IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 WP(C).No. 20105 of 2007(R) ----------------------------------------- PETITIONER(S): -------------------------- S.PRAKASAN, PROJECTION ASSISTANT, CHITHRANJALI THEATRE, CHERTHALA. BY ADVS. SMT.S.KARTHIKA, MR.M.S.UNNIKRISHNAN, MR.M.R.ANISON, MR.T.R.RAJESH, SMT.K.P.GEETHA MANI. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY TO GOVT., CULTURAL AFFAIRS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE KERALA STATE FILM DEVELOPMENT CORPORATION, REP. BY ITS MANAGING DIRECTOR, VAZHUTHACAUD, THIRUVANANTHAPURAM. 3. THE KERALA PUBLIC SERVICE COMMISSION, REP. BY ITS SECRETARY, OFFICE OF THE K.P.S.C., PATTOM, THIRUVANANTHAPURAM. R1 BY GOVERNMENT PLEADER MR. DILIP MOHAN R2 BY ADV.MR.P.GOPALAKRISHNAN NAIR R3 BY ADV. MR.ALEXANDER THOMAS,SC,KPSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.20105/2007 R APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE SELECTION MEMO DTD. 21/08/1985 ISSUED BY THE 2ND RESPONDENT. P2: COPY OF THE PROCEEDINGS DTD. 11/04/1988 ISSUED BY THE 2ND RESPONDENT. P3: COPY OF THE PROCEEDINGS DTD. 12/01/1989 ISSUED BY THE 2ND RESPONDENT. P4: COPY OF THE PROCEEDINGS DTD. 5/07/1997 ISSUED BY THE 2ND RESPONDENT. P5: COPY OF THE LETTER DTD. 27/04/1998 ISSUED BY THE 3RD RESPONDENT. P6: COPY OF THE PROCEEDINGS DTD. 7/04/2005 ISSUED BY THE 2ND RESPONDENT. P7: COPY OF THE JUDGMENT DTD. 5/08/2005 IN O.P.21551/97. P8: COPY OF THE G.O.(RT) NO.324/2007/CAD DTD. 11/06/2007. P9: COPY OF THE PROVISIONAL GRADATION LIST ISSUED BY THE 2ND RESPONDENT. P10: COPY OF THE PROCEEDINGS DTD. 3/2/1988 ISSUED BY THE 2ND RESPONDENT. P11: COPY OF THE MEMO DTD. 12/10/1989 ISSUED BY THE 2ND RESPONDENT. P12: COPY OF THE MEDICAL CERTIFICATE DTD. 20/01/2004. P13: COPY OF THE PROCEEDINGS DTD. 29/06/2007 ISSUED BY THE 2ND RESPONDENT. P14: COPY OF THE LETTER DTD. 30/06/2007 ISSUED BY THE MANAGER, CHITHRANJALI THEATRE, CHERTHALA. P15: COPY OF THE PROVISIONAL SENIORITY LIST OF PROJECTION ASST. P16: COPY OF THE INTERIM ORDER DTD. 18/08/98 IN CMP.NO.27590/98 IN O.P.NO.21551/97. Kss ..2/- ..2.... WPC.NO.20105/2007 R P17: COPY THE LETTER DTD. 14/01/08 ISSUED BY THE 2ND RESPONDENT CORPORATION. P18: N I L P19: COPY OF THE LETER DTD. 14/01/08 ISSUED BY THE 2ND RESPONDENT CORPORATION. P20: COPY OF THE PROCEEDINGS DTD. 16/11/1987 ISSUED BY THE 2ND RESPONDENT. P21: COPY OF THE LIT OF 15 PERSONS WHO ARE UNIT FOR HOLDING THE PARTICULAR POST, NOW WORKING UNDER THE 2ND RESPONDENT DTD. 14/01/2008. P22: COPY OF THE LIST OF 41 PERSONS WHO WERE APPOINTED AFTER THE PETITIONER'S APPOINTMENT AND NOW CONTINUING UNDER 2ND RESPONDENT WITHOUT GETTING REGULARISATION FROM THE GOVT. DTD. 22/01/2008. P23: COPY OF THE PROCEEDINGS DTD. 11/1/1989 ISSUED BY THE 2ND RESPONDENT CORPORATION. P24: COPY OF THE PROCEEDINGS DTD. 22/09/2008 ISSUED BY THE 2ND RESPONDENT. P25: COPY OF THE LIST OF 50 EMPLOYEES WORKING AS DAILY WAGE HANDS IN KSFDC AS ON 30/06/2008. RESPONDENT'S EXHIBITS: R2(A): COPY OF THE LETTER NO.AIII (1)2023/86/CW DTD. 19/04/2007. R2(B): COPY OF THE PROCEEDINGS NO.144/85/A1/KSFDC DTD.3/2/88. R2(C): COPY OF THE PROCEEDINGS NO.144/85/A1/KSFDC DTD.11/04/88. R2(D): COPY OF THE LETTER NO.KSFDC/141/82/ADMN/1113 DTD. 6/08/07. /TRUE COPY/ P.S.TO JUDGE Kss S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 20105 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 28th July, 2009. J U D G M E N T The petitioner was appointed as an apprentice Projection Assistant on selection through employment exchange by Ext. P1 order dated 21-8-1985 in the 2nd respondent-Corporation. Pursuant thereto, he joined on 23-8-1985. On 11-4-1988, by Ext. P2 order, it was directed that the petitioner, who was appointed in the Corporation for the post of Projection Assistant (apprentice) through employment exchange, be sanctioned pay and allowance attached to the post of Projection Assistant with effect from 1-4-1988. By Ext. P3 order dated 12-1-1989, several apprentices who were appointed subsequent to the appointment of the petitioner were regularised in service. But, the petitioner was not. The petitioner approached this Court by filing O.P.No. 17260 of 1995. In that original petition, this Court directed the 2nd respondent to consider the representation filed by the petitioner in this regard. Pursuant thereto, by Ext. P4 order dated 5-7-1997, the services of the petitioner as Projection Assistant were regularised with effect from 25-3-1991, subject to approval by the Government and the Public Service Commission. Thereafter, the petitioner sought regularisation with effect from the date of his first appointment. The petitioner again approached this Court by filing O.P.No. 21551 of 1997. In the meanwhile, the 2nd respondent sought concurrence of the Public Service Commission for regularisation of the services of the petitioner. By Ext. P5 dated 27-4-1998, the Public Service Commission denied concurrence. By amending O.P.No. 21551 of 1997, the petitioner challenged the same also. By Ext. P7 judgment, this Court, in that original petition, directed the Government to consider the petitioner's representation in that regard. Pursuant thereto, Ext. P8 order has been passed, wherein the Government refused to agree to the proposal for regularisation of the W.P.C. No. 20105/07 -: 2 :- service of the petitioner. Consequently, the petitioner's services have been dispensed with by Ext. P13 order. Consequential order Ext. P 14 has also been issued. The petitioner is challenging Exts.P5, P8, P13 and P14, seeking the following reliefs: “(a) Issue a writ of certiorari or any other appropriate writ, order or direction to quash Exts.P5 and P8 orders since those orders are issued in violation of the petitioner's fundamental right under Article 14 and 16 of the Constitution. (b) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to regularise the petitioner's service in the Projection Asst. post in the Corporation w.e.f. 23-8-1986, as done in the case of similarly situated persons, who are appointed in the Corporation to the very same post and whose services were regularised by the Corporation; (c) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to permit the petitioner to continue to work as Projection Asst. in the Corporation without any break in service, dehors Exts.P5 and P8 orders.” 2. The contention of the petitioner is that the petitioner has put in 21 years, 6 months and 24 days of service in the 2nd respondent- Corporation. The petitioner has become entitled to the benefit of the decision in Secretary, State of Karnataka & others v. Umadevi & others, (2006) 4 SCC 1. According to the petitioner, out of the 247 employees presently working in the 2nd respondent-Corporation, more than 200 employees were originally appointed like the petitioner whose services were later regularised by the 2nd respondent from the date of their entry in service without getting concurrence from the Public Service Commission or the Government and they are still continuing in service. The petitioner therefore submits that it is totally arbitrary, discriminatory and a travesty of justice to terminate the service of the petitioner alone. 3. The learned Government Pleader would support Ext. P8 order contending that recruitment rules for various posts in the W.P.C. No. 20105/07 -: 3 :- Corporation were framed with effect from 1-4-1987 and as early as on 17-1-1979, the recruitment to the 2nd respondent-Corporation has been made through Public Service Commission. Therefore, once Special Rules have been framed on 1-4-1987, no provisional appointment can be regularised. 4. A counter affidavit has been filed by the 2nd respondent substantially admitting the facts stated by the petitioner as above. The 2nd respondent disputes that more than 200 employees have been recruited otherwise than through Public Service Commission. It is stated in the counter affidavit that the Corporation had appointed 120 persons on contract basis through employment exchanges, newspaper advertisement etc., in between 17-1-1979 to 1-4-1987 to various posts to ensure smooth functioning of the different units of the Corporation. 25 persons were appointed since 1-4-1987, who were also not appointed through Public Service Commission. The Board of Directors, in its meeting held on 28-8-1986 resolved to regularise the services of 106 employees who possessed the prescribed qualification as per the KSFDC Recruitment Rules and 15 persons who did not have the minimum qualification were also decided to be regularised after getting approval from the Public Service Commission and the Government. But, it is frankly admitted in the counter affidavit that it is true that no formal approval has been granted by the Government or Public Service Commission so far, for these appointments and hence they remain irregular appointments as on the date of filing the counter affidavit. It is also stated that the Public Service Commission has, by letter dated 19-4-2007, informed the Corporation that the Commission do not agree to the regularisation of services of the provisional hands, who were appointed after framing of Recruitment Rules, namely, 1-4-1987 and the persons named in Ext. P3 are among those appointed after 1-4- 1987. W.P.C. No. 20105/07 -: 4 :- 5. I have considered the rival contentions in detail. 6. It is not in dispute before me that the petitioner has been in service of the 2nd respondent as a Projection Assistant ever since 1-4- 1988 when, after joining as apprentice on 21-8-1985, the petitioner was given pay and allowances applicable to a Project Assistant with effect from 1-4-1988. It is an admitted fact that persons who were recruited just like the petitioner, some of whom were appointed subsequent to the appointment of the petitioner, are still continuing in service and their services have been regularised even without any concurrence by the Public Service Commission or sanction from the Government, although such appointments were conditional subject to approval by the Government and concurrence by the Public Service Commission. But, it is also admitted that no steps have been taken to terminate their services so far. I am of opinion that insofar as admittedly, at least 131 employees are still continuing in service, although they were also appointed just like the petitioner., as long as they continue in service, the petitioner should also be allowed to continue in service. Accordingly, I quash Exts. P8, P13 and P14 orders and direct that the petitioner be reinstated in service forthwith and allowed to continue in service as long as the other 131 employees recruited like the petitioner also continue in service. The writ petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/