IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 WP(C).No. 14218 of 2007(P) -------------------------- PETITIONER: ------------ K.SADANANDAN, COOK, O/O. MARINE SURVEYOR, HYDRO GRAPHIC SURVEY WING, BEYPORE. BY ADV. SRI.K.SANIL KUMAR RESPONDENTS: ------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, PORT DEPARTMENT, TRIVANDRUM. 2. THE CHIEF HYDROGRAPHER, O/O. HYDROGRAPHIC SURVEY WING, PORT DEPARTMENT, TRIVANDRUM-10. 3. THE MARINE SURVEYOR, HYDROGRAPHIC SURVEY WING, PORT DEPARTMENT, BEYPORE. ADDL.4. M.K.RAJAN, MARIPADAVIL, CHETHIKODE P.O., KANJIRAMATTOM, ERNAKULAM DISTRICT (IMPLEADED AS PER ORDER DATED 13.8.2007 IN I.A. NO.10762/07) BY GOVERNMENT PLEADER SRI. NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 14218 of 2007 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE ORDER DATED 20.4.05 BY 1ST RESPONDENT EXT.P2: TRUE COPY OF THE JUDGMENT DATED 12.8.05 IN WP 21800/05 EXT.P3: TRUE COPY OF THE ORDER DATED 2.8.05 ISSUED BY THE 1ST RESPONDENT EXT.P4: TRUE COPY OF THE ORDER DATED 10.8.05 ISSUED BY 3RD RESPONDENTs EXT.P5: TRUE COPY OF THE ORDER DATED 8.12.05 BY 1ST RESPONDENT EXT.P6: TRUE COPY OF THE MEMO DATED 17.4.07 EXT.P7: TRUE COPY OF THE EXPLANATION DATED 17.4.07 BY THE PETITIONER RESPONDENT'S EXHIBITS: EXHIBIT-R4(a): TRUE COPY OF THE LETTER NO.B2-1722/2006/HSW DATED 7.6.2006 OF O/o THE CHIEF HYDROGRAPHER /TRUE COPY/ P.A TO JUDGE V.GIRI,J. ------------------------- W.P ( C) No.14218 of 2007 -------------------------- Dated this the 20th June, 2008 J U D G M E N T Petitioner was engaged as Cook in the office of the 3rd respondent with effect from 14.1.1983 pursuant to the orders passed by the 2nd respondent. Appointment was on a provisional basis. Petitioner continued in service in such manner. While so, petitioner had sought for regularization in service. By Exhibit P1, petitioner's request was rejected and the same was challenged before this Court in WP(C) No. 21800 of 2005. This led to Exhibit P2 judgment. The relevant portion of the same reads as follows: Government Order dated 26.8.2002 itself reserves the right of the Government to consider individual cases involving severe hardships, and exceptional other relevant circumstances and to pass appropriate orders so as to deal with the claim for regularisation in service, in a just and equitable manner. There is absolutely no consideration of the circumstances pointed out by the petitioner while claiming the benefit of regularisation of service. The fact that the Government had taken a general decision not to regularise the service of provisional hands cannot therefore be pressed into service to W.P ( C) No.14218 of 2007 2 sustain Ext.P4 order. I, therefore, quash Ext.P4 as it is vitiated by non-application of mind. It follows that the Government shall be directed to pass fresh orders in accordance with law. I do so. Petitioner shall be afforded an opportunity of being heard and fresh orders shall be passed within two months on receipt of a copy of this judgment.” 2. Apparently, in the meanwhile, pursuant to Exhibit P3 order, petitioner was relieved from service on 10.8.2005. Exhibit P2 was delivered on 12.8.2005. Petitioner was reinstated in service only on 2.1.2006. It seems that nevertheless taking note of Exhibit P2 judgment or otherwise petitioner continued to receive his wages pursuant to Exhibit P2 judgment. Government reconsidered the issue and by Exhibit P5 order Government passed an order, whereby, though regularization as such was not accepted, the 2nd respondent was directed to issue a posting order to the petitioner and was also permitted to continue in service on a provisional basis till his retirement. The relevant portion of Exhibit P5 reads as follows: “The Chief Hydrographer Hydrographic Survey Wing will issue necessary posting orders in this case to Shri.Sadanandan and he will be permitted to continue in service from the date of W.P ( C) No.14218 of 2007 3 relief as the High Court has quashed the order read as second paper above. 3. Subsequent to Exhibit P4, Exhibit P6 memo was issued to the petitioner stating that he had actually been relieved from service on 10.8.2005 and was reinstated in service only on 2.1.2006. Therefore, he should refund the wages which were paid to him for the said period as such. This has been challenged in this writ petition. There has been a stay of recovery of any amounts from the petitioner pursuant to Exhibit-P6. 4. A counter affidavit has been filed by the respondents wherein, it is contended that petitioner, relieved from service on 10.8.2005, was reengaged pursuant to Exhibit P5 order only on 2.1.2006. But he received wages for the period when he had not worked. Therefore, he is bound to refund the same. Admittedly, petitioner was relieved from service pursuant to Exhibit P3 order. Exhibit P1 has been set aside by this Court under Exhibit P2 judgment and Government was directed to pass a fresh order. Government then passed Exhibit-P5 order, whereby, the petitioner has been directed to be given a W.P ( C) No.14218 of 2007 4 posting afresh and also to continue in service on a provisional basis till his retirement. Moreover, the Government further directed in Exhibit P6 that petitioner shall be permitted to continue in service from the date of relief on the premise that the High Court had quashed Exhibit P1 order. 5. In my view, going by Exhibit P5 itself, petitioner was directed to be treated as retained in service on a provisional basis ,even for the period from 10.8.2005 to 1.1.2006. Even otherwise I am inclined to hold that since the order by which petitioner's services were terminated on 10.8.2005 was actually set aside by this Court in Exhibit P2 judgment dated 12.8.2005, interests of justice demand that the wages already drawn by the petitioner should not be recovered. Petitioner is only a cook which post is included in the last grade service and even as per Exhibit P5 order he has not been granted any regularization of service. W.P ( C) No.14218 of 2007 5 For all these reasons, the writ petition is allowed. Exhibit P6 is quashed. Respondents shall not take any steps to recover from the petitioner, the wages already drawn by the petitioner for the period from 10.8.2005 to 1.1.2006. (V.GIRI, JUDGE) ma W.P ( C) No.14218 of 2007 6 W.P ( C) No.14218 of 2007 7