IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930 WA.No. 2645 of 2007() --------------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.1462/2005 Dated 25/07/2007 .................... APPELLANT(S): RESPONDENTS IN W.P. ------------------------ 1. THE STATE OF KERALA, REP.BY SECRETARY TO GOVERNMENT, TRANSPORT(B) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, KERALA STATE WATER TRANSPORT DEPARTMENT, ALAPPUZHA BY GOVERNMENT PLEADER SRI.BENNY GERVACIS RESPONDENT(S): PETITIONERS IN W.P. -------------------------- M.R.GOPALAKRISHNA PILLAI, S/O. RAMAKRISHNA PILLAI, FITTER GRADE II, (RTD), DOCK AND REPAIRS SECTION KERALA STATE WATER TRANSPORT DEPARTMENT, ALAPPUZHA AND RESIDING AT MATHYANATHU HOUSE, KAVALAM P.O., ALAPPUZHA. ADV. SRI.N.UNNIKRISHNAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05/12/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- W.A.No.2645 of 2007 ------------------------------------- Dated 5th December, 2008 JUDGMENT Koshy,J . The writ petitioner is an ex-serviceman. He joined the State Water Transport Department as a provisional hand in the post of Fitter, Grade II on 26.9.1976. He was selected for provisional appointment based on the sponsoring made by the Employment Exchange. Candidates sponsored by the Employment Exchange were considered and it was found that petitioner was fully qualified and fit to be appointed in the post of Fitter, Grade-II in the Water Transport Department and he was appointed with effect from 269.1976. He attained the age of superannuation on 31.10.1996. He continued in service till 31.10.1996. He had more than 20 years of service. His claim for regularisation was not accepted. His case is that taking into account his service he may be granted at least provisional ex-gratia pension. Learned Judge found that ex-gratia pension was meant for regular employees who could not draw pension because of the dearth of qualifying service. But, similarly placed provisional employees in the department were granted benefit of ex- gratia pension by Ext.P7 judgment of a learned single Judge of this court in O.P.No.19571 of 2002 and no appeal was filed against the same. It is also noticed that those petitioners had 15 years of service. Here, the W.A.2645/2007 2 petitioner had completed more than 20 years of service. He was an ex-serviceman. He was fully qualified. He has undergone a process of selection from the list of candidates sent by the Employment Exchange. He worked in the permanent post though not regularised. If he were purely a provisional employee, as per Rule 9(a)(1) of the Kerala State and Subordinate Services Rules, his services could have been terminated before completing six months of service. That was not done. Water Transport Department has used his service as a regular Fitter though his services were not formally regularised. It is true that merely because no appeal is filed from the judgment in O.P.No.19571 of 2002, that will not estop the Government from contesting an appropriate case. Since the petitioner had worked as Fitter in the Water Transport Department for more than two decades and he joined the same after a process of selection, we are of the opinion that ex-gratia pension cannot be denied to him. On the facts of this case, we are of the opinion that no interference is required in the impugned judgment. The appeal is dismissed. J.B.KOSHY JUDGE THOMAS P. JOSEPH JUDGE tks