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2004 Supreme(Ker) 56
Judges : KURIAN JOSEPH
Shanmugam - Appellant
Versus
Kerala Water Authority - Respondent
Case No : O.P.Nos.392, 753, 2138 & 18499 of 1997
Decided On : 02/16/2004
Advocates Appeared :
M.C. Sen, Shahna Karthikeyan, M.P. Sreekrishnan, V.N. Ramesan Nambisan, P.K. Suresh Kumar, E. Subramani & P.V. Mohanan For Petitioners. T.P. Kelu Nambiar (Sr.Advocate), P.C. Sasidharan,Babu Varghese, Mathai Muthiranthi, J. George, S. Radhakrishnan, A.K. Madhavan Unni, V. Radhakrishnan, N. James Koshy, Chincy Gopakumar, V.P. Seemandini, Dr.K.P.Kylasanatha Pillay, Arun B. Varghese, Sreedevi Kylasanath & Bindu Raghavan For Respondents.
Headnote:
State and Subordinate Services Rules 1958 Kerala, Rule 18(a) - Petitioners in all these cases have been recruited through Public Service Commission as Assistant Engineers in Kerala Water Authority are aggrieved since service of ad hoc Assistant Engineers appointed Kerala State and Subordinate Service Rules 1 have been regularised retrospectively earliest of such proceedings for regularisation - Employees have been given retrospective regularisation with effect from of judgment of Supreme Court - Court took note of fact that employees were originally in service of Public Health Engineering Department and that transferee had duly decided to regularise them in service - Respondents are concerned decision of Kerala Water Authority in matter of retrospective regularisation cannot be faulted - There is no resolution by Kerala Water Authority prior to judgment for regularising them in service – Held, Court directed Kerala Water Authority that they would be regularised with immediate effect subject to condition that incumbents possessed requisite qualifications contention of those respondents is that Court directed Kerala Water Authority to regularise them in service with immediate effect decision taken by Kerala Water Authority to grant date of effect of regularisation as date of judgment is fully justified - I am afraid contention cannot be appreciated - On a close reading of judgment it is clear that the focus of Apex Court was on the job security of ad employees who had been continuing for long - Court in Registrar General of India had occasion to consider issue of settlement of seniority of ad employees - Regularisation of ad hoc employees should only be prospective and not retropective lest it should affect settled seniority of others it was held relevant portion of judgment - Original Petitions disposed
Kurian Joseph, J.
Petitioners in all these cases have been recruited through Public Service Commission as Assistant Engineers in the Kerala Water Authority. They are aggrieved since the service of ad hoc Assistant Engineers appointed under R.9(a)(i) of the Kerala State and Subordinate Service Rules, 1959 have been regularised retrospectively. The earliest of such proceedings for regularisation is Ext.P5 dated 21.3.1991 in O.P.No.392/97. All such ad hoc employees have been given retrospective regularisation with effect from 19.9.1990, the date of judgment of the Supreme Court in Jacob's case, (Jacob v. Kerala Water Authority, reported in 1991 (2)KLT 673) AIR 1990 SC 2228. It is the contention of the learned counsel appearing for the petitioners that the retrospective regularisation of adhoc employees has affected their settled seniority and consequently their promotion.
2. The contention of the party respondents as well as the Kerala Water Authorityis that all ad hoc Assistant Engineers were duly qualified at the time of recruitment, they have been continuing for long and that their regularisation is in compliance with the directions issued by the Supreme Court in Jacob's case.
3. In Jacob's case, in the matter of regularisation the following are the three directions issued by the Apex Court:
(1) The authority will with immediate effect regularise the services of all ex-PHED employees as per its Resolution of 30th January, 1987 without waiting for State Government approval.
(2) The services of workers employed by the Authority between 1st April, 1984 and 4th August, 1986 will be regularised with immediate effect if they possess the requisite qualifications for the post prescribed on the date of appointment of the concerned worker.
(3) The services of workers appointed after 4th August, 1984 and possessing the requisite qualifications should be regulated in accordance with Act 19 of 1970 provided they have put in continuous service of not less than one year, artificial breaks, if any, to be ignored. The Kerala Public Service Commission will take immediate steps to regularise their services as a separate block. In so doing the Kerala Public Service Commission will take the age bar as waived.
4. The case of employees referred to in the first direction is covered by the resolution No.687 of the Kerala Water Authority dated 30.1.1987, the text of which is produced as Ext.R7(a) in OP No. 392/97. Ext.R7(a) reads as follows:?
"Resolved to recommend to Government the regularisation of service of the provisional employees recruited in the erstwhile PHED and still working in the Kerala Water Authority".
5. Their case is separately dealt with by the Supreme Court in para 13 of the Jacob's case. In order to understand the real intention behind the direction it is necessary to extract the said paragraph as such;
"From the pleadings in this case one thing that clearly emerges is that the Authority had taken a decision on 30th January. 1987 to regularise the services of those who were employed by the erstwhile PHED and whose services stood transferred to the Authority by the thrust of the statute. According to the resolution extracted earlier, the Authority recommended to the State Government that the services of the employees recruited in the erstwhile PHED and who continued to work on the establishment of the authority should be regularised. The learned counsel for the State Government contended that since these employees were now borne on the establishment of the authority on the statutory transfer of their services, it was for the authority to regularise their services, and it was quite unnecesary to make a recommendation to the State Government in that behalf. To put it differently, the stand of the State Government through its counsel is that the question of regularisation of the services of ex-PHED employees now borne on the establishment of the Authority is exclusively within the purview of the Authority and the State Goverment has n
