Nadira S vs State Of Kerala

Viju Abraham, J

The above original petition is filed by the applicant in T.A.No.2009 of 2012 aggrieved by the order dated 13.1.2021 issued by the Kerala Administrative Tribunal, Thiruvananthapuram dismissing the same.

As averred in the original petition, the petitioner has passed the 7th Standard and belongs to the OBC community, and is having 40% physical disability as evidenced by Ext.P1 certificate issued by the Medical Board, attached to the Medical College Hospital, Alappuzha. The petitioner was sponsored by the Employment Exchange along with others for appointment as 'Ayah' and was appointed at Government Nursery School, Alappuzha as per order dated 13.6.1996. Apprehending termination from service, she approached this Court by filing O.P.No.18290 of 1996 and sought regularisation of service.

The said writ petition was disposed of by directing the 3rd respondent to consider the request of the petitioner for regularisation. However, the 3rd respondent as per order dated 26.12.1996 declined the request for regularisation of the petitioner's service and on 1.1.1997 the 3rd respondent instructed the Asst. Education Officer, Alappuzha to terminate the service of the petitioner as the period of provisional employment had already expired. On 1.1.1997 the Asst. Educational Officer, Alappuzha as per Ext.P7 order removed the petitioner from service from the forenoon of 1.7.1997. In the meanwhile, the 1st respondent issued Ext.P2 Government Order, GO(P) No.32/98/P&ARD dated 28.9.1998 wherein orders were issued in connection with the Golden Jubilee of India's independence in the matter on regularisation of services of physically handicapped provisional (temporary) employees, who were engaged in service during the period from 1.1.1997 to 31.1.1997. Thereupon, the petitioner approached this Court again filing O.P.No.18408 of 1998, and this Court by Ext.P3 judgment directed the 3rd respondent to consider the claim of the petitioner for the appointment. Pursuant to the said direction the request of the petitioner was declined by the 3rd respondent as per Ext.P4 order. The said order of rejection was challenged in O.P.No.17742 of 2000, but this Court declined to interfere in the matter, and thereupon, an appeal was preferred as Writ Appeal No.1655 of 2000 and the said appeal was disposed of as per Ext.P5 judgment dated 26.9.2000 relegating the petitioner to approach the Government by filing a revision. In obedience to the said direction, a representation was submitted by the petitioner before the Government, which was ultimately rejected as per Ext.P6 order. It is challenging the same, the petitioner preferred O.P.No.29817 of 2002, which on the formation of the Kerala Administrative Tribunal was transferred to the Principal Bench at Thiruvananthapuram and renumbered as T.A.No.2009 of 2012. The Tribunal after considering the rival contentions rejected the request of the petitioner for regularization as per Ext.P3 order dated 13.1.2021 holding that the petitioner is not entitled to the benefit of Ext.P2 Government order as she was not in service as on 1.1.1997. It is challenging the said verdict of the Kerala Administrative Tribunal dated 13.1.2020 in T.A.No.2009 of 2012 that the present original petition is filed.

The contention of the petitioner is for continuance in service on the strength of Ext.P2 Government order GO(P) No.32/98/P&ARD dated 28.9.1998. Ext.P2 Government Order dated 28.9.1998 reads as follows:-

"GOVERNMENT OF KERALA

Abstract

Public services-physically handicapped provisional employees

who were in service during the period from 1.1.1997

to 31.12.1997 -reappointment and continuance in service-instructions issued.

PERSONAL AND ADMINISTRATIVE REFORMS (ADVICE (C) DEPARTMENT

G.O.(P) No.32/98/P & ARD                                                         Dated, Trivandrum 28.9.98

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ORDER

THE question of regularising the services of the physically handicapped provisional (temporary) employees who were engaged in service during the period from 1.1.97 to 31.12.1997 has been engaging the attention of Govt. in connection with the Golden Jubilee of India's independence pending final decision in consultation with the Kerala Public Service Commission the following instructions are issued in the matter

The physically handicapped provisional (temporary) employees who were engaged in public service through the employment exchange under Rule 9(a)(i) of the KS &SSR less at any item during the period from 1.1.97 to 1.12.1997 and who are still continuing in service on a purely provisional basis until further orders

The physically handicapped (temporary) employee who were engaged in public service through the employment exchange under Rule 9(a)(i) of the Kerala State and Subordinate Service rules, 1958 during the period from 1.1.97 to 31.12.1997 and ousted from service (on completion of 180 days of service) or on account of the expiry of vacancies consequent on joining duty of nominees of PSC or for other reasons will be reappointed on a purely provisional basis and allowed to continue until further orders

The reappointment of the retrenched physically handicapped persons mentioned in sub para(ii) above will be in the same department and against the same category of posts.

In case the retrenched persons as mentioned in sub para (I) above had worked in more than one department during the period from 1.1.97 to 31.12.97 the reappointment will be in the department where he/she had worked last

By order of the Governor

Sd/-

M.MOHANKUMAR

Chief Secretary to Government"

The question for consideration in this Original Petition is as to whether the petitioner was in service during the period from 1.1.1997 to 1.12.1997 to make her eligible for the benefit of Ext.P2 Government order. Admittedly, the applicant was engaged on a provisional basis, which is for 180 days as per Rule 9(a)(i) of Part II of KS & SSR by order dated 31.5.1996 and the said 180 days was completed as on 1.12.1996. But the applicant continued on the strength of interim order issued by this Court and was relieved from service on the forenoon of 1.1.1997. Since the petitioner was relieved from service on the forenoon of 1.1.1997 she cannot claim that she was in service as on a 1.1.1997. A perusal of Ext.P7 order would clearly show that the petitioner was removed from service from forenoon of 1.1.1997. Ext.P4 order issued by the 3rd respondent will also prove that petitioner was removed from service from forenoon of 1.1.1997 and the emoluments due till 31.12.1997 are disbursed to her. To get the benefit of re-appointment on the strength of Ext.P2 Government Order the physically handicapped employees should be in service during the period from 1.1.1997 to 31.12.1997 and ousted on completed 180 days of service. Admittedly the applicant was relieved from forenoon of 1.1.1997 and the emoluments till 31.12.1997 have been paid and therefore petitioner cannot claim that she was in service as on 1.1.1997. Petitioner placed reliance on the decision of the Apex Court in Prabhu Dayal v. State of Rajasthan and another [(1986) 4 SCC 59] to contend that she should be treated to have been in service as on 1.1.1997. The said decision will not apply to the facts and circumstances of this case in as much as in that case the Apex Court was considering the question as to the date on which one would complete or would attain a certain age in a matter regarding direct recruitment to Rajasthan Administrative Service and held that while calculating the person's age, the date of his birth must be counted as a whole day and he attains the specific age on the day preceding the anniversary of his birthday and held that a legal day commences at midnight and continues until the same hour in the following night. But the question to be considered in this original petition is as to whether the petitioner was actually in service as on 1.1.1997 to claim the benefit of Ext.P2 Government Order. Admittedly, the petitioner was relieved from service on the forenoon of 1.1.1997 and had not worked on the said date. Therefore, the petitioner cannot claim the benefit of Ext.P2 Government Order in as much as she was not in service as on 1.1.1997.

In view of the above, we do not find any reason to interfere with the order passed by the Tribunal on 13.1.2021 in T.A. No.2009 of 2012, and accordingly the original petition is dismissed.