V. Mariamma v. State of Kerala and Kerala State Housing Board

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 16TH DAY OF FEBRUARY 2018 / 27TH MAGHA, 1939** **WP(C).No. 22153 of 2014** **-----------------------** ## **PETITIONER** **----------** **V.MARIAMMA, 2ND GRADE DRAFTSMAN (NOW RETIRED), KERALA STATE HOUSING BOARD, THIRUVANANTHAPURAM, RESIDING AT GAIZCIL VILLA, VALLAKKADAVU P.O., VALIATHURA, THIRUVANANTHAPURAM.** **BY ADV.SRI.M.SREEKUMAR** **RESPONDENT(S):** **---------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HOUSING (A)DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, 695001.** **2. KERALA STATE HOUSING BOARD, REPRESENTED BY THE SECRETARY, OFFICE OF THE KERALA STATE HOUSING BOARD, THIRUVANANTHAPURAM-695001.** **R1 BY SENIOR GOVERNMENT PLEADER SMT MARY BEENA JOSEPH R2 BY ADVS. SRI.K.DENNY DEVASSY, SC, SRI.GEORGE BOBAN, SC,** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.V.** **WP(C).No. 22153 of 2014 (T) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT-P1: TRUE COPY OF THE DECISION OF THE BOARD MEETING HELD ON 30.12.1997.** - **EXHIBIT-P2: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C)NO.31125/2002 DATED 27.7.2004.** - **EXHIBIT-P3: TRUE COPY OF ORDER NO.G.O.(MS) 26/2006/HSG. DATED 7.7.2006.** - **EXHIBIT-P4: TRUE COPY OF ORDER G.O.(MS) NO.178/97/AD/DATED 13.6.1997.** - **EXHIBIT-P5: TRUE COPY OF ORDER NO.H.B.O.373/AD1(C) 18849/05 DATED 1.9.2006.** - **EXHIBIT-P6: TRUE COPY OF THE EXTRACT OF MINUTES OF BOARD MEETING HELD ON 28.1.2008.** - **EXHIBIT-P7: TRUE COPY OF REPRESENTATION FILED BY THE PETITIONER AND OTHERS BEFORE THE CHIEF MINISTER DATED 7.11.2007.** - **EXHIBIT-P8: TRUE COPY OF LETTER NO.ADDL.(C) 13395/87 DATED 11.12.07 ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT.** - **EXHIBIT-P9: TRUE COPY OF REPORT OF THE 2ND RESPONDENT NO.ADDL(C) 13395/87 DATED 11.12.2007.** - **EXHIBIT-P10:TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT IN WP(C)NO.25560/08 DATED 7.2.2013.** **EXHIBIT-P11: TRUE COPY OF ORDER G.O.(MS) NO.47/2014/HSG. DATED 28.4.14.** ## **RESPONDENTS EXHIBITS:** ## **--------------------** - **R1(A) TRUE COPY OF THE ORDER NO HBO 371/ADLL(C)/13395/87 DATED 29.8.2006 OF THE SECRETARY KERALA STATE HOUSING BOARD.** - **R1(B) TRUE COPY OF THE GOVERNMENT VIDE LETTER NO 6684/A1/2007/HSG DATED 28.12.2007.** - **R1(C) TRUE COPY OF EXTRACT OF THE MINUTES OF THE BOARD MEETING HELD ON 28.1.2008.** - **R1(D) TRUE COPY OF THE RESOLUTION DATED 4.2.2008.** - **R1(E) TRUE COPY OF THE REPRESENTATION DATED 11.12.2007.** **/TRUE COPY/** **K.V. P.S.TO JUDGE** ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.22153 of 2014-T ------------------------------------------- _Dated this the 16[th] day of February, 2018_ ## _**JUDGMENT**_ The petitioner, who retired from service on 29.2.2008 from the Kerala State Housing Board while working as Second Grade Draftsman, has filed this writ petition aggrieved by the denial of regularisation w.e.f 1.1.1998 based on Ext.P1 recommendation made by the Board of Directors of the 2[nd] respondent. 2. The petitioner joined as Second Grade Draftsman under the 2[nd] respondent on 23.2.1983 on appointment through employment exchange. The petitioner was duly qualified and the appointment was made along with 8 others. The petitioner continued without any break. While so, the Board of Directors of the 2[nd] respondent as per Ext.P1 minutes resolved to regularise the services of the petitioner and 7 others, who were working as temporary Second Grade Draftsman with effect from various dates in 1983 and 1984, w.e.f 1.1.1998 after getting approval from the Government and 2 W.P(C) No.22153 of 2014-T Public Service Commission. As there was no progress on the recommendation for regularisation, the petitioners along with 5 others approached this Court filing W.P(c).No.31125/2002, which was disposed of as per Ext.P2 judgment dated 27.7.2004 directing the Government to take a final decision in the matter of regularisation with notice to them and to pass orders within a period of 4 months. It was also made clear that the order G.O(P) 39/2002/P&ARD dt.26.8.2002 shall not stand in the way of the Government from considering their case. Thereafter, the Government issued Ext.P3 order on 7.7.2006 regularising the services of the petitioner and others with prospective effect on condition that they will be fitted at the lowest in the scale of pay as on the date of that Government Order regularising them and they will earn increments only thereafter. It was further directed that prior provisional service under the 2[nd] respondent need not be taken for the purpose of pension, increment, seniority, grade promotion etc. The order of regularisation was passed overruling advice of the PSC. Aggrieved by the denial of regularisation w.e.f 1.1.2008, the petitioners approached the Board and the Board had as per Ext.P6 resolution, in its meeting held on 28.1.2008 resolved to meet the financial commitment on regularisation of the petitioners w.e.f 1.1.1998. The Board had as per 3 W.P(C) No.22153 of 2014-T Ext.P9 letter dated 11.12.2007 again addressed the Government informing that the financial commitment would be taken up by the Housing Board. By that time one Mohanachandran, who was appointed along with petitioner, had already retired from service. The petitioner thereafter approached this Court in W.P(C).NO.25560/2008. This Court by Ext.P10 judgment directed the Government to consider the recommendation for regularisation of the petitioner w.e.f 1.1.1998. But the Government as per Ext.P11 order rejected the same on 28.4.2014. This writ petition is filed under the above circumstances, challenging Ext.P11 order. 3. In Ext.P11 order, the Government found that in case the petitioner was given regularisation w.e.f 23.2.1983, the other 5 employees who were also granted regularisation along with her would claim the same benefit and it will create problems with respect to the seniority and other benefits of the existing employees. It was also stated that the Government policy was not to regularise provisional appointment. The writ petition is filed challenging Ext.P11 order. 4. The learned counsel for the petitioner points out that the petitioner's request was only for regularisation w.e.f 1.1.1998 and it was based on the decision of the 2[nd] respondent. Regularisation from 01.01.1998 4 W.P(C) No.22153 of 2014-T was requested for the purpose of counting the same for pension. It is pointed out that the petitioner is getting pension only for the one year service rendered after regularisation, on account of the delay in issuing the order of regularisation. 5. Having considered the contentions on either side, I find that the petitioner's service was uninterrupted right from 23.2.1983. As early as on 30.12.1997, the Housing Board took a decision to regularise the services of the petitioner and other 4 persons with effect from 31.01.1998. They had taken up the responsibility to bear the financial commitment on granting regularisation with retrospective effect from 1.1.1998. Government did not consider the case of the petitioner with application of mind in the appropriate manner. The petitioner's request as well as the recommendation of the Housing Board were to regularise the services of the petitioner w.e.f 1.1.1998. Regularisation, if it is limited for the purpose of pensionary benefits, would not give rise to any claim for the existing employees in the matter of seniority or promotion or any of their service benefits. 6. Moreover, the Apex Court has in para.53 of the judgment in **State of Karnataka v. Umadevi** [(2006) 4 SCC 1] held as follows : 5 W.P(C) No.22153 of 2014-T 53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in _S.V. Narayanappa_ , _R.N. Nanjundappa and B.N. Nagarajan_ and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a onetime measure, the services of such _irregularly_ appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.” 7. Petitioner was duly qualified and was appointed by selection from among persons sponsored by employment exchange. She continued without intervention of any court orders from 23.01.1983 onwards. Government found it fit to regularise her services only in the year 2006, despite the recommendation of the 2[nd] respondent from 1.01.1998. It was a fit case where her appointment ought to have regularised from that date, in which event the petitioner would have got pension at a higher rate. In this case by the time the Housing Board took the decision in 1998, the petitioner had completed more than 15 years of service. By the time **Umadevi's** case ( _supra_ ) was decided by the Apex Court she had completed more than 25 years. 6 W.P(C) No.22153 of 2014-T 8. In the above circumstances, in case regularisation was granted limiting the benefit for the purpose of pension alone, that would not have caused any difficulty either to the employer or to the existing employees or even the Government. In the light of the judgment of the Division Bench of this Court in **Sadanandan v. State of Kerala** [2016(5) KHC 377], where this Court directed regularisation of a Cook, who was working for the period from 14.1.1983 to 31.5.2008, for the purpose of pension, the regularisation of the petitioner is also liable to be reviewed and his case is liable to be regularised from the 01.01.1998. Moreover, in this case, the 2[nd] respondent has resolved to bear the financial burden also. Therefore, Ext.P11 order is quashed. There shall be a direction to the 1[st] respondent to issue fresh orders regularising the services of the petitioner w.e.f 01.1.1998 and treat the same as qualifying service for the purpose of pension. Orders shall be issued within a period of three months. On issuance of such orders, the petitioner shall be granted all consequential benefits within a further period of three months. The writ petition is allowed accordingly. _**(P.V.ASHA, JUDGE)**_ _rtr/_