State Of Kerala vs S.Mohanan

Kerala High Court

State Of Kerala vs S.Mohanan on 22 May, 2024

Author: A.Muhamed Mustaque

Bench: A.Muhamed Mustaque

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
         THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                               &
        THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
 WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946
                    OP(KAT) NO. 368 OF 2019
 ORDER DATED 18.12.2018 IN OA NO.1908 OF 2017 OF KERALA
          ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM


PETITIONERS/RESPONDENTS IN OA:

    1      STATE OF KERALA
           REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
           HEALTH AND FAMILY WELFARE DEPARTMENT,
           SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.

    2      THE DIRECTOR,
           DIRECTORATE OF HEALTH SERVICE, GENERAL HOSPITAL
           JUNCTION, THIRUVANANTHAPURAM, PIN-695035.

    3      THE DISTRICT MEDICAL OFFICER, GENERAL HOSPITAL
           JUNCTION, THIRUVANANTHAPURAM, PIN-695035.

    4      THE SUPERINTENDENT ,
           GENERAL HOSPITAL, THIRUVANANTHAPURAM, PIN-
           695035.

           BY SENIOR GOVERNMENT PLEADER SMT.VINITHA B.




RESPONDENTS/APPLICANT IN OA:

           S.MOHANAN, AGED 56 YEARS, S/O.SHANMUGHAM,
           RESIDING AT SHEELA BHAVAN, THUDAYANCODE,
           ENIKKARA, KARAKULAM P.O., THIRUVANANTHAPURAM,
           PIN-695564, WORKING AS BARBER ON DAILY WAGES,
 OP(KAT) No.368/2019

                           ..2..

          GENERAL HOSPITAL, THIRUVANANTHAPURAM, PIN-
          695035.

          BY ADVS.
          SRI.B.RAGHUNATHAN
          DR.STANLY CHAZHOOR
          SRI.K.JALADHARAN
          SRI.V.M.JACOB




      THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME
UP FOR ADMISSION ON 22.05.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 OP(KAT) No.368/2019

                                   ..3..




                              JUDGMENT

SHOBA ANNAMMA EAPEN, J.

The State and its officials, who were the respondents before the Kerala Administrative Tribunal, Thiruvananthapuram in OA No.1908 of 2017, have come up before this Court with this original petition challenging the order of the tribunal dated 18.12.2018. The respondent herein was the applicant before the tribunal.

2. The respondent/applicant, who was engaged as barber on daily wages in the General Hospital, Thiruvananthapuram, approached the tribunal seeking regularization of his service. According to him, he was engaged on daily wages from 1980 onwards and is continuing in service as of today. Though he sought for regularization of service, it was not considered and proceedings were initiated to disengage him from service. Aggrieved by the same, he approached the tribunal. The tribunal, after a detailed consideration of the issue, allowed the original application OP(KAT) No.368/2019 ..4..

and directed the petitioners herein to sanction a post of "Barber" in the Government Hospital, Thiruvananthapuram and to issue appropriate orders regularizing the respondent against the said post. Hence, this original petition.

3. The learned Government Pleader submitted that the service of the respondent was utilized as a barber for preparation of surgical operations from 1980 to 1988 and 1996 to 2001 in the General Hospital, Thiruvananthapuram and thereafter, from 2002 onwards, the respondent was doing voluntary service. It is further submitted that the respondent moved the government for regularization; and as per Ext.R4(c) communication dated 08.06.2005, the Government directed the Director of Health Department, Thiruvnanathapuram to allow him to continue in service as barber on daily wages; and accordingly, he is still continuing in the said status as of today. The learned Government Pleader pointed out that Annex.R4(c) dated 08.06.2005 is not an appointment letter, but only an order allowing him to do voluntary service as barber in the hospital since the post of "Barber" was abolished in 1968. It is further submitted that as per Annex.A5 clarification letter dated 13.01.2017, it was OP(KAT) No.368/2019 ..5..

informed that the voluntary service of the respondent can be utilized as and when service of a barber is needed in the hospital and accordingly, he was allowed to do barber work on daily wages as and when needed in the hospital. According to the learned Government Pleader, the respondent having been engaged on daily wages, he cannot claim regularization in a post which is not in existence; and therefore, there is no violation of principles of natural justice.

4. Per contra, the learned counsel for the respondent submitted that the respondent has been working in the General Hospital, Thiruvananathapuram from 1980 onwards in the operation theatre for surgery preparation and he had an uninterrupted service of 30 years and therefore, is entitled for regularization in the existing post of "Barber" in the General Hospital, Thiruvananthapuram. It is further submitted that the respondent having completed 56 years of age, if not appointed as "Barber", gross injustice will be caused to him.

5. We have given a thoughtful consideration of the rival contentions raised on both sides. The issue involved in this case is the regularization of service of the respondent in the post of "Barber", who has been doing barber works on OP(KAT) No.368/2019 ..6..

daily wages in the General Hospital, Thiruvananthapuram.

6. As could be seen from Annex.R4(c) letter dated 08.06.2005, the respondent was permitted to continue on daily wages till a regular appointment is effected. Though the petitioners have raised an averment that the respondent was giving a voluntary service, Annex.R4(c) reveals that the petitioners have permitted the respondent to continue on daily wages till a regular appointment is effected.

7. When this matter came up for consideration on 19.05.2022, this Court passed the following order;

"The competent authority among the respondents in the above I.A. will immediately furnish instructions to the learned Government Pleader, on the plea of the applicant for payment of salary during the period which he has not been paid, and if no instructions are furnished, this Court will be constrained to pass orders in the above I.A. on the basis of available pleadings and materials on record.

The respondents will also furnish instructions as to whether sanctioned post of Barber is vacant, as referred to in Anx.A-5 letter No.B2-2191/2014/GHT dated 13.1.2017 issued by the Superintendent, General Hospital, Thiruvananthapuram, addressed to the Director of Health Services, and if so, the said vacant post shall not be filled up without getting orders from this Court."

Similarly on 01.06.2022, this Court passed the following order;

"Pursuant to the order dated 19.05.2022, it is the submission of the learned Government Pleader, on instructions, that the respondent has admittedly worked only OP(KAT) No.368/2019 ..7..

for a period from August 2021 to January 2022, and that he can be paid the daily wages applicable for the days on which he has so worked. Although the learned counsel for the respondent submits that the respondent has been working in the establishment even thereafter and continues to do so, this aspect is disputed by the learned Government Pleader who undertakes to file a counter affidavit clarifying the service particulars of the respondent. Taking note of the rival submission, pending the filing of a detailed counter affidavit by the learned Government Pleader, we direct the petitioners 3 and 4 to ensure that the respondent is paid the wages for the period from August 2021 to January 2022 for the work done by him in the establishment, within three weeks from today."

However, no affidavit was filed by the appellants clarifying the service particulars of the respondent.

8. It is the case of the respondent that from 1980 onwards, he has been working as barber on daily wages in the General Hospital, Thiruvananthapuram. However, so far, no post of "Barber" was created by the government in the General Hospital, Thiruvananthapuram. It may not be proper for the tribunal or this Court to direct the government to create a post of "Barber" in the General Hospital, Thiruvananthapuram and appoint the respondent in the said post as it is a policy decision to be taken by the government. However, on the basis of the contentions raised by the respondent, it appears that the service of a barber is highly necessary in the General Hospital, Thiruvananthapuram for OP(KAT) No.368/2019 ..8..

surgery preparation.

9. In Union of India & Others v. Ilmo Devi & Another [(2021) 20 SCC 290], the apex court held that part-time employees are not entitled to seek regularization as they are not working against any sanctioned post and there cannot be any permanent continuance of part-time temporary employees as held. It is further held that part-time temporary employees in a government run institution cannot claim parity in salary with regular employees of the government on the principle of equal pay for equal work.

10. It is very clear that the respondent being a daily waged employee, cannot seek regularization of service unless the post of "Barber" is created by the government, which is a policy decision to be taken by the petitioners herein. Though the respondent was working on daily wages in the General Hospital, Thiruvananathpuram from 1980 onwards, there was some interrupted service. A daily waged worker shall not have a legal right to be made permanent unless he/she fulfills the criteria provided in the regularization policy. If he/she is otherwise engaged in infraction of the rules or if his/her engagement is in violation of the provisions of the OP(KAT) No.368/2019 ..9..

Constitution, the said illegal engagement shall not be regularized. In Ilmo Devi (supra), it was held that even the regularization policy to regularize the services of the employees working on temporary status and/or casual labourers is a policy decision and in judicial review, the Court cannot issue mandamus and/or issue mandatory directions to do so. In State of Maharashtra & Another v. R.S. Bhonde & Others [(2005) 6 SCC 751], it was held that the status of permanency cannot be granted when there is no post.

11. In this case, admittedly, no post of "Barber" has been created by the government so far, however, the respondent was engaged to do barber works on daily wages. Therefore, we are of the view that interest of justice would be best met if the respondent is permitted to continue to work on daily wages until a new post of "Barber" is created in the hospital and a regular employee is appointed in the said post or till the respondent attains the maximum age as per the rule, whichever is earlier, if his employment on daily wages is still continuing.

Accordingly, the original petition is disposed of, as follows;

..10..

a) The impugned order of the tribunal is set aside. The respondent is permitted to continue to work on daily wages until a new post of "Barber" is created in the hospital and a regular employee is appointed in the said post or till the respondent attains the maximum age as per the rule, whichever is earlier, if his employment on daily wages is still continuing.

b) Annex.R4(a) representation submitted by the respondent for regularization of services shall be considered by the petitioners within a period of three months from the date of receipt of a certified copy of this judgment.

SD/-

A. MUHAMED MUSTAQUE JUDGE SD/-

SHOBA ANNAMMA EAPEN JUDGE bka/-

..11..

APPENDIX OF OP(KAT) 368/2019 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE O.A.NO.1908/17 ALONG WITH ANNEXURES BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL.

EXHIBIT P1(A1) TRUE COPY OF THE ORDER DATED 05.08.1988 ISSUED BY THE SUPERINTENDENT GENERAL HOSPITAL THIRUVANANTHAPURAM SHOWING THAT APPLICANT IS WORKING AS BARBER FROM 01.04.1980.

EXHIBIT P1(A2)          TRUE COPY OF THE CERTIFICATE ISSUED BY
                        SUPERINTENDENT       GENERAL       HOSPITAL

THIRUVANANTHAPURAM DATED 21.04.2001. EXHIBIT P1(A3 TRUE COPY OF THE ORDER NO.B2-77/2016/GHT DATED 11.04.2017 ISSUING WAGES FOR THE MONTH OF MARCH 2017 TO SRI.MOHANAN S. EXHIBIT P1(A4) TRUE COPY OF THE ORDER NO.HDC 4166/2002/JH DATED 11.02.

EXHIBIT P1(A5) TRUE COPY OF THE LETTER NO.B2- 2191/2014/GHT DATED 13.01.2017 ISSUED THE 2ND RESPONDENT.

EXHIBIT P1(A6)          TRUE COPY OF THE LETTER DATED 11.04.2017
                        ISSUING    REPRESENTATION    TO    THE   3RD

RESPONDENT FOR REGULARIZING THE POST OF BARBER BY THE APPLICANT AT GENERAL HOSPITAL THIRUVANANTHAPURAM.

EXHIBIT P2 TRUE COPY OF MISCELLANEOUS APPLICATION MA NO.3315/2017 BY THE RESPONDENT TO ACCEPT ADDITIONAL DOCUMENTS ALONG WITH EXHIBITS. EXHIBIT P2(A7) TRUE COPY OF THE INTERIM ORDER PASSED IN OA NO.1908/2017 DATED 09.10.2017 BY THE TRIBUNAL.

EXHIBIT P2(A8) TRUE COPY OF THE ORDER PASSED BY THE 4TH RESPONDENT WITH NO.B2-2191/2014/GHT DATED NIL DIRECTING THE APPLICANT TO DO OP(KAT) No.368/2019 ..12..

ADDITIONAL DUTY IN 9TH WARD.

EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BY THE FOURTH PETITIONER AND ADOPTED BY THE THIRD PETITIONER DATED 20.12.2017 ALONG WITH EXHIBITS.

EXHIBIT P3 (R4)(A) TRUE COPY OF THE REPRESENTATION OF THE APPLICANT DATED 23.09.2004.

EXHIBIT P3(R4)(B) TRUE COPY OF THE REPORT NO.B2/6309/04/GHT DATED 08.12.2004.

EXHIBIT P3(R4)(C) TRUE COPY OF THE GOVERNMENT LETTER NO.14821/F2/05/H&FWD DATED 08.06.2005. EXHIBIT P4 TRUE COPY OF THE ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL DATED 18.12.2018.

RESPONDENT EXHIBITS

Exhibit R1(a)         TRUE COPY    OF THE REQUEST SUBMITTED BY
                      RESPONDENT    TO   4TH  PETITIONER  DATED
                      6.12.2021

Exhibit R1(b)2        TRUE COPY OF LETTER NO.B2-6309/2004/GHT
                      DATED 14.12.2021 OF 4TH PETITIONER