IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 18TH AUGUST 2008 / 27TH SRAVANA 1930 WP(C).No. 23387 of 2008(H) ---------------------------------------- PETITIONER: ---------------------- V.SIVAKUMAR, ATTUVARAMBIL VAYALIL PUTHEN VEEDU, TC 79/1942, KARIKKAKOM, BEACH P.O., THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.HARISH R. MENON RESPONDENTS: ------------------------ 1. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, TRANSPORT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHPURAM. 2. KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION LTD., LEVEL 8, 6TH FLOOR, TRANS TOWERS, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695014 REPRESENTED BY ITS MANAGING DIRECTOR. BY SR. GOVERNMENT PLEADER SMT. M.R. SREELATHA - R1 ADV. SRI.KRB.KAIMAL (SR.) FOR R2 SRI.B.UNNIKRISHNA KAIMAL FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.N.Ravindran, J. ================= W.P(C).No.23387 of 2008 ===================== Dated this the 18th day of August, 2008. JUDGMENT The petitioner was working as Driver on daily wages in the Kerala Transport Development Finance Corporation Ltd. (for short "the Corporation"). By Ext.P2 order dated 22.2.2006, Government accorded sanction to regularise the services of 106 employees of the Corporation including the petitioner. Later, by Ext.P3 order passed on 12.2.2007, Ext.P2 was cancelled. In Ext.P3, the State Government took the stand that the regularisation of the employees was illegal. The petitioner and others, who were aggrieved by Ext.P3 thereupon filed W.P.(C)No.5139 of 2007 in this Court. By judgment delivered on 13.7.2007, Ext.P3 was quashed and the State Government was directed to pass fresh orders in the matter. Thereupon, the government issued Ext.P4 order dated 10.9.2007 cancelling Ext.P2 and directed the Corporation to terminate the services of the 106 employees. Consequential orders were passed evidenced by Exts.P5 and P6. The petitioner did not challenge Exts.P4, P5 and P6. Other employees who were aggrieved by Ext.4 challenged it in a series of Writ Petitions. By the decision in Usha K. v. State of Kerala and others - ILR 2007 (4) Kerala 862, the challenge to Ext.P4 was repelled. The Writ Appeal filed from the said decision was also dismissed. WP(C) 23387/08 -: 2 :- The petitioner has in this Writ Petition challenged Ext.P4 and prayed for the following reliefs: "a) Call for the records leading to Exhibit P4 order issued by the 1st respondent and quash the same to the extent it directs termination of the service of the petitioner and also quash Exhibits P5 and P6 consequential orders issued by the 1st and 2nd respondents respectively by issuing a writ in the nature of certiorari or any other appropriate writ, order or direction. b) Declare that the petitioner being a person appointed against a sanctioned post and having completed more than 10 years as on 10.9.2007 the date of Exhibit P4 order is entitled to have his service regularised in terms with the direction issued by the Honourable Supreme Court in the judgment reported as Secretary of State, State of Karnataka v. Umadevi [(2006) 4 SCC 1] c) Issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to reinstate the petitioner in service and regularise his services with effect from the date of his original appointment." The petitioner contends that he was appointed against a post sanctioned by Ext.P1 government order dated 24.9.1992 and therefore, he is entitled to the benefit of paragraph 53 of the decision of the Apex Court in Secretary of State, State of Karnataka v. Umadevi (supra). 2. When the Writ Petition came up for admission on 5.8.2008, I had directed the learned Standing Counsel for the second respondent Corporation to get instructions as to whether the petitioner was WP(C) 23387/08 -: 3 :- appointed as Driver against the post sanctioned as per Ext.P1. The second respondent was also directed to state whether the petitioner was appointed after following the procedure prescribed for selection. Today when the Writ Petition came up for hearing today, Sri. K.R.B. Kaimal, the learned Senior Standing Counsel for the second respondent Corporation submitted that the petitioner was not appointed as Driver against the post sanctioned as per Ext.P1. It was submitted that the petitioner was initially appointed as Guard and that later, he was appointed as Driver. The learned Standing Counsel for the Corporation submitted that the petitioner was not appointed as Driver against the post sanctioned in Ext.P1 and that he is similarly situated as the 105 persons whose services were terminated by Ext.P4. It was further submitted that Ext.P4 order was passed on 10.9.2007 and that the petitioner has not chosen to challenge it for nearly 10 months. 3. I have considered the submissions made at the Bar by the learned counsel appearing on either side. In my opinion, the challenge to Ext.P4 is highly belated. Ext.P4 order was passed on 10.9.2007. It was implemented and the service of the petitioner was terminated by Ext.P6 order dated 12.9.2007 passed by the Corporation. Therefore, this Writ Petition is highly belated. The explanation offered by the petitioner for the delay in filing the Writ Petition is that he was not aware of the fact that he was appointed against a sanctioned post till he received a copy of Ext.P1. It was further submitted that as the petitioner was appointed WP(C) 23387/08 -: 4 :- as Driver against a sanctioned post as per Ext.P1 he is entitled to the benefit of paragraph 53 of the decision of the Apex Court in Secretary of State, State of Karnataka v. Umadevi - (2006) 4 SCC 1. In the light of the stand taken by the Corporation that the petitioner was not appointed as Driver against the post sanctioned as per Ext.P1, the petitioner cannot claim the benefit of paragraph 53 of the decision in Secretary of State, State of Karnataka v. Umadevi - (2006) 4 SCC 1. Further no materials are produced to show that the petitioner's entry in service was as Driver. In short, the petitioner has not succeeded in establishing that his initial appointment was as Driver against the post sanctioned as per Ext.P1. For the reasons stated above, I hold that there is no merit in this Writ Petition. The Writ Petition fails and it is accordingly dismissed. P.N.Ravindran, Judge. ess 25/8