copy// P.A. To Judge **sp/13/02/2020** OP(KAT).No.211 OF 2019 13 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE OA ALONG WITH ANNEXURES. EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE 1ST PETITIONER HEREIN WITH ANNEXURES.** **EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BEHALF OF THE 2ND PETITIONER HEREIN. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 06.03.2018. RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1 A TRUE COPY OF G.O.(P)NO.39/2002 P & ARD DATED 26.08.2002 EXHIBIT R1 B TRUE COPY OF THE LETTER DATED 09.10.2002.**