IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 2ND MARCH 2009 / 11TH PHALGUNA 1930 WP(C).No. 16429 of 2007(E) -------------------------------------- PETITIONER(S): ---------------------- 1. ALEYAMMA ROSAMMA, TYPIST GRADE I STATE FARMING CORPORATION OF KERALA LTD., VETTITHITTA, ALIMUKKU , PUNALUR. 2. E.GEETHAKUMARI, ACCOUNTS ASST. GRADE I STATE FARMING CORPORATION OF KERALA LTD., VETTITHITTA , ALIMUKKU , PUNALUR. 3. K.K.REMA DEVI, ASST. GRADE I, STATE FARMING CORPORATION OF KERALA LTD., VETTITHITTA , ALIMUKKU, PUNALUR. 4. N.SUBHAGAN PILLAI, ASST. GRADE I, STATE FARMING CORPORATION OF KERALA LTD., VETTITHITTA , ALIMUKKU, PUNALUR. 5. B.MOHANAN ACHARY, DRIVER GRADE I, STATE FARMING CORPORATION OF KERALA LTD., VETTITHITTA, ALIMUKKU, PUNALUR. 6. M.BAHULAYAN, DRIVER GRADE I, STATE FARMING CORPORATION OF KERALA LTD. VETTITHITTA, ALIMUKKU, PUNALUR. 7. D.SOMARAJAN ACHARY, DRIVER GRADE I, STATE FARMING CORPORATION OF KERALA LTD., VETTITHITTA ALIMUKKU, PUNALUR. 8. K.SASIDHARAN NAIR, ATTENDER, STATE FARMING CORPORATION OF KERALA LTD., VETTITHITTA , ALIMUKKU PUNALUR. BY ADVS. MR.R.RAJASEKHARAN PILLAI SMT.SABINA JAYAN W.P.(C) NO.16429/2007 RESPONDENT(S): ------------------------- 1. STATE OF KERALA REP.BY THE SECRETARY, AGRICULTURE (PU) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. STATE FARMING CORPORATION OF KERALA LTD., REP.BY ITS MANAGING DIRECTOR, VETTITHITTA (PO) ALIMUKKU PUNALUR. ADV. SRI.AJITH KRISHNAN,SC,STATE FARMING COR GOVERNMENT PLEADER MR.V.TEK CHAND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/03/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.16429/2007 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THEORDER NO.SFCK/ESTT 2829/82 DT. 13.3.84 BY THE 2ND RESPONDENT. P2:- COPY OF THE OFFICE ORDER NO.SFCK/PER/PROMOTION//2366 DT. 8.8.97 ISSUED BY THE 2ND RESPONDENT. P3:- COPY OF THE LETTER DT. 1.4.98 FORWARDED BY THE 2ND RESPONDENT TO THE IST RESPONDDENT. P4:- COPY OF THE ORDER NO.SFCK/PER/K.S/14/413 DT. 3.5.02. P5:- COPY OF THE JUDGMENT DT. 17.1.03 PASSED BY THIS HONOURABLE COURT IN OP. 10858/AD. P6:- COPY OF THE GO(MS) NO.21/04/AD DT. 1.3.04 ISSUED BY THE IST RESPONDENT. P7:- COPY OF THE ORDER NO.SFCK/PER/PROMOTION 299 DT. 9.5.06 ISSUED BY THE 2ND RESPONDENT. P8:- COP ORDER DT. 30.5.06 CONTAINING THE FIXATION STATEMENT IN RESPECT OF PETITIONERS 7 & 8. P9:- COPY OF THE JUDGMENT DT. 20.6.06 IN WP(C) NO.14987/04. P10:- COPY OF THE JUDGMENT DT. 21.6.06 IN OP. 4338/2000 PASSED BY THIS HONOURABLE COURT. P11:- COP GO(RT) NO.518/07/AD DT. 29.3.7. P12:- COPY OF THE ORDER NO.SFCK/PER/439 DT. 4.5.07 ISSUED BY THE 2ND RESPONDENT. P13:- COPY OF THE ORDER DT. 5.5.07 ISSUED BY THE 2ND RESPONDENT. P14:- COPY OF THE REPRESENTATION DT. 15.5.07 SUBMITTED BY THE PETITIONERS BEFORE THE IST RESPONDENT. ANNEXURE I:- COPY OF THE ORDER GO(MS)146/07/AD DT. 16.8.07 ISSUED BY THE IST RESPONDENT. TRUE COPY P.A. TO JUDGE TSS P.R.RAMACHANDRA MENON, J. ====================== W.P.(C) No.16429 of 2007 ====================== Dated, this the 2nd day of March, 2009 J U D G M E N T The petitioners have approached this Court stating as aggrieved because of the restrictive provisions incorporated in Exhibit P6 order of regularization whereby it is mentioned that the regularization will be having effect only from the date of the order i.e., from 1-3-2004. The further challenge is against Exhibit P11 order passed by the first respondent (dismissing the claim putforth by one of the similarly situated persons like the petitioners who had approached this Court by filing O.P.No.4338 of 2000 for preventing absorption of the deputationist and to promote her as the Head Clerk/Junior Superintendent) whereby the earlier promotion given vide order dated 05-8-1997 on a temporary basis was held as of no consequence and that they are never to be treated as Seniors to the employees who were recruited through the Kerala Public Service Commission (in short the 'PSC') prior to the date of W.P.(C) No. 16429/2007 -:2:- regularization having effected from 1-3-2004. Petitioners contend that above decision has very much adversely affected their vested rights, that too, having passed without giving any opportunity of hearing to the petitioners. 2. Regarding the sequence of events, it is to be noted that recruitment to the service under the second respondent, which is an independent entity, though belonging to the first respondent/Government, was left to the PSC way back in 1975. But the procedural formalities for facilitating such appointment could be finalised by the Government only by 1986. In the meanwhile, the second respondent Corporation had to meet its organisational requirements by appointing appropriate number of persons against such posts and it was accordingly that a total number of 17 persons including the petitioners were given appointment as Assistants. Later, as per the Resolution No.1239 dated 6.2.1984 taken by the Board of Directors of the second respondent Corporation, the aforesaid 17 W.P.(C) No. 16429/2007 -:3:- persons including the petitioners were ordered to be regularised subject to the approval of the Government. Even though, the second respondent had sought for the concurrence of the PSC in this regard and had taken up the matter with the first respondent/Government on turning down the request by the PSC, nothing turned out in the positive. 3. While so, the Union representing the above 17 workers had raised an industrial dispute under the relevant provisions of the Industrial Disputes Act, whereby the first respondent/appropriate Government referred the matter for adjudication by the Industrial Tribunal, Kollam. On conclusion of the trial, the Industrial Tribunal, Kollam passed an Award on 3-10-1994 making it clear that the concerned workers (who remained only at '13'; four among the total of 17 having already left the service) were entitled to be regularised even by creating supernumerary vacancies. The said order was challenged by the second respondent by filing O.P.No.10858 of 1995 before this W.P.(C) No. 16429/2007 -:4:- Court, which was heard along with O.P.No.10908 of 1995 preferred by the Union (seeking to implement the award); and both the cases were disposed of as per Exhibit P5 judgment directing the first respondent/State Government to pass appropriate orders with regard to the implementation of the Award. This, in turn, led to Exhibit P6 order passed by the Government on 1-3-2004, granting the benefit of regularisation to the concerned 13 workers, making it clear that the benefit of regularisation was to have effect only from the date of the order i.e., from 1-3- 2004. 4. The Union challenged the restriction in Exhibit P6 order limiting the benefit of regularisation only to be effective from 1-3-2004 i.e. from the date of the order, by filing W.P.(C) No.14987 of 2004. Two years after filing the same, the petitioner/Union sought for permission of this Court to withdraw the writ petition without prejudice to their right to seek other appropriate remedies in this regard, which led to Exhibit P9 Judgment closing the writ W.P.(C) No. 16429/2007 -:5:- petition with liberty to the Union for pursuing the matter before other appropriate authorities. In other words, Exhibit P6 dated 1-3-2004 has become final. 5. In the meanwhile, one of the above employees similarly situated like the petitioners approached this Court by filing O.P.No.4338 of 2000 challenging the steps stated as being taken by the Employer/Corporation for absorbing a deputationist, contending that such exercise would negate the opportunity of the said petitioner to get promoted to the post of Head Clerk/Junior Superintendent. Pursuant to Exhibit P10 Judgment passed by this Court in the above original petition, the matter was considered by the Government and turned down the request of the petitioner therein vide Exhibit P11 dated 15-5-2007. As obvious from Exhibit P11, the first respondent observed that the petitioner in O.P.No.4338 of 2000 got regularised only with effect from 1-3-2004; that she could never claim seniority over the persons recruited through the PSC before W.P.(C) No. 16429/2007 -:6:- 1.3.2004; that all the 17 persons recruited by the Farming Corporation whose case was dealt with by the Industrial Tribunal, Kollam and subsequently formed subject matter of Exhibits P5/P6 were not entitled to get promoted to the next higher category of Assistant Grade I with effect from 5.8.1997 and further that all such persons were promoted only on a provisional basis which could not be counted for the service benefits like increment, grade promotion, pension or promotion prior to the regulariasation. Exhibit P11 order was followed by Exhibit P12 order dated 4-5-2007 cancelling the temporary promotions given to all other similarly situated persons - petitioners herein. This made the petitioners to prefer Exhibit P14 representation before the Government, which is stated as pending consideration. 6. With regard to the challenge raised by the petitioners against Exhibit P6 order dated 1-3-2004 limiting the benefit of regularization to be with effect from the date of the order i.e. 1-3-2004, it is no more open to be dealt with W.P.(C) No. 16429/2007 -:7:- by this Court in view of the culmination of the earlier proceedings by Exhibit P9 Judgment whereby the right of the Union to approach other appropriate authorities in this regard was reserved. It is also true that this Court, while passing Exhibit P9 Judgment, did not impose any time limit to file such proceedings. This being the position, it will only be just and proper that the petitioners and their Union are permitted to proceed with further steps before such other appropriate authorities for redressal of their grievance, particularly since they are stated as adversely affected, only pursuant to the passing of Exhibits P11 and P12 proceedings whereby the promotion granted to them way back in 1997 (though temporary) has been cancelled retrospectively. 7. In this context, it is also relevant to note that the second respondent, being a separate legal entity, the Board of Directors is very much competent to take appropriate decision/resolution for governing the terms and conditions of service of the staff/officers, of course, subject to the W.P.(C) No. 16429/2007 -:8:- Rules, if any. It is also to be noted that the second respondent Corporation had taken a decision about '2½ decades' back to regularise all the concerned employees appointed from the open market (including the petitioners) with effect from 1-6-1983 i.e., prior to finalisation of the procedure for filling up the vacancies through the PSC. True, the said resolution was subject to the approval of the Government but it is not brought to light whether this resolution was rescinded, modified or set aside through any known procedure of law. It is also a fact that the Government is having adequate powers vested under the relevant rules, to take appropriate decision even when the concurrence of the PSC is stated as rejected. As such, it is only just and proper that the first respondent/Government passes such appropriate orders on Exhibit 14 representation as found to be fit, just and proper, giving due credence to the organizational interest and considering the settled seniority and status being enjoyed by the petitioners all these years. W.P.(C) No. 16429/2007 -:9:- 8. In the above facts and circumstances, the first respondent/Government is hereby directed to consider and pass appropriate orders on Exhibit P14 representation after giving an opportunity of hearing to the petitioners or their representatives. Final order in this regard shall be passed as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this Judgment. Implementation of Exhibits P11 and P12 in so far as the petitioners are concerned, will, of course, be subject to such final orders to be passed by the Government as directed above. The writ petition stands disposed of accordingly. Sd/- P.R.RAMACHANDRA MENON, JUDGE. skr // True copy // P.A. to Judge.