Siji Paily vs State Of Kerala
2021 Latest Caselaw 1193 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

   WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942

                        WP(C).No.20648 OF 2016


PETITIONERS:

      1        SIJI PAILY
               ACCOUNTANT, KERALA STATE BACKWARD CLASSES DEVELOPMENT
               CORPORATION, DISTRICT OFFICE, IDUKKI-685602.

      2        SUJA K.K.
               JUNIOR ASSISTANT, KERALA STATE BACKWARD CLASSES
               DEVELOPMENT CORPORATION, DISTRICT OFFICE, IDUKKI-
               685602.

               BY ADVS.
               DR.K.P.SATHEESAN (SR.)
               SRI.ELIAS KURIAN
               SRI.P.MOHANDAS (ERNAKULAM)
               SRI.K.SUDHINKUMAR
               SMT.SHYNI GEORGE
               SRI.S.VIBHEESHANAN

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,
               BACKWARD COMMUNITIES DEVELOPMENT
               DEPARTMENT,GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM-695001.

      2        THE CHAIRMAN MANAGING DIRECTOR
               KERALA STATE BACKWARD CLASSES DEVELOPMENT CORPORATION
               LTD., TC 27/588, SENTINAL, 3RD FLOOR, PATTOOR,
               VANCHIYOOR P.O., THIRUVANANTHAPURAM-695035.

               R1-2 BY SRI.M.SASINDRAN, SC, KSBCDC

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
13.01.2021, ALONG WITH WP(C).25777/2016(V), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
 WP(C).No.20648 & 25777/2016       2

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

  WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942

                      WP(C).No.25777 OF 2016(V)

PETITIONER:

               BINOY K.VARKEY
               S/O. K.V VARKEY, AGED 39 YEARS, 'CLERK' KERALA
               STATE BACKWARD CLASSES DEVELOPMENT CORPORATION
               LIMITED, DISTRICT OFFICE, IDUKKI, RESIDING AT
               'KATTAKKAYAM HOUSE', ALPPARA P.O.,
               IDUKKI DISTRICT-685 606.

               BY ADVS.
               SRI.R.KRISHNAKUMAR (CHERTHALA)
               SMT.TINY THOMAS

RESPONDENTS:

      1        KERALA STATE BACKWARD CLASSES DEVELOPMENT
               CORPORATION LIMITED,
               REP. BY ITS MANAGING DIRECTOR, REGD. OFFICE,
               T.C 27/588(7) & (8), 'SENTINEL', 2ND FLOO, PATTOOR,
               VANCHIYOOR P.O., THIRUVANANTHAPURAM-695 035.

      2        THE MANAGING DIRECTOR
               KERALA BACKWARD CLASSES DEVELOPMENT CORPORATION
               LIMITED, REGD.OFFICE, T.C. 27/588 (7) & (8)
               'SENTINEL' 2ND FLOOR, PATTOOR, VANCHIYOOR P.O.,
               THIRUVANANTHAPURAM-695 035.

      3        THE MANAGER
               KERALA WATER BACKWARD CLASSES DEVELOPMENT
               CORPORATION LIMITED, DISTRICT OFFICE, IDUKKI,
               PIN-685 601.

               R1 BY SRI.JAYAPRADEEP. V, SC, KSBCDC
               R1 BY SRI.M.SASINDRAN, SC, KSBCDC



               SRI. M.SAINDRAN -SC,SRI. SUNIL KUMAR KURIAKOSE -GP

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
13.01.2021, ALONG WITH WP(C).20648/2016(E), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.20648 & 25777/2016                3

                                   JUDGMENT

I am considering the afore two writ

petitions together on account of similarity in

the factual circumstances pleaded and also

because the reliefs sought for are identical.

2. The petitioners in W.P(C)No.20648 of

2016 claim to have been appointed as

Accountant and Junior Assistant respectively

in the services of the Kerala State Backward

Classes Development Corporation Ltd.

(hereinafter referred to as 'Corporation' for

short) in the year 2001 and they assert that

they are entitled to be regularized in the

services of the said Corporation, as per the

directions of the Hon'ble Supreme Court in

Umadevi v. State of Karnataka [2006 (4) SCC

1]. They assert that even though five other

persons were so regularized, which is evident

through Ext.P3 proceedings, they have not been

given the said benefit and that consequently,

the 2nd petitioner has been thrown out of

service, while the 1st petitioner continues

only on daily wages. They, therefore, pray

that the Corporation be directed to consider

their regularization within a time frame to be

fixed by this Court.

3. The petitioner in W.P(C)No.25777 of

2016 also makes similar prayer as afore, but

admitting that he was appointed as a Clerk in

the year 2011. He asserts that he was

appointed based on an interview conducted by

the competent Authority of the Corporation and

therefore, that he is also entitled to be

considered for regularization in terms of

Umadevi (Supra).

4. However, in response to the afore

submissions made on behalf of the petitioners

by their learned counsel - Shri.Sudhinkumar K.

and Shri.R.Krishnakumar respectively, the

learned Standing Counsel for the Corporation,

Shri.M.Sasindran, submitted that a counter

affidavit has been filed on record, wherein it

has been averred that the Corporation cannot

regularize anyone hence forth because the

vacancies can be filled up only by the Public

Service Commission, as per the extant orders

of the Government of Kerala and the terms of

the Special Rules applicable to the

Corporation. He submitted that, in any event

of the matter, the vacancies in question were

not sanctioned at the time when the

petitioners were appointed, which is clear

from the fact that they were admittedly

engaged only on daily wages and therefore,

that they cannot get the benefit of Umadevi

(Supra), particularly because the other five

persons they are referring to were appointed

as early as in the year 1995 and were given

the said benefit for the reasons that are

specifically stated in Ext.P3.

5. The learned Standing Counsel,

therefore, prayed that these writ petitions be

dismissed, adding that except the 1st

petitioner in W.P(C)No.20648 of 2016 the other

petitioners were disengaged as early as in the

year 2015.

6. On hearing Shri.M.Sasindran as afore,

the learned counsel for the petitioners

submitted that since the 1st petitioner in

W.P(C)No.20648 of 2016 is already continuing

in the services of the Corporation and there

is an interim order that he shall not be

disturbed solely for the appointment of

another person on daily or contract basis, the

said position may be maintained and the

Corporation be directed to reconsider the

petitioners' claim for regularization in terms

of Umadevi (Supra), also taking note of Ext.P3

in W.P(C)No.20648 of 2016, asserting that

their clients are also similarly situated with

the persons therein.

            7.     I      have        considered                 the         afore

     submissions         and     have       also      gone       through      the

materials available on record.

8. It is indubitable that since the

vacancies in the Corporation can no longer be

filled up by them on account of the rigour of

the Special Rules and the applicable

Government Orders - they being now capable of

being filled up only through the aegis of the

Public Service Commission - it will not be

possible for this Court to direct that the

petitioners be so appointed.

9. The only other contention that can

weigh with me is as to whether the petitioners

are eligible for being regularized in service,

taking note of Ext.P3 order in W.P(C)No.20648

of 2016.

10. When I go through the said order, it

is clear that the five persons mentioned

therein have been regularized on the basis of

the directions in Umadevi (Supra) and also

because they had crossed their upper age limit

for obtaining any regular appointment, leading

to them being incapacitated from securing

another employment. It is in such singular

circumstances that the Government accorded

sanction to regularize the services of the

persons mentioned therein and the resultant

question is whether the petitioners would also

be eligible to obtain the same benefits,

particularly because the Hon'ble Supreme Court

has made it clear in Umadevi (Supra) that

regularization cannot be seem to be another

mode of recruitment or appointment.

11. In the case at hand, the petitioners

in W.P(C)No.20648 of 2016 claim that they were

appointed in the year 2001; while the

petitioner in W.P(C)No.25777 of 2016 concede

that he was appointed only in the year 2011.

Obviously, therefore, the latter would not get

the benefit of Umadevi (Supra) even as on

date, since he has not completed 10 years of

service.

12. As regards the petitioners in

W.P(C)No.20648 of 2016 are concerned, the

counter affidavit filed on behalf of the

Corporation shows that the 1st petitioner was

engaged on daily wage basis from March 2002 to

2007 and thereafter from September 2011 and

that he is still continuing; while as regards

the 2nd petitioner, it is stated that she was

engaged from November 2001 to September 2007

and from October 2001 to October 2014 and that

she is no longer continuing in such

engagement.

13. It is, therefore, needless to say,

that as regards the 2nd petitioner is

concerned, the ratio of Umadevi (Supra) would

not apply and it will not be possible for me

to direct the Corporation to consider her

regularisation on such basis.

14.Therefore, all that remains is the

question as to whether the 1st petitioner in

W.P(C)No.20648 of 2016 can be directed to be

considered for regularization, because it is

conceded that he is still in service.

15. That said, this aspect has not been

adverted to or considered in the latest order

of the Corporation which is impugned herein,

namely Ext.P5, wherein all that is stated is

that regularization of the five employees

earlier cannot be taken as a precedent and

that only persons who have served more than 10

years in a sanctioned post can be considered

for such benefit. Of course, the Corporation

maintains that the vacancy to which the 1st

petitioner has been engaged is not a

sanctioned post, but it is not explained as to

how this post has then been reported to the

Public Service Commission for being filled up

by them.

16. These areas are still unclear and I

am, therefore, of the certain view that the

Corporation must reconsider the case of the 1st

petitioner in W.P(C)No.20648 of 2016.

Resultantly, I dismiss W.P(C)No.25777 of

2016 and allow W.P(C)No.20648 of 2016,

however, only to the extent of directing the

respondents to reconsider whether the 1st

petitioner therein can be granted the benefit

of regularization going by Umadevi (Supra);

which exercise shall be completed by them

de hors Ext.P5 and after affording him an

opportunity of being heard - either physically

or through video conferencing - thus

culminating in an appropriate order thereon,

as expeditiously as is possible.

It goes without saying, that until such

time as either the afore exercise is completed

or until a fresh hand is advised by the Public

Service Commission, the 1st petitioner in

W.P(C)No.20648 of 2016 will be allowed to work

and he shall not be terminated solely for the

purpose of another person on daily wages or

contract basis being appointed in his place.

After I dictated this judgment,

Shri.R.Krishnakumar, learned counsel for the

petitioner in W.P(C)No.25777 of 2016, prayed

that if there are vacancies in the

Corporation, his client may be directed to be

engaged on daily or contract basis at least

until such time as candidates advised by the

Public Service Commission join duty.

However, Shri.M.Sasindran submitted that

there are no vacancies available in the

Corporation as of now and that all the

vacancies have already been reported to the

PSC.

I, therefore, cannot accede to this

request either.

Sd/-

DEVAN RAMACHANDRAN

JUDGE

MC/16.1.2021

APPENDIX OF WP(C) 20648/2016 PETITIONER'S/S EXHIBITS:

EXT. P1 TRUE COPY OF THE PERIOD OF EMPLOYMENT AND WAGES RECEIVED BY THE APPLICANT FROM THE YEAR 2001-2002 TO 2015-2016.

EXT. P2 TRUE COPY OF THE REPRESENTATION FILED BY THE FIRST APPLICANT BEFORE THE FIRST RESPONDENT DATED 8-2-2016.

EXT. P3 TRUE COPY OF THE ORDER G.O.(MS)NO.

85/2012/BCDD DATED 22-06-2012.

EXT. P4 TRUE COPY OF THE ORDER DATED 12-02-2016 IN O.A.NO. 348/2016.

EXT. P5 TRUE COPY OF THE ORDER G.O.(RT)NO.

34/2016/BCDD DATED 25-05-2016.

EXT. P6 TRUE COPY OF THE JUDGMENT DATED 5.9.2016 IN CONT. CASE(C)NO.1425/2016

EXT. P7 TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 8.9.2016

EXT. P8 TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 28.9.2016

MC

(TRUE COPY) PA TO JUDGE

APPENDIX OF WP(C) 25777/2016 PETITIONER'S/S EXHIBITS:

EXT. P1 A TRUE COPY OF THE RELEVANT EXTRACT OF THE LIST OF EMPLOYEES WORKING IN VARIOUS DISTRICT OFFICES OF THE 1ST RESPONDENT.

EXT. P2 A TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT DATED 19.05.2016.

EXT. P3 A TRUE COPY OF THE LIST FURNISHED BY THE 3RD RESPONDENT WITH LIST OF EMPLOYEES DATED 27.05.2016.

EXT. P4 A TRUE COPY OF THE ORDER G.O.(M.S) NO.

22/2014/BCDD DATED 05.09.2014. ISSUED BY THE GOVERNMENT OF KERALA.

EXT. P5 A TRUE COPY OF THE ORDER NO.

E1/4809/ADMN/2000 DATED 17.04.2001 ISSUED BY THE 1ST RESPONDENT.

EXT. P6 A TRUE COPY OF THE ORDER NO.

1863/E1/2012/KSBCDC DATED 28.06.2012. ISSUED BY THE 1ST RESPONDENT.

EXT. P7 A TRUE COPY OF ONE OF THE LAST THE COMMUNICATION ISSUED FROM THE OFFICE OF THE HON'BLE CHIEF MINISTER OF KERALA.

EXT .P8 A TRUE COPY OF THE JUDGMENT DATED 3.09.2012. IN W.P.C. NO. 29529/2012 OF THIS HON'BLE COURT.

EXT. P9 A TRUE COPY OF THE G.O.(RT)NO.125/2001/BCDD DT. 14.3.2001 ISSUED BY THE GOVERNMENT

EXT. P10 A TRUE COPY OF THE LETTER OF THE 2ND REPONDENT TO THE MANAGERS OF THE 1ST RESPONDENT DATED 26.5.2016

EXT. P11 A TRUE COPY OF THE RECEIPT EVIDENCING FORWARDING OF REPRESENTATION OF THE PETITIONER DT. 14/07/2014

EXT. P12 A TRUE COPY OF THE REPRESENTATION DT.

21.11.2016 TO THE 2ND RESPONDENT.