Judgment:
P.N. Ravindran, J.
1. The petitioner is presently working as Lower Division Clerk in the Head office of the Kerala State Wakf Board at Cochin (hereinafter referred to as 'the Board') on daily wage basis. She was appointed on 26.2.2001 after her name was sponsored by the Employment Exchange and a written test and interview were conducted by the Board. During the year 2005, two other persons who were appointed as temporary clerks in the Head office of the Board at Cochin filed W.P.(C) No. 30379 of 2005 in this Court claiming regularisation in service. By Ext.P1 judgment delivered on 11.9.2006, a learned single Judge of this Court held that as the said petitioners were appointed prior to the date of commencement of the Kerala State Wakf Board Regulations which came into force on 8.7.2003 and as they were selected and appointed after their names were sponsored by Employment Exchange and a written test and interview were conducted, they are entitled to be regularised in service.
2. The Board that met on 11.2.2006 decided to regularise the services of the petitioners in W.P.(C) No. 30379 of 2005. Thereupon, Ext.P2 order dated 12.12.2006 was issued regularising them in service with effect from 20.3.2003 and 13.9.2004 respectively. The petitioner thereupon filed Ext.P3 representation addressed to the Chairman of the Board claiming regularisation in service. In that representation, she contended that she was selected and appointed after her name was sponsored by the Employment Exchange and a written test and interview were conducted and that at that point of time, the Administrative Grant Rules or the Regulations did not prohibit such appointments. She also contended that Sri. C.E. Ismail whose service was also regularised as per Ext.P2 order is junior to her in service and that as her junior has been regularised in service and as her initial appointment was not irregular, she is also entitled to be regularised in service. The petitioner's request was considered by the Board that met on 13.12.2007. The Board decided to reject her request for regularisation. By Ext.P4 letter dated 1.1.2008, the petitioner was informed that her request for regularisation has been rejected.
3. In the meanwhile, three other Lower Division Clerks who were appointed in the regional office of the Board at Kozhikode on daily wage basis on 28.8.2004 and 18.12.2004, claimed regularisation in service relying on Ext.P2 order passed by the Board. The Board resisted the said petition by contending that as per Regulation 11 of the Kerala State Wakf Board Regulations, appointments to various categories of posts can be made only after the vacancies are notified in two Malayalam newspaper dailies and a written test and interview are conducted by a sub-committee constituted by the Board. The Board contended that as the petitioners in W.P.(C) No. 5749 of 2008 were appointed in the year 2004 without following the procedure prescribed in the Regulations, they cannot continue in service or seek regularisation. By Ext.P5 judgment delivered on 11.12.2008, I dismissed the said writ petition holding that as the petitioners therein were appointed after 8.7.2003, the date on which the Kerala State Wakf Board Regulations came into force and as the petitioners therein were not appointed in accordance with the procedure prescribed in Regulation 11 of the Kerala State Wakf Board Regulations, the order passed by the Board rejecting the claim of the petitioners in W.P.(C) No. 5749 of 2008 for regularisation is unassailable. W.P.(C) No. 5749 of 2008 was accordingly dismissed.
4. On coming to know of that judgment, the petitioner herein filed Ext.P6 representation dated 5.2.2009 before the Board contending that she is not similarly placed as the petitioners in W.P.(C) No. 5749 of 2008 and that she is similarly placed as the petitioners in W.P.(C) No. 30379 of 2005 which was allowed by this Court and therefore she is entitled to be regularised in service. In that representation also, she contended that as Sri.C.E.Ismail who was appointed as Lower Division Clerk on daily wage basis after she was appointed was regularised in service, she is entitled to be regularised in service. The Board that met on 23.4.2009 considered the request made by the petitioner in Ext.P6 and resolved to reject it on the ground that after the commencement of the Kerala State Wakf Board Regulations which came into force on 8.7.2003, her service cannot be regularised as the Regulations do not contemplate regularisation in service. Ext.P7 letter dated 5.5.2009 was thereupon sent to the petitioner informing her that her request cannot be considered. This writ petition was thereupon filed on 28.5.2009 seeking the following relief's:
(i) Call for the records leading to Exts.P4 and P7 and issue a writ of certiorari or any other appropriate writ, order of direction quashing the same;
(ii) Issue a writ of mandamus or appropriate order or direction directing the respondents to regularize the appointment of the petitioner as Lower Division Clerk in the service of the 1st respondent Board.
5. The petitioner contends that she is similarly placed as the petitioners in W.P.(C) No. 30379 of 2005 and Sri.C.E.Ismail whose services were regularised by the Board by Ext.P2 order dated 12.12.2006 and that the rejection of her request for regularisation is arbitrary and discriminatory. The petitioner contends that Board which is an instrumentality of the State has acted unfairly and unreasonably in rejecting her request. The petitioner also contends that though Sri.C.E.Ismail who was appointed on daily wages had not moved this Court claiming regularisation in service, his service was also regularised on that ground that he is similarly placed as the petitioners in W.P. (C) No. 30379 of 2005 and as she is similarly situate, the Board has acted arbitrarily in rejecting her claim for regularisation.
6. The learned standing counsel for the respondents has filed a statement dated 20.6.2009 wherein it is conceded that the petitioner herein and the petitioners in W.P.(C) No. 30379 of 2005 that was disposed of by Ext.P1 judgment were appointed prior to the commencement of the Kerala State Wakf Board Regulations that came into force on 20.7.2003, that they are similarly situate and that petitioner's claim was not considered as the service of her husband who was also working in the Board was regularised in the year 2003. It is further stated that the petitioner's request was rejected because the Kerala State Wakf Board Regulations that came into force on 20.7.2003 does not permit regularisation.
7. I have considered the submissions made at the Bar by the learned Counsel appearing on either side. By Ext.P1 judgment which was delivered after the Board was put on notice and heard, a learned single Judge of this Court held that as the claim made by the petitioners therein is not for regularisation with effect from 8.7.2003, the date of commencement of the Kerala State Wakf Board Regulations, but with effect from an earlier date, namely, the dates of their initial appointment, the Board is bound to regularise them in service as was done by the Board when it issued the proceedings dated 19.3.2003 regularising certain other employees in service. The claim of the petitioners in W.P.(C) No. 30379 of 2005 was for regularisation in service with effect from the dates of their initial appointment. They contended that as persons who were appointed as temporary clerks pursuant to their appointment were regularised in service on 19.3.2003 they are entitled to have their service regularised. The claim of the petitioners in W.P.(C) No. 30379 of 2005 was accepted by this Court and the Board was directed to regularise them in service. This Court held that the petitioners therein were appointed on a temporary basis after following the then procedure prescribed for regular appointment namely, a written test and interview after their names were sponsored by the Employment Exchange. The learned single Judge of this Court also noticed that appointment to posts in the Board has not been brought within the purview of selection by the Kerala Public Service Commission. In that view of the matter, the learned single Judge directed the Board to extend the same benefit as was given to beneficiaries of the order dated 19.3.2003 a copy of which was produced and marked as Ext.P4 in W.P.(C) No. 30379 of 2005. It was pursuant to the said order that the Board issued Ext.P2 order dated 12.12.2006 regularising the petitioners in W.P.(C) No. 30379 of 2005 in service with effect from 20.3.2003. By that order the Board also regularised the service of Sri.C.E.Ismail with effect from 13.9.2004 though he had not moved this Court seeking regularisation. It is conceded that Sri.C.E.Ismail was appointed after the petitioner was appointed and that the petitioner is similarly placed as Sri.C.E.Ismail. The Board has rejected the petitioner's claim for regularisation only for the reason that the service of her husband was also regularised by the order dated 19.3.2003. The Board does not dispute the fact that the petitioner is similarly placed as the petitioners in W.P.(C) No. 30379 of 2005 and Sri.C.E.Ismail. The petitioners in W.P.(C) No. 30379 of 2005 were appointed on a temporary basis in the year 1998. The petitioner herein was likewise appointed in the year 2001. It is also admitted that she was appointed earlier than Sri.C.E.Ismail. However, for no justifiable reason, the petitioner's claim for regularisation was rejected. On the facts disclosed, I am of the considered opinion that the petitioner herein is also entitled to be given the same benefit as was extended to the beneficiaries of Ext.P2 order dated 12.12.2006. I accordingly hold that the petitioner herein is entitled to have her service regularised with effect from a date immediately following the date on which the petitioners in W.P. (C) No. 30379 of 2005 were regularised in service as per Ext.P2.
I accordingly allow this writ petition, quash Exts.P4 and P7 and declare that the petitioner is entitled to have her service regularised with effect from a date immediately following the date on which the petitioners in W.P.(C) No. 30379 of 2005 were regularised in service and before the date on which Sri.C.E.Ismail, one among the beneficiaries of Ext.P2 order was regularised. Orders in that regard shall be issued within one month from the date on which the petitioner produces a certified copy of this judgment before the Chief Executive Officer of the Kerala State Wakf Board at Cochin. Needless to say, the petitioner will be entitled to all attendant benefits including seniority and arrears of salary and allowances with effect from the date on which she is thus regularised.