IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 6TH JULY 2011 / 15TH ASHADHA 1933 WP(C).No. 18503 of 2008(C) ---------------------------------------- PETITIONER(S): ------------------------- 1. SARALA KUMARI AMMA.K., 2ND GRADE DRAFTSMAN, KERALA STATE HOUSING BOARD, HOUSING BOARD BUILDINGS, THIRUVANANTHAPURAM. 2. MOHANENDRAN.P., 2ND GRADE DRAFTSMAN(RETIRED), KERALA STATE HOUSING BOARD,HOUSING BOARD BUILDINGS THIRUVANANTHAPURAM. 3. AMBIKA DEVI.P., 2ND GRADE DRAFTSMAN, KERALA STATE HOUSING BOARD, HOUSING BOARD BUILDINGS, THIRUVANANTHAPURAM. 4. D.SATHIKUMAR, 2ND GRADE DRAFTSMAN, KERALA STATE HOUSING BOARD, HOUSING BOARD BUILDINGS, THIRUVANANTHAPURAM. BY SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE BY ADV. SRI.P.K.MANOJKUMAR SMT.SUSHYA RAJAN RESPONDENT(S): -------------------------- 1. THE KERALA STATE HOUSING BOARD, REPRESENTED BY ITS SECRETARY, HOUSING BOARD BUILDINGS, THIRUVANANTHAPURAM. * 2. THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, PERSONAL AND ADMINISTRATIVE REFORMS (ADVISE-C) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. * THE SECOND RESPONDENT IS SUBSTITUTED BY THE STATE OF KERALA,REP.BY THE SECRETARY TO GOVERNMENT, HOUSING (A) DEPARTMENT. * VIDE ORDER DATED 4/12/09 IN IA NO.14769/09 R1 BY ADV. POOVAPPALLY M.RAMACHANDRAN NAIR,SC.KSHB R2 BY GOVERNMENT PLEADER SRI.A.J.VARGHESE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.18503/2008 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE BOARD RESOLUTION DATED 30/12/1997, 11 A.M. TRIVANDRUM, ISSUED BY THE CHAIRMAN & SECRETARY. P2 COPY OF THE GOVERNMENT ORDER G.O.(P)NO.39/2002/P&ARD DATED 26/8/2002 ISSUED BY THE GOVERNMENT. P3 COPY OF THE JUDGMENT DATED 21/12/2001 IN W.A.NO.128 OF 2001 © PASSED BY THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM. P4 COPY OF THE JUDGMENT DATED 27/7/2004 IN O.P.NO.23225 OF 2000(M) PASSED BY THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM. P5 COPY OF THE GOVERNMENT ORDER G.O.(MS) NO.26/2006/HSG. DATED 7/7/2006 ISSUED BY THE GOVERNMENT. P6 COPY OF THE ORDER HBO NO.371/ADII(C) 13395/87 DATED 29/8/2006 ISSUED BY THE SECRETARY, KERALA STATE HOUSING BOARD, THIRUVANANTHAPURAM. P7 COPY OF THE REPRESENTATION DATED 24/9/2007 SUBMITTED BY THE KERALA STATE HOUSING BOARD EMPLOYEES UNION (AITUC) THIRUVANANTHAPURAM TO THE CHIEF MINISTER, KERALA, TRIVANDRUM. P8 COPY OF THE LETTER NO.AD.II(C)13395/87 DATED 17/5/2007 SUBMITTED BY THE SECRETARY, KERALA STATE HOUSING BOARD, THIRUVANANTHAPURAM TO THE SECRETARY TO GOVERNMENT, TRIVANDRUM. P9 COPY OF THE LETTER NO.1760/A1/2007/H DATED 15/9/2007 ISSUED BY THE GOVERNMENT. P10 COPY OF THE LETTER NO.ADDII(C) 13395/87 DATED 28/5/2005 ISSUED BY THE SECRETARY,KERALA STATE HOUSING BOARD TO THE 1ST PETITIONER. RESPONDENT'S EXHIBITS: R1(A) COPY OF THE G.O.(MS)NO.26/2006/HSG. DATED 07/07/2006. /TRUE COPY/ P.S.TO.JUDGE sts C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.18503 OF 2008 -------------------------------------------- Dated this the 6th day of July, 2011 JUDGMENT The petitioners who are retirees from the service of Kerala State Housing Board (for short 'the Board) filed this writ petition for getting redressal of their grievances on account of the rider put in by the Government while granting permission for their regularisation in service under the Board. The petitioners were appointed on provisional basis under the Board as Draftsman (Civil) Gr.II respectively on 20.4.1983, 23.2.1983, 12.10.1984 and 12.10.1984. The contention of the petitioners is that even at the time of their initial appointment on provisional basis, they were having the prescribed qualification for appointment to the post of Draftsman (Civil) Gr.II under the Board. Though the appointment was on provisional basis, they continued in service uninterruptedly for a considerably long period and that fact led to the passing of Ext.P1 resolution dated 30.12.1997 by the Board. The decision therein was to regularise the service of the petitioners with effect from 1.1.1998 after obtaining governmental sanction and concurrence from the Kerala Public W.P.(C) NO.18503/2008 2 Service Commission (for short 'the Commission'). In furtherance to the said resolution, the Board moved the Government. Thereafter, the concurrence of the Commission was sought for. However, the Commission declined to grant concurrence for their regularisation and thereafter, Government have overruled the advice of the Commission and issued Ext.P5 dated 7.7.2006. Paragraph 4 in Ext.P5 assumes relevance in the context of the contentions and it reads thus:- “(i)They will be fitted at the lowest in the scale of pay as on the date of this G.O regularising them. They will earn normal increments thereafter. (ii)Their prior provisional service in Kerala State Housing Board will not count for purposes of pension, increment, seniority, grade promotion etc. They will have seniority with effect from the date of regularisation. Their inter-se seniority will be based on the date of commencement of provisional service in Kerala State Housing Board. 2. Evidently, as per Ext.P5, after overrulling the advice by the Commission, the service of the petitioners and others similarly situated were regularised and they were ordered to be fitted against the lowest scale of pay as on the date of the G.O regularising their service. It is further ordered that they would earn normal increments only thereafter. As per the 2nd condition therein, their provisional service would not be counted for W.P.(C) NO.18503/2008 3 the purpose of pension, increments, seniority, grade promotion etc. In fact, Ext.P6 is only the consequential order passed by the first respondent. While issuing Ext.P6, the first respondent reiterated the conditions in Ext.P5. In other words, it was made clear that on regularisation, the petitioners would earn normal increments only based on the service put in by them after such regularisation and that the provisional service under the Board would not be counted for the purpose of pension, increments, seniority, grade promotion etc. Feeling aggrieved by such conditions under Ext.P6 order of regularisation, the petitioners took up the matter before the authorities. Ext.P8 is the letter issued by the first respondent Board to the second respondent expressing the fact that the Board got no objection to regularise the service of the petitioners retrospectively with effect from 1.1.1998 by meeting the expenses from the internal resources of the Board. After considering Ext.P8, the Government passed Ext.P9 whereby it was informed that no relaxation could be made on the conditions in Ext.P5 order. On receipt of Ext.P9, the first respondent intimated the said fact to the petitioners as per Ext.P10. 3. The contention of the petitioners is that the effect and impact of the conditions in Ext.P5 imposed by the Government while regularising W.P.(C) NO.18503/2008 4 the service of the petitioners is such that it virtually fetched no benefits to them. They are not even getting the minimum pension despite putting in regular service under the Board after their regularisation solely on account of the aforesaid condition in Ext.P5. It is in the said circumstances that this Writ Petition has been filed mainly with the prayer to issue a writ of certiorari to quash Exts.P5 and P6 to the extent they denied the petitioners the right for retrospective regularisation in the post of Draftsman (Civil) Gr.II with effect from 1.1.1998. Consequently, it is prayed for issuance of a writ of mandamus commanding the respondents to regularise their service with effect from 1.1.1998 for the purpose of pension. 4. A counter affidavit has been filed by the first respondent in this Writ Petition. A memo has been filed on behalf of the second respondent to the effect that Ext.P9 order was issued by the Government in the Housing Department and therefore, the State of Kerala, represented by the Secretary to Government, Personnel and Administrative Reforms Department is neither a necessary party nor a proper party. Thereafter, the petitioner made proper correction and brought in State of Kerala, represented by the Secretary to Government, Personnel and Administrative Reforms Department as the second respondent. However, the second W.P.(C) NO.18503/2008 5 respondent did not file any counter affidavit. A perusal of the counter affidavit filed by the first respondent would reveal that the factual pleadings of the petitioners were not at all refuted by the respondents. In other words, the contention of the petitioners that they were appointed on provisional basis during1983-'84 and continued in service uninterruptedly were also not refuted. The fact that as per Ext.P8, the Board has intimated the Government of its willingness for retrospective regularisation of the petitioners by meeting the expenses from the internal resources of the Board was also not refuted. Ext.P10 is the communication issued thereafter based on Ext.P9 communication from the Government. It is stated thereunder that the conditions in Ext.P5 could not be relaxed. In other words, the regularisation of the petitioners for retrospective regularisation to enable them to earn the minimum qualifying service for the purpose of getting pension was declined by the Government as per Ext.P9. True that in Ext.P9, there is a reference relating Ext.P8. As already noticed hereinbefore, as per Ext.P8, the first respondent expressed willingness to meet the expenses from the internal resources of the Board in case of retrospective regularisation of service of the petitioners with effect from 1.01.1998. In that context, it is also to be noted that even as W.P.(C) NO.18503/2008 6 per Ext.P1 resolution, such a decision to regularise the service of the petitioners with effect from 1.1.1998 was taken by the Board. Ext.P9 would not reveal that the willingness expressed by the first respondent was taken into consideration by the second respondent. Apart from making a reference relating Ext.P8, there is nothing in Ext.P9 which would reveal a proper consideration of Ext.P8 by the Government. The request of the petitioners is for a retrospective regularisation solely for the purpose of pension. In such circumstances, the willingness expressed by the first respondent in and vide Ext.P8 can only be taken as a willingness to meet the expenses for that purpose. Ext.P10 is only a communication issued by the first respondent to the petitioners in tune with Ext.P9 proceedings of the Government. True that there is no direct challenge against Ext.P9 in this Writ Petition. However, based on my findings that while passing Ext.P9, the willingness expressed by the first respondent was not properly taken into account, the relief has to moulded accordingly. I am of the view that the decision in Ext.P9 requires reconsideration in the light of Ext.P8. Therefore, without making any observation as to the merits of the contentions raised in this Writ Petition, it is disposed of with a direction to the second respondent to consider the claim of the petitioners in the light W.P.(C) NO.18503/2008 7 of Ext.P8 expeditiously, at any rate, within a period of three months from the date of receipt of a copy of this judgment. Sd/- (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.18503/2008 8 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 W.P.(C) NO.18503/2008 9