IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 1ST JUNE 2011 / 11TH JYAISHTA 1933 WA.No. 2646 of 2009 --------------------- AGAINST THE JUDGEMENT IN WPC.6560/2005 DATED 19/02/2008 .................... APPELLANT/PETITIONER: --------------------------- N.K.MOIDEEN, SHOP MANAGER-IN-CHARGE HELPER (RETIRED) CODE NO.3329, KERALA STATE CIVIL SUPPLIES CORPORATION, MAVELI STORE TIRUR UNIT, RESIDING AT BY ADV. SRI.R.RAJASEKHARAN PILLAI SMT.SABINA JAYAN RESPONDENTS/RESPONDENTS: ---------------------------------- 1. THE KERALA STATE CIVIL SUPPLIES CORPORATION, MAVELI BHAVAN, GANDHI NAGAR, KOCHI REPRESENTED BY CHAIRMAN & MANAGING DIRECTOR. 2. THE REGIONAL MANAGER, KERALA STATE CIVIL SUPPLIES CORPORATION, PALAKKAD. R1 & R2 BY SHRI N.D.PREMACHANDRAN,SC,SUPPLYCO THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & Antony Dominic, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 2646 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of June, 2011 JUDGMENT J.Chelameswar, C.J. Aggrieved by a judgment dated 19.02.2008 in W.P. (C) No.6560 of 2005, the unsuccessful petitioner preferred the instant appeal. 2. The writ petition was filed with the prayer as follows: “I. Issue a writ of certiorari or other appropriate writ, order or direction quashing the rider provided in Ext.P2 to the effect that “But the benefit of re-fixation under Rule 28A Part I KSR will not be admissible”be quashed as arbitrary, illegal, unconstitutional and opposed to the very principle of grade promotion. II. Issue a writ of mandamus or other appropriate writ commanding the 2nd respondent to refix the petitioner's pay in the first higher grade and then at the appropriate stage in the time scale in the second higher grade. III. Issue a writ of mandamus or other appropriate writ, order or direction commanding the respondents to disburse the arrears of pay and allowance consequent on such fixation. IV. Issue a writ of certiorari or other appropriate writ, order or direction quashing Ext.P4 as incorrect, illegal and it amounts to abject abdication of supervisory jurisdiction of the W.A.No. 2646 of 2009 -:2:- first respondent. V. Issue such other writ order or direction, as this Hon'ble Court may deem fit or proper to meet the ends of justice.” 3. Ext.P2 is a proceeding of the 1st respondent who is the employer of the appellant herein. By the said proceeding a second time bound higher grade scale is granted to the appellant and another, with whom we are not concerned with the instant appeal. However, while according such a sanction, such a benefit was made subject to certain condition which was the subject matter of challenge in the writ petition. Apart from this, the appellant also sought a writ of mandamus commanding the respondents to refix the appellant's pay in the first of the higher grades and as a consequence refix the eligibility of the appellant for the second higher grade at the appropriate stage. 4. Along with the appeal, the appellant filed an I.A. No.1189 of 2009, with the prayer as follows: “For the reasons stated in the accompanying affidavit it is most humbly prayed that this Hon'ble Court may W.A.No. 2646 of 2009 -:3:- be pleased to permit the petitioner to amend the Writ Petition in the relief portion:- IA. Issue a writ of certiorari or other appropriate writ order or direction calling for the records leading to Ext.R1b and quash the same as arbitrary illegal and tainted with malafides and contumacious.” 5. Ext.R1(b)which is the subject matter of challenge in the abovementioned I.A. is dated 04.03.2003. It appears from the record that the said I.A. was allowed on 26.11.2009 without notice to the respondents. It may be mentioned here that the appeal itself was presented with a delay of 611 days. On the application to condone the delay in preferring the appeal, i.e. C.M.Appl. No.1234 of 2009, notice was ordered on 26.11.2009. In other words, even before the delay in preferring the appeal is condoned, amendment petition came to be allowed. We do not propose to go into the circumstances under which such an order came to be passed. The operative portion of Ext.R1(b) reads as follows: “In the circumstance, the regularisation given to Sri.N.K.Moideen with effect from 1.1.1984 is revised as 01.06.1989 and date of continuous service entered as W.A.No. 2646 of 2009 -:4:- 26.09.1983 is revised as 26.06.1984 as proposed in the Notice dated 10.05.2002. The seniority of Sri.N.K. Moideen is therefore reassigned as '760A' just below 760 i.e., in between Moideen T.M.(Sl.No.760) and Sri.Mohammed Kutty A.K. (Sl.No.761) in the final seniority list of Helpers appointed up to 31.12.1989 published as per Proceedings No.D6-12891/98 dated 08.04.1999.” 6. It appears from a reading of the said exhibit that, the appellant was initially employed by the 1st respondent Corporation as a helper on daily wages on 26.09.1983. It appears from the said document that subsequently he was disengaged for some time. The only other admitted fact is that the appellant was once again engaged in the service with effect from 26.06.1984 as a daily wage helper. On two occasions the respondent Corporation appears to have taken a policy decision to regularise the services of the daily wage earners employed by the Corporation subject to certain conditions (the details of which are not readily available on record or necessary for the present purpose). Though the dates are not very clear from the record, the first of such a decision was taken towards the end of 1983 to regularise the services of the W.A.No. 2646 of 2009 -:5:- daily wage earners who were in the employment of the Corporation as on 28.12.1983 and the decision was to regularise their services with effect from 01.01.1984. The second of such a decision, it appears, was taken to regularise the services of the daily wage earners of the Corporation with effect from 01.06.1989. Obviously, such a regularisation was undertaken for the benefit of the daily wage earners employed by the Corporation subsequent to 01.01.1984 as such employees working with the Corporation prior to the date were already regularised. 7. The appellant's service admittedly was regularised initially with effect from 01.01.1984. Based on such a regularisation, seniority lists were also published. However, by the proceedings dated 04.03.2003 referred to earlier, the Corporation once again re-opened the whole issue and came to the conclusion that the regularisation of the appellant's service with effect from 01.01.1984 was not justified, but he was entitled to be regularised from W.A.No. 2646 of 2009 -:6:- 01.06.1989. Such a conclusion is reached on the belief that the appellant's continuous provisional service as daily wage helper is only with effect from 26.06.1984. We have already mentioned that in the same document the 1st respondent admits that the appellant was initially engaged as daily wage helper with effect from 26.09.1983 but such service was disengaged after some period without specifying the actual date on which the appellant's services came to be dispensed with. It is in this background, the proceeding dated 04.03.2003 came to be issued. 8. From the counter affidavit filed by the respondents in the writ petition it is asserted that the appellant's services was discontinued from 30.11.1983. Though the appellant disputes the said fact, all these assertions require an examination of the disputed facts and requires evidence to be recorded. 9. Apart from that, by I.A. No.1189 of 2009, the appellant seeks to challenge an order dated 04.03.2003 at a W.A.No. 2646 of 2009 -:7:- belated stage in the appeal, after a lapse of almost six years from the date of the proceeding. Though the appellant claims that he had no knowledge of the said document until the same was filed by the respondents as one of the material papers along with the counter affidavit filed in the writ petition, it appears from the document itself that a copy of the document was marked to the appellant thereby making the relevant date of the appellant's knowledge, a disputed fact. Therefore, we do not see any reason to grant any relief to the appellant in so far as I.A. No.1189 of 2009 is concerned. The prayer therein is therefore rejected. 10. Coming to the judgment under appeal, in so far as the challenge to Ext.P2 in the writ petition is concerned, the learned Judge of this Court recorded at paragraph six of the judgment as follows: “6. As far as the challenge to Ext.P2 i concerned, I would think that there is no merit in the challenge. Petitioner has been granted the fixation under Rule 28A. What is denied to him is re-fixation under Rule 28A. It is stated that the benefit of Rule 28A is not available in the case of grade W.A.No. 2646 of 2009 -:8:- promotion. Learned counsel for the petitioner is unable to convince me as to how the stand of the respondents is in any way illegal. Accordingly, I uphold Ext.P2.” 11. Even before us in the appeal, nothing specific is brought to our notice as to establish either the conclusion reached by the learned Judge is untenable in law nor that the impugned portion of Ext.P2 is otherwise illegal. In the circumstances, we do not see any merit in the appeal and the appeal is dismissed. J.Chelameswar, Chief Justice. Antony Dominic, Judge. ttb W.A.No. 2646 of 2009 -:9:- J.Chelameswar, C.J. & Antony Dominic, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - C.M. Appl. No. 1234 of 2009 IN W.A.No. 2646 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of February, 2011 O R D E R Antony Dominic, J. This application is filed seeking condonation of 611 days in filing the appeal. In the affidavit filed in support of the I.A. it is stated that, after his retirement the appellant was staying with his daughter at Coimbatore. According to him, W.A.No. 2646 of 2009 -:10:- during his stay at Coimbatore, due to various ailments, he could not keep in touch with his counsel or keep track of the developments in the case. It is also stated that the person to whom he had entrusted his case had also migrated to Malaysia which also contributed to the delay. On these grounds the appellant prays that the delay may be condoned. 2. Respondents have filed a counter affidavit, wherein they have contended that the explanation offered by the appellant for condonation of delay is unsatisfactory and that the attempt is to get the delay condoned by blaming the counsel who was engaged in the matter. 3. We have gone through the reply affidavit filed by the petitioner and also the affidavit of Mr.M.H.Abdur Rahman, Advocate who is stated to have been migrated to Malaysia. 4. We have heard the learned counsel on both sides. 5. From the averments in the affidavit it would appear that it was mainly on account of the ailments of the W.A.No. 2646 of 2009 -:11:- appellant during his stay in his daughter's house at Coimbatore that the delay has occurred. Since the delay has been thus satisfactorily explained, we are inclined to condone the delay. Accordingly, the delay of 611 days in filing the appeal will stand condoned. Post the Writ Appeal for admission. J.Chelameswar, Chief Justice. Antony Dominic, Judge. ttb