Kerala High Court
V.S.Remesh Babu vs State Of Kerala on 26 August, 2009
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 16475 of 2007(J)
1. V.S.REMESH BABU, S/O.V.V.SUKUMARAN,
... Petitioner
2. V.N.HARIHARAN, AGED 60 YEARS,
Vs
1. STATE OF KERALA, REP. BY ITS CHIEF
... Respondent
2. THE MANAGING DIRECTOR,
3. THE FLEET MANAGER, FLEET SECTION,
For Petitioner :SRI.A.X.VARGHESE
For Respondent :SRI.SHYAM KRISHNAN, SC, MATSYAFED
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :26/08/2009
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NOs. 16475, 19008,
19110 & 25984 OF 2007
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Dated this the 26th day of August, 2009
J U D G M E N T
The issue raised in these writ petitions being common, these cases are disposed of by this common judgment.
2. For convenience, I shall be referring to the facts as pleaded in WP(C) No.19008/07.
3. The petitioner joined the erstwhile Kerala Fisheries Corporation on contract basis as Assistant Engineer in their Deep Sea Trawlers w.e.f. 3/6/78. Eventually the Corporation fell into bad times and ultimately was wound up. Its assets were taken over by the 2nd respondent, the Kerala State Co-operative Federation for Fisheries Development Ltd (Matsyafed). Soon thereafter, the regular employees of the Corporation were offered voluntary retirement and those who opted to continue in service were absorbed in Matsyafed. However, in so far as contract employees like the petitioner are concerned, they were only allowed to continue as such.
4. This led to claims being raised by the contract employees for regularisation and accordingly OP No.11435/1991 WPC 16475, 19008, 19110 & 25984/07 :2 : was filed in this Court. By Ext.P1 judgment rendered on 23/1/96, the original petition was disposed of. In para 6 of the judgment, it was held as follows:
The respondents have no case that the petitioners are not qualified to hold the respective posts. In fact, Ext.P4 will show that the petitioners were subjected to a selection and interview before their appointment to the post. Nor has the second respondent has a case that there are no vacancies to accommodate the petitioners nor has it a case that regularisation if granted to the petitioners will result in denial of appointment to other eligible candidates who are found fit by a selection body like P.S.C. Taking into consideration all these facts and circumstances, I am of opinion that there is no justification on the part of respondents 2 to 4 in keeping the petitioners on contract basis ad infinitum without any rhyme or reason.
The operative portion of the judgment reads as under:
In the result, I allow the original petition and there will be a direction to respondents 1 to 4 to regularise the service of the petitioners who are now in service of the Matsyafed in the respective categories within three months from the date of receipt of a copy of this judgment. From the above, it is therefore evident that the learned Judge directed regularisation of the petitioner within three months from the date of receipt of a copy of that judgment. The State did not file any appeal, but the Matsyafed preferred WA No.927/96. During the pendency of the writ appeal, the petitioner attained the age of superannuation and retired from service on 31/10/2003.
WPC 16475, 19008, 19110 & 25984/07 :3 :
5. Subsequently, by Ext.P2 judgment rendered on 26/10/2005, the appeal was dismissed. Para 5 and 6 of the judgment reads as under:
5. The development that had taken place during the pendency of the writ appeal also might be relevant. A direction petition has been filed as C.M.P.No.6124/2000 and the respondents have produced Annexure B which indicated that there was a decision by the Board to regularise 207 employees.
Therefore, it is not as if, the principle of regularisation was foreign to the organisation. Most of the petitioners had attained the age of superannuation.
6. In the aforesaid circumstances, at this distance of time when almost all the persons have retired from service and very few are continuing, we do not want to interfere with the judgment. Of course, if there is no scope for accommodating persons, because of reasons which are peculiar to the industry, it may be possible for them to go to resort to steps as might be legal. To this extend, we hold that the interim orders requiring their retention is to be considered as relaxed.
Despite Ext.P1 judgment thus attaining finality as per Ext.P2, orders regularizing the petitioner and similar employees were not issued and that led to the filing of COC No.1089/2006.
6. Apparently in view of the aforesaid proceedings, Ext.P3 order was issued by the State, making reference to the request of the Managing Director of Matsyafed to create 9 supernumerary posts in the cadre of Last Grade and 1 in the category of driver for accommodating 10 persons who were then continuing in service, WPC 16475, 19008, 19110 & 25984/07 :4 : presumably for the reason that the remaining of them had retired in the meanwhile. It is stated that this order was perused by this Court while considering the contempt case and not accepted as one in compliance with Exts.P1 and P2 and therefore the State issued Ext.P4 order directing that the 17 petitioners in the OP who were remaining in service of Matsyafed on 23/1/96 are eligible for regularisation in service w.e.f. 22/4/96 in the categories mentioned therein. In para 5 of the order, the regularisation ordered as above was made subject to the following terms and conditions.
(i) The regularisation will be against supernumerary posts, which will cease to exist as and when the petitioners attain superannuation or leave the Federation whichever is earlier.
(ii) Financial benefits including arrear salary etc., will be granted only with effect from 26.2.2007.
(iii) The employees will retire when they complete 58 years of service.
(iv) Those who have left the daily wage/provisional service of Matsyafed after 22.4.1996 but before 26.2.2007 will be considered as having resigned their job.
7. It is stated that subsequently the State again issued Ext.P5, specifying the categories, in which the 17 employees referred to above were to be regularised. In view of Exts.P3 to P5, by Ext.P6 judgment rendered on 30th of March, 2007, the contempt case was closed. However, in so far as the grievance of WPC 16475, 19008, 19110 & 25984/07 :5 : the petitioners that by virtue of Exts.P4 and P5, they would be deprived of their benefits which they were otherwise entitled to, this Court held that, that was a matter for the petitioners to take up in appropriate proceedings. It is stated that finally in pursuance to Exts.P3 to P5 and in implementation thereof, Ext.P7 order was issued. It was thereupon that this writ petition was filed praying to quash Exts.P4 and P7 to the extent it directs that grant of benefits including arrears of salary etc., will be only w.e.f. 26/2/2007 and to declare that the petitioners are eligible for benefits w.e.f. 22/4/96 when the three months period specified in Ext.P1 judgment expires.
8. I heard the counsel appearing for the Matsyafed and also the learned Government Pleader.
9. Both of them attempted to justify the aforesaid restrictive provision in the impugned orders making reference to the nature of employment, financial condition of Matsyafed and the belated proposal that was made by the Matsyafed before the Government.
10. In my view, none of these contentions arise for consideration in this writ petition nor are they relevant, for the following reasons.
WPC 16475, 19008, 19110 & 25984/07 :6 :
11. As already seen, seeking regularisation in the service of the Matsyafed, petitioner filed OP 11435/91. That original petition was disposed of by Ext.P1 judgment rendered on 23/1/96 directing that the petitioner and other similar employees be regularised within three months from the date of receipt of a copy of this judgment. The eligibility for regularisation w.e.f. 22/4/96 has been accepted by the Government in Ext.P4. However, the benefit of the judgment was not extended apparently for the reason that WA NO.927/96 filed by the Matsyafed against Ext.P1 judgment was pending at that point of time. The Writ Appeal also terminated by Ext.P2 judgment dated 26/10/2005 dismissing the appeal.
12. As already seen, it was in the meanwhile that the petitioner retired from service on 31/10/2003, on his attaining the age of superannuation. It is subsequent to that, Ext.P4 order was issued directing that regularisation will be effected w.e.f. 22/4/96, but however, the financial benefits will be extended only w.e.f. 26.2.2007. As a consequence of this direction, although the petitioner has been theoretically regularised w.e.f. 22/4/96 as directed in the judgments, he has on the other hand, been deprived of the benefits for the reason that he retired from WPC 16475, 19008, 19110 & 25984/07 :7 : service on 31/10/2003. All this has happened only because the implementation of the judgment was delayed by the Matsyafed, on the ground that the appeal filed by them was pending. This would not have been the position if the Matsyafed have implemented Ext.P1 judgment as directed therein.
13. The justifications now offered by the learned Government Pleader or the standing counsel for the Matsyafed cannot hold the field so long as Ext.P1 and Ext.P2 judgments have attained finality. If so, the direction in Ext.P4 that benefits will be granted only w.e.f. 26/2/2007, also cannot be sustained. Therefore, I am inclined to uphold the contention of the counsel for the petitioner and set aside Ext.P4 to the extent it provides that the financial benefits are payable only from 26/2/2007.
14. The writ petition is therefore disposed of directing that the petitioner will be extended monetary benefits, consequent on the regularisation ordered in Ext.P4. This shall be done, as expeditiously as possible, at any rate within three months of production of a copy of this judgment.
15. In so far as WP(C) No.16475/07 is concerned, the facts are identical and therefore the direction in the judgment in WP(C) No.19008/07 also will govern the petitioners therein. WPC 16475, 19008, 19110 & 25984/07 :8 :
16. In so far as WP(C) No.25984/07 is concerned, it is stated that the petitioner therein was terminated from service w.e.f. 7/7/03 and in all other respects, the facts are identical to the one in WP(C) No.19008/07 referred to above. Therefore, the writ petition is disposed of declaring that the petitioner herein will also be entitled to the benefit of the judgment in WP(C) No.19008/07 till his services were terminated.
17. In so far as WP(C) No.19110/07 is concerned, it is pointed out by the standing counsel for the Matsyafed that these employees are still continuing in service and that in all other respects, the facts are identical to WP(C) No.19008/07. Therefore, it is directed that they will also be entitled to the benefit of that judgment as well.
Writ petitions are disposed of as above.
ANTONY DOMINIC, JUDGE Rp