Nelvin Tomy vs State Of Kerala
2021 Latest Caselaw 2182 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

   WEDNESDAY, THE 20TH DAY OF JANUARY 2021 / 30TH POUSHA, 1942

                       WP(C).No.25329 OF 2019(M)


PETITIONERS:

      1        NELVIN TOMY
               AGED 34 YEARS
               PLANT ENGINEER, KERALA FEEDS LTD., KARUNAGAPPALLY,
               KOLLAM DISTRICT, PIN-690518.

      2        FAHAD T.V.
               PLANT ENGINEER, KERALA FEEDS LIMITED, THIRUVANGOOR,
               KOZHIKODE DISTRICT, PIN-673 305.

               BY ADVS.
               SRI.S.P.ARAVINDAKSHAN PILLAY
               SMT.N.SANTHA
               SRI.V.VARGHESE
               SRI.PETER JOSE CHRISTO
               SRI.S.A.ANAND
               SMT.K.N.REMYA
               SMT.L.ANNAPOORNA
               SHRI.VISHNU V.K.
               KUM.ABHIRAMI K. UDAY

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY THE SECRETARY TO GOVERNMENT,
               DEPARTMENT OF ANIMAL HUSBANDRY, DAIRYING AND HOUSING,
               SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001

      2        KERALA FEEDS LTD.,
               KALLETTUMKARA.P.O., THRISSUR DISTRICT, PIN-680683,
               REPRESENTED BY ITS MANAGING DIRECTOR

      3        MANAGING DIRECTOR,
               KERALA FEEDS LTD, KALLETTUMKARA.P.O.,
               THRISSUR DISTRICT, PIN-680683

               R2-3 BY ADV. SRI.P.BENNY THOMAS
               R2-3 BY ADV. SRI.D.PREM KAMATH

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-12-
2020, THE COURT ON 20-01-2021 DELIVERED THE FOLLOWING:
 WP(C).No.25329 OF 2019

                                        2




                               JUDGMENT

This writ petition is filed seeking the following prayers:-

"i) call for the records leading to Exts.P18 and P19 and quash them by the issuance of a writ of certiorari or any other appropriate writ, order or direction.

(ii) declare that the petitioners are entitled to regularization in service as Officers (Production and Maintenance), in two of the existing vacancies and that open selection to the said post, as notified by Ext.P11 can be conducted only against the vacancies remaining after the regularization of the petitioners.

(iii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to regularize the petitioners in service as Officers (Production and Maintenance) against two of the existing vacancies and grant them all consequential benefits.

(iv) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents not to go in for selection pursuant to Ext.P11 notification for the post of Officer (Production and Maintenance), before regularizing the service of the petitioners in two of the existing vacancies in the above post."

2. Heard the learned counsel for the petitioners and the learned

Government Pleader as well as Sri.S.Sreekumar, the learned Senior

Counsel appearing for the respondents 2 and 3.

3. The petitioners were appointed as Plant Engineers as per Exts.P5 WP(C).No.25329 OF 2019

and P6 appointment orders after a due process of selection conducted

pursuant to Exts.P1 and P2 notifications. The notifications calling for

applications specifically provided that the appointment would be on

contract basis, but was likely to be made permanent on arising of

permanent vacancies. It is submitted that it was in anticipation of

creation of posts as sought for by the 2 nd respondent before the

Government that it was notified that the appointments are likely to be

made permanent when the posts are sanctioned. It is submitted that

by Ext.P10 order dated 26.04.2018, three posts of Officers (Production

and Maintenance), which is the re-designation of Plant Engineers, had

been sanctioned by the Government. However, instead of regularizing

the petitioners in service, the respondents notified all the posts for

open selection as per Ext.P11. The petitioners had approached the

respondents seeking regularization of their services in terms of the

notification and by Ext.P12 judgment, the issue was directed to be

considered. When the respondents continued with the process of

selection notified by Ext.P11, this writ petition was filed. Thereafter,

Ext.P18 communication was issued by the Government rejecting the

claim for regularization on the basis of the judgment of the Apex Court WP(C).No.25329 OF 2019

in State of Karnataka v. Umadevi.[(2006) 4 SCC 1]. Pursuant thereto,

Ext.P19 order was issued rejecting the claim of the petitioners for

regularization. The petitioners have challenged Exts.P18 and P19

orders issued by the 1st and 2nd respondents.

4. It is submitted by the learned counsel for the petitioners that the

rejection of the claim for regularization by Ext.P18 on the short

ground that the regularization of contractual appointees is interdicted

by the Apex Court in Umadevi's case is completely untenable and is

issued without considering the factual aspects of the matter. It is

submitted that it was at a time when the request for sanction of posts

was pending before the Government that Ext.P2 notification had been

issued for contractual appointments of Plant Engineers. Ext.P2

notification specifically stated that the appointment would be on

contractual basis but was liable to be made permanent on arising of

permanent vacancies. It is submitted that while the petitioners were

continuing in service, Ext.P10 order dated 26.04.2018 had been passed

sanctioning three posts of Officer (Production and Maintenance). It is

therefore contended that the petitioners' contractual appointments

were liable to be made permanent in terms of the notification. WP(C).No.25329 OF 2019

5. A counter affidavit has been placed on record by respondents 2

and 3. It is submitted that the appointment of the petitioners was

specifically on contract basis and that their claim for regularization

could not be considered. It is submitted that the question of

regularization of the petitioners' service had been specifically

considered by the Board of the Company and it was found that the

petitioners were working on contract basis as Plant Engineers and they

could, at best, be entitled only to an opportunity to apply along with

other eligible candidates for appointment to the post of Officer

(Production and Maintenance). It is submitted that the question of

regularization was considered by the Government also and by

Ext.R2(b) order dated 30.09.2019, the request was rejected. It is

submitted that the petitioners who were only contractual employees

do not have any right to claim regularization in service on the basis of

their earlier contractual appointment.

6. Having considered the contentions, I notice that the request of

the petitioners for regularization has been rejected by the Government

on the short ground that regularization of contractual employees is

not contemplated as a method of appointment to the posts sanctioned WP(C).No.25329 OF 2019

by the Government as per Ext.P10. The specific contention of the

petitioners that the petitioners had been appointed pursuant to a

notification which specified that their appointments are likely to be

made permanent when permanent vacancies arise has apparently not

been considered by the Government. It is the petitioners' specific case

that they had been appointed on a contract basis after a due process of

selection. The notification inviting applications also specified that the

appointments are likely to be made permanent. It is thereafter that the

posts of Officer (Production and Maintenance) had been sanctioned by

the Government by Ext.P10. The only reason for the rejection of the

petitioners' request is the judgment of the Apex Court in Umadevi's

case. However, the judgment in Umadevi's case was with regard to

back door appointments de hors the recruitment rules. In the instant

case, apart from the fact that the appointment was initially made on a

contract basis, there is no contention that the petitioner's

appointments had been made through any back door means. The

notification, as a matter of fact, specified that the appointments are

likely to be regularized when regular vacancies arise.

7. In the above view of the matter, I am of the opinion that Ext.P18 WP(C).No.25329 OF 2019

communication issued by the Government rejecting the petitioners'

claim for regularization on the ground that the decision of the Apex

Court in Umadevi's case stands in the way of such consideration is per

se illegal. Moreover, Ext.P18 is only in the nature of a letter from the

Government to the 3rd respondent and does not amount to an

executive order passed in consideration of the claim for regularization.

Pursuant to Ext.P12 judgment, the Company considered the

representation submitted by the petitioners. However, it was on the

basis of the communication from the Government that the request of

the petitioners for regularization was rejected.

8. In the above view of the matter, I am of the opinion that Ext.P18

and resultant Ext.P19 decision of the Company are vitiated by lack of

application of mind. Exts.P18 and P19 are, therefore, set aside. There

will be a direction to the 1st respondent to consider the request of the

petitioners for regularization, taking specific note of the contention

that the petitioners had been appointed on a contractual basis

pursuant to Ext.P2 notification which specified that their

appointments are liable to be regularized when permanent vacancies

arise. Orders shall be passed by the Government, after hearing the WP(C).No.25329 OF 2019

petitioners as well as the authorized representative of the 2 nd

respondent, within a period of three months from the date of receipt

of a copy of this judgment. Till such time, further steps for selection to

2 posts of Officer (Production and Maintenance) shall be kept in

abeyance and the petitioners shall be permitted to continue in service.

This writ petition is ordered accordingly.

ANU SIVARAMAN JUDGE SJ/NP WP(C).No.25329 OF 2019

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE NOTIFICATION IN THE MATHRUBHUMI DAILY DATED 12.06.2013

EXHIBIT P2 TRUE COPY OF THE NOTIFICATION DATED 14.06.2013 PUBLISHED ON THE OFFICIAL WEBSITE OF THE KERALA FEED LTD.

EXHIBIT P3 TRUE COPY OF THE MINUTES OF THE INTERVIEW HELD ON 20TH AUGUST 2013 FOR THE SELECTION OF PLANT ENGINEER IN MECHANICAL

EXHIBIT P4 TRUE COPY OF THE MINUTES OF THE INTERVIEW HELD ON 20TH AUGUST 2013 FOR THE SELECTION OF PLANT ENGINEER-

                         INSTRUMENTATION

 EXHIBIT P5              TRUE COPY OF THE ORDER

NO.KFL/2112/13/C/938/14 DATED 22.02.2014 OF THE 3RD RESPONDENT TO THE 1ST PETITIONER

EXHIBIT P6 TRUE COPY OF THE ORDER NO.KFL/2112/13/6869/13 DATED 11.09.2013 OF THE 3RD RESPONDENT TO THE 2ND PETITIONER

EXHIBIT P7 TRUE COPY OF THE ORDER OF APPOINTMENT OF THE 1ST PETITIONER TO THE POST OF SENIOR GRADE-GRADE III

EXHIBIT P8 TRUE COPY OF THE MINUTES OF THE BOARD MEETING HELD ON 22.05.2016 OF THE BOARD OF DIRECTORS OF THE KERALA FEEDS LTD.

EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 06.04.2017 IN WP(C)NO.23839/2016 OF THIS HON'BLE COURT

EXHIBIT P10 TRUE COPY OF THE GO(MS)NO.13/2018/AHD DATED 26.04.2018

EXHIBIT P11 TRUE COPY OF THE NOTIFICATION DATED 28.02.2019 ISSUED BY THE KERALA FEEDS LTD WP(C).No.25329 OF 2019

EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 07.05.19 IN WP(C)NO.13100/2019 OF THIS HON'BLE COURT

EXHIBIT P13 TRUE COPY OF THE HALL TICKET ISSUED TO THE 1ST PETITIONER BY THE KERALA FEEDS LTD. ON 12.07.2019

EXHIBIT P14 TRUE COPY OF THE HALL TICKET ISSUED TO THE 1ST PETITIONER BY THE KERALA FEEDS LTD. ON 03.09.2019

EXHIBIT P15 TRUE COPY OF THE HALL TICKER ISSUED TO THE 2ND PETITIONER BY THE KERALA FEEDS LTD.ON 03.09.2019

EXHIBIT P16 TRUE COPY OF THE O(MS)NO.222/14/AD DATED 01.10.2014

EXHIBIT P17 TRUE COPY OF THE MEETING OF THE BOARD OF DIRECTORS OF THE 2ND RESPONDENT HELD ON 27/10/2018

EXHIBIT P18 TRUE COPY OF THE GOVERNMENT LETTER NO.F2/122/2019-AH DATED 30/9/2019

EXHIBIT P19 TRUE COPY OF THE ORDER NO.MD/M47/L48/49 DATED 5/11/2019 OF THE 3RD RESPONDENT

EXHIBIT P20 TRUE COPY OF THE OFFICE ORDER NO.KFL/439/99/L-488/18 DATED 13/3/2018 OF THE 3RD RESPONDENT

EXHIBIT P21 TRUE COPY OF THE COUNTER AFFIDAVIT SWORN TO BY THE 3RD RESPONDENT IN WPC NO.23839/2016

RESPONDENT'S EXHIBITS:

EXHIBIT R2(a) TRUE COPY OF THE MINUTES OF THE BOARD MEETING DATED 27/10/2018

EXHIBIT R2(b) TRUE COPY OF THE GOVERNEMNT ORDER DATED 30/9/2019.

True copy PS to Judge