IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 30TH OCTOBER 2009 / 8TH KARTHIKA 1931 WP(C).No. 25257 of 2007(F) -------------------------------------- PETITIONER: ------------------- DR.N.SUBBIAN, VETERINARY SURGEON, RINDERPEST, VIGILANCE UNIT, NEDUMKANDAM, IDUKKI DISTRICT. BY ADV. MR.S.MUHAMMED HANEEFF. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, ANIMAL HUSBANDRY DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF ANIMAL HUSBANDRY, DIRECTORATE OF ANIMAL HUSBANDRY, VIKAS BHAVAN, THIRUVANANTHAPURAM. R1 & R2 BY GOVERNMENT PLEADER MR. BAIJU CHANDRAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.25257/2007-F: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PROCEEDINGS NO. D2-5619/95/ESTT. DT. 15/05/1995 OF THE R.2. EXT.P.2: COPY OF THE DISCHARGE CERTIFICATE ISSUED FOR THE PERIOD 23/05/1995 TO 01/05/99 BY THE R.2. EXT.P.3: COPY OF THE DISCHARGE CERTIFICATE ISSUED FOR THE PERIOD 23/08/1999 TO 18/08/2001 BY THE R.2. EXT.P.4: COPY OF THE G.O.(P).NO.32/98/P&ARD DTD. 28/09/1998. EXT.P.5: COPY OF THE PROCEEDINGS OF THE R.2. DTD. 03/01/2002. EXT.P.6: COPY OF THE JUDGEMENT 22/06/2006 IN O.P. NO. 12501/2002 OF THIS HONOURABLE COURT. EXT.P.7: COPY OF THE ORDER NO. D2-314/2007/ESTT. DTD. 05/01/2007 ISSUED BY THE R.2. EXT.P.8: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE R.1. DT. 07/01/2007. EXT.P.9: COPY OF THE JUDGEMENT DTD. 25/01/2007 IN W.P.(C).NO.3020/2007 OF THIS HONOURABLE COURT. EXT.P.10: COPY OF THE ORDER NO. 13708/AHE3/03/AD DT. 02/07/2007 PASSED BY THE GOVERNMENT. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.25257 OF 2007 -------------------------------------------------- Dated this the 30th day of October, 2009 J U D G M E N T Petitioner is a physically handicapped person. He was appointed on a provisional basis for 179 days as a Vetenary Surgeon from 15.5.1995. Although, there were breaks after the period for which he was appointed, petitioner was continuing in service. It was while so that Ext.P4 Government Order dated 28.9.1998 was issued stating that pending final decision on the issue of regularization of physically handicapped (provisional) employees in consultation with the Kerala Public Service Commission, the physically handicapped (provisional) employees who were engaged under Rule 9 a(1) of the KS & SSR any time during the period from 1.1.1997 to 31.12.1997 and continued in service will be retained in service on provisional basis until further orders. 2. Even thereafter, petitioner continued in service on provisional basis but however with breaks. It was only by Ext.P5, the petitioner was extended the benefit of Ext.P4 Government order. Thereafter he claimed regularization in service with restrospectivity WPC.No.25257/07 :2 : and approached this court by filing O.P.No.12501/02. That Original Petition was disposed of by Ext.P6 judgment directing consideration of his claim for regularization. Accordingly, by Ext.P7 order petitioner was ordered to be regularized in service with effect from 5.1.2002. Again he submitted Ext.P8 representation seeking regularization from 1.1.1997. That representation was directed to be considered in Ext.P9 judgment of this court in WP(c).No.3020/07. Accordingly, his claim was considered and was rejected by Ext.P10 order. In Ext.P10 it is stated that though the petitioner continued in service, there were breaks for different periods and that his service prior to 4.1.2002 was not continuous and therefore he cannot be regularized as sought for in Ext.P8. It is challenging Ext.P10 that the writ petition is filed. 3. Counter affidavit has been filed by the respondents. According to the counter affidavit, though the petitioner was eligible for the benefit of Ext.P4, the date of regularization could be decided only on th basis of the conditions specified by the Government in GO(P).No.18/99/P & ARD dated 13.10.1999 or from the date on which the physically handicapped employee rejoined duty which WPC.No.25257/07 :3 : ever is later. It is stated that petitioner was reappointed in service by order dated 3.1.2002 and joined duty on 5.1.2002 and it was therefore that he was ordered to be regularized from that date. 4. Admittedly, the petitioner was eligible for the benefit of Ext.P4 and his regularization could be only subject to the Government Order dated 13.10.1999 and effective from that date or from the date on which the petitioner rejoined duty. Respondents have no case that even at the time when the Government Order dated 13.10.1999 was issued or thereafter the petitioner was not continued in service though with breaks which occurred due to short time appointments offered. If that be so, after 13.10.1999, when the petitioner was reappointed after the Ist break and rejoined duty, at least from that date the Petitioner ought to have been regularized. On the other hand his regularization was ordered only with effect from 5.1.2002. This clearly is against the terms of the Government Order itself and therefore cannot be accepted. In that view of the matter the rejection of the petitioner's claim by Ext.P10 also cannot be accepted. WPC.No.25257/07 :4 : 5. Accordingly, Ext.P10 will stand set aside. The respondents are directed to regularize the service of the petitioner from the date he rejoining duty after the first occasion when his service was terminated subsequent to 13.10.1999. It is made clear that this regularization will only be on a notional basis and no monetary benefit will be eligible to the petitioner. Petitioner shall produce a copy of the judgment before the 2nd respondent who shall take appropriate action in the matter in the light of what is stated above. (ANTONY DOMINIC) JUDGE vi/