Kerala High Court
Tiju S. Nair vs State Of Kerala on 29 April, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
FRIDAY, THE 29TH DAY OF APRIL 2022 / 9TH VAISAKHA, 1944
WP(C) NO. 4413 OF 2022
PETITIONER/S:
1 TIJU S. NAIR
AGED 42 YEARS
S/O. SREEKUMAR PILLAI, THADIYILAYYATHU VEEDU,
VETOOR P.O., KUMBAZHA , PATHANAMTHITTA ,PN-689
653
2 SUNIL KUMAR.N.V.,
AGED 50 YEARS
S/O. VISWANATHAN, NIRAVEL HOUSE, ELAKOLLOOR
P.O., KONNI, PATHANAMTHITTA DISTRICT,PIN-689 691
3 SANTHOSH KUMAR.S.
AGED 41 YEARS
S/O.SASIDHARAN NAIR, SHREYAS, KAIPATTOOR P.O.,
PATHANAMTHITTA,PIN-689 648
4 PRASAD.K.,
AGED 46 YEARS
S/O. KUNJU PILLAI NAIR, MANGALATHU PUTHEN
VEEDU, NIRATHUPARA P.O., KONNI TALUK,
PATHANAMTHITTA DISTRICT,PIN-689 693
5 SURESH KUMAR.B.R.
AGED 52 YEARS
S/O. G.BALAKRISHNA PILLAI, VAISHNANVAM, MALLOOR
COLLEGE P.O., PATTAZHI, KOLLAM DISTRICT,PIN-689
695
6 RAJEEV.R.
AGED 42 YEARS
S/O RAJENDRAN NAIR, JAYANI BHAVAN, KALANJOOR
P.O., KONNI TALUK, PATHANAMTHITTA DISTRICT,PIN-
698 694
7 ANSARI.K.K.,
AGED 41 YEARS
S/O. K.S KAREEM, CHERIVUKALAYIL HOUSE, ARABIL
COLLEGE ROAD, KUMBAZHA, PATHANAMTHITTA ,PIN-689
653
8 JOSE P.G.,
AGED 56 YEARS
S/O. P.G GEORGE, PANAMPILAGEL HOUSE,
KAITHAPARAMBU P.O., ENATHU, PATHANAMTHITTA
DISTRICT,PIN-690 126
9 VINOD KUMAR.R.,
AGED 41 YEARS
W.P.(C) No.4413 of 2022
-2-
S/O. G.RAJAN PILLAI, RAJI BHAVANAM, PATTAZHY
P.O., KOLLAM DISTRICT,PIN-691 522
10 RINU.S.CHANDRAN
AGED 40 YEARS
S/O. P.RAMACHANDRAN, RINU BUNGLOW, NEELESWARAM
P.O., NEDUVATHOOR, KOTTARAKKARA, KOLLAM
DISTRICT,PI-691 506
BY ADVS.
B.RENJITHKUMAR
CLARA SHERIN FRANCIS
RESPONDENT/S:
1 STATE OF KERALA
REP BY ITS SECRETARY, DEPARTMENT OF HEALTH AND
FAMILY WELFARE, KERALA GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001
2 THE PRINCIPAL,
GOVERNMENT MEDICAL COLLEGE, KONNI,
PATHANAMTHITTA DISTRICT,PIN-689 691
3 KERALA EX-SERVICEMEN WELFARE & REHABILITATION
CORPORATION,
REP BY ITS MANAGING DIRECTOR, KEXCON,
OPP.AMRITHA HOTEL, THYCAUD, THIRUVANANTHAPURAM-
695 001
4 ADDL. R4,MADHU.G
S/O.P.R.GOPINATHAN NAIR, PATHALIL HOUSE,
MANGRA, KONNI, PATHANAMTHITTA 689 691.
5 ADDLR5. ANILKUMAR.
S/O.GANGADHARAN, MECHIRATHARAYIL HOUSE,
ANANDAPALLY P.O, ADOOR, PATHANAMTHITTA 691 526.
6 ADDL.R6, SHAJI
S/O.KUTTAPPAN, KUNNUVILAKATHU HOUSE, ANGADICAL
NORTH P.O, KAIPATTUR, PATHANAMTHITTA 689 648.
7 ADDL. R7,MADHU T.O.
AGED 54 YEARS
S/O.G.OMANA KUTTAN, KAILASAM, KOODAL P.O,
PATHANAMTHITTA, 689 693.
8 ADDL.R 9, STEAPHEN C.GEORGE
LENKATHAR HOUSE, KALLELY P.O, KONNI,
PATHANAMTHITTA, 689 691,
9 ADDL. R9, MADHUSOODANAN NAIR
W.P.(C) No.4413 of 2022
-3-
S/O.SIVANANDAN NAIR, KORANDIKARAVILAYIL HOUSE,
SREESHYLAM, VETTUR P.O, PATHANAMTHITTA, 689 659
10 ADDLR10. ANISH.K
S/O.ABDUL KARIM, A VIEW MANZIL, MANKULAM KONNI,
PATHANAMTHITTA 689 693
11 ADDL. R11, P.N.ARAVINDAKSHAN,
S/O NARAYANAN ACHARY, PRAMAYIKKAL VEEDU,
MANNADY POST, PATHANAMTHITTA, 691 530
12 ADDL. R12, BINU P.THOMAS
AGED 47 YEARS
S/O.P.V.THOMAS, PUTHIYEL MURUPPEL HOUSE,
MYLAPRA POST, PATHANAMTHITTA 689 671.
ADDL R4 TO R12 IMPLEADED AS PER ORDER DATED 21-
02-2022 IN IA 1/2022 IN WP(C)4413/2022
BY ADVS.
R.S.KALKURA
MANSOOR.B.H.
SAKEENA BEEGUM
LIBIN JOSEPH
M.S.KALESH
R.BINDU
HARISH GOPINATH
P.I.NAJUMAL HUSSAIN
ANJALI B CHANDRAN
GEORGE AUGUSTINE
ALEX MIDHUN K.M.
GENTLE C.D.
OTHER PRESENT:
GP VENUGOPAL V; SC FOR R3 R.S.KALKURA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HERAD ON
14.3.022, THE COURT ON 29.04.2022 DELIVERED THE FOLLOWING:
W.P.(C) No.4413 of 2022
-4-
JUDGMENT
Dated this the 29th day of April, 2022
Petitioners are Ex-service men deployed by
the third respondent Corporation to work as
security guards at the Government Medical
College, Konni. The third respondent has been
constituted to implement schemes for the welfare
and rehabilitation of ex-service men and their
dependents. The Government has issued Exts.P1 to
P3 orders requiring Government Departments, Local
Self Government Institutions and quasi-Government
bodies and establishments to engage personnel
from the third respondent for security related
duties. In spite of the Government orders,
security personnel were being engaged through
private agencies. Complaining that the second
respondent was engaging security guards at the
Government Medical College, Konni through private
W.P.(C) No.4413 of 2022
agencies, the petitioners, along with 11 others,
filed W.P.(C) No.15882 of 2020 before this Court.
Therein, an interim order was passed on
05.08.2020, directing the second respondent not
to appoint temporary security staff otherwise
than in accordance with Exts.P1 and P2 orders.
According to the petitioners, the interim order
prompted the second respondent to appoint
security staff from the panel maintained by the
third respondent and in that process, the
petitioners were also appointed under Exts.P4 and
P5 orders. While the petitioners were continuing
in service, the second respondent issued Ext.P6
letter requesting the third respondent to reduce
the number of security staff to 15 (10 male and 5
females). Acceding to the request, the third
respondent withdrew 15 security personnel. Even
then, the service of the petitioners continued.
While so, the third respondent issued Ext.P7 e-
mail message, calling upon the ex-servicemen
W.P.(C) No.4413 of 2022
awaiting employment in Pathanamthitta District to
inform their willingness to join as temporary
security staff. Apprehending that Ext.P7 will
result in the petitioner's termination, the writ
petition is filed seeking the following reliefs;
"i) Issue a writ of certiorari or any
other appropriate writ, order direction to
quash Ext.P7.
ii) Issue a declaration that the
petitioners are entitled to continue in the
service of the 2nd respondent as temporary
security staffs till they attain the age of
62 years."
2. Learned Counsel for the petitioner
contended that despite Government orders, the
third respondent Corporation had never sought
implementation of the Government orders by
ensuring appointment of ex-servicemen in the
Departments and bodies mentioned in those orders.
It was the petitioners who had sought
implementation of the order and obtained the
interim direction, restraining the second
W.P.(C) No.4413 of 2022
respondent from appointing private security
staff. The said interim order had promoted the
second respondent to approach the third
respondent for sponsoring the names of enlisted
ex-servicemen. Being convinced that the
petitioners were the rightful claimants, the
third respondent had deployed them. A collusive
attempt is now being made by respondents 2 and 3
to replace the petitioners with ex-servicemen of
their choice. Learned Counsel relied on the
decision in State of Haryana and others v. Piara
Singh and others [(1992) 4 SCC 118] to contend
that adhoc/temporary employees continuing for
long have the right to be considered for
regularisation and at any rate, they should not
be replaced with another set of adhoc/temporary
employees.
3. Learned Standing Counsel for the third
respondent Corporation took strong objection to
W.P.(C) No.4413 of 2022
the manner in which the writ petition is filed
by suppressing material facts. The following
factual submission were made on behalf of the
third respondent;
The Kerala State Ex-servicemen Development
and Rehabilitation Corporation (KEXCON) was
constituted on 23.06.2000, with the objective of
formulating and implementing schemes for the
rehabilitation and welfare of ex-servicemen and
their dependents. To achieve the objective by
ensuring employment for the ex-servicemen
enlisted with the KEXCON, the Government issued
Ext.R3(b) to R3(d) orders, directing all local
bodies and quasi-government organisations to
engage personnel from the third respondent for
security related duties. The question whether
Ext.R3(b) to R3(d) orders and related
circulars/notification are binding on Hospital
Developmental Societies came up for consideration
before this Court in W.P.(C) No.33329 of 2018.
W.P.(C) No.4413 of 2022
Therein, Ext.R3(e) judgment was rendered,
upholding the Government orders. In the
meanwhile, the petitioners and others approached
this Court and obtained an interim order in W.P.
(C) No.15882 of 2020, requiring the second
respondent to desist from engaging private
security staff. Thereafter, the third respondent
requested the second respondent to intimate
willingness to deploy required number of security
personnel at the Government Medical College
Hospital. Acting upon the request, the second
respondent issued Ext.R3(j) letter requiring the
third respondent to take steps for appointing of
10 security guards. In the meanwhile, the ex-
servicemen who had filed W.P.(C) No.15882 of 2020
approached the third respondent requesting to
consider their names for deployment to the second
respondent claiming that the second respondent
had come forward with the offer to engage
security guards sponsored by the third respondent
W.P.(C) No.4413 of 2022
based on the interim orders obtained by them. The
request of the 21 ex-servicemen was accepted and
10 among them (petitioners) deployed as temporary
security guards at the Konni Medical College. The
deployment of the petitioners led to widespread
complaint from the ex-servicemen included in the
annual rank list of Pathanamthitta District, who
alleged that their seniority was overlooked.
After complaint was considered, the Board of
Directors of the third respondent decided to
deploy 50% security guards from the 21 ex-
servicemen and the balance 50%, from the annual
rank list in upcoming vacancies. While so, as per
Ext.R3(g) communication, the second respondent
informed about the need for Ex-servicemen
Security Guards including 5 lady guards.
Accordingly, Ext.R3(r) was issued, deploying 15
ex-servicemen security guards (male) of whom, 8
were from among the 21 ex-servicemen. Thus, a
total of 18 ex-servicemen were deployed from the
W.P.(C) No.4413 of 2022
21 petitioners in W.P.(C) No.15882 of 2020.
Later, the second respondent issued Ext.R3(s)
letter requesting the third respondent to
withdraw 15 security guards. Accordingly,
decision was taken to withdraw the 15 security
guards deployed under Ext.R3(r). Subsequently,
the second respondent requested to withdraw any
15 security guards and not to limit the
withdrawal to the second batch. In the meanwhile,
representations were submitted by two groups of
ex-servicemen, the ex-servicemen who figured as
petitioners in W.P.(C) No.15882 of 2020 and the
ex-servicemen included in the annual rank list.
After considering both representations, the Board
of Directors of the third respondent decided to
withdraw the 15 ex-servicemen security guards, as
decided by the second respondent as per Ext.P6
dated 17.01.2022. It was also decided that 10
security guards who were deployed with effect
from 15.02.2021 (writ petitioners) to be
W.P.(C) No.4413 of 2022
withdrawn with effect from 14.02.2022 and deploy
fresh ex-servicemen security guards from the
annual rank list of Pathanamthitta District. The
decision was taken considering that deployments
are to be carried out as per Ext.R3(z) (Policy
for Conduct of Screening and Deployment of Ex-
Servicemen with clients of KEXCON) under
rehabilitation programme. It is contended that
the petitioners are demanding continuance is
against Ext.R3(z) policy and against the interest
of hundreds of ex-servicemen awaiting engagement
based on their seniority in the annual rank list.
4. Having heard the learned Counsel on
either side, I find the claim raised by the
petitioners to be wholly meritless and
mischievous. The petitioners are also the
members of the third respondent and included in
the annual rank list prepared in accordance with
Ext.R3(z) policy. The policy envisages conduct of
screening and selection of ex-servicemen for
W.P.(C) No.4413 of 2022
deployment with various establishments. The
process of selection is clearly set out in
Ext.R3(z). The deployment should be in terms of
the prescribed procedure. The petitioners managed
to steal a march over their seniors in the annual
rank list by raising a claim that the second
respondent had sought for deployment of ex-
servicemen based on the interim order passed in
their writ petition. Unfortunately, the third
respondent played into the hands of the
petitioners and deployed them overlooking the
seniority of others included in the annual rank
list. Having secured deployment through dubious
means, the petitioners have no vestige of right
to claim continuance, by keeping away the
rightful claimants. Even though I find
substantial merit in the contention of the
learned Counsel for the third respondent that the
petitioners are guilty of suppression of material
facts, I refrain from imposing cost on the
W.P.(C) No.4413 of 2022
petitioners for the sole reason that they had, at
one point of time, protected our country.
Needless to say that Piara Singh (supra) has
absolutely no application as far as the
petitioners are concerned. The decision of the
Board of Directors of the third respondent to
withdraw the petitioners and replace them with
persons included in the annual rank list in
accordance with the procedure prescribed in
Ext.R3(z), is well founded and therefore, warrant
no interference.
In the result, the writ petition is
dismissed.
sd/-
V.G.ARUN
JUDGE
Scl/
W.P.(C) No.4413 of 2022
APPENDIX OF WP(C) 4413/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER NO.G.O(MS)
NO.179/05/GAD DATED 4.6.2005
Exhibit P2 TRUE COPY OF THE ORDER NO. 134/05/GAD
DATED 12.12.2005
Exhibit P3 TRUE COPY OF THE CIRCULAR DATED
4.11.2019 ISSUED BY THE 1ST RESPONDENT
Exhibit P4 TRUE COPY OF THE APPOINTMENT ORDER
DATED 12.2.2021 ISSUED BY THE 3RD
RESPONDENT
Exhibit P5 TRUE COPY OF THE LETTER DATED 7.6.2021
CALLING FOR JOINING TO THE PETITIONERS
ISSUED BY THE 2ND RESPONDENT
Exhibit P6 TRUE COPY OF THE LETTER DATED
17.1.2022 ISSUED BY THE 2ND RESPONDENT
OT THE 3RD RESPONDENT
Exhibit P7 TRUE COPY OF THE E-MAIL MESSAGES
(UNDATED ) ISSUED BY THE 3RD
RESPONDENT TO THE EX-SERVICE MEN
Exhibit P8 TRUE COPY OF THE AGREEMENT
DATED1/12/2021
