IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 21ST JULY 2008 / 30TH ASHADHA 1930 WP(C).No. 20185 of 2004(C) --------------------------------------- PETITIONER: ----------------- JAMES VARKEY, PALLIPARAMBIL HOUSE, KOTHANALLUR, KOTTAYAM DISTRICT. BY ADV. SRI.ASP.KURUP SRI.SADCHITH.P.KURUP RESPONDENTS: ---------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, LOCAL ADMINISTRATION DEPARTMENT GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. SECRETARY, PALA MUNICIPALITY, PALA. BY ADV. SRI.V.M.KURIAN FOR R2 SRI.K.T.THOMAS FOR R2 GOVERNMENT PLEADER SMT. M.A. SREELATHA FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C) NO. 20185 OF 2004 ---------------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE ORDER DATED 22.9.1993 ISSUED BY THE PRINCIPAL (MUNICIPAL COMMISSIONER), PALA. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 31.3.1987 ISSUED BY THE PRINCIPAL (MUNICIPAL SECRETARY), PALA. EXHIBIT P3 TRUE COPY OF THE COMMUNICATION DATED 16.7.1997 ISSUED BY THE DIRECTOR, NCVT. EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 19.7.1999 GIVEN BY THE PETITIONER BEORE THE MUNICIPAL COUNCIL. EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 23.8.2001 PASSED BY THIS HONOURABLE COURT IN O.P.22166/99. EXHIBIT P6 TRUE COPY OF THE LETTER DATED 10.10.2001 ISSUED BY THE SECRETARY, PALA MUNICIPALITY. EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 9.10.2001 GIVEN BY THE PETITIONER TO THE MINISTER FOR LOCAL SELF GOVERNMENT. EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 21.10.2003 GIVEN BY THE PETITIONER TO LOCAL SELF GOVERNMENT SECRETARY. EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 19.11.2003 PASSED BY THIS HONOURABLE COUR6T IN W.P.(C) NO.36573 OF 2003. EXHIBIT P10 TRUE COPY OF THE LETTER DATED 9.12.2003 GIVEN BY THE PETITIONER TO THE RESPONDENT. EXHIBIT P11 TRUE COPY OF THE HEARING NOTES DATED 14.1.2004 GIVEN BY THE PETITIONER. EXHIBIT P12 TRUE COPY OF THE ORDER DATED 4.2.2004 PASSED BY THE FIRST RESPONDENT. EXHIBIT P13 TRUE COPY OF THE REPORT DATED 16.6.2000 GIVEN BY THE INSPECTOR OF TRAINING, KOLLAM. EXHIBIT P14 TRUE COPY OF DECISIION NO.22 TAKEN BY THE MUNICIPALITY ON 17.3.2001. EXHIBIT P15 TRUE COPY OF THE CERTIFICATE DATED 17.10.1995 ISSUED BY THE SECRETARY OF THE MUNICIPALITY. EXHIBIT P16a TRUE COPY OF THE CERTIFICATE DATED NIL ISSUED BY THE SECOND RESPONDENT TO THE KOTTAYAM DISTRICT CO- OPERATIVE BANK LTD. EXHIBIT P16b TRUE COPY OF THE CERTIFICATE DATED 28.1.1997 ISSUED BY THE SECOND RESPONDENT TO KSFE. EXHIBIT P17 TRUE COPY OF THE LETTER DATED 14.10.1997 ISSUED BY THE SECOND RESPONDENT TO THE DIRECTOR OF MUNICIPALITIES. EXHIBIT P18 TRUE COPY OF THE ORDER DATED 22.9.1993 ISSUED BY THE SECOND RESPONDENT. RESPONDENTS' EXHIBITS: ----------------------------------- EXHIBIT R2(a) TRUE COPY OF THE ORDER DATED 22.4.1999 ISSUED BY THE GOVERNMENT. V. GIRI, J. = = = = = = = = = = = = = = = = = = = W.P(C) NO.20185 OF 2004 = = = = = = = = = = = = = = = = = = = Dated this the 21st day of July, 2008 J U D G M E N T -------------------- The petitioner, Diploma Holder in Civil Engineering, was appointed by the Pala Municipality in the Industrial Training Centre conducted by it, as Junior Instructor on 2.2.1990 on an honorarium basis and thereafter on a provisional basis from 2.2.1991. Subsequently, as evidenced by Exhibit P1 dated 22.9.1993, the petitioner was permitted to continue as a Junior Instructor in the scale of pay of Rs.1000-25-1710. While so continuing, it turned out that the petitioner was actually continuing against a vacancy which came into existence on account of the fact that an incumbent, one Mr.Bejoy Joseph, had proceeded on leave without allowance for employment abroad. Mr.Bejoy Joseph was working as a Junior Instructor in Civil Unit-3. In the ITC only three Civil Units had been granted permanent affiliation. Though it is the petitioner's case, with reference to Exhibit P3, that a 4th Unit had been granted affiliation, it is now fairly clear that the Municipality W.P(C) NO.20185 OF 2004 -: 2 :- did not effect admissions to the 4th Unit from the academic year 1995-96 onwards. The net result of Exhibit P2 was that Mr.Bejoy Joseph rejoined service with effect from 1.4.1997 and the petitioner being the junior most was retrenched. 2. Whileso, by Exhibit R2(a) order dated 22.4.1999, Government ordered that the employees attached to the ITC run by the Pala Municipality be treated as a separate wing under the Municipal Common Service with attendant benefits available to the employees in the Municipal Common Service subject to the conditions mentioned therein. By Exhibit P4 representation dated 19.7.1999, the petitioner made a request for his reinstatement as a Junior Instructor, Draftsman (Civil) in the 4th Unit of the ITC. During the pendency of the said request, it turned out that the the ITC itself was stopped from 2002-03 onwards. But the employees, who were in the service of the ITC as on the date of Exhibit R2(a) order dated 22.4.1999, have thereafter been treated as a separate wing in Municipal Common Service, but deployed in the Pala Municipality itself. This benefit has been denied to the petitioner essentially for the reason that the petitioner's W.P(C) NO.20185 OF 2004 -: 3 :- service had been dispensed with as per Exhibit P2 order dated 31.3.1997. Ultimately, the request made by the petitioner before the Government for a similar treatment as one given to the employees in the ITC run by the Pala Municipality in terms of Exhibit R2(a) order has been rejected for two reasons. Firstly, petitioner's service was terminated for want of vacancy on 31.3.1997 and secondly, all future appointments in the ITC were directed to be made through the Public Service Commission as per Exhibit R2(a). It is Exhibit P12 that has been challenged in the Writ Petition. 3. Counter affidavit has been filed by the Municipality and reply affidavit has been filed by the petitioner. Heard learned counsel for the petitioner, learned Government Pleader and learned counsel for the Municipality. 4. It is difficult to interfere with Exhibit P2 order. It essentially directs retrenchment of the petitioner for want of vacancy. It is not the case of the petitioner that there was some other person junior to him in the category of Draftsman (Civil) whose service should have been terminated ahead of the petitioner to accommodate an incumbent who had rejoined W.P(C) NO.20185 OF 2004 -: 4 :- duty after the expiry of the period of leave without allowance for employment abroad. Learned counsel for the petitioner submits that a 4th Civil Unit in the ITC had been sanctioned as evidenced by Exhibit P3 and therefore the petitioner should have been accommodated in that Unit. The 4th Unit had been sanctioned only in the year 1999 and as a matter of fact the Municipality had not effected admissions to the 4th Unit in the Civil wing from 1994-95 onwards, at any rate, Exhibit P3 does not render Exhibit P2 illegal. 5. Once it was held that the petitioner's retrenchment under Exhibit P2 is not liable to be interfered with, then it follows that the petitioner would not have been comprehended by Exhibit R2(a) order dated 22.4.1999 since he was not in service as on that date. If that be so, the stand taken by the Government in Exhibit P12 order dated 4.2.2004 does not warrant any interference by this Court. 6. Learned counsel for the petitioner refers to Exhibit P14 resolution passed by the Municipality dated 17.3.2001. Essentially, the resolution speaks about reinstatement of the petitioner in the post of a Mathematics teacher. Firstly, the W.P(C) NO.20185 OF 2004 -: 5 :- petitioner was appointed as a Junior Instructor in the Civil wing and not as a Mathematics teacher. Secondly, the ITC itself was closed in the year 2002-03. Obviously, the Government was not either bound by Exhibit P14 or otherwise obliged to take note of it and then pass any order in consequence thereof. 7. In the ultimate analysis, it has to be held that termination of the petitioner's services, appointed on a provisional basis, vide Exhibit P2 order, cannot be said to be illegal. If that be so, the order, Exhibit P12, passed by the Government, does not warrant any interference by this Court. For all these reasons, I find that the Writ Petition is bereft of merit and it is accordingly dismissed. V. GIRI, JUDGE. vsv