IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 OP.No. 3340 of 1998(V) -------------------------------- PETITIONER(S): --------------------- P.K. MOHANAN, PALATTU HOUSE, HOUSE C.C.15/1733, RAMESWARAM HOUSING COLONY, NAZERETH, COCHIN-2. BY ADV. MR.T.A.NARAYANAN NAIR RESPONDENT(S): ------------------------ 1. CORPORATION OF COCHIN, REPRESENTED BY ITS SECRETARY, ERNAKULAM, COCHIN-11. 2. THE SECRETARY, CORPORATION OF COCHIN, ERNAKULAM, COCHIN-11. 3. THE DIRECTOR OF MUNICIPAL ADMINISTRATION, THIRUVANANTHAPURAM. 4. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. R3 & R4 BY GOVERNMENT PLEADER MR.ARAVINDAKUMAR BABU T.K. R1 & R2 BY ADV. MR.K.ANAND, SC, COCHIN CORPN. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 22/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO.3340/1998-V ORDER ON C.M.P. NO.5940/1998 IN O.P. NO. 3340/1998. CLOSED 22/06/2009. SD/- V.K.MOHANAN, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE GOVERNMENT ORDER DATED 29/12/1986. EXT.P2: COPY OF THE ORDER OF APPOINTMENT OF THE PETITIONER DATED 12/01/1987. EXT.P3: COPY OF THE OFFICE ORDER DATED 02/02/1994 POSTING THE PETITIONER AS DRIVER ON THE 'MARUTHI GIPSY' NO.K.B.F.7549. EXT.P4: COPY OF THE OFFICE ORDER DATED 06/04/1994 ISSUED BY THE P.A. OF THE COMMISSIONER DEPUTING THE PETITIONER TO DRIVE K.D.E.3849. EXT.P5: COPY OF THE G.O.(P)NO.174/84 LA & SWD DATED 10/07/1984. EXT.P6: COPY OF THE JUDGMENT IN O.P. NO. 4515/83, OF THE HONOURABLE HIGH COURT OF KERALA. EXT.P7: COPY OF THE ORDER NO.M.O.G.1.21090/93 DATED 10/12/97 REVERTING THE PETITIONER TO THE POST OF PEON. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. V.K.MOHANAN, J. --------------------------------------------- O.P.No.3340 of 1998 V --------------------------------------------- Dated this the 22nd day of June, 2009 J U D G M E N T The petitioner, who was working as Driver in the first respondent-Corporation, approaches this Court by preferring the above writ petition challenging Ext.P7 order by which, the first respondent reverted him to the post of Peon - last grade service. According to the petitioner, in Ext.P7, the actual designation of the petitioner at the time of issuing the said order was omitted and instead, his designation was stated as Cleaner. It is also prayed in the writ petition for the issuance of writ of mandamus or any other appropriate writ, direction or order directing respondents 2 and 3 to regularise the service of the petitioner in the post of Driver. 2. The case of the petitioner is that initially, he was appointed as last grade servant in the Corporation of Cochin as per Ext.P2 appointment order dated 12.1.1987. Thereafter, he continued in the service and in the mean while, he had obtained a driving licence on 9.1.1989 and thereafter, he had obtained heavy vehicle licence and badge with effect from 9.8.1990. As the petitioner has got requisite qualification, namely, the licence for driving the vehicle, he was appointed as Driver during the year OP NO.3340 of 1998 :-2-: 1991. It is the specific case of the petitioner that thus from 1991 onwards till his reversion as per Ext.P7, he was working as Driver in the first respondent Corporation. It is also the case of the petitioner that the post of Driver arose in the Cochin Corporation during the year 1992 and at that time he was qualified for selection and appointment to the post of Driver either by promotion or by transfer as contemplated by Ext.P5 Government Order. The petitioner has specifically stated in the writ petition that he had approached the third respondent by filing a representation dated 21.1.1991 through proper channel, the Corporation of Cochin where he was working. Thus, aggrieved by the approach of the third respondent in not appointing him as Driver and also challenging Ext.P7, the petitioner approaches this Court. No counter affidavit is seen filed by the third respondent so far. Whereas a statement has been filed on behalf of respondents 1 and 2 as directed by this Court. 3. Respondents 1 and 2 in their counter affidavit admitted that the petitioner was appointed in the Corporation as per Ext.P2. Though the petitioner claimed that he was appointed as Peon, respondents 1 and 2 stated that he was appointed as a Cleaner. However, it comes under the last grade service. OP NO.3340 of 1998 :-3-: According to the said respondents, due to urgency of situation and for want of regular Drivers and in the light of the fact that the petitioner has acquired valid driving licence, he was asked to perform the duties of the Driver and this was only on provisional basis. It is also stated that the petitioner was drawing only the salary in the scale of pay applicable to the last grade servants though he was working as driver. In para 4 of the counter statement, it is stated that the petitioner has not given any representation to the first respondent Corporation for his appointment to the post of Driver. It is stated that the competent authority for selection of candidates for appointment as Driver by transfer from the last grade service is the Director of Municipal Administration and the Corporation is not competent to do so. Respondents 1 and 2 did not deny the averments of the petitioner contained in para 2 of the writ petition that he had moved the representation dated 21.1.1991 before the third respondent through the first respondent. Respondents 1 and 2 further admitted in their counter statement that the petitioner was appointed as Driver provisionally and as part of the working arrangement. It is also stated that as working arrangement, the petitioner was ordered to work as last grade servant and one OP NO.3340 of 1998 :-4-: V.G.Suresh was entrusted with the duty of the driver instead of the petitioner. The total length of six years service as Driver in the credit of the petitioner under the first respondent is not disputed. 4. I have heard learned counsel for the petitioner as well as counsel for first and second respondents and also the learned Government Pleader. 5. More or less, identical question came up for consideration before this Court in O.P.No.4515 of 1983 as evidenced by Ext.P6 judgment. In the said judgment, after referring to G.O.(P) No.174/84/LA&SWD dated 10.7.1984, a copy of which is produced along with this writ petition as Ext.P5, the learned Judge of this Court has observed that the note added to the Government Order states that as the present Municipal Service cannot accept any other job (as drivers) and gain experience in driving it will be enough that they should have held valid driving licence for not less than three years. Thus, this Court in the above decision has categorically found that the persons in the subordinate service, who are qualified to drive, are entitled to be appointed as drivers in the Municipal Common service by transfer. After considering the particular facts and OP NO.3340 of 1998 :-5-: circumstances involved in that case, this Court had observed that the petitioner therein was qualified to hold the post of Driver in 1978 and there was a permanent vacancy during the year 1978. It was to that vacancy the petitioner therein was appointed provisionally and thereafter, he was continuously working as Driver in the Cochin Corporation. Therefore, considering those facts, this Court had held that the service of the petitioner therein was entitled to be regularised from the date of his appointment as Driver even though on temporary basis. Accordingly, this Court directed the respondents to regularise the service of the petitioner therein as Driver in the Municipal Common Service. 6. On the basis of the finding and observation of this Court as contained in the above judgment and on the facts and circumstances involved in the present case, it can be seen that the petitioner was initially appointed in the last grade service as per Ext.P2 order dated 12.1.1987. Subsequently, he had obtained valid driving licence on 9.1.1989 as light vehicle driver and thereafter, heavy vehicle driving licence on 9.8.1990. It was on the basis of the above qualification that the petitioner subsequently acquired after his appointment as last grade servant, the first respondent appointed him as Driver even though OP NO.3340 of 1998 :-6-: on temporary basis during the year 1991. Admittedly, the vacancy of post of driver arose in the Cochin Corporation during the year 1992. At that time, the petitioner has got requisite valid driving licence and experience. As per Ext.P5 Government Order, which is referred above, the respondents ought to have considered the claim of the petitioner to appoint him to the post of driver which arose during the year 1992. It is specifically stated in Ext.P5 that the question of appointing persons through direct recruitment arises only when there are no qualified hands in the Municipal Common Service to be appointed to the above post. If that be so, under the above facts and circumstances, especially in the light of Ext.P5 Government Order, the respondents ought to have appointed the petitioner to the post of Driver during the year 1992 itself when the post of Driver arose. No counter affidavit is seen filed by the third respondent denying the claim of the petitioner that he had approached the third respondent through the first respondent by filing a representation dated 21.1.1991 requesting to appoint him in the vacancy of driver. The only contention on the part of respondents 1 and 2 is that the petitioner did not approach them for appointment to the post of Driver and they did not deny the claim of the petitioner that he OP NO.3340 of 1998 :-7-: had preferred a representation to the third respondent through the first respondent. It is also beyond dispute that as evidenced by Exts.P3 and P4, the petitioner had six years of service as Driver right from 1991. From the above facts involved, it is crystal clear that the petitioner is entitled to get the benefit of Ext.P5 Government Order and appointment as Driver. None of the respondents have got any contention that the benefit contemplated and the criteria fixed by Ext.P5 is not applicable in the case of the petitioner. 7. In the light of the above facts and circumstances and especially in the light of Ext.P5 Government Order, the third respondent is directed to appoint and regularise the service of the petitioner in the post of Driver, from the date of his appointment to the post of Driver though on temporary basis, with all consequential monetary and service benefits. Respondents 1 and 2 are also directed to expedite the matter to get regularised the service of the petitioner and to give him appropriate posting under them in the post of Driver. Ext.P7 is quashed to the extent it is against the petitioner. OP NO.3340 of 1998 :-8-: The Original Petition is allowed as above. V.K.Mohanan, Judge MBS/ OP NO.3340 of 1998 :-9-: V.K.MOHANAN, J. -------------------------------------------- O.P.NO. 3340 OF 1998 -------------------------------------------- J U D G M E N T DATED: 22-6-2009 OP NO.3340 of 1998 :-10-: