IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 21ST JULY 2008 / 30TH ASHADHA 1930 WP(C).No. 9863 of 2004(Y) ------------------------- PETITIONER: ------------ M.K.BALAKRISHNA PANICKER, TECHNICAL ASSISTANT (ELECTRONICS - RETD.), HYDROGRAPHIC SURVEY WING, PORT DEPARTMENT, BEYPORE, KOZHIKODE-15, RESIDING AT JAGATHY, ERAZHA NORTH, CHETTIKULANGARA.P.O., MAVELIKARA. BY ADV. SRI.VARGHESE PREM SRI.S.VIBHEESHANAN RESPONDENTS: ------------- 1. THE STATE OF KERAL, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FISHERIES AND PORTS DEPARTMENT, THIRUVANANTHAPURAM. 2. CHIEF HYDROGRAPHER, HYDROGRAPHIC SURVEY WING, PORT DEPARTMENT, SASTHAMGALAM, THIRUVANANTHAPURAM-10. BY GOVERNMENT PLEADER SHRI R. LAKSHMINARAYANAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/7/2008, THE COURT ON 21/07/2008 DELIVERED THE FOLLOWING: APPENDIX EXT.P1-TRUE COPY OF ORDER DATED 20.8.1976 ISSUED BY THE STATE PORT OFFICER, KERALA, TRIVANDRUM. EXT.P2-TRUE COPY OF LETTER DATED 12.6.1997 ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT. EXT.P3-TRUE COPY OF CIRCULAR DATED 17.3.98 ISSUED BY GOVT. OF KERALA EXT.P4-TRUE COPY OF LETTER DATED 27.10.99 ISSUED FROM OFFICE OF R2 EXT.P5-TRUE COPY OF REPRESENTATION DATED 24.2.2003 SUBMITTED BY PETITIONER BEFORE THE HON'BLE MINISTER FOR CO-OPERATION AND PORTS, GOVT. OF KERALA EXT.P6-TRUE COPY OF LETTER DATED 3.3.04 ISSUED BY R1 EXT.P7-TRUE COPY OF JUDGMENT DATED 19.6.2001 IN OP 15005/96 EXT.P8-TRUE COPY OF JUDGMENT DATED 18.2.03 IN OP 14731/02 OF THIS COURT EXT.P9-TRUE COPY OF JUDGMENT DATED 7.1.2004 IN WA 956/03 OF THIS COURT // TRUE COPY // P.S. TO JUDGE T. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) NO.9863 of 2004-Y - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of July, 2008. JUDGMENT In this writ petition the main prayer is to quash Ext.P6 with a further prayer to direct the respondents to grant the petitioner pension and consequential service benefits eligible to him on regularisation. 2. This is a case where the petitioner was in the service of the second respondent for a period of 26 years and 7 months apart from 10 years of Defence service earlier. He is an ex-serviceman who was released from Naval service from 31.1.1976. The petitioner was appointed as per Ext.P1 as Technical Assistant (Electronics) under Rule 9(a)(i) of the Kerala State & Subordinate Service Rules through Employment Exchange. He was posted to the Office of the Chief Hydrographer, Hydrographic Survey Wing, Trivandrum as per the said order. The case of the petitioner is that his engagement on provisional basis in the said post continued till he attained superannuation on 31.3.2003. Only once his service was sought to be terminated, i.e. in the year 1986. At that time, he approached this court by filing O.P.No.5682/1986 and this court allowed the Original Petition with a WPC 9863/2004 -2- direction that the petitioner shall not be terminated till P.S.C. hands occupy the post. But no such candidate was appointed. It is the case of the petitioner that even though the Special Rules were framed in the year 1994, he was having the required qualification as prescribed by the Special Rules and therefore considering his provisional service, he was entitled to be regularised in service. 3. There were moves from the Department itself to regularise him in service. In support of the said case the petitioner has produced Ext.P2 dated 12.6.1997 and Ext.P4 dated 27.10.1999, whereby the Chief Hydrographer forwarded to the Government the service details, etc. of the petitioner, the requirement for retaining him in the said office in view of the emergency in the office, with a further request to regularise him in service. In Ext.P2 it was reported by the second respondent to the first respondent that he has got all prescribed qualifications as per the rules of recruitment and that his regularisation will not adversely affect any of the other individuals, since there is only one post of Technical Assistant in the whole of Hydrographic Survey wing. It is also pointed out therein that another employee, a Field Assistant of the Department had filed an original petition seeking regularisation, which file was pending consideration before the Government at that time. In Ext.P4 also, the said stand is reiterated. Therein also, it has WPC 9863/2004 -3- been pointed out that he is fully qualified for the post of Technical Assistant and his services are very essential in the H.S.W. for operating all the electronic survey equipments for which he has already experience from 27.8.1976. Ext.P5 is the representation sent by the petitioner individually, but finally by Ext.P6 the request for regularisation was rejected. 4. The petitioner is relying upon Ext.P7 judgment in O.P.No.15005/1996 which was confirmed in Writ Appeal No.956/2003 (Ext.P9). The said case related to one Shri M.C. Thomas, Field Assistant under the second respondent herein, who was appointed in similar circumstances and who continued for a long time for more than 20 years. This court in Ext.P7 judgment held that it is not possible for the Government to say, after 20 or 24 years of continuous service, that the person's service in the present post cannot be regularised as he has got no chance for appointment in any other field because of the inaction of the Government. It appears that based on Ext.P7 judgment the Government reguarlised the service of the said petitioner only from 15.3.2002, which was challenged before this court in O.P.No.14731/2002 and was disposed of by Ext.P8 judgment. Therein, a direction was given to regularise his service with effect from 31.3.1985, the date when he became qualified for appointment. WPC 9863/2004 -4- 5. In the counter affidavit, it is admitted that petitioner was fully qualified to hold the post as per the Special Rules. In para 7 it is admitted that benefits were granted and service was regularised in respect of M.C. Thomas, petitioner in Ext.P7. The contention taken is that the petitioner herein being a provisional employee is not entitled for regularisation. It is clear that no appointment was done through Public Service Commission. There is no contention also that there was no requirement of the post. 6. Learned counsel for the petitioner relied upon two other judgments, i.e. judgment in O.P.No.33230/2000 which was confirmed in Writ Appeal No.1311/2004. Therein, as per the judgment dated 5.2.2004 a learned Single Judge of this court ordered regularisation of the petitioner therein in view of the stand taken by the Government in the very same department in the case of employees with lesser term. Therein, the petitioner concerned was recruited as Electrician in the Hydrographic Survey Wing by the Chief Hydrographer. It is seen that the above judgment was challenged in Writ Appeal No.1311/2004 which was dismissed. Their Lordships held that the petitioner therein had been working on provisional basis for more than 22 years and it is not the case of the appellants that he was ineligible at the time of initial appointment or that his record of service was not satisfactory. In that view of the matter, WPC 9863/2004 -5- the appellants were directed to regularise him in service. 7. In the light of the above judgments of this court, the petitioner is justified in seeking regularisation in service as he is fully qualified as per the Special Rules which came into force much after the appointment. Ext.P4 shows that it is a sanctioned post. Apart from that, the second respondent, in Exts.P2 and P4 clearly stated that the petitioner is fully qualified even from the initial date of appointment and his service is satisfactory. Exts.P7 and P9 and the judgment in W.A.No.1311/2004 relate to similarly placed employees in the very same office, i.e. under the 2nd respondent, as the petitioner. All of them have been obviously been granted the benefits of regularisation. Therefore, petitioner cannot be treated in a different manner by the respondents. The same amounts to discrimination. Therefore, following the dictum laid down in the judgments referred to above, I hold that the petitioner is entitled for the regularisation in service. 8. Therefore, Ext.P6 is quashed. There will be a direction to the respondents to pass appropriate orders regularising the service of the petitioner with effect from 20.8.1976 and grant the consequential service benefits to him as per the rules. But he will not be entitled to any promotion, as of right. He will be paid the retirement benefits also counting the above period of service as regularised. The Defence service undertaken WPC 9863/2004 -6- by him for a period of10 years, if eligible to be reckoned for the said purpose, the same shall also be considered as per the relevant rules. Final orders shall be passed within a period of four months from the date of receipt of a copy of this judgment. The original petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/