Dinesh Kumar K.V. Vs. State of Kerala - Court Judgment

SooperKanoon Citationsooperkanoon.com/1131408
CourtKerala High Court
Decided OnFeb-11-2014
JudgeHONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH
AppellantDinesh Kumar K.V.
RespondentState of Kerala
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr. justice babu mathew p.joseph tuesday, the11h day of february201422nd magha, 1935 wp(c).no. 36115 of 2009 (h) ---------------------------- petitioner: dinesh kumar k.v.s/o. late sreedharan, kizhakke valanchath house p.o., chelavoor kozhikode - 673571. by adv. sri.kaleeswaram raj respondents:1. state of kerala secretary to government, department of agriculture, secretariat, thiruvananthapuram2 the district colelctor, kozhikode. (as the ex-officio chairman, malabar marketing committee, civil station, kozhikode) 3. malabar marketing committee, represented by the secretary in charge, malabar marketing committee, civil station, kozhikode. by government pleader shri. t.r. rajesh this writ petition (civil) having been finally heard on1102-2014, the court on the same day delivered the following: wpc361152009 2 wpc361152009 appendix: petitioner's exts: p1: copy of memo no. a2 55/02 dated1912.2003. p2: copy of the vrs scheme promulgated by the government and circulated along with ext.p1. p3:copy of letter dt. 19.8.2004 issued by the secretary, malabar marketing committee. p4: copy of g.o.(ms) no. 170/2004 dt. 9.8.2004. p5: copy of the application dt. 23.2.2005 filed byt the petitioner seeking extension of leave. po6: copy of memo dated204.2005 issued to the petitioner. p7: copy of the representation dt. 7.3.2006. p8: copy of reply dated265.2006 issued by the2d respondent. p9: copy of representation dt. 12.7.2006 submitted before the minister for agriculture. p10: copy of representation dt. 11.10.2006 filed before the minister for agriculture. p11: copy of the order dt. 8.1.2007. wpc361152009 3 p12: copy of letter dt. 20.6.2007 issued by the2d respondent. p13: copy of g.o.(ms) no. 201/07/agri dated171.1.2007. p14: copy of representation dt. 1.12.2007 submitted before the minister for agriculture. p15: copy of letter dt. 31.5..2008 issued by the1t respondent. p16: copy of representation dt. nil. may2009submitted before the2d respondent. p17: copy of letter dt. 25.8.2009 issued by the1t respondent. respondents' exts: nil ks. true copy p.s. to judge babu mathew p. joseph, j.= = = == = = = = = = = = = = = = = = w.p.(c) no. 36115 of 2009 = = = = = = = = = = = = = = = = = = = dated this the 11th day of february, 2014 judgment this writ petition has been filed for a direction to deploy the petitioner as an employee in one of the government departments as provided under ext.p4 scheme formulated by the government for deploying erstwhile employees of the malabar market committee.2. heard the learned counsel for the petitioner and the learned government pleader for the respondents.3. learned counsel for the petitioner submits that the petitioner was a lower division clerk in the malabar market committee, kozhikode. the malabar market committee was established under the madras commercial crops market act, wpc361152009 2 1933. the said act was declared to be unconstitutional by this court in 1998.4. the petitioner availed himself of leave without allowances for a period of five years from the malabar market committee from 1.3.2000 to 28.2.2005. while so, the government of kerala have formulated a scheme for deploying the members of staff of the malabar market committee as it ceased to exist as per the judgment of this court declaring madras commercial crops market act, 1933 as unconstitutional. ext.p4 dated 9.8.2004 is the order issued by the government containing the details in respect of that scheme. as per ext.p4, all the existing 58 employees of the malabar market committee were granted an opportunity to be deployed in various departments under the government in various posts on the terms and conditions stipulated in ext.p4. wpc361152009 3 5. the petitioner was continuing on leave as granted by the malabar market committee while ext.p4 order was issued by the government. therefore, he preferred to continue on leave and hence, did not make any option as per ext.p4. instead, he has preferred ext.p5 application dated 23.2.2005 before the secretary, malabar market committee, for extension of his leave without allowances for a further period of five years from 1.3.2005. subsequently, realising the true picture about his service, he has moved the government for including him also as one eligible for deployment under ext.p4. but, that was turned down by the government. aggrieved by the same, the petitioner has preferred this writ petition for a direction to the respondents to deploy him also in one of the government departments as provided in ext.p4.6. the scheme for deploying the employees of the malabar market committee in various departments under wpc361152009 4 the government of kerala has been formulated by the government as per ext.p4 order dated 9.8.2004. while issuing ext.p4, the petitioner was continuing on leave without allowances which was sanctioned by the malabar market committee for the period from 1.3.2000 to 28.2.2005. therefore, the petitioner, at that stage, did not choose to opt for the deployment under ext.p4 scheme. moreover, the deployment contemplated under ext.p4 was only provisional. in such a circumstance, the petitioner thought it fit to continue on leave without allowances and hence, preferred ext.p5 application dated 23.2.2005 to the secretary, malabar market committee, for extending the leave without allowances for a further period of five years from 1.3.2005 onwards. thereafter, the petitioner received a communication from the secretary, malabar market committee, intimating that the extension of leave requested for can only be considered after getting necessary direction wpc361152009 5 from the government and the government was already requested for necessary direction as per letter dated 15.3.2005. this communication received from the secretary, malabar market committee, is exhibited as ext.p6. thereafter, the petitioner preferred ext.p7 dated 7.3.2006 for the purpose of extension of leave. exts.p5 and p7 applications of the petitioner for extension of leave were turned down by ext.p8 issued by the 2nd respondent. thereafter, the petitioner submitted applications dated 12.7.2006 and 11.10.2006 before the minister for agriculture for the purpose of extension of leave. that request has been turned down by the government as per ext.p11 order dated 8.1.2007. subsequently, as per ext.p13 order dated 17.11.2007, the government have decided to regularise the services of the employees of the erstwhile malabar market committee who were deployed temporarily as per ext.p4 issued in 2004. thereafter, the wpc361152009 6 petitioner submitted ext.p14 application dated 1.12.2007 for granting leave till that time and to allow him to join duty. ext.p14 has been rejected by ext.p15 letter dated 31.5.2008 issued by the government. thereafter, the petitioner has preferred ext.p16 representation before the 2nd respondent for granting leave till then and allowing him to join the service. but, no positive action has been taken by the 2nd respondent so far. the petitioner also received ext.p17 letter from the government intimating that his request cannot be granted, the learned counsel further submits.7. the petitioner was a permanent employee of the erstwhile malabar market committee. while working there, he was granted leave without allowances for a period of five years from 1.3.2000 to 28.2.2005. when the malabar market committee ceased to exist, in order to protect the interests of the employees of that committee, the wpc361152009 7 government of kerala have formulated a scheme as per ext.p4 order. the petitioner could have opted for the benefits provided under ext.p4. but, he did not do so. there were reasons for him not to do the same. he was on leave at that time and since the deployment provided as per ext.p4 was only temporary in nature, he preferred to continue on leave for a further period of five years. in order to get the leave extended he had repeatedly approached the different authorities. but, the leave was not extended for one reason or other. while so, the government decided to regularise the services of the erstwhile employees of the malabar market committee who were deployed in various government departments. thereafter, repeatedly the petitioner approached the authorities for granting leave till then and to allow him to enjoy the benefits granted by the government by way of regularisation of the erstwhile employees of the malabar market committee in various wpc361152009 8 departments under the government of kerala. those requests were also turned down. technically, it can be argued that there was lapse on the part of the petitioner in properly prosecuting his claim at the right time. it is also a fact that he was on leave properly granted by the malabar market committee when ext.p4 order was issued. had he opted for deployment as provided under ext.p4 he would have been entitled to the benefit of ext.p13 order issued by the government regularising the services of the erstwhile employees of the malabar market committee. the lapse occasioned was due to the fact that he was on leave when ext.p4 scheme was introduced by the government. he was a regular employee of the malabar market committee. his attempt to secure employment based on exts.p4 and p13 is not through the back door. this case involves a human problem. in the light of all the facts and circumstances involved in this case, this court is of the considered view wpc361152009 9 that the case of the petitioner requires a sympathetic reconsideration by the government ignoring all the orders hitherto passed turning down the requests of the petitioner. therefore, this writ petition can be disposed of granting an opportunity to the petitioner to submit a detailed representation raising his claim for employment based on exts.p4 and p13 before the government and directing the government to consider and dispose of it within a time frame.8. in the result, the petitioner is granted an opportunity to submit a detailed representation raising his claim for employment as provided under exts.p4 and p13 before the 1st respondent within one month from the date of receipt of a copy of this judgment. if such a representation is received, the 1st respondent shall consider and dispose of the same on merits as expeditiously as possible and, at any rate, within a period of three months thereafter. in the wpc361152009 10 peculiar facts and circumstances of this case, this court entertains the hope that the 1st respondent will consider that representation sympathetically in the light of the observations made in this judgment. the 1st respondent shall afford an opportunity of being heard to the petitioner before disposing of such representation. the petitioner shall produce a copy of this judgment before the 1st respondent for compliance. this writ petition is disposed of as above. sd/- babu mathew p. joseph judge ks. wpc361152009 11
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE11H DAY OF FEBRUARY201422ND MAGHA, 1935 WP(C).No. 36115 of 2009 (H) ---------------------------- PETITIONER: DINESH KUMAR K.V.S/O. LATE SREEDHARAN, KIZHAKKE VALANCHATH HOUSE P.O., CHELAVOOR KOZHIKODE - 673571. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS:

1. STATE OF KERALA SECRETARY TO GOVERNMENT, DEPARTMENT OF AGRICULTURE, SECRETARIAT, THIRUVANANTHAPURAM2 THE DISTRICT COLELCTOR, KOZHIKODE. (AS THE EX-OFFICIO CHAIRMAN, MALABAR MARKETING COMMITTEE, CIVIL STATION, KOZHIKODE) 3. MALABAR MARKETING COMMITTEE, REPRESENTED BY THE SECRETARY IN CHARGE, MALABAR MARKETING COMMITTEE, CIVIL STATION, KOZHIKODE. BY GOVERNMENT PLEADER SHRI. T.R. RAJESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON1102-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC361152009 2 WPC361152009 APPENDIX: PETITIONER'S EXTS: P1: COPY OF MEMO NO. A2 55/02 DATED1912.2003. P2: COPY OF THE VRS SCHEME PROMULGATED BY THE GOVERNMENT AND CIRCULATED ALONG WITH EXT.P1. P3:COPY OF LETTER DT. 19.8.2004 ISSUED BY THE SECRETARY, MALABAR MARKETING COMMITTEE. P4: COPY OF G.O.(MS) NO. 170/2004 DT. 9.8.2004. P5: COPY OF THE APPLICATION DT. 23.2.2005 FILED BYT THE PETITIONER SEEKING EXTENSION OF LEAVE. PO6: COPY OF MEMO DATED204.2005 ISSUED TO THE PETITIONER. P7: COPY OF THE REPRESENTATION DT. 7.3.2006. P8: COPY OF REPLY DATED265.2006 ISSUED BY THE2D RESPONDENT. P9: COPY OF REPRESENTATION DT. 12.7.2006 SUBMITTED BEFORE THE MINISTER FOR AGRICULTURE. P10: COPY OF REPRESENTATION DT. 11.10.2006 FILED BEFORE THE MINISTER FOR AGRICULTURE. P11: COPY OF THE ORDER

DT. 8.1.2007. WPC361152009 3 P12: COPY OF LETTER DT. 20.6.2007 ISSUED BY THE2D RESPONDENT. P13: COPY OF G.O.(MS) NO. 201/07/AGRI DATED171.1.2007. P14: COPY OF REPRESENTATION DT. 1.12.2007 SUBMITTED BEFORE THE MINISTER FOR AGRICULTURE. P15: COPY OF LETTER DT. 31.5..2008 ISSUED BY THE1T RESPONDENT. P16: COPY OF REPRESENTATION DT. NIL. MAY2009SUBMITTED BEFORE THE2D RESPONDENT. P17: COPY OF LETTER DT. 25.8.2009 ISSUED BY THE1T RESPONDENT. RESPONDENTS' EXTS: NIL ks. TRUE COPY P.S. TO JUDGE BABU MATHEW P. JOSEPH, J.

= = = == = = = = = = = = = = = = = = W.P.(C) No. 36115 of 2009 = = = = = = = = = = = = = = = = = = = Dated this the 11th day of February, 2014 JUDGMENT

This writ petition has been filed for a direction to deploy the petitioner as an employee in one of the Government departments as provided under Ext.P4 scheme formulated by the Government for deploying erstwhile employees of the Malabar Market Committee.

2. Heard the learned counsel for the petitioner and the learned Government Pleader for the respondents.

3. Learned counsel for the petitioner submits that the petitioner was a Lower Division Clerk in the Malabar Market Committee, Kozhikode. The Malabar Market Committee was established under the Madras Commercial Crops Market Act, WPC361152009 2 1933. The said Act was declared to be unconstitutional by this Court in 1998.

4. The petitioner availed himself of leave without allowances for a period of five years from the Malabar Market Committee from 1.3.2000 to 28.2.2005. While so, the Government of Kerala have formulated a scheme for deploying the members of staff of the Malabar Market Committee as it ceased to exist as per the judgment of this Court declaring Madras Commercial Crops Market Act, 1933 as unconstitutional. Ext.P4 dated 9.8.2004 is the order issued by the Government containing the details in respect of that scheme. As per Ext.P4, all the existing 58 employees of the Malabar Market Committee were granted an opportunity to be deployed in various departments under the Government in various posts on the terms and conditions stipulated in Ext.P4. WPC361152009 3 5. The petitioner was continuing on leave as granted by the Malabar Market Committee while Ext.P4 order was issued by the Government. Therefore, he preferred to continue on leave and hence, did not make any option as per Ext.P4. Instead, he has preferred Ext.P5 application dated 23.2.2005 before the Secretary, Malabar Market Committee, for extension of his leave without allowances for a further period of five years from 1.3.2005. Subsequently, realising the true picture about his service, he has moved the Government for including him also as one eligible for deployment under Ext.P4. But, that was turned down by the Government. Aggrieved by the same, the petitioner has preferred this writ petition for a direction to the respondents to deploy him also in one of the Government departments as provided in Ext.P4.

6. The scheme for deploying the employees of the Malabar Market Committee in various departments under WPC361152009 4 the Government of Kerala has been formulated by the Government as per Ext.P4 order dated 9.8.2004. While issuing Ext.P4, the petitioner was continuing on leave without allowances which was sanctioned by the Malabar Market Committee for the period from 1.3.2000 to 28.2.2005. Therefore, the petitioner, at that stage, did not choose to opt for the deployment under Ext.P4 Scheme. Moreover, the deployment contemplated under Ext.P4 was only provisional. In such a circumstance, the petitioner thought it fit to continue on leave without allowances and hence, preferred Ext.P5 application dated 23.2.2005 to the Secretary, Malabar Market Committee, for extending the leave without allowances for a further period of five years from 1.3.2005 onwards. Thereafter, the petitioner received a communication from the Secretary, Malabar Market Committee, intimating that the extension of leave requested for can only be considered after getting necessary direction WPC361152009 5 from the Government and the Government was already requested for necessary direction as per letter dated 15.3.2005. This communication received from the Secretary, Malabar Market Committee, is exhibited as Ext.P6. Thereafter, the petitioner preferred Ext.P7 dated 7.3.2006 for the purpose of extension of leave. Exts.P5 and P7 applications of the petitioner for extension of leave were turned down by Ext.P8 issued by the 2nd respondent. Thereafter, the petitioner submitted applications dated 12.7.2006 and 11.10.2006 before the Minister for Agriculture for the purpose of extension of leave. That request has been turned down by the Government as per Ext.P11 order dated 8.1.2007. Subsequently, as per Ext.P13 order dated 17.11.2007, the Government have decided to regularise the services of the employees of the erstwhile Malabar Market Committee who were deployed temporarily as per Ext.P4 issued in 2004. Thereafter, the WPC361152009 6 petitioner submitted Ext.P14 application dated 1.12.2007 for granting leave till that time and to allow him to join duty. Ext.P14 has been rejected by Ext.P15 letter dated 31.5.2008 issued by the Government. Thereafter, the petitioner has preferred Ext.P16 representation before the 2nd respondent for granting leave till then and allowing him to join the service. But, no positive action has been taken by the 2nd respondent so far. The petitioner also received Ext.P17 letter from the Government intimating that his request cannot be granted, the learned counsel further submits.

7. The petitioner was a permanent employee of the erstwhile Malabar Market Committee. While working there, he was granted leave without allowances for a period of five years from 1.3.2000 to 28.2.2005. When the Malabar Market Committee ceased to exist, in order to protect the interests of the employees of that Committee, the WPC361152009 7 Government of Kerala have formulated a scheme as per Ext.P4 order. The petitioner could have opted for the benefits provided under Ext.P4. But, he did not do so. There were reasons for him not to do the same. He was on leave at that time and since the deployment provided as per Ext.P4 was only temporary in nature, he preferred to continue on leave for a further period of five years. In order to get the leave extended he had repeatedly approached the different authorities. But, the leave was not extended for one reason or other. While so, the Government decided to regularise the services of the erstwhile employees of the Malabar Market Committee who were deployed in various Government departments. Thereafter, repeatedly the petitioner approached the authorities for granting leave till then and to allow him to enjoy the benefits granted by the Government by way of regularisation of the erstwhile employees of the Malabar Market Committee in various WPC361152009 8 departments under the Government of Kerala. Those requests were also turned down. Technically, it can be argued that there was lapse on the part of the petitioner in properly prosecuting his claim at the right time. It is also a fact that he was on leave properly granted by the Malabar Market Committee when Ext.P4 order was issued. Had he opted for deployment as provided under Ext.P4 he would have been entitled to the benefit of Ext.P13 order issued by the Government regularising the services of the erstwhile employees of the Malabar Market Committee. The lapse occasioned was due to the fact that he was on leave when Ext.P4 scheme was introduced by the Government. He was a regular employee of the Malabar Market Committee. His attempt to secure employment based on Exts.P4 and P13 is not through the back door. This case involves a human problem. In the light of all the facts and circumstances involved in this case, this Court is of the considered view WPC361152009 9 that the case of the petitioner requires a sympathetic reconsideration by the Government ignoring all the orders hitherto passed turning down the requests of the petitioner. Therefore, this writ petition can be disposed of granting an opportunity to the petitioner to submit a detailed representation raising his claim for employment based on Exts.P4 and P13 before the Government and directing the Government to consider and dispose of it within a time frame.

8. In the result, the petitioner is granted an opportunity to submit a detailed representation raising his claim for employment as provided under Exts.P4 and P13 before the 1st respondent within one month from the date of receipt of a copy of this judgment. If such a representation is received, the 1st respondent shall consider and dispose of the same on merits as expeditiously as possible and, at any rate, within a period of three months thereafter. In the WPC361152009 10 peculiar facts and circumstances of this case, this Court entertains the hope that the 1st respondent will consider that representation sympathetically in the light of the observations made in this judgment. The 1st respondent shall afford an opportunity of being heard to the petitioner before disposing of such representation. The petitioner shall produce a copy of this judgment before the 1st respondent for compliance. This writ petition is disposed of as above. Sd/- BABU MATHEW P. JOSEPH JUDGE ks. WPC361152009 11