Dismissed

E.Geethakumari v. State of Kerala

Kerala HC12 Nov 2012WP(C)/2857/2010

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging orders limiting the regularization of petitioners' services to 01.03.2004. The Court held that the earlier challenge was withdrawn with liberty to pursue other remedies, invoking res judicata, and the Industrial Tribunal Award was not implemented to grant seniority over PSC recruits. The petitioners were directed to pursue their remedy before ap

What the court decided

AI extract

E.Geethakumari Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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MONDAY, THE 12TH DAY OF NOVEMBER 2012/21ST KARTHIKA 1934

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WP(C).No. 2857 of 2010 (F)

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PETITIONER(S):

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1. E.GEETHAKUMARI,

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ACCOUNTS ASSISTANT GRADE I,

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STATE FARMING CORPORATION OF KERALA LTD.,

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VETTITHITTA, ALIMUKKU, PUNALUR.

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2. K.K.RAMA DEVI,

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ASST.GRADE -1,

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STATE FARMING CORPORATION OF KERALA LTD,

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VETTITHITTA, ALIMUKKU, PUNALUR.

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3. ALEYAMMA ROSAMMA,

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TYPIST GRADE-1,

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STATE FARMING CORPORATION OF KRALA LTD.,

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VETTHTHITTA, ALIMUKKU, PUNALUR.

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4. N.SUBHAGAN PILLAI,

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RETIRED ASST.GRADE-1,

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STATE FARMING CORPORATION OF KERALA LTD.,

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VETTITHITTA, ALIMUKKU, PUNALUR,

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ATHIRA, NELLIPPALLY P.O., PUNALUR.

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5. B.MOHANAN ACHARY,

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DRIVER GRADE - 1,

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STATE FARMING CORPORATION OF KREALA LTD.,

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VETTITHITTA, ALIMUKKU, PUNALUR.

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6. M.BAHULAYAN,

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DRIVER GRADE - I,

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STATE FARMING CORPORATION OF KERALA LTD.,

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VETTITHITTA, ALIMUKKU, PUNALUR.

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7. D.SOMARAJAN ACHARY,

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DRIVER GRADE I, STATE FARMING CORPORATION OF KRALA LTD., VETTITHITTA, ALIMUKKU, PUNALUR.

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8. K.SASIDHARAN NAIR, ATTENDER, STATE FARMING CORPORATION OF KERALA LTD., VETTITHITTA, ALIMUKKU, PUNALUR.

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BY ADV. SRI.K.SASIKUMAR

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WP(C).No. 2857 of 2010 (F)

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RESPONDENT(S):

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1. STATE OF KERALA,

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REPRESENTED BY THE SECRETARY,

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AGRICULTURE (PU) DEPARTMENT,

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GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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2. STATE FARMING CORPORATION OF KERALA LTD., REPRESENTED BY ITS MANAGING DIRECTOR,

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VETTITHITTA P.O. ALIMUKKU, PUNALUR.

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R1 BY ADV.SRI.T.R.RAJESH, GOVERNMENT PLEADER R2 BY ADV.SRI.M.M.RAJEEVAN, SC, STATE FARMING COPORATION.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 2857 of 2010 (F)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1 :	COPY OF THE ORDER NO.SFCK/Esst/2829/82 DATED 13.03.1984 ISSUED BY THE 2ND RESPONDENT.
EXT.P2 :	COPY OF THE OFFICE ORDER NO.SFCK/PER/PROMOTION/2366 DATED 08.08.1997 ISSUED BY THE 2ND RESPONDENT.
EXT.P3 :	COPY OF THE LETTER DATED 01.04.98 FORWARDED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT.
EXT.P4 :	COPY OF THE ORDER NO.SFCK/PER/K.S/14/413 DATED 03.05.2002.
EXT.P5 :	COPY OF THE JUDGMENT DATED 17.01.2003 PASSED BY THIS HONOURABLE COURT IN O.P.10858/95.
EXT.P6 :	COPY OF THE GO(MS)NO.21/2004/AD DATED 01.03.2004 ISSUED BY THE 1ST RESPONDENT.
EXT.P7 :	COPY OF THE ORDER NO.SFCK/PER/PROMOTION 299 DATED 09.05.2006 ISSUED BY THE 2ND RESPONDENT.
EXT.P8 :	COPY OF THE ORDER DATED 30.05.2006 CONTAINING THE FIXATION STATEMENT IN RESPECT OF PETITIONERS 7 & 8.
EXT.P9 :	COPY OF THE JUDGMENT DATED 20.06.2006 IN WRIT PETITION (CIVIL) NO.14987/204.
EXT.P10:	COPY OF THE JUDGMENT DATED 21.06.2006 IN OP 4338/2000 PASSED BY THIS HONOURABLE COURT.
EXT.P11:	COPY OF THE GO(Rt.) NO.518/207/AD DATED 29.03.2007.
EXT.P12:	COPY OF THE ORDER NO.SFCK/PER/439 DATED 04.05.2007 ISSUED BY THE 2ND RESPONDENT.
EXT.P13:	COPY OF THE ORDER DATED 05.05.2007 ISSUED BY THE 2ND RESPONDENT.
EXT.P14:	COPY OF THE REPRESENTATION DATED 15.05.2007 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.
EXT.P15:	COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT IN THE WRIT PETITION.
EXT.P16:	COPY OF THE JUDGMENT DATED 02.03.2009 IN WP(C) NO.16429 OF 2007 PASSED BY THIS HONOURABLE COURT.
EXT.P17:	COPY OF THE GO(Rt)NO.2097/09/AD DATED 17.12.2009 ISSUED BY THE 1ST RESPONDENT.

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RESPONDENT'S EXHIBITS - NIL

//TRUE COPY//

P.A TO JUDGE

P.R.RAMACHANDRA MENON, J.

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------------------------------------------------

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W.P(C).No.2857 of 2010 -----------------------------------Dated this the 12^th day of November, 2012

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J U D G M E N T

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The petitioners have approached this Court with the following

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prayers:

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i) To call for the records leading to issue of Ext.P6 order so far as it limits the effecting of the regularization of service of the petitioners from the date of that order, viz.,1-32004, Ext.P11 order so far as it relates to the petitioners, Exts.P12 and P13 orders so far as those relate to the petitioners and Ext.P17 order and quash the same by the issue of a writ in the nature of certiorari;

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ii) To issue a writ in the nature of mandamus directing the 1^st respondent to give approval to the Ext.P1 regularization of services of the petitioners with effect from 1.6.1983 and also to approve the subsequent promotions given to the petitioners by the 2^nd respondent as per Exts.P2, P4 and other orders and to continue to pay them all service benefits accordingly;

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iii) To declare that the stipulation in the Ext.P6 order which says that order of regularization will take effect from the date of the order as illegal and irrelevant and also to declare that Exts.P11, P12 and P13 orders so far as those relate to the petitioners are absolutely illegal and incorrect.

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The petitioners and several other similarly situated persons (coming to a total of 17) came to be appointed in different

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W.P(C).No.2857 of 2010

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categories; such as Assistant grade-I, Typist grade-I etc. They were given appointments in the above posts during the period between 1975 and 1982. Subsequently, the second respondent Company took a resolution to regularize the service of the persons like the petitioners and Ext.P1 came to be passed on 13.03.1984 to have the service regularized with effect from 01.06.1983. This resolution was subject to approval by the Government.

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While so, it was decided to leave the field of recruitment to the PSC. Though such a decision was taken much earlier, the same could be given effect to only in 1986. In the mean while, since the petitioners were made to continue without regularization, an Industrial dispute was raised and on failure of the conciliation proceedings, 'failure report' was sent to the Government; pursuant to which the issue was referred for adjudication to the Industrial Tribunal, Kollam, where the dispute was registered as ID.No.30/93. At that time, out of the 17 persons, only 13 were remaining, four having already left the service. On 03.10.94, Award was passed by the Industrial Tribunal, Kollam ordering the respondents

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W.P(C).No.2857 of 2010

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Corporation/Government to pursue steps to regularize the service of the workers concerned. The 2^nd respondent Corporation challenged the Award by filing O.P.No.10858/1995; while the petitioners sought to implement the same by filing O.P.No.10908/1995. Both the above cases were disposed of as per Exhibit P5 common judgment dated 17.01.2003. It was observed by the Court in paragraph '2' of the said judgment that, in view of the fact that, the petitioners were continuing in service right from 1980 or so i.e. virtually for more than two decades, there was no point in refusing to regularize their appointment. It was accordingly held that, the first respondent State shall not stand in the way of the Corporation in implementing the Award passed by the Industrial Tribunal. The 1^st respondent/State was directed to pass appropriate orders with regard to the implementation of the Award whereever sanction was necessary, to be passed within four months as specified. It was pursuant to Ext.P5 judgment, that Ext.P6 order came to be passed by the 1^st respondent on 01.03.2004, whereby the service of the petitioners was ordered to be regularized with effect from the date of the order i.e.01.03.2004.

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W.P(C).No.2857 of 2010

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In the mean while, the petitioners were given various promotions/grade promotions etc. Six persons were given such grade promotion vide Exhibit P2 dated 08.08.1997 and another person was given similar grade promotion in the year 2002 vide Exhibit.P4. As per Exhibit P3, the 2^nd respondent also approached the Government for approval of the promotion as above on 01.04.08.

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The Trade Union representing the petitioners, being aggrieved of Exhibit P6 had approached this Court by filing WP(C) No.14987/2004. When the matter came up for final hearing before this Court on 20.06.2006, permission was sought for to withdraw the writ petition, without prejudice to the right of the petitioner to pursue appropriate remedy for implementation of the Award and it was accordingly, that permission was granted and the writ petition was closed as withdrawn, vide Exhibit P9 judgment dated 20.06.2006. While so, another person similarly situated like the petitioners had approached this Court by filing O.P.No.433/2000 which culminated in Ext.P10 judgment dated 21.06.2006; whereby the representation stated as pending before the Government was

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directed to be considered and disposed of, with regard to the grievance regarding the deputation of the 4^th respondent therein, affecting the promotion of the petitioner and involving other ancillary grievances. It was accordingly, that Ext.P11 order came to be passed by the 1^st respondent on 29.03.2007, whereby regularization of the persons concerned with effect from 01.03.2004 was confirmed. This was followed by Exhibit P12 order passed by the 2^nd respondent Corporation on 04.05.2007 in terms of Exhibit P11.

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Pointing out that Exhibit P11 and P12 came to be passed without hearing the petitioners and that the petitioners were very much aggrieved of the course and events followed, they filed Exhibit P14 representation before the 1^st respondent and approached this Court by filing WP(C).16429/2007. After hearing both the sides, the said writ petition was disposed of, as per Exhibit P16 judgment dated 02.03.2009, directing the said representation to be considered; however, arriving at positive finding in para 6 that the challenge against the order dated 01.03.2004 limiting the benefit of regularization to be with effect from the date of the order ie; 01.03.2004 was no more open to be

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W.P(C).No.2857 of 2010

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dealt with by this Court by virtue of the withdrawal of the earlier writ petition challenging Exhibit P6 as borne by Exhibit P9. Based on the direction contained in Exhibit P16, the first respondent considered the matter and passed Exhibit P17 order dated 17.12.2009 holding that, the petitioners are not entitled to have such a relief as claimed for, which in turn is under challenge in this writ petition.

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The 1^st respondent has flied a counter affidavit rebutting the averments and allegations and also stating that the petitioners are not entitled to have any relief in view of the finalization of the issue already at the hands of this Court. Though it is stated that the 2^nd respondent has also filed a counter affidavit in terms of the counter filed by the 1^st respondent, it however is still to form part of the records.

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Heard the learned Government pleader for the first respondent and the learned standing counsel for the 2^nd respondent as well.

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After going through the materials on record, this Court finds that, the main issue is with regard to the claim for regularization with effect from 01.06.1983, as against the terms

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of Exhibit P6 dated 01.03.2004, whereby such regularization has been effected only with effect from the date of the order. With regard to this aspect, it is to be noted that, Exhibit P6 order was subjected to challenge earlier, by filing W.P.(C). No.1495/2004, which however was not pressed further, seeking for permission to pursue other appropriate remedies and the writ petition was disposed of accordingly, vide Exhibit P9 judgment dated 20.06.2006. This being the position, no further writ petition was liable to be entertained by this Court applying the principles of res judicata.

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It is relevant to note that, the factual and legal position in the above regard was taken note of by this Court in the next round of litigation as well, when Exhibit P16 judgment came to be passed wherein specific observations have been made in paragraphs 4 and 6 therein, which are extracted below:

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The Union challenged the restriction in Exhibit P6 order limiting the benefit of regularization only to be effective from 01.03.2004 i.e. from the date of the order, by filing W.P.(C) No.14987 of 2004. Two years after filing the same, the petitioner/Union sought for permission of this Court to withdraw the writ petition without prejudice to their right to seek other appropriate remedies in this regard, which led to Exhibit P9 judgment closing the writ petition with liberty to the Union for pursuing the matter before other appropriate authorities. In other words, Exhibit P6 dated 01.03.2004 has become

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final.

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With regard to the challenge raised by the petitioners against Exhibit P6 order dated 01.03.2004 limiting the benefit of regularization to be with effect from the date of the order i.e.01.03.2004, it is no more open to be dealt with by this Court in view of the culmination of the earlier proceedings by Exhibit P9 judgment whereby the right of the Union to approach other appropriate authorities in this regard was reserved. It is also true that this Court, while passing Exhibit P9 judgment, did not impose any time limit to file such proceedings. This being the position, it will only be just and proper that the petitioners and their Union are permitted to proceed with further steps before such other appropriate authorities for redressal of their grievance, particularly since they are stated as adversely affected, only pursuant to the passing of Exhibits P11 and P12 proceedings whereby the promotion granted to them way back in 1997 (though temporary) has been cancelled retrospectively.

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The only relief granted by this Court as per Exhibit P16 was to consider P14 representation preferred by the petitioners and to pass appropriate orders after giving an opportunity of hearing, mainly in view of the fact that, the petitioners contended that adverse consequences were resulted for not having given any opportunity of hearing while passing Exhibit P11 and P12. The matter has been considered accordingly, and Exhibit P17 order came to be passed. In view of Exhibit P9 judgment and specific observations made by this Court in paragraphs 4 and 6 of Exhibit P16 judgment, the claim

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of the petitioners to have regularization with effect from 01.06.1983 is no more liable to be entertained at the hands of this Court. It was open for the petitioner to have pursued other appropriate remedies before such other appropriate forum, as pointed out by the petitioner's Union before this Court leading to the closure of the writ petition as per Exhibit P9 judgment dated 20.06.2006; which in turn has been taken note of Exhibit P16 judgment as well.

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The next issue is with regard to the inter-se seniority between the petitioners and the employees who came to be recruited by the PSC, prior to the date of Exhibit P6 order i.e. 01.03.2004. As on date, the regularization of the service of the petitioners stands approved by virtue of Exhibit P6 with effect from 01.03.2004 and there cannot be any dispute that, the concerned employees who came to be recruited through the PSC prior to the said date stand in front of the petitioners in the queue. If there was any direction by the Industrial Tribunal ID.No.30/93 to have the regularization with specific reference to a prior date, it was all along open to the petitioners to have it implemented by pursuing other appropriate remedy; particularly

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under the relevant provisions of the ID Act. If the date of regularization had been got modified in terms of the above verdict, it could have been possible for the petitioners to contend that, they should be given better seniority over the persons recruited on a subsequent date through the PSC; which however is an instance still to happen. In the said circumstance, this Court does not find any sustainable ground to entertain the writ petition filed by the petitioners; either in result of the question of 'retrospective regularization' or with regard to the inter-se seniority. Accordingly, interference is declined and the writ petition is dismissed.

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It is made clear that, the rights and liberties of the petitioners flowing from the Award passed by the Industrial Disputes Tribunal or the rights and liberties already provided as per Ext.P16 judgment are not modified or varied in any manner.

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Sd/P.R.RAMACHANDRA MENON, JUDGE

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//TRUE COPY//

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P.A TO JUDGE

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E.Geethakumari v. State of Kerala

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E.Geethakumari v. State of Kerala

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