IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 1ST DECEMBER 2009 / 10TH AGRAHAYANA 1931 WA.No. 2289 of 2008() --------------------- AGAINST THE JUDGEMENT IN WPC.13526/2006 Dated 18/01/2008 .................... APPELLANT(S)/RESPONDENTS: -------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF COMMUNICATIONS, NEW DELHI. 2. CHAIRMAN AND MANAGING DIRECTOR, BSNL, CORPORATE OFFICE, NEW DELHI. 3. THE CHIEF GENERAL MANAGER TELECOM. BSNL, KERALA CIRCLE, THIRUVANANTHAPURAM. 4. THE PRINCIPLE GENERAL MANAGER (TELECOMMUNICATIONS), BSNL, ERNAKULAM. 5. THE GENERAL MANAGER (OPERATIONS), OFFICE OF THE PRINCIPLE GENERAL MANAGER (TELECCOMMUNICATIONS), BSNL, ERNAKULAM - 18. BY ADV. SRI.P.M.M.NAJEEB KHAN, SC, BSNL RESPONDENT(S)PETITIONER: --------------- C.K. KOSHI, AGED 39 YEARS, S/O. C.K. BHARATHAN, TELECOM MECHANIC, O/O SUB DIVISIONAL ENGINEER, RFESIDING AST CHAKKARAPARAMBIL HOUSE, THAMMANAM P.O., COCHIN - 32 ADV. SRI.T.C.GOVINDA SWAMY FOR THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NO. 2289 OF 2008 --------------------------------------------- Dated this the 1st day of December, 2009 JUDGMENT Ravikumar, J. The appellants/respondents have come up in appeal against the judgment in W.P.(C) No. 13526 of 2006 whereby Ext.P1 order of the 5th appellant/5th respondent was set aside and the third appellant/third respondent was directed to pass orders reckoning the service rendered by the respondent/writ petitioner prior to the attainment of 18 years for the purpose of regularisation and consequential benefits arising therefrom. 2. The respondent/writ petitioner was an adolescent while he joined the erstwhile department of Telecom as a casual mazdoor on 19.7.1982. He attained the age of 18 years, admittedly, only on 14.10.1983. Later, he was granted temporary status on 1.11.1989 and was regularised in service on 8.7.1994. However, in the matter of regularisation, the service rendered by him from 19.7.1982 to 14.10.1983 was not taken into account on the ground that the said service did not W.A. NO. 2289/2008 2 qualify for regularisation as it was rendered prior to the attainment of the age of 18 years. While so, the petitioner happened to come across orders whereby under similar circumstances, similarly situated juniors were granted the benefit of regularisation by taking into account their boyhood service. Ext.P3 would reveal the veracity of his statement. In fact, as far as the petitioner is concerned, it is his third round of litigation. Earlier, expatiating the aforesaid aspects, he had approached the Central Administrative Tribunal by filing O.A. No. 837 of 1999 for parity of treatment. However, the same was dismissed on the ground of delay. Against the said order, he had approached this Court by filing O.P. No.22295 of 1999. While affirming the order of the Tribunal, this Court had observed that the dismissal of the Original Petition would not stand in the way of the petitioner's representation being considered . Pursuant to the judgment carrying the said observation, the representation of the petitioner was considered, but the same was rejected. That led to the filing of O.A. No.217 of 2001. Against the dismissal of O.A. No.217 of 2001, the respondent/petitioner had approached this Court by filing W.P.(C) No.28562 of 2003 and the same was disposed of by Ext.P2 judgment. As per Ext.P2, this Court directed the respondents therein to bear in mind the principle that similarly situated persons should not be discriminated and, therefore, the petitioner should not be put to a disadvantageous position W.A. NO. 2289/2008 3 vis-a vis any of his colleagues. Thereafter, the claim of the petitioner was again considered, but it met with the same fate. Against Ext.P1 rejection order declining to accept the petitioner's claim, he had approached this Court by filing W.P.(C) No.13526 of 2006. 3. A counter affidavit was filed on behalf of the appellants herein, supporting the orders passed by the authorities. The respondent/petitioner has filed a rejoinder. He also filed I.A. No.14179 of 2006 with the prayer to receive Ext.P7 document which is a list containing the names of 25 persons who were given regularisation under the department reckoning their adolescent service as well. It is pertinent to note that the appellants/respondents have filed a reply to the said rejoinder virtually admitting the assertion made by the petitioner in regard to Ext.P7, except in relation to those persons who figured as serial numbers 4 to 6 therein. The only reason put forth by the appellants is that the Tribunal had directed to consider their case. In other words, the appellants did not refute the factum of discrimination, but only sought to justify their action, relying on the direction of the Tribunal. 4. In the circumstances, taking note of the fact that 22 similarly situated persons were regularised into its service by the department, W.A. NO. 2289/2008 4 reckoning their boyhood service as well, the learned Single Judge found that it is a case of clear hostile discrimination violating Article 14 of the Constitution of India. The learned Single Judge has also taken into account the fact that the department did not have a case that there exists specific rules prohibiting consideration of service rendered prior to the attainment of majority. Consequently, the learned Single Judge set aside Ext.P1 order and issued further directions. 5. Admittedly, the appellants have regularised the services of 22 similarly situated persons including juniors to the respondent/petitioner by reckoning their boyhood service as well. The contentions raised by the appellants would reveal that they seek to justify the said action and attempted to distinguish the case of the petitioner from that of the said persons on the premise that unlike in the case of the petitioner, there was specific directions from the Tribunal for such consideration. The said contention cannot be countenanced. In the context of such a contention, it is absolutely ununderstandable as to how the appellants could ignore the specific direction of this Court in Ext.P2 judgment. As noticed hereinbefore, as per Ext.P2 judgment this Court had, in unambiguous terms, made it clear that the respondent/petitioner should not be subjected to any hostile discrimination vis-a-vis any of his colleagues. The admitted W.A. NO. 2289/2008 5 fact that 22 similarly situated persons were given the benefit which was declined to the petitioner would reveal that despite Ext.P2 judgment, he was subjected to hostile discrimination in the matter of regularisation by not reckoning his adolescent service. The appellants could not also bring to our attention any specific provision that prohibits reckoning of such admitted adolescent service. Thus, in any view of the matter, the appellants cannot justify their action. In the facts obtained in this case, according to us, the learned Single Judge has taken the only plausible view that could be taken in this case. The quashing of Ext.P1 and the issuance of consequential directions cannot, therefore, be said to be perverse or illegal. The appeal is devoid of merits. It is accordingly dismissed. (KURIAN JOSEPH) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. NO. 2289/2008 6 KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. W.A. NO.2289/2008 JUDGMENT 1st December, 2009 W.A. NO. 2289/2008 7