IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 2ND JUNE 2008 / 12TH JYAISHTA 1930 WP(C).No. 24934 of 2007(R) -------------------------- PETITIONER: ------------ P.N.SAJEEVAN, AGED 41, S/O.NARAYANAN, PUTHENPURAYIL VEEDU, ONAKKOOR P.O., ERNAKULAM DIST. BY ADV. SRI.BIJU ABRAHAM SRI.SREEVALSAN.V RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM. 2. KERALA STATE TRANSPORT DEPARTMENT, REPRESENTED BY ITS SECRTARY TO GOVERNMENT, SECRETARIAT, TRIVANDRUM. 3. THE KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR, THIRUVANANTHAPURAM. GOVERNMENT PLEADER, SRI BIJOY CHANDRAN FOR R1 STANDING COUNSEL, SRI K.PRABHAKARAN FOR R2 & R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No.24934/2007-R A P P E N D I X PETITIONER'S EXTS: EXT.P1 A TRUE COPY OF THE APPOINTMENT ORDER DATED 12/01/2006 ISSUED TO THE PETITIONER. EXT.P2 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER ON 06/03/2006 EXT.P3 A TRUE COPY OF THE CERTIFICATE ISSUED BY THE AMRITA INSTITUTE OF MEDICAL SCIENCE IN RESPECT OF THE TREATMENT OF THE PETITIONER DATED 22/03/2007. EXT.P4 A TRUE COPY OF THE ORDER DATED 05/05/2007 OF THE 2ND RESPONDENT. EXT.P5 A TRUE COPY 0F THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT DATED 16/05/2007. EXT.P6 A TRUE COPY OF THE ORDER G.O.(RT)NO.200/2007/TRAN, DATED 19/06/2007 OF THE 2ND RESPONDENT. EXT.P7 A TRUE COPY OF THE CIRCULAR NO.5966/ADV.C3/2000/P&ARD., DATED 28/06/2000 OF THE SECRETARY TO THE GOVERNMENT. \\TRUE COPY// P.A.to Judge K.M.JOSEPH, J. --------------------------------- W.P.(C).No.24934 of 2007-R --------------------------------- Dated this the 2nd day of June 2008 J U D G M E N T Petitioner was selected and appointed as a Blacksmith on the basis of the advise by the Kerala Public Service Commission. Before joining duty, it is his case that he met with an accident and suffered disability of his right hand. Ext.P1 is the copy of the appointment order, dated 12/01/2006. He applied for a grant of 45 days' time for joining duty. It was granted by the Department. He could not join even then. Accordingly, he filed Ext.P2 representation. The Government had considered the request of the petitioner from time to time and extended the joining time as required by him on the basis of various proceedings. Ext.P3 is a certificate given by the Amritha Institute of Medical Sciences in respect of the treatment of the petitioner. Ext.P4 is a letter issued by the first respondent dated 05/05/2007. In that the first respondent has required the petitioner to join duty within 10 days. Otherwise it was specifically informed that he will lose the job. After receipt of Ext.P4, petitioner again sent a representation seeking further time by Ext.P5. According to the petitioner, though it was received by the first respondent there was no reply from their part and hence, he approached this Court by filing W.P.(C). W.P.(C).No.24934/2007-R -: 2 :- No.16596/2007 seeking for a direction to the first respondent to take a decision on Ext.P5 and this Court as per judgment dated 04/06/2007 directed the Government to consider and take a decision on the petition (Ext.P5) submitted by the petitioner in accordance with law. The first respondent, without hearing the petitioner, rejected the representation vide Ext.P6. Ext.P7 is the circular dated 28/06/2007. Petitioner challenges Ext.P7 circular holding that the same is arbitrary, illegal and in violation of rights of equality. He sought for a direction for quashing Ext.P7 circular. Petitioner also challenges Exts.P4 and P6 orders and a direction is sought to grant extension of joining time to him. 2. In the counter affidavit filed by respondent Nos.1 and 2, it is inter alia stated as follows: “11. The date of the appointment order is 12/01/2006. Going by the approved norms, circulated by Personnel and Administrative Reforms Department in Ext.P7 joining time beyond 45 days can be granted by the Government to those candidates who are in the midst of any education course or are undergoing any training so as to enable them to complete the course of training. He has already got 11/2 years time for joining service. There is no meaning to wait more than 11/2 years especially when the ground urged is not admissible as per the prevailing rules. In the circumstances, the request of the petitioner for further extension of joining time upto 31/10/2007 has been rejected in Ext.P6.” 3. The petitioner was granted exemption for 45 days. Subsequently, he again requested for extension of time for a W.P.(C).No.24934/2007-R -: 3 :- further period of six months and it is stated that even after expiry of six months petitioner did not join duty. The Government as per letter dated 05/05/2007 directed the petitioner to join duty as Blacksmith within 10 days of receipt of the communication otherwise he will loss his appointment in K.S.R.T.C. But it is stated that the petitioner again requested for extension of time on the ground that he was undergoing medical treatment. It is stated that he had got 11/2 years for joining. 4. I heard learned counsel, Sri.Biju Abraham, appearing on behalf of the petitioner and the learned Government Pleader. Learned counsel for the petitioner contended that Ext.P4 was bad because it was issued by the Government without complying with the guidelines issued by the Government itself namely, clause No.7 of Ext.P7 which mandates that it should be stipulated that no further request to reconsider the decision will be entertained, and this was not indicated in Ext.P4. Clause No.7 of Ext.P7 inter alia reads as follows:- “7. While rejecting the request for extension of joining time beyond 45 days the candidate will be informed that no further request to reconsider the decision will be entertained. ” 5. As far as Ext.P6 is concerned, the main complaint is that Ext.P6 which was passed pursuant to the judgment of this Court, was without affording an opportunity of hearing to the petitioner. W.P.(C).No.24934/2007-R -: 4 :- As far as Ext.P7 is concerned, he would contend that Ext.P7 in so far as it confines the power of the Government to grant extension beyond 45 days to some classes of persons is arbitrary and per se illegal. Clause 3 of Ext.P7 reads as follows:- “3. Joining time beyond 45 days can be granted by the Government [in the concerned Administrative Department of the Secretariat] to those candidates who are in the midst of any educational course or are undergoing any training, so as to enable them to complete the course/training and then to report for duty.” 6. Learned Government Pleader would justify the action with reference to the pleadings which I have already adverted to. 7. In so far as the contention of the petitioner against Ext.P6 is concerned, it is conceded by the learned counsel for the petitioner that there was no direction by this Court to afford an opportunity of hearing to the petitioner. 8. I do not think in the nature of the plea taken by the petitioner, it was necessary as such to afford an opportunity of hearing to the petitioner. On that ground alone, it may not be open to him to quash Ext.P6. It may be noted that in Ext.P6, all that the Government has done is to follow the order of the Government (Ext.P7 Circular) and the order is strictly in accordance with the law. This is for the reason that going by Ext.P7, which holds the field, the case of the petitioner cannot be considered by the W.P.(C).No.24934/2007-R -: 5 :- Government for extension beyond a period of 45 days. Petitioner is neither undergoing a course or any training. It is also to be noted that the petitioner does not fall within clause 11 also. Clause 11 of Ext.P7 reads as follows:- “11. NORKAS working abroad can be granted by the Appointing Authority upto a maximum period of six months or till the end of one month after the expiry of the contract period with the employer, whichever is earlier subject to the condition that the seniority such cases will be reckoned only from the date of joining duty as provided under the 1st proviso to Rule 27(c) of Part II Kerala State and Subordinate Services Rules.” 9. As far as challenge to Ext.P7 is concerned, Ext.P7 is an order passed by the Government which have general application. The learned counsel for the petitioner rightly conceded before me that the petitioner does not have a legal right to claim extension as such. What he complains of is that there is no reason to exclude cases like the petitioner and other genuine cases also from the ambit of the power of the Government for granting extension beyond 45 days. According to him, he had not recovered and there was a genuine reason for not joining. On the other hand in this regard the learned Government Pleader draws sustenance from paragraph 5 of the counter affidavit where it is stated as follows:- “5. The date of the appointment order is 12/01/2006. Going by the approved norms, circulated by P&ARD in Ext.P7 joining time beyond 45 days can be granted by the Government to those candidates who are in the midst of any educational course or are undergoing any training so as to enable them to complete the course/training. He W.P.(C).No.24934/2007-R -: 6 :- has already got 11/2 years time for joining service. There is no meaning to wait more than 11/2 years especially when the ground urged is not admissible as per the prevailing rules. In the circumstances, the request of Shri.P.N.Sajeevan for further extension of joining time upto 31/10/2007 has been rejected in Ext.P6.” 9. It is further contended by the learned Government Pleader going by Note (1) and (2) and sub-clause (b) to Rule 5 of Part II of the K.S.&S.S.Rs, that leave vacancies and vacancies of more than six months duration shall be reported as “non joining duty vacancies to the P.S.C for selection as substantive vacancies earmarked for direct recruitment. 10. I also see rationale in the contention that in the case of the person undergoing training or an educational course, the period of the course is well known. As far as the case of the petitioner is concerned, it is an indefinite period as is evident from the extensions granted to the petitioner which could not be availed of by the petitioner successfully. That apart, I did not see anything in Ext.P7 Government Order which can persuade me to hold that the grant of exemption to those mentioned in clause (3) or (7) alone can be treated as illegal and arbitrary. These are areas where the Court should not rush to upset the valued judgment of the Government, particularly, having regard to the scheme of the provisions relating to the appointment preceded by selection by the Public Service Commission. Therefore, I reject the contention W.P.(C).No.24934/2007-R -: 7 :- against Ext.P7. Government in fact showed considerable indulgence to the petitioner. Even though apparently Ext.P7 is not as such applicable to the petitioner even then by Ext.P4 Government had granted time to join. 11. The remaining question is the legality of Ext.P4 for alleged contravention of paragraph (7) of Ext.P7. Undoubtedly, paragraph (7) mandates that when application for extension of time beyond 45 days is rejected, the person shall be informed about the fact that no further extension will be granted. I cannot overlook the fact that in Ext.P7 it is categorically stated that the petitioner will lose his job in case he does not join within 10 days. Also going by Ext.P7, Ext.P4 is not passed as an order under Ext.P7. In such circumstances, the prayers sought for in this writ petition are only to be rejected. Accordingly, the writ petition is dismissed. (K.M.JOSEPH, JUDGE) ms