IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
TUESDAY, THE 05TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942
WA.No.2283 OF 2019
AGAINST THE JUDGMENT IN WP(C) 8098/2015(J) OF HIGH COURT OF
KERALA DATED 23/5/2019
APPELLANT/1ST RESPONDENT IN WP(C):
STATE OF KERALA,
REPRESENTED BY SECRETARY,
REVENUE AND HOUSING DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
BY SRI. T. RAJASEKHARAN NAIR- SR. G.P.
RESPONDENTS/PETITIONER & RESPONDENT 2 & 3 IN WP(C):
1 JALAL P.,
S/O.MUHAMMED, RAZIYA MANZIL,
P.O.MUZHAPPILANGAD, KANNUR-670662,
NOW WORKING AS LAST GRADE EMPLOYEE,
KERALA STATE HOUSING BOARD, KANNUR DIVISION,
KANNUR-2.
2 THE CHAIRMAN KERALA STATE HOUSING BOARD,
THIRUVANANTHAPURAM - 695001.
3 THE KERALA STATE HOUSING BOARD,
HOUSING BOARD OFFICE,
THIRUVANANTHAPURAM 695001, REPRESENTED BY ITS
SECRETARY.
R1 BY ADV. SRI.K.C.SANTHOSHKUMAR
R1 BY ADV. SMT.K.K.CHANDRALEKHA
R2-3 BY ADV. SRI.MANOJ RAMASWAMY
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17-12-2020,
THE COURT ON 05-01-2021 DELIVERED THE FOLLOWING:
WA No.2283/2019
-:2:-
JUDGMENT
Dated this the 5th day of January, 2021 Shaffique, J.
State of Kerala has preferred this appeal challenging judgment dated 23/5/2019 in WP(C) No. 8098/2015. The first respondent herein, who was the writ petitioner, had approached the learned Single Judge challenging the date of regularization of his service w.e.f. 28/5/2001. According to him, his service ought to have been regularized w.e.f. 7/7/1994.
2. The short facts of the case are as under. The writ petitioner, a differently abled person, was working in the post of last grade employee in the Kerala State Housing Board from 7/7/1994. When there was an attempt to terminate his service, he approached the High Court and obtained a stay by filing OP No. 18309/1994. In the meantime, Government issued order dated 22/10/1994 directing reappointment of physically handicapped provisional employees and regularising their service with effect WA No.2283/2019 -:3:- from the date of the said order or their date of rejoining duty. According to the petitioner, Board issued order dated 19/5/2001 in continuation of Government Circular dated 22/10/1994. Petitioner therefore made a request seeking sanctioning of annual increment and other service benefits taking into consideration his service from 7/7/1994 instead of 28/5/2001, which came to be rejected. According to him, since he was already working, there was no question of any rejoining and subsequently he was informed that the Housing Board had sent a letter dated 25/1/2006 to the Additional Secretary, Chief Minister's Public Grievance Redressal Cell that his service was regularised w.e.f. 28/5/2001 as per Board order dated 17/9/2002 and therefore his service from 7/7/1994 to 27/5/2001 cannot be reckoned for regularization. The learned Single Judge observed that in the light of Ext.P3 dated 30/3/1995, petitioner was entitled for regularization, and as he continued in service from 7/7/1994, he is entitled to get regularization based on Ext.P3. Accordingly, Ext.P7 communication dated 25/1/2006 issued by the Kerala WA No.2283/2019 -:4:- State Housing Board to the Additional Secretary, Chief Minister's Public Grievance Redressal Cell was set aside and direction had been issued to provide the petitioner the benefits of regularization effective from the date of Ext.P3 order.
3. Learned Government Pleader while impugning the aforesaid judgment submits that Ext.P3 order had no application to persons employed in the Kerala State Housing Board as the Housing Board had issued orders only vide Ext.P2 dated 19/5/2001 and therefore, petitioner's service was regularized effective from 28/5/2001.
4. It is apparent from the factual aspects involved in the matter that Ext.P3 Government Order had no application to the Kerala State Housing Board. Ext.P3 was a general order issued by Government of Kerala, Personnel and Administrative Reforms (Advice) Department with reference to physically handicapped provisional (temporary) employees who were employed in "Public Service" invoking Rule 9(a)(i) of the Kerala State and Subordinate Service Rules, 1958 during the period from 1/1/1993 to WA No.2283/2019 -:5:- 31/7/1994. With reference to Public Sector Undertakings, it was specifically mentioned at paragraph 5 as under:-
"5. The question as to whether the services of the physically handicapped employees who have put in similar provisional services in Public Sector Undertakings, Local Bodies and Autonomous Bodies during the period from 1.1.1993 to 31.07.1994 should be regularized or not can be decided by these bodies themselves taking into consideration the interest of the organizations, and to that extent permissive sanction is also granted."
5. Apparently it was left to such organisations like the Housing Board to take a decision pursuant to the said Government Order. The Housing Board took a decision only as per their proceedings dated 19/5/2001. 35 physically handicapped provisional hands were working in the Housing Board during the relevant time and 26 were found to be eligible. They sought for concurrence from Public Service Commission. Public Service Commission rejected the proposal and therefore the Board sought for special sanction from the Government to reappoint such physically handicapped employees. Government granted sanction for reappointment of 26 eligible physically handicapped WA No.2283/2019 -:6:- employees who were in the service of the Housing Board as per its order dated 20/3/2001 [GO(MS) No.13/2001] and it is pursuant to the same that the petitioner was also re-appointed effective from 28/5/2001.
6. This is a case in which the right to be regularized in service had been sanctioned by the Board only on 28/5/2001. In the absence of Ext.P2, petitioner would not have got regularization in service. Ext.P2 was not challenged, whereas what was under challenge was Ext.P7, which was only a communication issued by the Housing Board to the Additional Secretary, Chief Minister's Public Grievance Redressal Cell. That apart, regularization in service itself was a bounty as far as the petitioner was concerned as the appointment was not made based on a due process of selection. He was appointed only on a provisional basis through employment exchange. He continued in service only on the basis of the interim orders passed by this Court which will not give any right as such to seek for regularization on an anterior date from the date fixed by Kerala WA No.2283/2019 -:7:- State Housing Board.
7. Learned counsel for the respondent/petitioner however would submit that State had no locus standi to challenge the judgment of the learned Single Judge insofar as the Board did not challenge setting aside of Ext.P7. As already stated, Ext.P7 is only a communication sent by the Housing Board to Additional Secretary, Chief Minister's Public Grievance Redressal Cell. The right of the petitioner had been decided in terms of Ext.P2, which was never under challenge at any point of time. Government, who has virtually issued Ext.P3 order, specifically indicating that Public Sector Undertakings can take their own decision and special sanction had been granted by the Government to regularize 26 physically disabled persons in Housing Board, can definitely take a stand in the matter and therefore being a party to the proceeding, they have a right to challenge the judgment. The learned counsel appearing for the Housing Board also supported their action in the matter while issuing Ext.P2.
8. Under such circumstances, we are of the view that the WA No.2283/2019 -:8:- learned Single Judge was not justified in directing regularization of the service of the petitioner and to grant him the benefits from the date of Ext.P3 whereas the petitioner's service has been regularized by virtue of Ext.P2 w.e.f 28/5/2001 and he is not entitled for any benefit prior to the said date.
Writ appeal is allowed setting aside the judgment of the learned Single Judge and the writ petition stands dismissed.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
GOPINATH P.
Rp True Copy JUDGE
PS to Judge