IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 WP(C).No. 18479 of 2007(Y) -------------------------- PETITIONER(S): PETITIONER ------------------------- AJAKUMAR,KOTTARATHIL DEVI SADANAM, KOTOOOR P.O.,TRIVANDRUM-695 574. BY ADV. SRI.KURIAN GEORGE KANNAMTHANAM, SENIOR ADVOCATE SRI.TONY GEORGE KANNANTHANAM RESPONDENT(S): RESPONDENTS -------------------------- 1. KERALA STATE AUDIO VISUAL & REPROGRAPHIC CENTRE,REPRESENTED BY ITS MANAGING DIRECTOR,VATTIYOORKAVU P.O.,TRIVANDRUM. 2. THE MANAGING DIRECTOR, KERALA STATE AUDIO VISUAL & REPROGRAPHIC CENTRE VATTIYOORKAVU,TRIVANDRUM-13. ADV. SRI.B.S.KRISHNAN,SC, K.S.A.V.R.C. FOR R1 SRI.K.ANAND (A.201) FOR R1 SMT.LATHA KRISHNAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). No. 18479/2007 APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE APPOINTMENT ORDER DTD.8.5.96. P2. COPY OF THE ORDER DTD.10.11.97. P3. COPY OF THE ORDER DTD.22.2.99. P4. COPY OF THE ORDER DTD.26.2.01. P5. COPY OF THE ORDER DTD.31.5.2002. P6. COPY OF THE JUDGMENT IN O.P.No. 12063/03 P7. COPY OF THE LETTER DTD.15.7.03 OF R1. P8. COPY OF THE JUDGMENT IN W.P.(C). No. 28454/03 OF THIS COURT. P9. COPY OF THE REPRESENTATION DTD.3.5.07 TO R1. P10. COPY OF THE COVERING LETTER DTD.18.5.07. P11. COPY OF THE ORDER DTD.9.5.07 FROM R2. P12. COPY OF THE ORDER DTD.30.5.02 OF THE HIGHER EDUCATION DEPARTMENT. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No.18479 of 2007 ================== Dated this the 7th day of October, 2010 J U D G M E N T The petitioner was appointed as a Security Guard in the 1st respondent institution, which is a Government owned institution and satisfies the definition of “State” in Article 12 of the Constitution of India. His appointment as a Security Guard was regularised and while he was continuing as a regular Security Guard, the 1st respondent invited applications for appointment to the post of L.D.Clerk in the establishment. The petitioner also applied, he was selected and appointed provisionally as an L.D.Clerk. Subsequently, because of certain Government orders on the subject, the appointment of the petitioner as L.D.Clerk along with that of others was cancelled. The petitioner claimed reversion as Security Guard invoking Rule 2.50 of the Rules of the Centre on the ground that he has lien over the post. But he was not given such retention in service. The petitioner filed two writ petitions. The Managing Director was directed to consider the petitioner's claim under Rule 2.50. Ultimately, Ext.P11 order was passed rejecting the petitioner's claim on the ground that since he was removed from service, he is not eligible for the benefit of Rule 2.50 of the Service Rules. It is under the above circumstances, the petitioner has approached this Court seeking the following reliefs: “(a) to issue a writ of certiorari or other appropriate order or direction to quash Ext.P11. (b) to issue a writ of mandamus or other appropriate order or direction to w.p.c.18479/07 2 direct the 2nd respondent to appoint petitioner as security guard in the light of his lien as per Rule 2.50. (c) to issue writ of mandamus or other appropriate order or direction to direct the 2nd respondent to pay petitioner all monetary benefits he was entitled to if he were not illegally denied the post of Security Guard as per his lien. (d) To declare that petitioner is entitled to be appointed as security guard in the light of his lien as per Rule 2.50.” 2. A counter affidavit has been filed by the 1st respondent supporting Ext.P11 order on the ground that lien in the post of Security Guard would not be available since the petitioner's service has been terminated. 3. I have considered the rival contentions in detail. 4. Even at the outset, I may say that the action of the respondents is totally against justice and common sense of any kind whatsoever. Rule 2.50 reads thus: “2.50 LIEN OF AN EMPLOYEE ON A POST. A person who has been regularised on a post will hold a lien thereon, and such lien will not be terminated unless he is regularised in another post, reduced to a lower post/ retired/removed/dismissed from service or allowed to join a post not on the cadre of service of the Centre.” I am of opinion the words, “retired, removed and dismissed” should apply when the same is on account of any fault on the part of the employee concerned. In this case, the respondents have no case that the petitioner was removed or dismissed from service from the post of L.D. Clerk because of any reason attributable to the petitioner. He lost his appointment as a L.D.Clerk to which he was appointed while he was working as a Security Guard. So once he loses the post of w.p.c.18479/07 3 L.D.Clerk for no fault of his, the petitioner cannot be denied the lien in the former post of Security Guard. Even otherwise, such denial of retention as a Security Guard is against all principles of justice. The petitioner was appointed irregularly as an L.D.Clerk and he lost that job not because of any fault of the petitioner. The entire fault was on the 2nd respondent -Managing Director of the 1st respondent. I do not think that the petitioner should be allowed to suffer because of the fault of the 2nd respondent. The respondents cannot rely on their wrongdoing to deny rightful justice to an employee. In the above circumstances, this writ petition is allowed. The respondents are directed to reinstate the petitioner in service as a Security Guard with effect from the date when he was terminated from service as L.D.Clerk. The petitioner would be entitled to all consequential service benefits including monetary benefits. It would be open to the 1st respondent to recover the arrears of monetary benefits paid to the petitioner in accordance with the above directions from the person who was holding the post of 2nd respondent for whose fault, the petitioner lost his job. The retrenchment compensation, if any, received by the petitioner at the time of termination from service shall be adjusted against the arrears due to the petitioner. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.18479/07 4