IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 9863 of 2004(Y)
1. M.K.BALAKRISHNA PANICKER, TECHNICAL
... Petitioner
Vs
1. THE STATE OF KERAL, REPRESENTED BY
... Respondent
2. CHIEF HYDROGRAPHER, HYDROGRAPHIC
For Petitioner :SRI.VARGHESE PREM
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :21/07/2008
O R D E R
T. Ramachandran Nair, J.
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W.P.(C) NO.9863 of 2004-Y
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Dated this the 21st day of July, 2008.
JUDGMENT
In this writ petition the main prayer is to quash Ext.P6 with a further
prayer to direct the respondents to grant the petitioner pension and
consequential service benefits eligible to him on regularisation.
2. This is a case where the petitioner was in the service of the second
respondent for a period of 26 years and 7 months apart from 10 years of
Defence service earlier. He is an ex-serviceman who was released from
Naval service from 31.1.1976. The petitioner was appointed as per Ext.P1
as Technical Assistant (Electronics) under Rule 9(a)(i) of the Kerala State &
Subordinate Service Rules through Employment Exchange. He was posted
to the Office of the Chief Hydrographer, Hydrographic Survey Wing,
Trivandrum as per the said order. The case of the petitioner is that his
engagement on provisional basis in the said post continued till he attained
superannuation on 31.3.2003. Only once his service was sought to be
terminated, i.e. in the year 1986. At that time, he approached this court by
filing O.P.No.5682/1986 and this court allowed the Original Petition with a
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direction that the petitioner shall not be terminated till P.S.C. hands occupy
the post. But no such candidate was appointed. It is the case of the
petitioner that even though the Special Rules were framed in the year 1994,
he was having the required qualification as prescribed by the Special Rules
and therefore considering his provisional service, he was entitled to be
regularised in service.
3. There were moves from the Department itself to regularise him in
service. In support of the said case the petitioner has produced Ext.P2 dated
12.6.1997 and Ext.P4 dated 27.10.1999, whereby the Chief Hydrographer
forwarded to the Government the service details, etc. of the petitioner, the
requirement for retaining him in the said office in view of the emergency in
the office, with a further request to regularise him in service. In Ext.P2 it
was reported by the second respondent to the first respondent that he has got
all prescribed qualifications as per the rules of recruitment and that his
regularisation will not adversely affect any of the other individuals, since
there is only one post of Technical Assistant in the whole of Hydrographic
Survey wing. It is also pointed out therein that another employee, a Field
Assistant of the Department had filed an original petition seeking
regularisation, which file was pending consideration before the Government
at that time. In Ext.P4 also, the said stand is reiterated. Therein also, it has
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been pointed out that he is fully qualified for the post of Technical Assistant
and his services are very essential in the H.S.W. for operating all the
electronic survey equipments for which he has already experience from
27.8.1976. Ext.P5 is the representation sent by the petitioner individually,
but finally by Ext.P6 the request for regularisation was rejected.
4. The petitioner is relying upon Ext.P7 judgment in
O.P.No.15005/1996 which was confirmed in Writ Appeal No.956/2003
(Ext.P9). The said case related to one Shri M.C. Thomas, Field Assistant
under the second respondent herein, who was appointed in similar
circumstances and who continued for a long time for more than 20 years.
This court in Ext.P7 judgment held that it is not possible for the
Government to say, after 20 or 24 years of continuous service, that the
person’s service in the present post cannot be regularised as he has got no
chance for appointment in any other field because of the inaction of the
Government. It appears that based on Ext.P7 judgment the Government
reguarlised the service of the said petitioner only from 15.3.2002, which
was challenged before this court in O.P.No.14731/2002 and was disposed of
by Ext.P8 judgment. Therein, a direction was given to regularise his service
with effect from 31.3.1985, the date when he became qualified for
appointment.
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5. In the counter affidavit, it is admitted that petitioner was fully
qualified to hold the post as per the Special Rules. In para 7 it is admitted
that benefits were granted and service was regularised in respect of M.C.
Thomas, petitioner in Ext.P7. The contention taken is that the petitioner
herein being a provisional employee is not entitled for regularisation. It is
clear that no appointment was done through Public Service Commission.
There is no contention also that there was no requirement of the post.
6. Learned counsel for the petitioner relied upon two other
judgments, i.e. judgment in O.P.No.33230/2000 which was confirmed in
Writ Appeal No.1311/2004. Therein, as per the judgment dated 5.2.2004 a
learned Single Judge of this court ordered regularisation of the petitioner
therein in view of the stand taken by the Government in the very same
department in the case of employees with lesser term. Therein, the
petitioner concerned was recruited as Electrician in the Hydrographic
Survey Wing by the Chief Hydrographer. It is seen that the above
judgment was challenged in Writ Appeal No.1311/2004 which was
dismissed. Their Lordships held that the petitioner therein had been
working on provisional basis for more than 22 years and it is not the case of
the appellants that he was ineligible at the time of initial appointment or
that his record of service was not satisfactory. In that view of the matter,
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the appellants were directed to regularise him in service.
7. In the light of the above judgments of this court, the petitioner is
justified in seeking regularisation in service as he is fully qualified as per
the Special Rules which came into force much after the appointment.
Ext.P4 shows that it is a sanctioned post. Apart from that, the second
respondent, in Exts.P2 and P4 clearly stated that the petitioner is fully
qualified even from the initial date of appointment and his service is
satisfactory. Exts.P7 and P9 and the judgment in W.A.No.1311/2004 relate
to similarly placed employees in the very same office, i.e. under the 2nd
respondent, as the petitioner. All of them have been obviously been granted
the benefits of regularisation. Therefore, petitioner cannot be treated in a
different manner by the respondents. The same amounts to discrimination.
Therefore, following the dictum laid down in the judgments referred to
above, I hold that the petitioner is entitled for the regularisation in service.
8. Therefore, Ext.P6 is quashed. There will be a direction to the
respondents to pass appropriate orders regularising the service of the
petitioner with effect from 20.8.1976 and grant the consequential service
benefits to him as per the rules. But he will not be entitled to any
promotion, as of right. He will be paid the retirement benefits also counting
the above period of service as regularised. The Defence service undertaken
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by him for a period of10 years, if eligible to be reckoned for the said
purpose, the same shall also be considered as per the relevant rules. Final
orders shall be passed within a period of four months from the date of
receipt of a copy of this judgment.
The original petition is allowed as above. No costs.
(T.R. Ramachandran Nair, Judge.)
kav/