IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 18TH JUNE 2008 / 28TH JYAISHTA 1930 WP(C).No. 31971 of 2005(S) -------------------------- AGAINST THE ORDER IN OA 661/2005 & OA.560/2005 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER: ------------ P.G. BAIJU, T.C.2/2518, GOWREESAPATTOM, TRIVANDRUM-4, NOW WORKING AS MAKE UP ASSISTANT, DOORDARSHAN KENDRA, TRIVANDRUM-43. BY ADV. SRI.G.SASIDHARAN CHEMPAZHANTHIYIL SRI.S.VISHNU RESPONDENTS: ------------- 1. P. SATHI DEVI, MAKE-UP ASSISTANT (CASUAL), DOORDARSHAN KENDRA, THIRUVANANTHAPURAM. (T.C.4/1729), KINATTUVILAKAM, NEAR TRIVANDRUM TENNIS CLUB, P.O. KOWDIAR, THIRUVANANTHAPURAM. 2. UNION OF INDIA,REPRESENTED BY ITS SECRETARY, MINISTRY OF INFORMATION & BROADCASTING, NEW DELHI. 3. THE DIRECTOR GENERAL, DOORDARSHAN KENDRA (ADMN.), NEW DELHI. 4. DEPUTY DIRECTOR, O/O. THE DIRECTOR GENERAL, DOORDARSHAN KENDRA,NEW DELHI. WP(C).No. 31971/05(S) 2 5. THE DIRECTOR, DOORDARSHAN KENDRA, THIRUVANANTHAPURAM-43. BY SRI.P.VIJAYAKUMAR FOR R1 ADV. SRI. AJITH KRISHNAN, ADDL.CGSC FOR R2 SRI.BALAKRISHNAN GOPINATH,SC.DOORDARSHAN FOR R3 TO 5 SRI.N.N.SUGUNAPALAN, SC, DOORDARSHAN FOR R3TO5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J U D G M E N T BALAKRISHNAN NAIR, J. NO REPRESENTATION. DISMISSED. SD/ K.BALAKRISHNAN NAIR, JUDGE. 18.6.08 SD/- M.C.HARI RANI, JUDGE. dsn TRUE COPY P.A.TO JUDGE K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ W.P(C) NOS: 31971 & 34419 OF 2005 ----------------------------------------------------------------------------------- Dated this the 14th January, 2009. JUDGMENT BALAKRISHNAN NAIR, J. W.P(C) 31971 of 2005 The petitioner and the first respondent are casual make-up assistants working under the Doordarshan kendra, Trivandrum. Dispute in this writ petition and the connected writ petition is concerning the right of regularisation in the said post. 2. The Central Government issued Ext.P3 scheme on 9.6.1992 providing for a scheme for regularisation of casual employees under the Doordarsan who were engaged on casual basis on or before 31.12.1991. Upper age limit applicable for direct recruitment was modified in the case of such casual employees by relaxing the age limit to the extent of the years of service rendered by them. Ext.P3 provided that if an employee has worked for 120 days in an year, he will be treated as having worked for one year. The said scheme was modified by Ext.P4 providing a new formula for computing the number of years worked by the casual employees for the purpose of grant of relaxation in age limit. The claim of the petitioner was WPC Nos: 31971 & 34419/2005 2 considered for regularisation and the petitioner was informed by Ext.P5 communication dated 14.8.1997 that he was found eligible for regularisation in the category of make-up assistant of Trivandrum doordarshan kendra. At present there is no vacancy in that post. As and when vacancy arises his case will be considered. It was followed by Ext.P5(a) dated 13.5.1999 informing that as and when vacancy arises he will be considered for regularisation. Since the petitioner felt aggrieved by the delay in appointing him, he approached the CAT by filing O.A.573/2001. The said O.A was disposed of directing the Director of Trivandrum Doordarsan Kendra to consider the applicant for appointment as make up artist on ad hoc basis in any temporary vacancy that may arise and also to consider him for regular appointment in the next arising regular vacancy. The respondents in the O.A filed review application No:6/2002 in the said O.A seeking review of the above direction on the ground that there was another claimant also for regularisation. The said review application was dismissed holding that the Tribunal only directed consideration of the claim of the applicant and the same does not stand in the way of considering the claim of others who may be eligible. While so a regular vacancy arose in the cadre of make-up assistant in December 2003. The claims of the WPC Nos: 31971 & 34419/2005 3 petitioner and the first respondent were considered and petitioner was found eligible for appointment and the first respondent was found ineligible. Ext.P8 is the said proceedings by which his claim was upheld. Later the petitioner was offered appointment as make up artist on ad hoc basis by Ext.P9 order dated 4.2.2005. The petitioner was of the view that there were three posts of make up artist in Doordarshan kendra, Trivandrum as per the approved staff pattern but the official respondents were of the view that there was no sanctioned post and the only post now available was the one shifted from another kendra. Aggrieved by the said stand of the respondent, petitioner approached the CAT by filing O.A. 984/2000. CAT dismissed the O.A. Challenging that order petitioner filed O.P.35955/2000. The said petition was disposed of directing the respondents therein to allow the petitioner to continue on ad hoc basis. It was also ordered to consider his claim for regular appointment. While so, in O.A.573/2001 petitioner filed M.A.862/2004 praying to implement Ext.P8. When the matter was being heard the first respondent herein filed O.A.560/2005 claiming implementation of an order in her favour. Copy of that order is Ext.P11. By Ext.P11 she was granted additional age relaxation of three years available to other backward WPC Nos: 31971 & 34419/2005 4 communities. In Ext.P8 she was found ineligible because she crossed the age limit of 30 years. In view of the further relaxation granted she became eligible and she being senior was preferred for appointment overlooking the claim of the petitioner. The M.A filed by the petitioner and the O.A.560/2005 filed by the first respondent were heard together and disposed of by Ext.P13 common order dated 27.9.2005. The CAT directed to implement Ext.P8 in favour of the first respondent. When those matters were reserved for orders by the CAT and before final judgment was pronounced the petitioner filed O.A.661/2005 challenging Ext.P11. But the Tribunal dismissed the said O.A holding that it has already directed the implementation of Ext.P11 as per the order in O.A.560/2005. The petitioner submits that Ext.P13 was passed by the Tribunal before the petitioner could challenge Ext.P11 order before the CAT. W.P(C) 34419/2005 3. In this case the petitioner challenges Ext.P5 order of the CAT in O.A.661/2005. The said O.A was filed challenging Ext.P11 order in W.P(C) 31971/2005. O.A.661/2005 was dismissed without hearing the matter on merits but solely for the reason that the Tribunal has already issued a direction for implementation of the WPC Nos: 31971 & 34419/2005 5 order impugned in that O.A. The Tribunal also noticed the pendency of the W.P(C) 31971/2005. The petitioner submits that he has got a good case on merits. But the same was not considered by the CAT. He submits that the age relaxation for other backward communities was introduced for the first time only in 1993 as per Government of India, Department of Personal and Training O.M.No: 36012/22/93-Estt(SCT) dated 22.10.1993. In the case on hand the qualifying age is determined with reference to the cut off date 9.6.1992. 4. In this case we notice that the petitioner's contentions against Ext.P11 order in W.P(C) 31971/2005 was not considered by the CAT on merits. We feel that only when that is considered and it is upheld there could be a further direction to implement it. The Tribunal should have decided whether the age relaxation granted to the first respondent under the order is valid or not. 5. In the result these writ petitions are allowed. The order in O.A.573/2001 and the order in O.A.661/2005 are set aside. Those original applications are remitted to the CAT for fresh hearing and disposal in accordance with law. The Tribunal shall endeavour to dispose of them as expeditiously as possible. It is made clear that all the contentions of both sides are kept open including those WPC Nos: 31971 & 34419/2005 6 contentions which we may not have noticed in this judgment. The incumbent who is continuing as on this date will continue in service subject to availability of vacancies till the matter is finally decided by the Central Administrative Tribunal. K.BALAKRISHNAN NAIR Judge K. SURENDRA MOHAN Judge jj K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: