V. Damodaran Nair v. Kerala State Road Transport Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **THURSDAY, THE 24TH DAY OF OCTOBER 2013/2ND KARTHIKA, 1935** ## **WP(C).No. 25865 of 2010 (G)** **----------------------------------------** ## **PETITIONER(S):** **----------------------** **V.DAMODARAN NAIR, S.S. NIVAS, MADAMPARA, NARUVAMOODU PO, THIRUVANANTHAPURAM DISTRICT (GARAGE MAZDOOR CHIEF OFFICE RETIRED ON 31-03.2010).** **BY ADVS.SRI.N.SASIDHARAN UNNITHAN SRI.K.P.RAJEEVAN** **RESPONDENT(S):** - **--------------------------** **1. KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY THE MANAGING DIRECTOR, KSRTC, TRANSPORT BHAVAN, FORT PO, THIRUVANANTHAPURAM 695 023.** **2. PERSONAL OFFICER (PENSION) KSRTC, TRANSPORT BHAVAN, FORT PO, THIRUVANANTHAPURAM 695 023.** **3. DEPUTY CHIEF ACCOUNTS OFFICER (P&A) KSRTC, TRANSPORT BHAVAN, FORT PO, THIRUVANANTHAPURAM 695 023.** **,R1-3 BY ADV. SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 25865 of 2010 (G)** **----------------------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS** **EXT.P1: COPY OF G.O.(MS) NO.5/2001/TRAN. DATED 15/2/2001.** **EXT.P2: COPY OF ORDER NO.PA2/001682/10 DATED 31/3/2010 OF THE 2ND RESPONDENT.** **EXT.P3: COPY OF THE PENSION PAYMENT ORDER NO.42898 ISSUED TO THE PETITIONER.** **EXT.P4: COPY OF ORDER NO.PA2/001682/10 DATED 5/8/2010 OF THE 3RD RESPONDENT.** **ADDL.EXT.P5: A TRUE COPY OF THE CLAUSE XXXI OF THE BILATERAL AGREEMENT DATED 28/11/2008.** **EXT.P6: COPY OF MEMORANDUM DATED 19/2/2001 ISSUED BY THE 1ST RESPONDENT.** **EXT.P7: COPY OF MEMORANDUM DATED 20/2/2001 ISSUED BY THE MECHANNICAL ENGINEER, CENTRAL WORKS APPOINTING THE PETITIONER AS GARAGE MAZDOOR.** ## **RESPONDENTS' EXHIBITS** **NIL.** **/ TRUE COPY /** ## **P.S.S TO JUDGE** **PJ** ## C.K.ABDUL REHIM,J. ------------------------------WP(C).NO. 25865 of 2010 --------------------------------Dated this the 24th day of October, 2013 ## JUDGMENT The petitioner is a retired employee of the 1[st] respondent Corporation. Challenge is against Ext.P4 order through which pension already admitted and disbursed to him was withdrawn. 2. The petitioner entered service as a casual labourer in February 1982. He had a lengthy service of about more than 15 years as a casual worker. By virtue of Ext.P1 order the State Government had accorded sanction to the 1[st] respondent Corporation to regularise 88 casual labourers, who were working for more than 15 years in the post of 'Garage Mazdoor'. The petitioner is one among those person included in the list appended to Ext.P1. As part of implementation of Ext.P1, the 1[st] respondent had issued Ext.P6 memorandum dt. 19.2.2001. The unit officers concerned were directed to appoint those persons included in the list as 'Garage Mazdoor' on daily wages at the rate of 1/26[th] of the minimum of the scale of Garage Mazdoor Gr. II. It is mentioned that appointment will be provisional WP(C).25865 /2010 2 subject to verification, and they will be absorbed on completion of two years of daily wage period. By virtue of Ext.P7 order issued by the Mechanical Engineer of the unit concerned, the petitioner was appointed with effect from 20.2.2001. He retired from service with effect from 31.3.2010. Exts. P2 and P3 reveals that pension and other benefits were sanctioned to the petitioner and monthly pension was disbursed from 1.4.2010 onwards. But by virtue of Ext.P4 proceedings issued by the 3[rd] respondent, the orders issued sanctioning pension and pensionary benefits were cancelled. The cancellation is on the basis that, personnel section of the 1[st] respondent Corporation had pointed out that the period of 480 days spent by the petitioner on daily wage basis cannot be treated as qualifying service, because the 'Garage Mazdoor' appointed from the list of approved CLR workers were absorbed in the time scale only on completion of 480 days. It is aggrieved by Ext.P4 this writ petition is filed. 3. Petitioner contended that on the basis of the regularisation effected by virtue of Ext.P1 order, qualifying service has to be reckoned including the casual service rendered WP(C).25865 /2010 3 by him from February 1982 onwards. But such a contention cannot be countenanced in view of the decision of a Full Bench of this court in **District Transport Officer vs. Kunchan (2009 (3) KLT 954) FB.** In the said decision this court held that if any selected person is advised for appointment by the PSC, then whatever be the terms in the order of appointment, the appointment of such person in the existing regular vacancies is bound to be treated as regular appointment . But it is held that the situation would be different in a case where an employee appointed as daily rated worker or casual worker is regularised in the service. In the latter category the employee cannot be considered as one rendering service in an existing regular vacancy after having been selected by any competent body to be appointed against a selected post on a regular basis. In the case at hand, it is evident that, until the petitioner is given regular appointment by virtue of Exts.P1, P6 and P7, he cannot be considered as an employee appointed against any regular vacancy by virtue of any approved selection process. Therefore the casual labour period cannot be reckoned as qualifying WP(C).25865 /2010 4 service. 4. Learned counsel for the petitioner contended that, even assuming that the regular appointment was effected only by virtue of Ext.P1, P6 and P7, the petitioner becomes qualified for pension from the date of such appointment. From Ext.P7 it is evident that the petitioner was given regular appointment with effect from 20.2.2001. It is evident from Exts. P6 and P7 that the appointment was made as 'Garage Mazdoor' on the basis of Ext.P1 decision of the Government according sanction for regularisation of casual labourers. Hence from the date of Ext.P7 the petitioner should be treated as a person appointed against a regular vacancy of 'Garage Mazdoor'. Merely because it is insisted that he will be on daily wages for a period of two years and will be absorbed only on satisfactory completion of such period, the service rendered during such period cannot be treated as casual service or daily rated service on the basis of the provisional or temporary engagement. The condition only insist that, the persons regularised and appointed as Garage Mazdoor will have to continue on a provisional basis until absorption on WP(C).25865 /2010 5 completion of the period of two years prescribed therein. It is true that they were not brought to the regular time scale until completion of the said period. But it cannot be said that the period of two years spent on daily wage basis after regular appointment should not be reckoned as qualifying service. Hence the reason mentioned in Exts.P4 to deny the pension cannot be sustained. 5. In the result, the writ petition is allowed and Ext.P4 is hereby quashed. The respondents are directed to disburse the monthly pension due to the petitioner, along with arrears and other retiral benefits due to the petitioner at the earliest possible, at any rate within one month from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, JUDGE pmn/ WP(C).25865 /2010 6 WP(C).25865 /2010 7