Abdunnaser P.P vs State Of Kerala
2021 Latest Caselaw 3194 Ker

W.P.(C).Nos.1893 & 1629/2020
                                    1

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

             THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

    FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942

                         WP(C).No.1629 OF 2020(R)

PETITIONERS:
      1      ABDUNNASER P.P.
             AGED 47 YEARS
             S/O. PACKER HAJI, POOKATTUPURAYIL, KODUVALLY,
             KOZHIKODE-673 572, WORKING AS A COURT MANAGER,
             PRINCIPAL DISTRICT AND SESSIONS COURT, MANJERY,
             KACHERIPPADI, MALAPPURAM-676 121.

        2       MANOJ G.
                AGED 53 YEARS
                S/O. LATE GOPALAKRISHNA PANICKER,
                KALIYILZHIKATHU, NEAR KRISHNAN KOVIL, THOLICODE
                (PO), KOLLAM-691 333, WORKING AS COURT MANAGER,
                PRINCIPAL DISTRICT AND SESSIONS COURT, COURT
                ROAD, KOZHIKODE-693 032.

        3       NIKHIL M.SARATH
                AGED 34 YEARS
                S/O. SARA CHANDRAN, MANIMANDIRAM, MELARANOOR,
                KARMANA, THIRUVANANTHAPURAM-695 002, WORKING AS
                COURT MANAGER, PRINCIPAL DISTRICT SESSIONS
                COURT, AYYANTHOLE P.O., THRISSUR-679 576.

        4       MANOJ K
                AGED 42 YEARS
                S/O. K.KESAVAN POTTY, MUTTATHUVADAKKEDAM,
                MARUTHOORKULANGARA SOUTH, ALUMKADAVU (PO),
                KARUNAGAPPALLY, KOLLAM-690 573, WORKING AS
                COURT MANAGER, PRINCIPAL DISTRICT AND SESSIONS
                COURT, VANCHIYOOR (PO), THIRUVANANTHAPURAM-695
                035.

                BY ADVS.
                SRI.V.T.MADHAVANUNNI
                SRI.M.VIVEK RABINDRANATH
 W.P.(C).Nos.1893 & 1629/2020
                                 2

RESPONDENTS:-

        1       STATE OF KERALA
                REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY
                TO GOVERNMENT HOME (C) DEPARTMENT, GOVERNMENT
                SECRETARIAT, THIRUVANANTHAPURAM-695 001.

        2       THE REGISTRAR (SUBORDINATE JUDICIARY)
                HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.

                R1 BY SPL.GOVERNMENT PLEADER N.MANOJ KUMAR
                R2 BY ADV. SRI. SANTHOSH MATHEW
                SHRI.B.G.HARINDRANATH

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
17-12-2020, ALONG WITH WP(C).1893/2020(R), THE COURT ON 29-
1-2021 DELIVERED THE FOLLOWING:
 W.P.(C).Nos.1893 & 1629/2020
                                    3

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

             THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

FRIDAY, THE 29TH DAY OF JANUARY 2021 / 26TH AGRAHAYANA, 1942

                         WP(C).No.1893 OF 2020(R)

PETITIONERS:

        1       KALA B.S.
                AGED 46 YEARS
                COURT MANAGER, DISTRICT COURT, ERNAKULAM.

        2       ANSARI K,
                COURT MANAGER, DISTRICT COURT, PATHANAMTHITTA.

        3       S. SERGI DAS,
                COURT MANAGER, DISTRICT COURT, KOLLAM.

        4       K. HARIKUMAR NAMBOOTHIRI,
                COURT MANAGER, DISTRICT COURT, KOTTAYAM.

                BY ADVS.
                SRI.K.JAJU BABU (SR.)
                SRI.BRIJESH MOHAN
                KUM.NEETU VINOD

RESPONDENTS:

        1       STATE OF KERALA
                REPRESENTED BY ITS SECRETARY TO GOVERNMENT OF
                KERALA, HOME DEPARTMENT, GOVERNMENT
                SECRETARIAT, THIRUVANANTHAPURAM-695 001.

        2       THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT OF
                KERALA AND SECRETARY TO GOVERNMENT.
                FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT,
                THIRUVANANTHAPURAM-695 001
 W.P.(C).Nos.1893 & 1629/2020
                                 4

        3       THE HIGH COURT OF KERALA,
                REPRESENTED BY THE REGISTRAR (SUBORDINATE
                JUDICIARY), ERNAKULAM, COCHIN-682 031

                R1 BY SPL.GOVERNMENT PLEADER N.MANOJ KUMAR
                R3 BY ADV. SRI.SANTHOSH MATHEW
                R3 BY ADV. SHRI.B.G.HARINDRANATH

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
17-12-2020, ALONG WITH WP(C).1629/2020(R), THE COURT ON 29-
1-2021 DELIVERED THE FOLLOWING:
 W.P.(C).Nos.1893 & 1629/2020
                                    5

                          ANU SIVARAMAN, J.
                     = = = = = = = = = = = = = = =
                  W.P.(C).Nos.1629/2020 & 1893/2020
                    = = = = = = = = = = = = = = = =
                 Dated this the 29th day of January, 2021

                               JUDGMENT

1. The petitioners in these writ petitions, totalling eight in

number, seek regularization of their services as Court

Managers in District and Sessions Courts on the strength of

the order issued by the Apex Court on 2/8/2018 in the All India

Judges Association Case.

2. Heard learned Senior Counsel for the petitioners, learned

Government Pleader as well as the learned counsel appearing

for the 2nd respondent. The parties and documents are being

referred to in this judgment as in W.P.(C).No.1893 of 2020,

unless otherwise specifically mentioned.

3. It is submitted that the 13th Finance Commission constituted

under Article 280 of the Constitution of India recommended

creation of posts of Court Managers in District and Sessions

Court as well as in the High Courts. By Exhibit P1 order dated W.P.(C).Nos.1893 & 1629/2020

28.11.2011, the Government sanctioned the creation of 16

posts in the State of Kerala (14 in every Judicial District and 2

in the High Court) The posts were contemplated to be in the

scale of pay of Sheristadar, District Court. After the expiry of

the award period of the 13 th Finance Commission, the

Government of India took the stand that the financial

commitment with regard to the posts would have to be borne

by the State.

4. By Exhibit P2 notification dated 17.2.2014, the High Court

invited applications for appointment of Court Managers in 14

districts. The petitioners participated in the selection and

were included in Exhibit P3 ranked list. 12 persons were

appointed from the list in the scale of pay of Sheristhadar,

District Court by Exhibit P4 dated 25.08.2014. The petitioners

are eight of the Court Managers, who are still in service. The

term of appointment of the Court Managers was extended

from time to time. Due appraisal was conducted by the

District Judges on the recommendation of the Finance

Commission and the District Judges recommended the W.P.(C).Nos.1893 & 1629/2020

continuance of the post. On the basis of the decisions of the

High Court, the posts were continued. The pay was also

revised by Exhibit P14 proceedings of the Government.

Thereafter, the High Court requested the continuance of the

posts of Court Managers in the District Courts and sought a

clarification whether the remaining five posts are to be filled

up. On 4.7.2017, the appointment of the Court Manager in

Palakkad was terminated and Government accorded sanction

for continuance of the 8 posts held by the petitioners in these

writ petitions.

5. While so, on 2.8.2018 Exhibit P6 order was issued by the Apex

court. The directions were as follows:-

"Professionally qualified Court Managers, preferably with an MBA degree, must also be appointed to render assistance in performing the court administration. The said post of Court Managers must be created in each judicial district for assisting Principal District and Sessions Judges. Such Court Managers would enable the District Judges to devote more time to their core work, that is, judicial functions. This, in turn, would enhance the efficiency of the District Judicial System. These Court Managers would also help in identifying the weaknesses in the court management systems and recommending workable steps under the supervision of their respective judges for rectifying the same. The services of any person already working W.P.(C).Nos.1893 & 1629/2020

as a Court Manager in any district should be regularised by the State Government as we are of the considered view that their assistance is needed for proper administrative set up in a Court."(emphasis supplied)

6. A representation was submitted by the 1 st petitioner before

the High Court seeking regularisation in implementation of

Exhibit P6. The High Court also forwarded a proposal for

sanctioning the permanent posts and for regularisation of

Court Managers working in the district courts on the basis of

Exhibit P6. On 10.4.2019 by Exhibit P9, the Government

accorded sanction for continuance of 8 posts temporarily.

However, no orders were passed on the request for

regularisation. Further proposals were submitted by the High

Court for amending the Kerala Judicial Ministerial Service

Rules to include the post of Court Managers in the district

court. However, by Exhibit P11 dated 3.2.2020 the

Government ordered that regularization of existing

incumbents cannot be allowed in view of the judgment in

State of Karnataka and others v. Umadevi and others

[2006 KHC 50]. The Government further sanctioned 14 posts

in consolidated pay of Rs.42,500/- and directed the filling up of W.P.(C).Nos.1893 & 1629/2020

the posts. When Ext. P11 was subjected to challenge on the

ground that it was vitiated by total want of application of

mind, the Government passed Exhibit P12 order dated

7.2.2020 cancelling Exhibit P11. Thereafter, the Government

issued orders on 13.5.2020 permitting the continuance of 8

post for a period of one year on contract basis to the

consolidated pay of Rs.42,500 by Exhibit P13. The said orders

are also under challenge in W.P.(C).No.1893/2020 by way of

amendment carried out.

7. The learned Senior Counsel appearing for the petitioners

submits that the action of the Government in issuing orders in

the nature of Exhibits P11 and P13, in the light of Exhibit P6

directions issued by the Apex court is an affront to the orders

and authority of the Apex Court and is liable to be set aside. It

is submitted that the practice in the Government of passing

orders mechanically at the lowest levels of governance without

any understanding of the legal implications, is only to be

deprecated. Relying on the file notes produced along with the

reply affidavit, the learned Senior counsel would contend that W.P.(C).Nos.1893 & 1629/2020

the rejection of the request of the petitioners for

regularization, which was specifically on the basis of a

direction by the Apex court, which could not have been flouted

by the State Government, virtually amounts to contempt of the

orders and authority of the Apex court as well as a specific

recommendation of the High Court and is therefore per se,

illegal and invalid.

8. The learned Senior Counsel appearing for the petitioners in

W.P.(C).No.1893/2020 places reliance on the decisions of the

Apex Court in Director of Settlements A.P. v. M.R.Apparao

and another [2003 KHC 226] M.Gurumoorthy v.

Accountant-General, Assam and Nagaland and others

[(1971) 2 SCC 137], Nihal Singh and others v. State of

Punjab and others [(2013)14 SCC 65], Sagar Sharma and

another v. Phoenix Arc Pvt.Ltd and another [2019 KHC

6989] and in M/s.Shenoy and Co. Bangalore and others v.

Commercial Tax Officer, Circle II, Bangalore and others

[1985 KHC 607].

W.P.(C).Nos.1893 & 1629/2020

9. A counter affidavit has been placed on record by the first

respondent. The factual aspects of the matter are not disputed

in the counter affidavit. The fact that the Apex Court in Exhibit

P6 have directed the regularisation of the persons working as

Court Managers in the district court is also not disputed. It is

also not disputed that the High Court had recommended the

regularization specifically in the light of Exhibit P6. However,

at paragraphs 5 and 6 of the counter affidavit, it is stated as

follows.

"5. In this regard, it is most humbly submitted that, the posts of District Managers in which the petitioners are working are not permanent and regular recruitment process of prescribed procedure were not followed while appointing the petitioners to the said posts. Thus it tends to defeat the very Constitutional Scheme of public employment and is against the interest of the State as well as qualified persons who are eligible to be considered for appointment to the said posts.

6. It is also submitted that these posts are created purely on temporary basis co-terminus with the 13 th Finance Commission award period. Regularization of employees or officers appointed on contract basis will be against dictum laid down by the Hon'ble Supreme Court in State of Karnataka and Others Vs, Umadevi and Others (2006 KHC 50). "

W.P.(C).Nos.1893 & 1629/2020

10.Further paragraph 12 of the counter affidavit is also

extracted here under:-

"12. It is submitted that while considering the above Writ Petition, this Hon'ble Court on 17.03.2020 ordered that petitioners shall be allowed to continue. Accordingly, vide G.O(Rt) No. 1138/2020/Home dated 13.05.2020, Government have accorded sanction for continuance of eight posts of Court Managers working in the Principal District Courts of Thiruvananthapuram, Kollam, Pathanamthitta, Kottayam, Ernakulam, Thrissur, Manjeri and Kozhikode, for a further period of one year, on contract basis, with a consolidated pay of Rs.42,500/per month."

11. The High Court has also placed a counter affidavit on record

Paragraph 13 therein reads as follows:-

"13. It is submitted that the Hon'ble Supreme Court in paragraph 12 of the order in Interlocutory Application No. 279 of 2010 in Writ Petition (Civil) No. 1022 of 1989 had categorically stated that the services of the person already working as Court Manager should be regularised by the State Government. The Hon'ble Supreme Court is of the view that considering the fact that the assistance is needed for proper administration of the Court, their services ought to be regularised. It is submitted that the Government order now passed is contrary to the directions contained in the judgment cited supra. What is contemplated is regularisation and not contract appointment. The Order passed is in ignorance of the order of the Hon'ble Supreme Court."

W.P.(C).Nos.1893 & 1629/2020

12.I have considered the contentions advanced on all sides. It is

the specific case of the petitioners that they had been

appointed as Court Managers pursuant to a selection

conducted by this Court. The Apex court had in Exhibit P6

order specifically directed the regularisation of those persons

presently working as Court Managers in the District Courts.

Their performance had also been subjected to appraisal by the

respective District Judges. In the above factual situation, the

action of the 1st respondent in having passed orders in the

nature of Exhibits P11 and P13 is completely unsustainable

and suffers from vice of absolute want of application of mind.

The note files produced along with the reply affidavit, which

were obtained under the Right to Information of Act would

clearly show that the Head of the department, that is, the Law

Secretary had specifically pointed out that the regularization

is recommended by the High Court on the basis of directions

of the Apex Court.

13.In the above view of the matter, I have no hesitation in

holding that the petitioners are eligible for regularisation on W.P.(C).Nos.1893 & 1629/2020

the basis of Exhibit P6 directions issued by the Apex Court on

the same terms and conditions that existed on the date of

Ext.P6 order of the Apex Court. It is so ordered. The

petitioners shall be regularised in service and placed in the

scale of pay as provided in Exhibit P1 order.

14.Further, before parting with the case, in view of the

arguments raised by the learned senior counsel appearing for

the petitioners as well the learned counsel appearing for the

High Court, I am of the opinion that it is only proper that in

specific cases of directions issued by the Apex Court and

recommendations forwarded by the High Court in pursuance

thereto, the files shall be immediately placed before the Law

Secretary and opinion rendered thereon before they are put

up through the sections for comments. The existence of Rules

of Conduct framed under Article 166(3) of the Constitution of

India should not be cited as a reason for the issuance of orders

in the nature of Exts.P11 and P13, which amount to an affront

to the provisions of Article 141 of the Constitution of India.

The necessary instruction shall be issued by the competent W.P.(C).Nos.1893 & 1629/2020

respondent within a period of one month from the date of

receipt of a copy of the judgment.

Writ petitions are ordered accordingly.

Anu Sivaraman, Judge

sj APPENDIX OF WP(C) 1629/2020 PETITIONERS' EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE G.O(MS)NO.265/2011/HOME DATED 28.11.2011 OF THE RESPONDENT NO.1.

EXHIBIT P2 A TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT DATED 2.8.2018 IN INTERLOCUTORY APPLICATION NO.279 OF 2011 IN WRIT PETITION (CIVIL) NO.1022 OF 1989.

EXHIBIT P3 A TRUE COPY OF THE LETTER NO.D8-70219/2010 DATED 7.11.2018 SEND BY THE HON'BLE HIGH COURT OF KERALA TO RESPONDENT NO.1.

EXHIBIT P4 A TRUE COPY OF THE OFFICIAL MEMORANDUM O.M.NO.B1(C)-73312/2018 DATED 7.2.2019 SENT BY THE REGISTRAR TO THE PETITIONERS.

EXHIBIT P5 A TRUE COPY OF THE G.O.

(RT)NO.1074/2019/HOME DATED 10.4.2019 ISSUED BY THE RESPONDENT NO.1.

RESPONDENT'S EXHIBITS EXHIBIT R2(A) A TRUE COPY OF THE G.O.(MS)NO.84/2013/HOME DATED 30.3.2013 W.P.(C).Nos.1893 & 1629/2020

APPENDIX OF WP(C) 1893/2020 PETITIONERS' EXHIBITS:

EXHIBIT P1 TRUE COPY OF G.O(MS) NO. 265/2011/HOME DATED 28.11.2011 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P2 TRUE COPY OF NOTIFICATION NO. REC 4-

5502/2014 DATED 17.2.2014 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE RANKED LIST DATED 1.7.2014 PUBLISHED BY THE 3RD RESPONDENT.

EXHIBIT P4 TRUE COPY OF ORDER NO. B1-66563/2014 DATED 25.8.2014 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P5 TRUE COPY OF LETTER NO. D8-70219/2010 DATED 23.1.2016 ISSUED BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE ORDER DATED 2.8.2018 OF THE HON'BLE SUPREME COURT IN ALL INDIA JUDGES ASSOCIATION CASE 2010 (14) SCC

EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 10.10.2018 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 3RD RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE LETTER NO. D8-

70219/2010 DATED 7.11.2018 ISSUED BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT.

EXHIBIT P9 TRUE COPY OF G.O(RT) NO. 1074/2019/HOME DATED 10.4.2019 ISSUED BY THE 1ST RESPONDENT.

W.P.(C).Nos.1893 & 1629/2020

EXHIBIT P10 COPY OF THE LETTER NO.D8-70219/2010 DATED 25/01/2020 ISSUED BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT.

EXHIBIT P11 COPY OF GO(MS) NO.42/2020/HOME DATED 03/02/2020.

EXHIBIT P12 TRUE COPY OF THE GOVERNMENT ORDER NO.427/2020/HOME DATED 7.2.2020, ALONG WITH TYPED COPY.

EXHIBIT P13 TRUE COPY OF G.O.(RT) NO.1138/2020/HOME DATED 13.5.2020.

EXHIBIT P14 TRUE COPY OF THE GOVERNMENT LETTER NO.21057/C2/15/HOME DATED 1.6.2015 ALONG WITH TYPED COPY.

EXHIBIT P15 TRUE COPY OF ORDER NO.B1-7039/2014 DATED 3.3.2020 FIXING THE BASIC PAY OF THE 2ND PETITIONER.

EXHIBIT P16 TRUE COPY OF THE JUDGMENT DATED 8.10.2018 OF THE HON'BLE HIGH COURT OF RAJASTHAN.

EXHIBIT P17 TRUE COPY OF THE ORDERS OF THE ASSAM HIGH COURT AND DISTRICT NOTIFICATION NO.JDJ/123/2017-ESTT-JUDI/48 DATED 15.10.2018.

EXHIBIT P18 COPY OF THE GOVERNMENT FILES OBTAINED BY THE PETITIONERS UNDER THE RIGHT TO INFORMATION ACT VIDE COVERING LETTER NO.C2/201/2020/HOME DATED 22.10.2020

RESPONDENT'S EXHIBITS:

EXHIBIT R3(A)              TRUE COPY OF THE GO (MS)
                           NO.84/2013/HOME DATED 30.03.2013.
                                TRUE COPY

                                                         PS TO JUDGE