Khadija Beevi M.A vs State Of Kerala
2021 Latest Caselaw 3453 Ker

                   IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                 THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

           MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942

                           WP(C).No.23682 OF 2019(I)


PETITIONERS:

       1         KHADIJA BEEVI M.A.
                 AGED 46 YEARS
                 D/O. ABBUBAKKER M. M., L.D. CLERK (CONTRACT BASIS), KERALA
                 STATE WAQF BOARD, VIP ROAD, KALOOR, KOCHI, PIN - 682017.
                 RESIDING AT - MARAKKAPARAMBIL HOUSE, PATTNAM P. O.,
                 VADAKKEKKARA, ERNAKULAM DISTRICT, PIN - 683 522.

       2         BENCY P. A.
                 AGED 47 YEARS
                 D/O. ABDULKHADAR P. A., L.D. TYPIST (CONTRACT BASIS), KERALA
                 STATE WAQF BOARD, VIP ROAD, KALOOR, KOCHI, PIN - 682017.
                 RESIDING AT - PALLATH HOUSE, MUNDOPADATH, PERUMBADANNA, NORTH
                 PARAVOOR P. O., ERNAKULAM DISTRICT, PIN - 683 513.

       3         SHAMEENA BEEGUM C. D.
                 AGED 44 YEARS
                 D/O. DHARVESH KHAN C. U., L.D. CLERK (CONTRACT BASIS), KERALA
                 STATE WAQF BOARD, VIP ROAD, KALOOR, KOCHI, PIN - 682017.
                 RESIDING AT - CHIRAKKAPARAMBIL HOUSE, THOPPUMPADY, KOCHI, PIN
                 - 682005.

                 BY ADVS.
                 SHRI.C.S.AJITH PRAKASH
                 SRI.T.K.DEVARAJAN
                 SMT.T.N.SREEKALA
                 KUM.NEETHU SOMAN
                 M.BABU

RESPONDENTS:

       1         STATE OF KERALA,
                 REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF
                 KERALA, REVENUE (F) DEPARTMENT, GOVERNMENT SECRETARIAT,
                 THIRUVANANTHAPURAM, PIN - 695001

       2         KERALA STATE WAQF BOARD
                 V.I.P. ROAD, KALOOR, KOCHI, PIN - 682017. REPRESENTED BY ITS
                 CHIEF EXECUTIVE OFFICER.


OTHER PRESENT:

                 SMT. REKHA C NAIR - SR.GP

      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.23682 OF 2019(I)

                                   2




                            JUDGMENT

Petitioners 1 and 3 are stated to be working as L.D. Clerks,

while the 2nd petitioner is stated to be working as a L.D Typist in

the services of Kerala State Waqf Board. They say that since they

were initially recruited through the Employment Exchange and

then continued on contract arrangement, they are entitled to be

regularized in terms of the Kerala State Waqf Board Regulations

2016 ('Regulations' for short) - a copy of which is on record as

Ext.P17; but that this has not been even considered by its

competent Authorities, while issuing Ext.P26 order.

2. The petitioners say that as per Regulation 2(2) of

Chapter IV of Ext.P17 Regulations, employees who are appointed

through the Employment Exchange and continuing on contract

basis, with a minimum of seven years in the services of the Board

will have to be allowed to continue even after these Regulations

came into force. They say that they were all appointed in the year

2006 and had continued for a minimum of ten years before Ext.P17

Regulations had come into force; and therefore, that they were fully

eligible to be considered for regularization under the umbra of the

afore provisions.

3. Sri.C.S.Ajith Prakash, learned counsel appearing for the WP(C).No.23682 OF 2019(I)

petitioners, added to the above by saying that, on an earlier

occasion when his clients had approached this Court by filing W.P.

(C)No.19140/2017, it was allowed by a learned Single Judge

directing that their regularization be considered under the

provisions of the Regulations, which had been produced as Ext.P19

therein. He submitted that, in fact, it has been recorded in the said

judgment that his clients' contentions have been considered by the

Waqf Board and suitable recommendations forwarded to the

Government, but that against the said judgment,

W.A.No.2300/2017 had been filed before a learned Division Bench,

which was disposed of through Ext.P25 judgment, confirming the

directions of the learned Single Judge, and granting liberty to the

State of Kerala, to take into account all the Regulations that were

applicable at the time when consideration of his clients'

representations was made.

4. Sri.C.S.Ajith Prakash submitted that, in spite of the

specific directions in Ext.P25 judgment, Ext.P26 order has been

issued, wherein, Government has not even adverted to the

Regulations but has declined his clients' claim merely saying that

they are not eligible to be regularized as per the judgment of the

Hon'ble Supreme Court in Secretary, State of Karnataka and WP(C).No.23682 OF 2019(I)

others v. Umadevi (3) and others [2006 (4) SCC 1]

Sri.C.S.Ajith Prakash, therefore, contends that Ext.P26 is illegal

and prays that same be set aside.

5. In response, the learned Government Pleader,

Smt.Rekha C. Nair, submitted that Ext.P26 cannot be found to be in

error as claimed by the petitioners, since the Government has taken

note of all relevant aspects including the judgment of the Hon'ble

Supreme Court in Umadevi (supra), while issuing the same. She

submitted that the reason why the petitioners cannot be allowed

regularization under the sanction of Umadevi (supra), has been

specified in the said order and therefore, prayed that this Court

may not set it aside.

6. When I consider the submissions made on behalf of the

Government as afore by the learned Senior Government Pleader, I

will have to first examine the directions in Ext.P25 judgment, which

makes it clear that the claim of regularization made by the

petitioners ought to have been considered in terms of the extant

Regulations holding the field.

7. In fact, the learned Division Bench had only confirmed

the directions issued by the learned Single Judge, but had modified

it to a very limited extent of allowing the State of Kerala to take WP(C).No.23682 OF 2019(I)

into account all Regulations holding the field and not merely the

one that has mentioned by the learned Judge.

8. Obviously, therefore, the Government was obligated to

consider the petitioners' claim based on the Regulations and could

not have rejected the same relying solely on Umadevi (supra). This

is because, Umadevi (supra) applies only in cases where there are

no statutory Rules or provisions for Regularization, but the

petitioners assert that in this case, Ext.P17 Regulations provide for

a specific mechanism for Regularization and that this ought to have

been considered, without being confined by the declarations in

Umadevi (supra).

9. I am, therefore, of the firm view that this is an

imminently fit case where the Government should be directed to

reconsider the claims of the petitioners, particularly when, through

Ext.P25 judgment, this Court had also directed the Government to

consider the impact of the Regulations while considering the same.

However, this not having been done in Ext.P26 order, it cannot find

the favour of this Court.

In the afore circumstances, I order this writ petition and set

aside Ext.P26; with a consequential direction to the competent

Authority of the Government to reconsider the petitioners' claim, WP(C).No.23682 OF 2019(I)

adverting to the directions in Ext.P25 judgment as also the

judgment in W.P.(C)No.19140/2017 and issue appropriate orders

thereon, specifically adverting to my observations above, as

expeditiously as is possible but not later than three months from

the date of receipt of a copy of this judgment.

I make it clear that while the afore exercise is completed, the

petitioners shall be given an opportunity of being reheard by the

competent Authority ― either physically or through video

conferencing ― and all their contentions edificed on Ext.P17

Regulations will be implicitly noted and addressed in the resultant

order.

Needless to say, until such time as the afore exercise is

completed and the resultant order issued to the petitioners, they

shall not be terminated from service, if they are presently

continuing.

SD/-

                                             DEVAN RAMACHANDRAN

rp                                                       JUDGE
 WP(C).No.23682 OF 2019(I)






                                   APPENDIX

PETITIONER'S/S EXHIBITS:

EXHIBIT P1                 A TRUE COPY OF THE PROCEEDINGS OF THE 2ND
                           RESPONDENT, DATED 02.12.2006.

EXHIBIT P2                 A TRUE COPY OF THE PROCEEDINGS OF THE 2ND
                           RESPONDENT, DATED 02.12.2006.

EXHIBIT P3                 A TRUE COPY OF THE PROCEEDINGS OF THE 2ND
                           RESPONDENT, DATED 19.03.2007.

EXHIBIT P4                 A TRUE COPY OF THE CERTIFICATE OF DEGREE OF

BACHELOR OF SCIENCE OF THE 1ST PETITIONER.

EXHIBIT P5 A TRUE COPY OF THE CERTIFICATE ISSUED BY THE INSTITUTE OF HUMAN RESOURCES DEVELOPMENT, DATED 20.12.1994 OF THE 1ST PETITIONER.

EXHIBIT P6 A TRUE COPY OF THE CERTIFICATE OF TYPE WRITING ENGLISH HIGHER OF THE 1ST PETITIONER.

EXHIBIT P7 A TRUE COPY OF THE CERTIFICATE OF DIPLOMA IN COMMERCIAL PRACTICE, ISSUED BY THE STATE BOARD OF TECHNICAL EDUCATION OF THE 2ND PETITIONER.

EXHIBIT P8 A TRUE COPY OF THE CERTIFICATE OF COMPUTER, WORD PROCESSING, MALAYALAM LOWER OF THE 2ND PETITIONER.

EXHIBIT P9 A TRUE COPY OF THE CERTIFICATE OF COMPUTER, WORD PROCESSING, LOWER OF THE 2ND PETITIONER.

EXHIBIT P10 A TRUE COPY OF THE CERTIFICATE OF DEGREE OF BACHELOR OF COMMERCE OF THE 3RD PETITIONER.

EXHIBIT P11 A TRUE COPY OF THE CERTIFICATE IN TYPE WRITING ENGLISH HIGHER OF THE 3RD PETITIONER.

EXHIBIT P12 A TRUE COPY OF THE CERTIFICATE IN TYPE WRITING HINDI HIGHER OF THE 3RD PETITIONER.

EXHIBIT P13 A TRUE COPY OF THE CERTIFICATE OF 'O LEVEL EXAMINATION' ISSUED BY DOEACC SOCIETY TO THE 3RD PETITIONER.

EXHIBIT P14 A TRUE COPY OF THE JUDGMENT DATED 12.01.2010, IN WPC NO.14845/2009 WP(C).No.23682 OF 2019(I)

EXHIBIT P15 A TRUE COPY OF THE JUDGMENT DATED 06.02.2017 OF THIS HON'BLE COURT IN W.A. NO.1429/2011

EXHIBIT P16 A TRUE COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT BEARING NO.C4-5465/2011, DATED 25.06.2012 TO THE 1ST RESPONDENT.

EXHIBIT P17 A TRUE COPY OF THE KERALA STATE WAQF BOARD REGULATIONS, 2016.

EXHIBIT P18 A TRUE COPY OF THE LETTER NO.B6-571/2016 DATED 10.02.2016.

EXHIBIT P19 A TRUE COPY OF THE LETTER DATED 30.04.2016.

EXHIBIT P20 A TRUE COPY OF THE REPRESENTATION, DATED 05.05.2017, SUBMITTED BY THE 1ST PETITIONER

EXHIBIT P21 A TRUE COPY OF THE REPRESENTATION, DATED 05.05.2017, SUBMITTED BY THE 2ND PETITIONER

EXHIBIT P22 A TRUE COPY OF THE REPRESENTATION, DATED 05.05.2017, SUBMITTED BY THE 3RD PETITIONER

EXHIBIT P23 A TRUE COPY OF THE JUDGMENT, DATED 28.07.2017, OF THIS HON'BLE COURT IN WP(C) 19140 OF 2017

EXHIBIT P24 A TRUE COPY OF THE COMMUNICATION BEARING NO.14946/AF1/2016 REV. DATED 21.07.2016.

EXHIBIT P25 A TRUE COPY OF THE JUDGMENT, DATED 27.09.2018, OF THIS HON'BLE COURT IN WA NO. 2300/2017

EXHIBIT P26 A TRUE COPY OF THE G.O.(RT) NO.2017/2019/RD, DATED 24.07.2019, ISSUED BY THE 1ST RESPONDNET

EXHIBIT P27 A TRUE COPY OF THE COMMUNICATION BEARING NO.REV-

AF1/13/2018-REV. DATED 22.06.2018, BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT.

EXHIBIT P28 A TRUE COPY OF THE COMMUNICATION BEARING NO.A1-

1660/96/VOL.3, DATED 26.07.2018, BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT.

EXHIBIT P29 A TRUE COPY OF THE COMMUNICATION BEARING NO.RAV-

AF1/79/2017-RAV. DATED 28.04.2019, BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT.

WP(C).No.23682 OF 2019(I)

EXHIBIT P30 A TRUE COPY OF THE COMMUNICATION BEARING NO.B6-

571/16 DATED 07.06.2019, BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT.

EXHIBIT P31 A TRUE COPY OF THE ORDER NO.C17-847 & 848/2009-

EKM, DATED 15/1/2015

EXHIBIT P32 A TRUE COPY OF THE NOTIFICATION NO.A1-1660/96 DATED 20/03/2020

EXHIBIT P33 A TRUE COPY OF THE G.O.(MS) NO.112/2020 RD DATED 20/03/2020