IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 WP(C).No. 1818 of 2008(N) ---------------------------------------- PETITIONER(S): --------------------------- C.SHOUKATHALI, CHEMBAN HOUSE, PADINHATTUMMURI P.O., MALAPPURAM, PIN-676 506. BY ADV.MR..S.P.ARAVINDAKSHAN PILLAY RESPONDENT(S): --------------------------- 1. THE KERALA STATE WAREHOUSING CORPORATION, HEAD OFFICE, ERNAKULAM, P.B.NO.1727, WAREHOUSING CORPORATION ROAD, KOCHI-682 016, REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE MANAGING DIRECTOR, KERALA STATE WAREHOUSING CORPORATION, HEAD OFFICE, ERNAKULAM, P.B.NO.1727, WAREHOUSING CORPORATION ROAD, KOCHI-682 016. R1 & R2 BY ADV. MR.MAJNU KOMATH, SC, K.S.W.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.1818 of 2008-N - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of August, 2009. JUDGMENT The petitioner herein is aggrieved by Ext.P5 order whereby the service of the petitioner as a driver has been terminated with effect from 5.2.2007. The termination is mainly on the ground that some of the candidates appointed are over-aged. 2. The respondents have filed a counter affidavit also in the matter. A similar issue was considered by this court in W.P.(C) No.14010/2009 wherein in an identical circumstances, another driver challenged the order of termination. Learned counsel for the petitioner submitted that the petitioner herein is also similarly placed and the benefit of the judgment may be extended to him also. 3. The petitioner submitted the application pursuant to Ext.P1 notification and by Ext.P2 order he had been continuing in service from 29.8.2005. He was appointed in a regular post as per Ext.P3. Ex.P4 is produced to show that he was absorbed in the permanent post of driver from 1.3.2006 since his period of probation was over on 28.2.2006. 4. In the counter affidavit, reliance is placed on the decision of the wpc 1818/2009 2 Board of Directors to scrap the selection process in the light of the fact that some of the candidates who were appointed, became over aged at the time of issuance of the notification itself. This aspect was considered in Ext.P9 judgment. In para 9 of the said judgment, it was held thus: “Therefore, the state of affairs show that as far as the petitioner is concerned, there was no disqualification going by the upper age limit fixed for the purpose of appointment. He had satisfied all other qualifications also. True, that the persons who were terminated, had challenged the termination in various proceedings and the matter had reached the Apex Court also. But that cannot be a reason to terminate the service of the petitioner. It cannot therefore be stated that there was any patent irregularity as far as the appointment of the petitioner is concerned. Going by the averments in the writ petition, there was a proper notification pursuant to which a selection process was undertaken by the Corporation. It cannot be said to be an illegal appointment or a back door appointment.” The same reasoning will apply to the facts of this case also. 5. Learned counsel for the petitioner fairly submitted that the petitioner will not claim any arrears of salary or other monetary benefits, if he is ordered to be reinstated in service. Learned Standing Counsel for the Corporation submits that the petitioner will have to refund the notice pay or any other benefits received at the time of termination, if in case this court wpc 1818/2009 3 directs reinstatement of the petitioner in service. 6. Therefore, Ext.P5 is quashed. There will be a direction to reinstate the petitioner in service as a driver on permanent basis without any arrears of salary but with continuity of service from the date of original appointment. The same will be on condition of refund of the benefits which the petitioner has received at the time of termination, viz. notice pay, etc. Appropriate orders shall be passed within a period of one month from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/