Kerala High Court
State Of Kerala vs State Of Kerala on 5 January, 2021
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
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
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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
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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
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
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
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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
