Service Law; Sadanandan Vs. State [Kerala High Court, 07-09-2016]

Service Law – Kerala State and Subordinate Service Rules – Rule 9(a)(1) – Regularisation of Service – the petitioner/applicant is entitled for regularisation of his service as Cook under the 2 nd respondent for the period from 14.1.1983 to 31.5.2008 for the purpose of pensionary benefits, as prayed for in the Transfer application, and for disbursement of all consequential benefits.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.

O.P.(KAT)No.416 of 2014

Dated this the 7th day of September, 2016

AGAINST THE ORDER/JUDGMENT IN TA 7552/2012 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 08-07-2014

PETITIONER

SADANANDAN, AGED 60 YEARS, S/O.RAMAN, KUNNATHIL HOUSE, NANMINDA P.O., KOZHIKODE 673 613 (COOK RELIEVED ON SUPERANNUATION) BY ADVS.SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE

RESPONDENTS

1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, FISHERIES & PORTS (D) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001.

2. THE CHIEF HYDROGRAPHER, HYDROGRAPHIC SURVEY WING, SASTHAMANGALAM, THIRUVANANTHAPURAM 695 010.

3. THE MARINE SURVEYOR, HYDROGRAPHIC SURVEY WING, BEYPORE 15.

BY SR.GOVERNMENT PLEADER SRI.BIJOY CHANDRAN

JUDGMENT

Anil K. Narendran, J.

The petitioner is the applicant in T.A.No.7552/2012 on the file of the Kerala Administrative Tribunal, Thiruvananthapuram. He originally filed W.P.(C)No.7693/2011 before this Court mainly seeking for a writ of certiorari to quash Ext.P11 order and a writ of mandamus commanding the 1st respondent to regularise his service as a Cook under the 2 nd respondent for the period from 14.1.1983 to 31.5.2008 for the purpose of pensionary benefits. The said writ petition was later transferred to the Tribunal, where it was re-numbered as T.A.No.7552/2012.

2. The reliefs sought for in the Transfer Application were opposed by the 1 st respondent by filing Annexure A3 counter affidavit. The petitioner has also filed Annexure A4 rejoinder. After considering the rival contentions, the Tribunal held in Annexure A1 order that, the petitioner is not eligible for regularisation of his service since his appointment is only a provisional appointment made under

Rule 9(a)(1) of the Kerala State and Subordinate Service Rules

(hereinafter referred to as ‘the KS&SSR’) and as such, there is nothing wrong in Ext.P11 Government order. However, considering the fact that the petitioner is having more than 20 years of service, the Tribunal disposed of the Transfer Application by directing him to submit a representation before the 1 st respondent for ex-gratia pension, in the light of the Full Bench decision of this Court in

State of Kerala v. M. Daisy, 2012 (3) KLT 366

and the said respondent was directed to consider and pass appropriate orders thereon within three months from the date of receipt of a copy of the order.

3. Feeling aggrieved by Annexure A1 order passed by the Tribunal, to the extent of declining regularisation of service for the period from 14.1.1983 to 31.5.2008, the petitioner is before this Court in this Writ Petition.

4. We heard the arguments of the learned counsel for the petitioner/applicant and also the learned Senior Government Pleader appearing for the respondents.

5. The pleadings and materials on record would show that the applicant was appointed as Cook in the office of the 3 rd respondent, in the scale of pay of Rs.280-400, by Ext.P1 order dated 14.1.1983 of the 2 nd respondent. As evident from Ext.P1 order of appointment, the applicant was a candidate sponsored by the Divisional Employment Exchange, Kozhikode and his appointment was only a provisional appointment made under Rule 9(a)(i) of the KS&SSR. However, the applicant was permitted to continue in service as Cook for more than two decades without the intervention of any orders of the Court or Tribunal. Claiming regularisation in service, the applicant represented before the Government, which was rejected by Ext.P2 communication dated 20.4.2005 of the 1 st respondent stating that the applicant cannot be permitted to continue in service till attaining the age of superannuation, in the light of G.O.(P)No.39/02/P&ARD dated 26.8.2002. The said order was under challenge in W.P.(C)No.21899/2005. The said Writ Petition was disposed of by Ext.P3 judgment, setting aside Ext.P2 order as it is vitiated by total non-application of mind and the 1 st respondent was directed to pass fresh orders in accordance with law, after affording the petitioner a reasonable opportunity of being heard.

6. Pursuant to the direction contained in Ext.P3 judgment, the 1 st respondent conducted a personal hearing and thereafter issued Ext.P4 order. In Ext.P4 order, the Government found that the applicant was allowed to continue as Cook for the period from 24.1.1983 upto 10.8.2005 and that, there were two posts of Cook-cum-Bearer and two posts of Cook in the offices of Marine Surveyor at Kollam and Baypore. Among those four posts, two posts of Cook-cum-Bearer were abolished and the post of Cook in which the applicant had worked upto 10.8.2005 was lying vacant. Accordingly, by Ext.P4 order, the applicant was allowed to continue in service as Cook in the office of the 3 rd respondent till attaining the age of superannuation, on provisional basis. The 2 nd respondent was directed to issue necessary orders permitting the applicant to continue in service from the date of relief as this Court has quashed Ext.P2 order.

7. Feeling aggrieved by Ext.P4 order to the extent the request for regularisation of service was declined, Ext.P5 representation was submitted before the Government. Thereafter, the applicant approached this Court in W.P.(C) No.1322/2008, which Writ Petition was disposed of by Ext.P7 judgment, relegating him to approach the Government. It was made clear in Ext.P7 judgment that, if any such claim is received, it shall be independently considered de hors non-regularisation of his service as per Ext.P4 order.

8. The applicant was issued with a memo dated 17.4.2007 of the 3 rd respondent stating that he should refund the wages paid for the period from 10.8.2005 upto 2.1.2006, i.e., from the date on which he had been relieved from service upto the date on which he was reinstated in service based on Ext.P4 order. The said memo was under challenge in W.P.(C) No.14218/2007. The said Writ Petition was allowed by Ext.P8 judgment, setting aside the said memo, thereby restraining the respondents from taking any steps to recover the wages already paid to the applicant for the period from 10.8.2005 to 1.1.2006.

9. On attaining the age of superannuation, the applicant was relieved from service on 31.5.2008, vide Ext.P9 memo issued by the 3 rd respondent. Claiming regularisation of service and pensionary benefits, the applicant submitted Ext.P10 representation before the Government. However, the said request was rejected by Ext.P11 order passed by the Government, stating that by Ext.P4 order the Government has already allowed the applicant to continue in service provisionally till the date of superannuation and that, the existing rules/orders do not permit regularisation of a provisional employee for the purpose of pensionary benefits.

10. Challenging Ext.P11 order, the applicant filed W.P.(C) No.7693/2011 (which was later transferred to the Tribunal and re-numbered as T.A.No.7552/2012) in which the applicant claimed regularisation of his service from 14.1.1983 to 31.5.2008 as a contingent employee and to grant him all consequential benefits. The applicant has also pointed out that, in similar circumstances this Court ordered regularisation in the case of other provisional hands. Ext.P12 is one such judgment in W.P.(C) No.9863/2004, which was affirmed by the Division Bench in Ext.P13 judgment in W.A.No.1886 of 2008. Pursuant to Ext.P13 judgment, the petitioner therein has been granted regularisation of his service, by Ext.P14 Government order dated 21.12.2009. Therefore, applicant sought for regularisation of his appointment.

11. The 1 st respondent has filed a counter affidavit, resisting the prayers in the Transfer Application, asserting that provisional hands are not entitled for regularisation. The Government in Ext.R1(a) order dated 26.8.2002 ordered that the service of provisional employees continuing in service as per Circular No.9516/Adv.C1/92/P&ARD dated 9.3.1995 and Government letter No. 9516/Adv.C1/92/P&ARD dated 17.3.1998 need not be regularised. It was ordered further that, the case of each provisional employee continuing in service as per Circular No.9516/Adv.C1/92/P&ARD dated 9.3.1995 will be examined and those deserving exceptional consideration on humanitarian grounds may be permitted to continue in service on provisional basis invoking Rule 39 of the KS&SSR without regularising their services. The 1 st respondent contended further that the case of the incumbent covered by Ext.P12 judgment is entirely different from that of the applicant. In Ext.P12 judgment there was a specific direction from this Court to regularise the provisional service of the petitioner therein as Technical Assistant in the Hydrographic Survey Wing, Beypore under the Port Department, who was a Rule 9(a)(i) appointee with more than 26 years service. The SLP filed by the State against Ext.P13 judgment in the Writ Appeal was dismissed and hence his service was regularised as per Ext.P14 Government order. However, in the instant case, this Court by Ext.P7 judgment directed the Government to consider independently the claim for regularisation made by the applicant, which was considered and Ext.P11 order was issued rejecting the said claim. In the case of the applicant he was allowed to continue, as there was no Special Rules or Executive orders for the post of Cook till 1994. So, he cannot claim regularisation.

12. In Annexure A1 order, the Tribunal held that appointment under Rule 9(a)(i) of the KS&SSR is an appointment otherwise than in accordance with the rules and Rule 9(a)(i) expressly provides that such appointees are not eligible for regularisation. Further, the general policy of the Government as contained in Ext.R1(a) order also stands in the way of regularising such persons. As such, there is nothing wrong in the stand taken by the Government in Ext.P11 order that, the applicant is not entitled for regularisation of his service. However, after taking note of the principle laid down by the Full Bench of this Court in Daisy‘s case (supra) the Tribunal observed that the applicant is prima facie entitled to get the benefit of that decision. Considering the fact that the applicant is having more than 20 years of service, the Tribunal disposed of the Transfer Application by directing him to submit a representation before the 1 st respondent for ex-gratia pension in the light of the Full Bench decision in Daisy‘s case (Supra) and the said respondent was directed to consider and pass appropriate orders thereon within three months from the date of receipt of a copy of the order.

13. We notice that, while disposing of the Transfer Application by Annexure A1 order, the Tribunal has not even adverted to the specific plea raised by the applicant for regularisation of his service, relying on Ext.P12 judgment of this Court, which was confirmed in Ext.P13 judgment of the Division Bench and implemented by the Government by Ext.P14 order after the dismissal of S.L.P.No.7038/2009 filed by the State before the Apex Court. Similarly, the Tribunal has also not adverted to the specific plea raised by the applicant for regularisation of his service in the light of observation made by the Apex Court in paragraph 53 of its decision in