IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 WP(C).No. 32071 of 2006(R) ---------------------------------------- PETITIONER(S): ------------------------- M. SANKARA PILLAI,(RETD.CRANE OPERATOR IN FISHING HARBOUR PROJECT SUB DIVISION NO.II, NEENDAKARA) KAIPPALLY VADAKKATHIL, SOUTH WEST THAZHAVA P.O., VIA.KARUNAGAPPALLY, KOLLAM DISTRICT. BY ADVS.MR.ELVIN PETER P.J. MR.S.RAMESH MR.NAVEEN.T SMT.POOJA SURENDRAN RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FISHERIES AND PORTS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, HARBOUR ENGINEERING DEPARTMENT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER MR.T.K.VIPIN DAS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- WPC. No.32071 OF 2006 ---------------------------------------- Dated, the 22nd day of July, 2009 JUDGMENT The petitioner was provisionally appointed on the advice of the Employment Exchange under Rule 9(a)(i) of the K.S & S.S.R as Crane Operator in the Fishing Harbour Project Sub Division No.II, Neendakara. He had retired from service on 28.2.1999. He approached this Court praying inter alia to issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents to regularize the service of the petitioner as Crane Operator in the Harbour Engineering Department based on Ext.P1 order of appointment. It is also prayed for a direction to give him the pensionary benefits treating his entire provisional continuous service based on Ext.P1 order of appointment. 2. Before the present writ petition, the petitioner had approached this Court by filing O.P.No.25464/1999 which was disposed of by this Court. Against the said judgment, the petitioner had preferred writ appeal No.888/2003 which was disposed of vide judgment dated 17.6.2005 by which the Division WPC 32071/06 -:2:- Bench of this Court said: “But considering the continued service, Government is free to grant pension as was granted in Ext.P6 order. But considering his long service and also Exts.P6 and P7 Government orders, we direct the Government to consider his representation and pass appropriate orders, if fresh representation is filed by him within three months from today with a copy of the judgment in this writ appeal. The Government shall dispose of his representation, if field as directed above, on merits within another three months from the date of receipt of the representation”. In pursuance of the above direction, Government, vide Ext.P10 order, rejected the request of the petitioner and hence, he filed the present writ petition. 3. I have heard the learned counsel for the petitioner as well as the learned Government Pleader. 4. The learned counsel for the petitioner submitted that for a similarly situated person, the Government has issued Ext.P11 order which is pertained to the same establishment. It is pointed out that the only difference is the length of service. In that case, that person has got 20 years of service, but in he present case the petitioner has 17 years of service. There is no justification for WPC 32071/06 -:3:- denying the request of the petitioner when the same relief was granted to a similarly situated person. Therefore, according to the learned counsel, the denial of the request of the petitioner is highly arbitrary. 5. On the other hand, the learned Government Pleader submitted that Ext.P11 order was passed on the basis of the direction issued by this Court and, that too, after approval from the PSC. 6. I have carefully considered the contentions advanced by the learned counsel for the petitioner as well as the learned Government Pleader and also perused the materials available on record. Admittedly, Ext.P10 as well as Ext.P11 are pertaining to the same department of the State of Kerala. In both the cases, the appointment was on provisional basis and the incumbents in both the cases had worked for long period. The petitioner has a total period of 17 years of service to his credit. In the other case, the employee had a total length of 20 years of service. I have quoted the relevant portion of Ext.P9 judgment of the Division Bench of this Court wherein no direction was issued to allow the request of the appellant therein. But the respondents were directed to consider the request of the petitioner on the basis of Exts.P6 and WPC 32071/06 -:4:- P7 Government orders and take a decision upon the representation which was directed to be filed by the petitioner. As explicit from Ext.P11 order, in that case also there was no direction to regularize the service of the candidate therein. But the only direction given was to consider Exts.P5 to P8 produced before the court for regularization of the service of the petitioner therein. Though I have repeatedly perused Exts.P11 and P10 and on comparison, I failed to find out any particular reason assigned by the respondents in Ext.P10 order for taking a different stand from Ext.P11. Admittedly, Ext.P11 is dated 11.5.2005 whereas Ext.P10 is dated 31.8.2006. That means, when Ext.P10 order was passed, the authority was aware of Ext.P11 order by which similar benefit was given to the person/petitioner in that case. For the above sole reason, I am of the view that Ext.P10 is vitiated due to arbitrariness. 7. The Apex Court in the decision in State of U.P. and Others v. Puttilal {(2006) 9 SCC 337}, the Apex Court has held: “6. So far as the State of Uttaranchal is concerned, a scheme for regularization of daily worker has been produced before us which prima facie does not appear to be objectionable excepting the provision regarding qualification WPC 32071/06 -:5:- for regularization. Be it stated that the qualification essential for being regularised would be the qualification as was relevant on the date a particular employee was taken in as a daily-wager and not the qualification which is being fixed under the scheme. The fact that the employees have been allowed to continue for so many years indicates the existence or the necessity for having such posts. But still it would not be open for the Court to indicate as to how many posts would be created for the absorption of these daily-wage workers. Needless to mention that the appropriate authority will consider the case of these daily-wagers sympathetically who have discharged the duties for all these years to the satisfaction of their authority concerned. So far as the salary is concerned, as we have stated in the case of the State of Uttar Pradesh, a daily- wager in the State of Uttaranchal would be also entitled to the minimum of the pay scale as is available to his counterpart in the government until his services are regularised and he is given regular scale of pay.” In the light of the above decision and in the light of the materials mentioned above, I am of the view that the petitioner is also entitled to get a sympathetical and humanitarian consideration. Consequently he is also entitled to get a similar treatment to that of Ext.P11 order. In the result, this writ petition is disposed of quashing WPC 32071/06 -:6:- Ext.P10 and directing the Ist respondent to pass appropriate orders similar to that of Ext.P11 extending the benefit contained therein in favour of the petitioner also which shall be done within four months from the date of receipt of a copy of this judgment, which will be produced by the petitioner. The Writ Petition is allowed accordingly. V.K.MOHANAN, JUDGE kvm/- WPC 32071/06 -:7:- V.K.MOHANAN, J. O.P.No. JUDGMENT Dated:..