IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 11TH APRIL 2011 / 21ST CHAITHRA 1933 WP(C).No. 2322 of 2008(B) -------------------------------------- PETITIONER(S): ------------------------- V. KHADER MOIDEEN, CRANE OPERATOR (RETIRED), PALLAM DESOM, CHERUTHURUTHY VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. SRI.N.P.SAMUEL SRI.B.K.PURUSHOTHAMAN RESPONDENT(S): --------------------------- STATE OF KERALA, REPRESENTED BY THE COMMISSIONER AND SECRETARY TO GOVERNMENT, FISHERIES AND PORTS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SMT.SMITHA SUKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.2322/2008 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE JUDGMENT IN O.P.NO.357/92 OF THIS HONOURABLE COURT DATED 19/12/97. P2 COPY OF THE ORDER NO.2623/D2/98/F & PD DATED 22/3/99 ISSUED R1. P3 COPY OF THE ORDER G.O.(RT) 242/2005/F& PD DATED 11/5/2005 ISSUED BY THE RESPONDENT. P4 COPY OF THE JUDGMENT IN O.P.NO.17283/1999 DATED 5/10/2006 OF THIS HON'BLE COURT. P5 COPY OF THE ORDER G.O.(RT) NO.431/2007/F & PD DATED 04/07/2007 ISSUED BY THE RESPONDENT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts S. SIRI JAGAN, J. ----------------------------------- W.P.(C) No.2322 OF 2008 --------------------------------------- Dated this the 11th day of April, 2011 JUDGMENT The petitioner was appointed as a Crane Operator under Rule 91(a)(i) of the Kerala State and Subordinate Service Rules from among the candidates sponsored by the Employment Exchange with effect from 22.12.1973. That appointment was continued till the petitioner attained the age of superannuation of 55 years on 31.7.1995. According to the petitioner, till the retirement of the petitioner, no recruitment rules were framed for the post and recruitment through Public Service Commission were also not made. The petitioner, therefore, sought regularisation of his service so as to enable the petitioner to claim retirement benefits. The petitioner along with another similarly placed employee named Sri. K.M. Ahammed Kutty filed O.P.No.357/1992 before this Court and a Division Bench of this Court in Ext.P1 judgment observed that if regularisation as prayed for is not possible, some benefit in the matter of pension W.P.(C)No.2322/08 2 could be granted and directed the respondents to consider the representation of the petitioner and pass orders thereon. By Ext.P2 order dated 23.3.1999, the respondents rejected the representation on the ground that the present rule do not permit such regularisation. Then the petitioner filed O.P.No.17283/99 and this Court by Ext.P4 judgment dated 5.10.2006 directed the respondents to consider the case of the petitioner at least for ex-gratia pension untrammelled by the stand taken in the order impugned in that original petition. Pursuant thereto, the respondents passed Ext.P5 order dated 4.7.2007 rejecting the claim of the petitioner on the ground that 'even in respect of employees who had continued under provisional service till they reached 55 years of age as a matter of principle and in accordance with the rules, such provisional service is not being counted for the purpose of pension'. But, in the meanwhile Sri. K.M. Ahammed Kutty, who was similarly appointed along with the petitioner, put in a request for regularisation and his request was allowed by Ext.P3 order dated 11.5.2005 on the ground that it is unfair to send out a person, who has 20 years of service without giving any service benefits, regularising his service as a special case W.P.(C)No.2322/08 3 by exercising powers under Rule 39 of the Kerala State and Subordinate Service Rules and sanctioning him regular pensionary benefits. The petitioner also seeks the same relief as given to the identically situated person. The petitioner seeks the following reliefs: “[i] to issue a writ of certiorari or other appropriate writ, order or direction quashing Exhibit P2 and P5 orders; [ii] to issue a writ of mandamus or other appropriate writ, order or direction directing the respondent to give the petitioner similar benefits as is given to Sri. K.M. Ahammed Kutty, Retired Asst.Crane Operator in the Harbour Engineering Department; [iii] to declare that the petitioner is entitled for pensionary benefits as admissible to regular employees”. 2. I have heard the learned Government Pleader also. The learned Government Pleader opposes the prayers of the petitioner with the help of a counter affidavit filed on behalf of the respondent. The crux of the contention of the respondent is that the provisional employees notwithstanding the length of their service are not eligible for retirement benefits. But it is not disputed before me that Sri. K.M. Ahammed Kutty is similarly placed like the petitioner, his service of 20 years has been regularised and he has been given normal retirement benefits by exercising powers under Rule 39 of the Kerala W.P.(C)No.2322/08 4 State and Subordinate Service Rules, as a special case. I am of opinion that even in the matter of conferring discretionary benefits under Rule 39 of the Kerala State and Subordinate Service Rules, the Government cannot discriminate between similarly placed employees. Therefore, I am of opinion that the petitioner is also entitled to the same benefits as given to Sri. K.M. Ahammed Kutty by Ext.P3 order. 3. Accordingly, Exts.P2 and P5 are quashed. The respondent is directed to see that the petitioner is given the very same benefits given to Sri. K.M. Ahammed Kutty, if necessary by passing appropriate orders under rule 39 of the Kerala State and Subordinate Service Rules, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE acd W.P.(C)No.2322/08 5 W.P.(C)No.2322/08 6