IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 9TH JUNE 2010 / 19TH JYAISTHA 1932 WP(C).No. 3309 of 2005(R) ------------------------------------- PETITIONER ------------------ P.SARASWATHY, CLERK-CUM-TYPIST, INSTITUTE OF MENTAL HEALTH AND NEURO SCIENCES SOCIETY (IMHANS), KOZHIKODE. BY ADVS. SRI.SAJAN MANNALI, SRI.M.P.JAYAKUMAR. RESPONDENTS: ------------------------ 1. THE DIRECTOR, INSTITUTE OF MENTAL HEALTH AND NEURO SCIENCES SOCIETY (IMHANS), KOZHIKODE. 2. THE INSTITUTE OF MENTAL HEALTH AND NEURO SCIENCES SOCIETY (IMHANS), KOZHIKODE, REPT. BY ITS DIRECTOR, INSTITUTE OF MENTAL HEALTH AND NEURO SCIENCES SOCIETY (IMHANS) KOZHIKODE. 3. STATE OF KERALA REP. BY ITS SECRETARY TO THE DEPARTMENT OF HEALTH THRUVANANTHAPURAM. R3 BY SR. GOVERNMENT PLEADER SRI. P. NANDAKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2010, ALONG WITH W.P.(C). NO. 31153 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.3309/2005-R: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER OF THE R.1. NO. 29/86-3/IMHANS DTD. 01/09/86. EXT.P.2: COPY OF THE REPRESENTATION DTD. 21/08/03. EXT.P.2.B: COPY OF THE REPRESENTATION SENT BY THE PETITIONER TO THE RESPONDENTS DTD. 28/08/2003. EXT.P.3: COPY OF THE JUDGEMENT OF THE HON'BLE HIGH COURT OF KERALA IN W.P. (C). NO.1067/04 DT.D 14/01/2004. EXT.P.4: COPY OF THE ORDER G.O.(RT).NO.2363/04/HFWD DTD. 19/08/2004 OF THE JOINT SECRETARY HEALTH & FAMILY WELARE (E) DEPARTMENT. EXT.P.5: COPY OF THE MEMORANDUM OF ASSOCIATION OF THE INSTITUTE OF MENTAL HEALTH & NEURO SCIENCES. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.3309/2005 & 31153/2008 -------------------------------------------------- Dated this the 9th day of June, 2010 J U D G M E N T In these writ petitions, parties are common and issues are connected. Therefore, these cases were heard together and are disposed of by the common judgment. 2. In 1986 petitioner in these writ petitions was appointed by the first respondent as Clerk Cum Typist on a provisional basis. She was continuing in service without any break. She claimed regularization and that was also not considered. 3. It is pointed out that, Executive Committee of the first respondent in its meeting held on 8.3.2000 passed a resolution to regularize various employees including the petitioner and submitted a proposal to the Government to regularize their service with effect from 1.9.1996. Despite all this her claim was not considered and it was in these circumstances, Writ petition No.1067/04 was filed. That writ petition was disposed of by Ext.P4 judgment in WP(c).No.31153/08, directing consideration of the claims by the Government. WPC.No.3309/05 & anor. :2 : 4. Accordingly matter was considered and Ext.P5 order dated 19.8.2004 in WP(c).No.31153/08 was issued, turning down the proposal. Relevant portion of Ext.P5 reads as under. “A decision on the proposal of the Director for the creation of 12 posts including clerk-cum-Typist has not been taken by Government for want of required details from the Director. Sine the post of clerk-cum-Typist has not yet been created so far, Government are not in a position to regularize the daily wages service of Smt. P. Saraswathy at present as per the existing rules. The representation submitted by her is disposed of as above.” 5. The challenge in WP(c).No.3309/05 is against this order and prayer sought is to quash the said order and to direct regularization of the petitioner in service. 6. In so far as WP(c).No.31153/08 is concerned, the issue raised is regarding the claim of the petitioner for continuance in service till she attains the age of 60 years. According to the petitioner, Ext.P9 in WP(c).No.31153/08 is the Service Rules governing the employees in the first respondent and that in terms of Rule 11, employees shall retire from service on attaining 60 years. It is stated that on that basis she is entitled to continue in service till 2013 and that on the other hand on the premise that she is bound to retire at 55 years, steps were taken to retire the WPC.No.3309/05 & anor. :3 : petitioner from service. It is with this grievance WP(c). No.31153/08 is filed. 7. As far as the claim of the petitioner for regularization urged by her in WP(c).No. 3309/05 is concerned, Government seeks to justify the stand taken by it in Ext.P5 order referred above, on the ground that creation of the post shall be only with the approval of the Government and that a decision on the proposal of the Director for creation of 12 posts including that of Clerk cum Typist has not yet been approved by the Government. This reasoning adopted by the Government is sought to be impugned by the learned counsel for the petitioner referring to Ext.P8 in WP(c).No.31153/08, the letter issued by the first respondent to the Government stating that only posts carrying salary of more than Rs.2,000/- per month needs approval of the Government for its creation. Paragraph 6 of the counter affidavit filed by the first respondent and paragraph 8 of the counter affidavit filed by the 3rd respondent also supports this position. Counsel referred me to Ext.P2 in WP(c).No.31153/08, the order of appointment issued to the petitioner in 1986 wherein the scale of pay has been mentioned as Rs.640-1000. It is stated that her WPC.No.3309/05 & anor. :4 : claim for regularization ought to have been considered with reference to the scale of pay as specified in Ext.P2 appointment order. 8. On the other hand Government Pleader submitted that since 1999 the scale of pay attached to the post of Clerk cum Typist is Rs.3050-50230 and therefore unless the post is created with the approval of Government there cannot be any regularization. 9. In my view, the claim of the petitioner for regularization has to be reckoned with reference to the position as stood at the time of the appointment. If so, the scale of pay of Clerk-cum- Typist was Rs.640-1000 which is much below the Rs.2000/- limit prescribed in the memorandum of the first respondent. In such an event, for creating the post of Clerk-cum-Typist, to which the petitioner who was appointed way back in 1986, approval of the first respondent was unnecessary. 10. Facts show that the first respondent had passed a resolution resolving to regularize the petitioner with effect from 1986 in its meeting held on 8.3.2000. Having regard to the fact that the Government's approval is unnecessary, the first WPC.No.3309/05 & anor. :5 : respondent should have given the benefit of regularization to the petitioner regularizing her service as resolved in its meeting held on 8.3.2000. Therefore, the claim of the petitioner for regularization has to be upheld. 11. The question that remains is regarding the entitlement of the petitioner for continuance in service up to 60 years. This claim of the petitioner is sought to be supported by relying on Rule 11 of Ext.P9 service conditions governing the employees of the first respondent. However, as is seen from clauses 16 and 18, Rules governing the conditions of service of employees of the first respondent needs approval of Government. The specific stand taken by the Government is that the service rules have not been approved. If that be so, the petitioner's claim for continuance up to 60 years relying on Rule 11 of Ext.P9 cannot be accepted. 12. In the result WP(c).No.3309/05 is disposed of directing that the petitioners' services will be regularized with effect from 1.9.86 as resolved by the first respondent in its meeting held on 8.3.2000. On that basis benefits sue to her will be reckoned and settled. Having regard to the fact that the petitioner is already attained the age of 55 years and as the petitioner is continuing WPC.No.3309/05 & anor. :6 : under the interim order of this court, it is directed that her terminal benefits will be reckoned as on the date of her attaining the age of superannuation of 55 years and on that basis benefits will be quantified and paid with prospective effect. WP(c).No.31153/08 is dismissed. No costs. (ANTONY DOMINIC) JUDGE vi/