IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 WP(C).No. 7630 of 2009(W) ------------------------- PETITIONER(S): ----------------------- C.C.GEORGE, AGED 58, S/O.CHERIAN,CHENNAKKATTU HOUSE, COTTANADU P.O., MEPPADI, WYNAD DISTRICT. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY, SOCIAL WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DIRECTOR, SOCIAL WELFARE DEPARTMENT, THIRUVANANTHAPURAM. 4. THE CHILD DEVELOPMENT PROJECT OFFICER, OFFICE OF THE CHILD DEVELOPMENT PROJECT OFFICER, MANANTHODY, WAYANAD. GOVERNMENT PLEADER SRI.ANTONY MUKATH FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.7630/09 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF ORDER NO.22/78 DT 29.9.1981 OF THE 4TH RESPONDENT. EXT.P2: TRUE COPY OF ORDER NO.EF3-38349/81 DT 22.11.1981. EXT.P3: TRUE COPY OF the ORDER DT 26.3.1982 IN CMP 6537/1982 OF THIS HON'BLE COURT. EXT.P4: TRUE COPY OF CIRCULAR NO.119890/SBY/82 DT 9.11.1982 ISSUED BY THE 1ST RESPONDENT. EXT.P5: TRUE COPY OF ORDER DT 21.10.85 OF THIS HON'BLE COURT IN CMP NO.29128/85. EXT.P6: TRUE COPY OF LETTER NO.EF4-19374/85 DT 28.9.1986 OF THE 3RD RESPONDENT. EXT.P7: TRUE COPY OF THE CERTIFICATE DT 11.6.88 ISSUED BY THE PRINCIPAL, RAJAGIRI COLLEGE OF SOCIAL SCIENCES. EXT.P8: TRUE COPY OF ORDER DT 3.2.1989 IN CIVIL MISCELLANEOUS PETITION NO.790/1989 OF THE HON'BLE SUPREME COURT. EXT.P9: TRUE COPY OF LETTER NO.E1-6045/89 DT 23.3.1991 OF THE 3RD RESPONDENT. EXT.P10: TRUE COPY OF ORDER DT 2.2.95 OF THE HON'BLE SUPREME COURT IN SLP (CIVIL) 364/89. EXT.P11: TRUE COPY OF THE CIRCULAR NO.9516/ADV.C1/92/P&ARD DT 9.3.95 OF THE 1ST RESPONDENT. EXT.P12: TRUE COPY OF CIRCULAR NO.E4.10848/95 DT 6.4.95 OF THE 3RD RESPONDENT. EXT.P13: TRUE COPY of LETTER NO.A1/308/95 DT 6.9.95 TO THE 3RD RESPONDENT ALONG WITH THE APPLICATION. EXT.P14: TRUE COPY OF CERTIFICATE NO.890/98 DT 21.1.98 ISSUED BY THE UNDER SECRETARY OF THE PUBLIC SERVICE COMMISSION. EXT.P15: TRUE COPY OF CERTIFICATE DT 24.12.97 ISSUED BY THE COURSE DIRECTOR EVIDENCING THE PARTICIPATION OF THE PETITIONER IN THE SPECIAL TRAINING PROGRAMME. WPC NO.7630/09 -2- EXT.P16: TRUE COPY OF LETTER NO.E7/16327/98 DT 9.6.98 ISSUED BY THE 3RD RESPONDENT. EXT.P17: TRUE COPY OF ORDER NO.A1/308/85 DT 23.12.99 OF THE 4TH RESPONDENT. EXT.P18: TRUE COPY OF LETTER NO.E1/9869/02 DT 3.5.02 ISSUED BY THE 3RD RESPONDENT. EXT.P19: TRUE COPY OF LETTER NO.E2(1) 6422/05 DT 26.12.2005 ISSUED BY THE 3RD RESPONDENT. EXT.P20: TRUE COPY OF NO.A1-308/85 DT 31.1.06 OF THE 4TH RESPONDENT. EXT.P21: TRUE COPY OF LETTER NO.4427/A1/2008/SWD DT 20.9.08 ISSUED BY THE 2ND RESPONDENT. EXT.P22: TRUE COPY OF THE ORDER NO.FWAS-120676/00/DHS DT 10.8.06 OF THE ADDITIONAL DIRECTOROF HEALTH SERVICES (FW & MCH). EXTS. OF R2 EXT.R2(a): A TRUE COPY OF G.O. DT 26.8.2002 //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 7630 OF 2009 (W) ===================== Dated this the 21st day of July, 2010 J U D G M E N T On 29/9/81, petitioner joined Social Welfare Department as a Lower Division Clerk. This was a provisional appointment. When his services were ordered to be dispensed with, he approached this Court by filing OP No 2165/82. In that original petition, Ext.P3 interim order was passed allowing the continuance of the petitioner. On that basis, he continued. Finally, the original petition was dismissed. 2. Subsequently, he filed OP No.9359/85 and claimed regularization on the basis that he is a physically handicapped candidate. In OP No.9359/85 also, he succeeded in obtaining an interim order and continued in service. This Original petition was also finally dismissed and he filed WA No.492/1985. In that Writ Appeal, Ext.P5 order was passed enabling the petitioner to continue in service. The appeal was also dismissed and thereupon the petitioner filed SLP (Civil) No.364/89 and obtained Ext.P8 order of status quo. While the petitioner was thus continuing in service, the SLP was heard by the Apex Court WPC No. 7630/09 :2 : and Ext.P10 order dated 2/2/95 shows that petitioner got the SLP withdrawn. 3. Subsequently, petitioner again filed representation for regularization, and while so, he attained the age of 55 years on 31/1/2006 and was relieved from service. His claim for regularization was considered and was rejected by Ext.P21 order. It is challenging Ext.P21, the writ petition is filed. 4. Counsel contends that in Ext.P21 order, the main reason stated to reject his claim for regularization is that he was continuing in service on the strength of court orders. It is stated that the said reasoning adopted in Ext.P21 is erroneous, in as much as, the litigation that the petitioner had instituted for his regularization terminated with Ext.P10 order of the Apex Court dated 2/2/1995 and that, thereafter also, the petitioner continued in service till he was relieved on 31/1/2006. 5. However, along with the counter affidavit, learned Government Pleader has produced as Ext.R2(a), GO(P) No.39/2002/P&ARD dated 26th of August, 2002. This order shows that there were successive writ petitions before this Court instituted at the instance of provisional hands, like the WPC No. 7630/09 :3 : petitioner, claiming regularization of their services, wherein orders were obtained enabling their continuance. It is seen that pursuant to the directions of this Court in the writ petitions and the appeals that were so filed, Government considered the claim for regularization and issued Ext.R2(a) order stating that the provisional employees continuing in service as per the Circular dated 9/3/95 and the Government letter dated 17/3/98 will not be regularized. This also orders that on humanitarian considerations, they will be permitted to continue in service on provisional basis invoking Rule 39 of the KS & SSR without regularization. It is pointed out on behalf of the respondents that it is availing of the benefit of the aforesaid orders that the petitioner continued in service till he was relieved on 31/1/2006. 6. Thus, the policy of the Government as reflected in Ext.R2(a) was to permit provisional hands like the petitioner to continue in service without regularization. It is accordingly that he continued in service and was discharged in the light of the above Government Order and the policy as reflected therein. Therefore petitioner's continuance in service was both on the strength of Government Orders and Ext.R2(a). In such WPC No. 7630/09 :4 : circumstances, this Court will not be justified in directing regularization of the services of the petitioner. 7. Be that as it may, counsel for the petitioner invites my attention to Ext.P22, the order dated 10/8/06 issued by the Director of Health Services based on GO(MS) No.326/05/H&FWD dated 7/12/05 that the persons mentioned therein who were also provisional employees, were regularized and that the same was done on the basis of an order passed by the Government invoking its powers under Rule 39 of the KS & SSR . Of course, the Government have the power under Rule 39 to pass such order as it deems fit, and therefore, I leave it open to the petitioner to pursue his claim before the Government, claiming parity with the beneficiaries of Ext.P22, in which event, it is upto the Government to consider his claim and pass orders. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp