IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933 WP(C).No. 21551 of 2009(L) -------------------------------- PETITIONER: -------------- CHELLAMMAL A., MULAMTHANAM HOUSE, MAMOOD P.O., CHANGANASSERY, KOTTAYAM DISTRICT. (LADY ATTENDER - RTD). BY ADVS. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.JELSON J.EDAMPADAM SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENTS: ------------------ 1. STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. DIRECTOR OF MUNICIPAL ADMINISTRATION, THIRUVANANTHAPURAM. BY SMT. NISHA BOSE, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.21551/2009 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF JUDGMENT DTD. 8.10.87 OF THIS COURT IN O.P.4417/1981. EXT. P2 : COPY OF REPRESENTATION DTD.24.4.98 SUBMITTED BY PETITIONER BEFORE MUNICIPAL COUNCIL OF CHANGANASSERY MUNICIPALITY. EXT. P3 : COPY OF JUDGMENT DTD. 12.2.04 IN O.P.2750/11 OF THIS COURT. EXT. P4 : COPY OF REPRESENTATION DTD. 21.8.04 SUBMITTED BY PETITIONER BEFORE R1. EXT. P5 : COPY OF ORDER No.15105/A3/04/LAD DTD. 26.11.04 OF R1. EXT. P6 : COPY OF JUDGMENT DTD. 26.10.06 IN WP(C) 2178/05 OF this COURT. EXT. P7 : COPY OF G.O.(Rt) 1348/07/LSGD DTD. 3.5.07. EXT. P8 : COPY OF JUDGMENT DTD.30.6.09 OF this COURT IN WP(C) 22201/07. EXT. P9 : COPY OF JUDGMENT OF THIS COURT IN W.A.1381/96 AND 1975/99. EXT. P10 : COPY OF G.O.(Rt) 1743/10/LSGD DTD. 26.5.10. EXT. P11 : COPY OF JUDGMENT DTD. 2.9.10 OF THIS COURT IN WP(C) 27139/10. EXT. P12 : COPY OF JUDGMENT DTD. 21.10.11 OF this COURT IN WP(C) 18507/10. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.21551 OF 2009 --------------------------------------- Dated this the 13th day of December, 2011. J U D G M E N T The petitioner who was appointed as Lady Attender in the Changanassery Municipality is seeking for regularisation of her provisional service for pension. It is submitted that she had put in nearly 18 years of service. Ext.P7 is the Government Order by which her claim has been rejected. 2. The claim raised by the petitioner is only for grant of pensionary benefits and not for any other benefits. Learned counsel for the petitioner submitted that in exactly identical circumstances, this Court by Ext.P8 judgment allowed the claim of a similarly placed Female Attender who was appointed through employment exchange in the Pathanamthitta Municipality on 01.08.1980. Ext.P9 is the judgment in Writ Appeal No.1381/ 1996 and Ext.P10 is the order passed by the Government in the light of the directions issued in Ext.P8 judgment by which the Government accorded sanction to regularise the provisional W.P.(C) No.21551/2009 2 service rendered by the claimant therein for the limited purpose of granting pensionary benefits. 3. Heard the learned Government Pleader. Since it is pointed out that Ext.P8 judgment will cover the issue, I will refer to the finding therein. 4. Paragraph 5 of Ext.P8 judgment will show that this Court was of the view that the Municipality had extracted work from the petitioner therein which was to be done by a regular worker paying only the benefits applicable to a provisional employee, and the observations of this Court in W.P.(C) No.26799/2003 were also relied upon. For easy reference, I am extracting the same herein. “3. I have considered the submissions made at the Bar by the learned counsel appearing on either side. It is evident from Ext.P9 judgment that this Court had directed the Government to consider the petitioner's claim for regularization for the limited purpose of granting him pensionery benefits. By Ext.P12, petitioner's claim for regularization was rejected on the short ground that the Government order dated 26.8.2002 does not contemplate regularization of service but only continuance in service till the provisional employee attains the age of superannuation. The respondents who are parties to Ext.P9 judgment are bound by the directions issued therein. It was not open to the respondents to rely on the Government Order dated 26.8.2002 to deny the petitioner the benefit of regularization at least for the limited purpose of granting him pensionery benefits. The Apex Court has, in Umadevi, noticed that a temporary employee who has been in service W.P.(C) No.21551/2009 3 for long number of years is entitled to regularization in service if his appointment was only irregular and not illegal, provided he possesses the qualifications prescribed for the post. In the instant case, it is not in dispute that the petitioner was appointed through the District Employment Exchange as an Electrician. It is also not in dispute that when he was appointed, he possessed the qualifications prescribed for the post. Therefore, the petitioner's appointment cannot be said to be illegal. The petitioner continued in service without break from 28.6.1980 till 30.9.2001. In such circumstances, I am of the opinion that the Government ought to have exercised the power available to it under Rule 39 of Part -II of the K.S.&S.S.R and regularized the service of the petitioner for the limited purpose of granting him pensionery benefits. It is evident from Ext.P12 that the Government have not bestowed serious attention to the directions issued by this Court in Ext.P9 judgment, when it passed Ext.P12. 4. For the reasons aforesaid, I quash Ext.P12 and direct the first respondent to consider the request made by the petitioner in Ext.P10 afresh in the light of the directions issued by this Court in Ext.P9 judgment and by the Apex Court in Umadevi (supra). This shall be done within three months from the date on which the petitioner produces a certified copy of this judgment. Needless to say that the petitioner shall also be heard in person before revised orders are passed in the matter. If the Government decides to regularize the service of the petitioner for the purpose of granting him pensionery benefits, the pensionery benefits shall be fixed and disbursed to him within a period of three months from the date on which revised orders are passed on Ext.P10.” 5. Accordingly, in Ext.P8, this Court held that the petitioner therein is also entitled for regularisation in service only for the purpose of retirement benefits. The issue raised herein will have to be considered in the light of Exts.P8 and P9 judgments and also in the light of Ext.P10 order passed by the Government as it W.P.(C) No.21551/2009 4 is clear from the pleadings that the nature of the appointment of the petitioner is the same. It is pointed out that she was duly qualified. The matter will be re-considered for the limited purpose of granting pensionary benefits to the petitioner. For enabling the Government to pass fresh orders, Ext.P7 is quashed. There will be a direction to the Government to reconsider the matter and grant the eligible benefits to the petitioner within a period of three months from the date of receipt of a copy of this judgment. This writ petition is disposed of as above. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp