IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 4TH MARCH 2010 / 13TH PHALGUNA 1931 WP(C).No. 33324 of 2005(P) ---------------------------------------- PETITIONER(S): -------------------------- A. IQBAL, FITTER GRADE II, DOCK REPAIR SECTION, KERALA STATE WATER TRANSPORT DEPARTMENT, ALAPPUZHA. BY ADVS. MR.N.SUGATHAN, MR.A.V.RAMAKRISHNA PANICKER. RESPONDENT(S): --------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT TRANSPORT (D) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, KERALA STATE WATER TRANSPORT DEPARTMENT, ALAPPUZHA. R1 & R2 BY GOVERNMENT PLEADER MR. DILEEP MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.33324/2005 P APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF ORDER NO.E1-14116/81 DTD. 24/03/1982 OF THE 2ND RESPONDENT. P2: COPY OF ORDER NO.E1-10223/95 DTD. 27/06/1995 OF THE 2ND RESPONDENT. P3: COPY OF LETTER NO.E1- 15417/02 DTD. 11/12/02 OF THE 2ND RESPONDENT. P4: COPY OF REPRESENTATION DTD. 11/10/2004 SUBMITTED BEFORE THE HON.CHIEF MINISTER OF KERALA. P5: COPY OF LETTER NO.CM/484/04/N.7 DTD. 4/11/2004 OF DIST. COLLECTOR, ALP. P6: COPY OF REPRESENTATION DTD. 11/2004 SUBMITTED BEFORE THE HON'BLE MINISTER FOR TRANSPORT. P7: COPY OF LETTER NO.13153/D1 2004/TRAN. DTD. 16/04/05 OF THE 1ST RESPONDENT. P8: COPY OF G.O.(MS) NO.178/97/AD DTD. 13/06/1997. P9: COPY OF G.O.(MS) NO.31/98/RDD DTD. 29/09/1998. P10: COPY OF G.O.(MS) NO.17/2000/FOREST DTD. 24/03/2000. P11: COPY OF ORDER NO.E3- 44025/98/SWD DTD. 27/02/2003. P12: COPY OF G.O.(P) NO.39/2002/P&ARD DTD. 26/08/2002. RESPONDENT'S EXHIBITS: N I L /TRUE COPY P.A.TO JUDGE Kss S. SIRI JAGAN, J. ~~~~~~~~~~~~~~~~~~~ W.P.(C). No. 33324 OF 2005 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 4th day of March 2010 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ J U D G M E N T The petitioner was appointed as Fitter Gr.II in the State Water Transport Department by Ext.P1 order dated 24.3.1982, through employment exchange. He joined duty on 27.3.1982. By Ext.P2 order dated 27.6.1995, he was allowed to continue in service on provisional basis. The petitioner was being given annual increments every year till 1991. Thereafter, increment was also stopped. By Ext.P3 letter dated 11.12.2002, the Director of the Department recommended to the Government that his services be regularised. The petitioner filed Ext.P4 representation seeking regularisation in service, which was answered by Ext.P5 letter dated 4.11.2004, intimating the petitioner that as per the rules presently in force, he can only be continued in service on provisional basis. His further representation W.P.(C). No. 33324 OF 2005 -2- was rejected by Ext.P7 relying on Ext.P12 Government order. It is in the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “(i) to issue a writ of mandamus or any other appropriate writ or order directing the 1st respondent to regularise the service of the petitioner as Fitter Gr.II with effect from 27.3.1982 and to treat him as permanent employee from the date of initial appointment as per Ext.P1 order and to grant him all consequential service benefits; and (ii) to issue such other appropriate writ, order or directions as this Hon'ble Court may deem just and proper to issue in the circumstances of the case.” During the pendency of the writ petition, the petitioner attained the age of superannuation on 31.3.2008 and ceased to be in service. 2. A counter affidavit has been filed by the 1st respondent wherein they oppose the contentions of the petitioner, primarily, based on the decision of the Supreme Court in State of Karnataka v. Umadevi [2006 (4) SCC 1]. The learned Government Pleader would argue that, the W.P.(C). No. 33324 OF 2005 -3- fact that the petitioner continued on provisional basis for so many years, would not entitle him for regularisation in service. 3. I have considered the rival contentions in detail. It is not in dispute before me, that there was a vacancy of Fitter Gr.II to which, only the petitioner was provisionally appointed through employment exchange. The respondents did not make any regular appointment to that vacancy, at any time. They continued to extract work of a regular employee from the petitioner, treating him as a provisional employee without giving him benefits of a regular employee. In that process, the respondents gained in two ways. First is that, it was not necessary to pay service benefits as applicable to a regular employee to the petitioner. Secondly, no retirement benefits need be paid to the petitioner. I am of the opinion that a democratic Government should not treat a citizen like that. The W.P.(C). No. 33324 OF 2005 -4- Government cannot take advantage of unemployment in the State to extract work of a regular employee without giving him service benefits. Even in the decision of State of Karnataka v. Umadevi [2006 (4) SCC 1], the Supreme Court recognises certain exceptions to the general rule in the matter of regularisation of provisional employees. I have no doubt in my mind that this case is one such exceptional case. The petitioner continued in service for 26 years doing the duties of a regular employee, in fact, till March 1991, he was also paid increments as applicable to a regular employee. In such circumstances, the petitioner ought to have been regularised in service. But in the peculiar circumstances of the case, I am not inclined to direct the respondents to give the petitioner, the benefit of arrears in salary. In the above circumstances, this writ petition is disposed of as follows: The petitioner shall be regularised in service with W.P.(C). No. 33324 OF 2005 -5- effect from 27.3.1982. He is deemed to have retired from service as a regular Fitter Gr.II on 31.3.2008. His pay shall be fixed taking into account of all pay revisions etc., as on 31.3.2008 as applicable to a regular employee who joined service on 27.3.1982. The petitioner shall be paid retirement benefits on the basis of the pay so fixed as on 31.3.2008. The petitioner would not be eligible for any other arrears or other service benefits. Orders in this regard shall be passed within 2 months and the arrears of retirement benefits paid to the petitioner within one month from the date of receipt of a copy of this Judgment. S. SIRI JAGAN JUDGE nl.