Allowed

A.Saleem v. Government of Kerala & Others

Kerala HC16 Nov 2012WP(C)/32866/2006

Case brief

AI extract

What is this about?

This writ petition seeks regularization of the petitioner's service. The Court held that the petitioner, employed on a casual labourer basis through an employment exchange, is entitled to the regularization benefits granted to physically handicapped provisional employees under the relevant Government Order.

What did the court decide?

The impugned order (Ext.P9) set aside and the 3rd respondent directed to re-engage the petitioner within three months.

A.Saleem Vs Government of Kerala & Others — 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 A.M.SHAFFIQUE

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FRIDAY, THE 16TH DAY OF NOVEMBER 2012/25TH KARTHIKA 1934

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WP(C).No. 32866 of 2006 (K)

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PETITIONER(S):

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A.SALEEM, S/O. J. ABDUL SHUKKOOR, HOUSE NO.16/775, INDIRA JUNCTION, THOPPUMPADY KOCHI-5. PROVISIONAL SERVICE, LIBRARY, CHULLICKAL. BY ADV. SRI.S.ABDUL RAZZAK

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RESPONDENT(S): --------------

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1. GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM.

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2. THE DIRECTOR OF URBAN AFFAIRS, DIRECTORATE OF URBAN AFFAIRS, THIRUVANANTHAPURAM.

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3. THE CORPORATION OF KOCHI, REPRESENTED BY SECRETARY, KOCHI CORPORATION OFFICE ERNAKULAM.

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4. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, P.S.C. OFFICE PATTOM PALACE P.O., THIRUVANANTHAPURAM.

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R3 BY ADV. SRI.PRAVEEN K.JOY,SC,COCHIN CORPORATION BY GOVERNMENT PLEADER SRI. PADMALAYAN BY SRI.S.RAMESH BABU, SC.COCHIN CORPN. BY SRI.ALEXANDER THOMAS,SC,KPSC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 32866 of 2006 (K)

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1: COPY OF PETITIONER'S DISABILITY CERTIFICATE ISSUED ON 12.06.2002.

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P2: COPY OF THE PETITIONER'S SSLC PASS CERTIFICATE.

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P3: COPY OF PETITIONER'S LIBRARY WORKER COURSE CERTIFICATE.

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P4: COPY OF PETITIONER'S CLIS PASS CERTIFICATE.

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P5: COPY OF PETITIONER'S REGISTRATION CERTIFICATE ISSUED ON 10.01.2003.

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P6: COPY OF PETITIONER'S EMPLOYMENT CERTIFICATE.

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P7: COPY OF G.O.(P) 18/1999/P&ARD DATED 13.10.1999.

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P8: COPY OF THE JUDGMENT DATED 18.01.2006.

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P9: COPY OF G.O.(RT) NO.1472/2006/LSGD DATED 21.06.2006.

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ANNEXURE A: COPY OF PUBLIC TENDER NOTICE DATED 23.06.2006.

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RESPONDENT'S EXHIBITS: NIL

//TRUE COPY//

P.A. TO JUDGE

**A.M.SHAFFIQUE, J * * * * * * * * * * * * *** W.P.C.No.32866 of 2006

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Dated this the 16^th day of November 2012

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J U D G M E N T

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The petitioner claims the benefit under Ext.P7 Government Order which permits physically handicapped provisional employees (temporary employees) who are engaged in public service through employment exchange under Rule 9(a)(i) of the Kerala State and Subordinate Services Rules, 1958 (KS & SSR) at any time during the period from 01/01/1997 to 14/08/1998 and is retained in service purely on provisional basis until further orders.

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Paragraph 5 of the said Government Order applies to the case of the petitioner, which reads as under:

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“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, Autonomous Bodies and Institutions under Co-operative Sector during the period from 01/01/1997 to 14/03/1998 should be regularised or not can be decided by these bodies themselves taking into

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W.P.C.No.32866/06

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consideration the interest of the organisations, and to that extent permissive sanction is also granted.”

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The petitioner relies upon Ext.P6 certificate issued by the Corporation of Cochin which indicates that he has been working as Librarian Grade IV on temporary basis appointed through employment exchange at Cochin Corporation Library from 13/03/1997 to 30/10/2001, 22/01/2003 to 06/06/2004 and from 24/09/2004 till 31/03/2005 i.e. the date of Ext.P6.

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Admittedly, the local authority could have relied upon Ext.P7 notification and provide him the employment in terms of Ext.P7. But, it seems that no such benefit was extended to the petitioner and though the petitioner approached the Government on the basis of Ext.P8 judgment, by Ext.P9 the Government took a stand that since the petitioner has no provisional service through employment exchange under Rule 9(a) (i) of KS & SSR in Cochin Corporation for the period from 01/01/1997 to 14/08/1998 and that he had worked in Cochin Corporation for the period from 13/03/1997 to 14/08/1999 only on CLR basis and since there exists no rules for regularization of Physically

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W.P.C.No.32866/06

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handicapped hands on CLR basis or to regularize the provisional service of PH hands engaged in service through employment exchanges, the request of the petitioner cannot be considered.

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The petitioner also relies upon paragraph 3 of Ext.P7 in order to indicate that such a concession has been extended to physically handicapped persons in the 'International year of Disabled' in 1981 and especially because of the 50^th year of India's independence. The said paragraph reads as under:

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“3. Government have carefully considered the views expressed by the Kerala Public Service Commission in the matter. The services of the physically handicapped provision employees who were in service during the 'International Year of Disabled' i.e. in 1981 and during the SAARC year of the physically handicapped were regularized in the past. It was, therefore, felt that it is only appropriate to extend a similar treatment to the physically handicapped provisional employees in connection with the 50^th year of India's Independence also. Having examined all the relevant aspects, Government are pleased to issue the following orders overruling the advice of the Public Service Commission.

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W.P.C.No.32866/06

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(i) The services of the physically handicapped provisional employees covered by the Government Orders dated 28/09/1998 and 17/05/1999 will be regularized with effect from the date of this Order or from the date on which the physically handicapped rejoin duty consequent to re-appointment whichever is later.

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(ii) Such regularization shall be in the same category of the post and in the same department where the physically handicapped provisional employees were allowed to continue or re-appointed.

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(iii) Candidates, if any advised by the Public Service Commission on the date of regularization of the service of the physically handicapped provisional employees will be declared as their seniors.

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(iv) The inter-se seniority of the physically handicapped promotional employees will be fixed with reference to the length of service in the same Department and in the same category of post.”

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Government, on the other hand, has filed a counter affidavit supporting Ext.P9 which indicates that since the

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appointment of the petitioner was on CLR basis, the benefit of Ext.P7 cannot be extended to him.

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Cochin Corporation has filed a counter affidavit inter alia contending that since there exists no rules for regularization of physically handicapped hands engaged on CLR basis, no such benefit could be granted to the petitioner.

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The question to be considered is whether the petitioner is entitled to the benefit of Ext.P7 scheme. Going by Ext.P6, it is seen that the petitioner was appointed by the Cochin Corporation on CLR basis for the period from 01/01/1997 to 14/08/1998 and he had worked admittedly for a period from 13/03/1997 to 30/03/2001.

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The learned counsel for the petitioner relies upon the judgment of the Supreme Court in Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd. [(2007) 1 Supreme Court Cases 408] to indicate that casual employees are also temporary employees and daily rated employees are also to be considered as casual labourers. That being the situation, merely because the petitioner was employed on daily rated basis, it cannot be said

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that he was not a provisional employee and is not entitled for the benefits of the said scheme. In Ext.P6, it is clearly indicated that the appointment of the petitioner was made through employment exchange. Therefore, he cannot be denied the benefit of Ext.P7 scheme.

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In the said circumstances, I am of the view that the petitioner is entitled for appointment on provisional basis in terms of Ext.P7 notification.

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Having found so, I am of the view that Ext.P9 is liable to be set aside and the 3^rd respondent shall pass appropriate orders to re-engage the petitioner in a post as specified in Ext.P7 within a period of three months from the date of receipt of a copy of this judgment.

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(sd/-)

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(A.M.SHAFFIQUE, JUDGE)

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jsr

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W.P.C.No.32866/06 7

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W.P.C.No.32866/06 8

A.Saleem v. Government of Kerala & Others

Case brief

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A.Saleem v. Government of Kerala & Others

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