IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 14TH JUNE 2010 / 24TH JYAISTHA 1932 WA.No. 966 of 2010 -------------------- AGAINST THE JUDGEMENT IN WPC.33324/2005 Dated 04/03/2010 .................... APPELLANTS/RESPONDENTS 1 & 2: --------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT TRANSPORT (D) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, KERALA STATE WATER TRANSPORT DEPARTMENT, ALAPPUZHA. BY SR.GOVERNMENT PLEADER SRI.BENNY GERVASIS RESPONDENT/PETITIONER: ------------------------------ A IQBAL, FITTER GRADE II, DOCK REPAIR SECTION, KERALA STATE WATER TRANSPORT DEPARTMENT, ALAPPUZHA. BY ADV. SRI.N.SUGATHAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, CJ. & P.N.Ravindran, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 966 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of June, 2010 JUDGMENT Ravindran, J. The State of Kerala and the Director of Kerala State Water Transport Department have filed this Writ Appeal challenging the judgment dated 04.03.2010 in WP(C) No.33324 of 2005 whereby the learned single Judge directed regularisation of the service of the petitioner and payment of retirement benefits to him on that basis. 2. The petitioner was appointed as Fitter Grade II through the employment exchange as per order dated 24.03.1982. He joined duty on 27.03.1982. After 13 years of service, by Ext.P2 dated 27.06.1995 the Government allowed him and four others to continue in service on a provisional basis. The petitioner was thereafter paid annual increments. When that was stopped, he moved the Director claiming regularisation in service. That request was rejected by Ext.P5 letter dated 04.11.2004, whereby he was informed that he WA No. 966 of 2010 -:2:- cannot be regularised in service. A subsequent request in that regard to the Government was also rejected by Ext.P7 order dated 16.04.2005. It was in that background that the writ petition was filed seeking regularisation in service and consequential service benefits. 3. The appellants resisted the writ petition relying on the decision of the Apex Court in State of Karnataka v. Umadevi [2006(4) SCC 1]. The learned single Judge after considering the rival contentions held that as the petitioner's appointment was not an illegal appointment, (he was appointed through employment exchange), in view of the exception carved out in paragraph 53 of the judgment in Umadevi's case(supra), the petitioner is entitled to be regularised in service. The learned Judge also noticed that the Government had secured an advantage by employing the petitioner on a provisional basis and extracted work from him without giving the benefits applicable to a regular employee. In that view of the matter the learned Judge held that by virtue of his long and continuous service after appointment through the employment exchange, the petitioner WA No. 966 of 2010 -:3:- was entitled to get his service regularised with consequential benefits. 4. We have considered the submissions made at the Bar by Sri.Benny Gervasis, the learned senior Government Pleader appearing for the appellants. We have also gone through the pleadings and the materials on record. The appellants do not dispute the fact that the petitioner was appointed as Fitter Grade II against an open vacancy through the employment exchange. It is also not in dispute that no regular appointment was made at any point of time to that post. Further, as rightly noticed by the learned single Judge, as the petitioner was appointed through the employment exchange which is a permissible mode of recruitment, it cannot be said that his appointment was illegal. The petitioner is, in our opinion, governed by the exception carved out by the Apex Court in paragraph 53 of the judgment in Umadevi's case(supra). The petitioner had rendered service for 26 long years after he was appointed through the employment exchange. The learned single Judge has, in our opinion, rightly held that in such circumstances, the petitioner ought to have WA No. 966 of 2010 -:4:- been regularised in service. The learned single Judge has, however, denied the petitioner the benefit of arrears of salary and has only directed payment of terminal benefits based on the notional pay fixation taking into account the periodical pay revisions, by treating him as a regular employee who joined service on 27.03.1982. In our considered opinion on the admitted facts of the case, the directions issued by the learned Single Judge do not call for any interference. We accordingly hold that there is no merit in the writ appeal. The Writ Appeal fails and is dismissed. J.Chelameswar, Chief Justice. P.N.Ravindran, Judge. ttb