P N KRISHNAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner was appointed as Work Superintendent, in the Work Establishment Cadre in the Public Works Department in July, 1950. In January 1955, all qualified persons in the Work Establishment, including the petitioner, were taken to the permanent establishment, but their appointment had to be regularised by the Public Service Commission. Government ordered by Ext. P1 on June 9, 1955, that the Chief Engineer, Public Works Department, should send up a list of qualified persons to the Public Service Commission for regularisation. The Chief Engineer did send up a list of some of them, but not of others including the petitioner, and the appointment of those whose names were sent up, was regularised. On September 16, 1958, Government issued an order directing the reversion of the petitioner and others, whose appointment had not been regularised, to the Work Establishment. The Chief Engineer implemented this order, by Ext. P2 dated November 1, 1958. This petition is to quash Ext. P2 and the ground on which it is sought to be quashed is, that there has been discrimination against the petitioner and others like him, whose appointment in the permanent establishment had not been regularised.

(2.) There has undoubtedly been discrimination in treatment with respect to the petitioner and others, though this resulted from the action of the Chief Engineer, in sending up a list of some names only. It was not disputed, that the petitioner was a duly qualified person It is greatly to be regretted, that neither the Government nor the Chief Engineer, who are respondents 1 and 2 herein, has filed a counter affidavit, explaining the reason, if any, for such discriminatory treatment, and all that the learned Government Pleader could therefore state was, that the petitioner and others had been intimated, that they could apply to the Public Service Commission for regularisation. I am of the view that it was for the respondents to explain, how this differential treatment was accorded to the petitioner and others. As it is, I have to proceed on the footing that there has, in fact, been discrimination against the petitioner by the respondents.

(3.) The learned Government Pleader relied on Art.310 and 311 of the Constitution which, in my view, have no application whatever to the present case, which has to be dealt with under Art.14. A division bench of this Court had held in