IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 WP(C).No. 22201 of 2007(R) ----------------------------------- PETITIONER: ---------------------- M.PRABHAVATHI, PRADEEP BHAVAN, CHAVARA BRIDGE P.O., EDATHURUTHU CHAVARA, KOLLAM DISTRICT. BY ADVS. MR.PIRAPPANCODE V.SREEDHARAN NAIR MR.PIRAPPANCODE V.S.SUDHIR RESPONDENTS: ----------------------- 1. STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT,THIRUVANANTHAPURAM. 2. SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. DIRECTOR OF MUNICIPAL ADMINISTRATION, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADERMR. DILIP MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 22201 of 2007(R) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF THE JUDGMENT OF THIS COURT IN O.P. NO. 3559/81 EXT.P2 - TRUE COPY OF THE REPRESENTATION DATED 15.12.1997 SUBMITTED BY THE PETITIONER ALONG WITH ONE SMT. N. SOMALATHA BEFORE THE GOVERNMENT. EXT.P3 - TRUE COPY OF THE JUDGMENT OF THIS COURT IN O.P.15769/99-B. EXT.P4 - TRUE COPY OF THE JUDGMENT OF THIS COURT IN W.A. NOS. 1381/96 AND 1975/99. EXT.P5 - TRUE COPY OF THE COVERING LETTER DATED 11/2/2002. EXT.P6 - TRUE COPY OF THE LETTER NO. B4-4549/01 DATED 4.6.2002 OF THE 3RD RESPONDENT. EXT.P7 - TRUE COPY OF THE GOVERNMENT CIRCULAR NO. 9516/ADV.C1/92/P&ARD DATED 9.3.95. EXT.P8 - TRUE COPY OF THE GOVERNMENT LETTER NO. 9516/ADV.C1/92/P&ARD DATED 17.3.98. EXT.P9 - TRUE COPY OF THE GOVERNMENT LETTER NO. 6448/A3/2002/LSGD DATED 1.7.2002. EXT.P10 - TRUE COPY OF THE JUDGMENT OF THIS COURT IN O.P. NO. 22810/2002. EXT.P11 - TRUE COPY OF THE G.O.(Rt) NO. 666/2007/LSGD. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... W.P.(C)No.22201 of 2007 ................................................. Dated this the 30th day of June, 2009 J U D G M E N T The petitioner was appointed through employment exchange in the Pathanamthitta Municipality as a female attender on 1.8.1980. She continued in service till 30.4.2000, when on attaining 55 years of age, she was relieved from service. The petitioner along with another similarly situated employee filed Ext.P2 representation before the Government requesting regularisation of the petitioner's service so as to enable them to get consequential monetary benefits including pension. By Ext.P3 judgment, this court directed the Government to consider the case of the petitioners along with the claims of the appellants in Ext.P4 judgment, which was filed by similarly situated persons. By Ext.P9, the Government again rejected the claim of the petitioner. The petitioner again approached this court by filing O.P. No. 22810 of 2002. That writ petition was contested by the Government on the ground that there is no provision for regularisation of provisional service. By Ext.P10 judgment, this W.P.(C)No.22201 of 2007 -2- court repelled the contention of the Government quoting Rule 7 Part I of KSR, Rule 11 of Part III of KSR and Rule 39 of the General Rules of Kerala State and Subordinate Service Rules. Thereafter this court directed the Government to reconsider the claim of the petitioner in the light of the observations in that judgment. But again by Ext.P11 order, the Government rejected the claim of the petitioner. The petitioner is challenging that order seeking the following reliefs: “i) issue a writ of certiorari of any other appropriate writ, order or direction calling for the records leading to Ext.P11 and quash the same. ii) Declare that the petitioner is entitled to have her service Regularized at least for the limited purpose of granting her pensionary benefits. iii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to regularize the service of the petitioner at least for the limited purpose of granting her pensionary benefits and disburse the consequential monetary benefits within a time limit to be fixed by this court.” 2. A counter affidavit is filed on behalf of the 1st respondent, wherein it is submitted that the Government have only allowed provisional employees to continue in service on humanitarian ground. Such provisional employees do not have any right for regularisation. It is also submitted that the W.P.(C)No.22201 of 2007 -3- petitioner obtained order from this court for continuing in service and that is why she was allowed to continue in service, which cannot give rise to any right in her for regularisation. 3. I have considered the rival contentions in detail. 4. The contentions now raised by the respondents were never raised before this court in the earlier writ petitions. In fact the only contention raised by the Government in O.P. No. 22810 of 2002 was that there is no rule enabling the Government to regularise the provisional service, which contention was repelled by this court by Ext.P10 judgment. 5. That being so, the Government cannot now raise another ground for rejecting the claim of the petitioner. Even otherwise it is admitted that the petitioner was occupying a regular post on provisional basis for 20 years. That means the Municipality had extracted work from the petitioner which was to be done by a regular worker paying only the benefits applicable to a provisional employee. A learned judge of this court had considered a similar case in W.P(C) No. 26799/2003, holding thus: “3. I have considered the submissions made at the Bar by the learned counsel appearing on either side. It is W.P.(C)No.22201 of 2007 -4- evident from Ext.P9 judgment that this Court had directed the Government to consider the petitioner's claim for regularization for the limited purpose of granting him pensionery benefits. By Ext.P12, petitioner's claim for regularization was rejected on the short ground that the Government order dated 26.8.2002 does not contemplate regularization of service but only continuance in service till the provisional employee attains the age of superannuation. The respondents who are parties to Ext.P9 judgment are bound by the directions issued therein. It was not open to the respondents to rely on the Government Order dated 26.8.2002 to deny the petitioner the benefit of regularization at least for the limited purpose of granting him pensionery benefits. The Apex Court has, in Umadevi, noticed that a temporary employee who has been in service for long number of years is entitled to regularization in service if his appointment was only irregular and not illegal, provided he possesses the qualifications prescribed for the post. In the instant case, it is not in dispute that the petitioner was appointed through the District Employment Exchange as an Electrician. It is also not in dispute that when he was appointed, he possessed the qualifications prescribed for the post. Therefore, the petitioner's appointment cannot be said to be illegal. The petitioner continued in service without break from 28.6.1980 till 30.9.2001. In such circumstances, I am of the opinion that the Government ought to have exercised the power available to it under Rule 39 of Part - II of the K.S.&S.S.R and regularized the service of the petitioner for the limited purpose of granting him pensionery benefits. It is evident from Ext.P12 that the Government have not bestowed serious attention to the directions issued by this Court in Ext.P9 judgment, when it passed Ext.P12. 4. For the reasons aforesaid, I quash Ext.P12 and direct the first respondent to consider the request made by the petitioner in Ext.P10 afresh in the light of the directions issued by this Court in Ext.P9 judgment and by the Apex Court in Umadevi (supra). This shall be done within three months from the date on which the petitioner produces a certified copy of this judgment. Needless to say that the petitioner shall also be heard in person before revised orders are passed in the matter. If the Government decides to regularize the service of the petitioner for the purpose of granting him pensionery benefits, the pensionery benefits W.P.(C)No.22201 of 2007 -5- shall be fixed and disbursed to him within a period of three months from the date on which revised orders are passed on Ext.P10.” 6. I am in respectful agreement with that decision. Consequentially, I am of opinion that the petitioner herein is also entitled to regularization in service, but only for the purpose of retirement benefits. Accordingly, Ext.P11 is quashed and the 1st respondent is directed to reconsider the request made by the petitioner afresh in the light of the directions issued by this court in Ext.P10 judgment and by the apex court in Umadevi's case as also the specific findings in this judgment. This shall be done within two months from the date on which the petitioner produces a certified copy of this judgment. The petitioner shall be afforded and opportunity of being heard before revised orders are passed. On passing final orders, benefits due under that order shall also be disbursed to the petitioner within one month from the date of the order. The writ petition is disposed of accordingly. S. SIRI JAGAN, JUDGE rhs