IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 WP(C).No. 574 of 2009() --------------------------------- PETITIONER(S): ------------------------ SREEDHARAN, S/O.KRISHNAN NAIR, AGED 54 YEARS, FITTER GRADE II, SECTION 3/1 SIRUVANI DRINKING WATER SUPPLY PROJECT, PALAKKAYAM P.O., PALAKKAD 678 591. BY ADV. MR.JACOB SEBASTIAN RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVT., WATER RESOURCES DEPARTMENT SECRETARIAT, TRIVANDRUM. 2. CHIEF ENGINEER, IRRIGATION AND ADMINISTRATION, TRIVANDRUM. 3. THE ASSISTANT EXECUTIVE ENGINEER, SECTION 3/1 SIRUVANI DRINKING WATER SUPPLY PROJECT, PALAKKAYAM P.O., PALAKKAD 678 591. GOVERNMENT PLEADER SMT.ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R.RAMACHANDRAN NAIR, J -------------------------------------------------- W.P.(C) NO: 574 of 2009 --------------------------------------------------- Dated this the 28th day of January, 2009 JUDGMENT Petitioner is aggrieved by Ext.P7 by which the 2nd respondent rejected his request for continuance in service up to 58 years. Shortly stated the relevant facts are the following. 2. The petitioner had worked as CLR worker in the Pothundy Dam Irrigation Project in Palakkad District during the period 1966-1968. Consequent to the abolition of the Pothundy Project Division, petitioner along with 12 other CLR workers were retrenched from service. Their cases were reported to the Government and the Government ordered that CLR workers may be given preference for reappointment in the vacancies of NMR workers that may arise in any of the project in Palakkad District. Earlier by G.O.(P) No.6/90 PW&T dated 20.1.90, the Government ordered that CLR workers in the Public Works Department will be appointed directly in the vacancies in the regular service. Consequently, petitioners along with 11 other retrenched CLR workers were absorbed into NMR service and posted to Siruvani Project Division, Muthikulam. Ext.P1 is the proceedings of the Superintending Engineer, Siruvani Project circle, Palakkad dated 21.01.1975. The petitioner is serial No.7 in Ext.P1. wpc:574 of 2009 2 3. The petitioner had rendered 252 days of CLR service as on 31.07.1967 and by reckoning such service, he was appointed as NMR worker. Ext.P2 is a letter dated 22.09.1973 from the Special Secretary to Government to the Chief Engineer General Irrigation and Administration, Trivandrum. Therein it is informed to the Chief Engineer General that the 12 CLR workers mentioned in the list I forwarded along with the letter dated 3.7.1973 may be given preference for appointment in the vacancies of NMR workers that may arise in any of the Projects in the Palghat District. The appointment should be made as per the order of preference shown in the list. The petitioner is one of the persons, who was included therein as Sl.No.7. It is clearly shown in the said letter that the petitioner had worked for 252 days. By Ext.P3, he was promoted as Fitter Grade II. 4. By Ext.P4, the Government conferred certain benefits on CLR workers who are regularised in service. The service as a CLR worker has been accepted for grant of pension and the age of retirement has also been fixed depending upon the date of appointment. The clause in Ext.P4 regarding the age of retirement is the following: “The age of retirement from service of CLR workers regularised in service as per the G.O. read 3rd will be wpc:574 of 2009 3 58 years in the case of those who appointed prior to 7.4.1970 and 55 years in the case of those appointed after 7.4.1970.” 5. The question whether, persons whose service was regularised after 7.4.70 are covered by the said clause was considered by this Court in O.P.No.9710 of 1996 which was disposed of by Ext.P5 judgment. The dictum laid down in the judgment is that even if the regularisation is after 7.4.1970 the persons concerned are entitled for the benefit and they are entitled to continue in service till the age of 58, since their appointment is prior to 7.4.1970. 6. Accordingly, to the Government ordered as per Ext.P6 that the persons appointed prior to 7.4.1970 and regularised thereafter, can continue in service till the age of 58. The petitioner who is due to complete the age of 55 years by the end of February, 2009 seeks for his continuance in service up to the age of 58 years. He approached the Chief Engineer who rejected his claim as per Ext.P7. It was rejected mainly finding that even though he had worked 252 CLR days as on 31.7.1967, his date of birth being 12.02.1954, he was only 13 years of age as on 31.7.1967. Therefore it is concluded that a 13 year boy cannot be believed to have been engaged in project works as CLR wpc:574 of 2009 4 worker prior to 31.7.1967 as it was a punishable offence of child labour. It is also pointed out that Ext.P2 cannot be relied upon for treating his engagement as CLR worker prior to 7.4.1970. This is under challenge in the writ petition. 7. The petitioner has also produced Ext.P8 judgment of the Division Bench of this Court in Writ Appeal No.286 of 2004 and contended that the rights of the persons, engaged before attaining the age of 18 years, for regularisation in service were upheld by this Court. The Division Bench also rejected the objection based on Rule 9 of Chapter II Part III of the Kerala Service Rules which deals with pension only. Along with I.A.No.1069 of 2009 the petitioner has produced Ext.P9 judgment wherein this Court allowed a similar writ petition concerning serial No.7 in Ext.P1. This Court allowed the writ petition based on Ext.P5 judgment herein. 8. The learned Government Pleader on instructions submitted that going by the age of the petitioner as 13 at the time of his engagement the appointment is hit by Rule 9 of Part III of the Kerala Service Rules. It is therefore contended that by no stretch of imagination it can be considered that the petitioner is entitled for the benefit of continuance up to the age of 58 wpc:574 of 2009 5 years. 9. A reference to Rule 9 shows that except for compensation gratuity, an employee's service does not qualify till he has completed the age of 18 years. The learned counsel for the petitioner pointed out that a similar argument was considered by the Division Bench in Ext.P8 judgment. A reading of Ext.P8 shows that their Lordships were of the view that Rule 9 is not applicable as it appears in Part III of the Kerala Service Rules dealing with pension only. It was held that the petitioner therein cannot be denied the benefit of casual service rendered by her merely because the same had been rendered prior to her attaining the age of 18 years. It is therefore, pointed out that the above dictum will squarely apply to the facts of this case and the contention based on Rule 9 cannot be accepted. I find force in the said argument. 10. The learned Government Pleader contended that the case considered in Ext.P8 judgment was one relating to the absorption as an SLR worker, and not in respect of retirement age. This objection has no merit. 11. The principles stated by this Court in Ext.P8 judgment will squarely apply to the facts of this case. The benefit sought wpc:574 of 2009 6 for cannot be denied simply because the service as CLR worker started at the age of 13 years. Admittedly, there was no restriction regarding engagement such persons purely because they were below the age of 18 years. Apart from that Ext.P9 judgment shows that Exts.P1 and P2 herein were produced as Exts.P1 and P2 in that writ petition also. The Chief Engineer in Ext.P7 has taken a view that Ext.P2 cannot be relied upon. Obviously, that view cannot be accepted, in the light of Ext.P9 judgment, whereby a person whose name has been included in Exts.P1 and P2 has been benefited by the said judgment for continuance up to 58 years. Therefore Exts.P1 and P2 could be relied upon to find out whether the petitioner was engaged prior to 7.4.1970. Since the petitioner satisfied the conditions prescribed for continuance up to 58 years going by the dictum laid down in Ext.P5 judgment, Ext.P7 is quashed. It is declared that the petitioner can continue up to the age of 58 years. The petitioner shall be retained in service till the last day of the month in which he attains the age of 58 years. The writ petition is disposed of as above. No costs. T.R.RAMACHANDRAN NAIR, JUDGE wpc:574 of 2009 7 bps