IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 WP(C).No. 13097 of 2005(H) -------------------------- PETITIONER(S): --------------- K.V.RAJENDRAN, PEON, REGIONAL OFFICE, KERALA FISHERMENS WLFARE FUND BOARD, ERNAKULAM. BY ADV. SRI.BLAZE K.JOSE RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FISHERIES & PORTS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE KERALA FISHERMEN'S WELFARE FUND BOARD, REPRESENTED BY ITS SECRETARY, POONKUNNAM, THRISSUR 2. 3. THE COMMISSIONER, KERALA FISHERMEN;S WELFARE FUND BOARD, POONKUNNAM, THRISSUR 2. 4. THE REGIONAL EXECUTIVE KERALA FISHERMENS WELFARE FUND BOARD, ERNAKULAM. ADV. SRI.P.SANTHALINGAM, SC FOR KFWFB FOR R2 SRI.ASOK M.CHARIYAN, SC, KFWFB FOR R2 GOVERNMENT PLEADER SMT.N.SUDHADEVI, FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 13097 OF 2005 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE ORDER DTD.3.7.00 OF R3. P2. COPY OF THE GOVT. ORDER DTD.11.12.2000. P3. COPY OF THE EXTRACT OF THE STAFF REGULATIONS. P4. COPY OF THE LETTER DTD.19.1.01 OF R1. P5. COPY OF THE LETTER DTD.22.22.2001 OF R3. P6. COPY OF THE ORDER DTD.12.1.2004 OF R3. P7. COPY OF THE GOVT. ORDER DTD.9.2.2004 OF R1. P8. COPY OF THE ORDER DTD.5.3.2005 OF R3. P8.A. COPY OF THE DETAILED STATEMENT ATTACHED TO Ext.P8. P9 COPY OF THE ORDER DTD.27.7.07 OF R2. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.13097 of 2005 ================== Dated this the 17th day of November, 2009 J U D G M E N T The petitioner is the son of P.V.Vijayan, who was a Senior Assistant in the service of the 2nd respondent Board. P.V.Vijayan died on 29.3.1999. The petitioner filed an application for compassionate employment in the Board. Pursuant thereto, he was appointed as a Clerical Attender as per Ext.P1 order dated 3.7.2000, of the 3rd respondent, provisionally subject to ratification by the Government. Ext.P2 order of the Government is dated 11.12.2000, whereby Ext.P3 Staff Regulations were approved for the 2nd respondent. In the Staff Regulations, a post of Clerical Attender is approved for the Board. The petitioner submits that he was the only Clerical Attender in the service of the 2nd respondent Board when he was so appointed. The appointment order of the petitioner was forwarded to the Government for ratification. By Ext.P4 order dated 19.1.2001, the Board returned the application for employment assistance to the petitioner without assigning any reasons. A copy of the order was forwarded to the 4th respondent with an endorsement directing the 4th respondent to allow the petitioner to continue in service until further orders from the Commissioner. By Ext.P5, the 2nd respondent informed the 1st respondent that in its meeting held on 7.2.2001, the Board resolved to w.p.c.13097/05 2 incorporate rules regarding dying in harness scheme of Government servants in the Staff Regulations requesting the Government for accepting that proposal and for permission to appoint the petitioner as a Clerical Attender in the Board. By Ext.P5 the concurrence of the Government was requested for. By Ext.P6, the 3rd respondent informed the petitioner that his appointment by Ext.P1 as a Clerical Attender is cancelled since the Government by letter dated 12.1.2004 informed the Board that the post of Clerical Attender cannot be created and directed to post the petitioner as a Peon. Accordingly, as per Ext.P6, the petitioner was appointed as a Peon subject to ratification by the Government. That order was approved by the Government as per Ext.P7 order dated 9.2.2004. Thereafter, by Ext.P8, the 3rd respondent directed the petitioner to refund the excess pay received by the petitioner amounting to Rs.77,293/- while continuing as Clerical Attender. The petitioner is challenging Exts.P6, P7 and P8 orders in this writ petition. 2. The contention of the petitioner is that the reason given by the Government for cancellation of the petitioner's appointment that the post of Clerical Attender cannot be created is clearly unsustainable in view of Ext.P3 Staff Regulations, which was deemed to have come into force on 24.11.1986, and was approved by the Government by Ext.P2 order dated 11.12.2000, in so far as the Staff Regulations do w.p.c.13097/05 3 contain a post of Clerical Attender for the Board. According to the petitioner, since the very basis of the cancellation of the petitioner's appointment as Clerical Attender is non-existent, the impugned orders are liable to be quashed. 3. I have heard the learned counsel for the 2nd respondent as well as the learned Government Pleader. 4. The Government has not chosen to file any counter affidavit. The 2nd respondent claims to have filed a counter affidavit. But the same is not seen in the file. Admittedly the specific averment of the petitioner that the petitioner's appointment as Clerical Attender in the service of the Board was cancelled on the ground that there is no post has not been controverted in the counter affidavit. From Ext.P3 Staff Regulations, in clause 1(c) thereof, it has been specifically stated that the Staff Regulations are deemed to have come into force with effect from 24.11.1986. By Ext.P2 dated 11.12.2000 the Government had approved Ext.P3 Staff Regulations also. In clause 3 (b) thereof, the first post in Group C is Clerical Attender. Since in Ext.P3 Staff Regulations approved by the Government there is a post of Clerical Attender, the question of creating a post of Clerical Attender does not arise unless the 2nd respondent has a case that there is only one post of Clerical Attender and there is already a Clerical Attender in service. The 2nd respondent has no such case. The petitioner has w.p.c.13097/05 4 specifically averred that the petitioner was the only Clerical Attender in service. That fact has not been denied in the counter affidavit of the 2nd respondent. From the above, it is undisputed that the petitioner was appointed as a Clerical Attender to an existing post and, therefore, there was no necessity to create another post of Clerical Attender to accommodate the petitioner. From Ext.P6, it is clear that that is the only ground on which the petitioner's appointment has been cancelled. 5. The learned standing counsel for the 2nd respondent would contend that no compassionate employment scheme was approved by the Government. I fail to understand how the 3rd respondent could have allowed the petitioner to continue in service and how the Government could have sanctioned the appointment of the petitioner as Peon as done in Ext.P7 if the same is correct. Even otherwise, it is stated in Ext.P5 that the 2nd respondent has resolved to adopt the dying in harness scheme applicable to Government servants for the Board also. Therefore, at least from 7.2.2001 the Scheme must be deemed to have come into force in the Board. Therefore, I am of opinion that the petitioner is entitled to be appointed as Clerical Attender in the 2nd respondent Board with effect from 7.2.2001. As far as Ext.P8 is concerned, after having appointed the petitioner and extracting work from him, I do not think that the Government and the 2nd respondent can direct the petitioner to refund the salary paid to the w.p.c.13097/05 5 petitioner. In the above circumstances, Exts.P6 to P8 are quashed. It is declared that the petitioner is deemed to have been appointed in the service of the 2nd respondent as a Clerical Attender with effect from 7.2.2001. It is also declared that the petitioner is not liable to refund the excess salary drawn by him pursuant to the appointment by Ext.P1 in so far as the petitioner has not contributed to the alleged mistake committed by the 2nd respondent. Needless to say, the petitioner would be entitled to all consequential benefits pursuant to the above directions. The writ petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge