Kerala High Court
State Of Kerala vs S.Mohanan on 22 May, 2024
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946
OP(KAT) NO. 368 OF 2019
ORDER DATED 18.12.2018 IN OA NO.1908 OF 2017 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS IN OA:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
HEALTH AND FAMILY WELFARE DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.
2 THE DIRECTOR,
DIRECTORATE OF HEALTH SERVICE, GENERAL HOSPITAL
JUNCTION, THIRUVANANTHAPURAM, PIN-695035.
3 THE DISTRICT MEDICAL OFFICER, GENERAL HOSPITAL
JUNCTION, THIRUVANANTHAPURAM, PIN-695035.
4 THE SUPERINTENDENT ,
GENERAL HOSPITAL, THIRUVANANTHAPURAM, PIN-
695035.
BY SENIOR GOVERNMENT PLEADER SMT.VINITHA B.
RESPONDENTS/APPLICANT IN OA:
S.MOHANAN, AGED 56 YEARS, S/O.SHANMUGHAM,
RESIDING AT SHEELA BHAVAN, THUDAYANCODE,
ENIKKARA, KARAKULAM P.O., THIRUVANANTHAPURAM,
PIN-695564, WORKING AS BARBER ON DAILY WAGES,
OP(KAT) No.368/2019
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GENERAL HOSPITAL, THIRUVANANTHAPURAM, PIN-
695035.
BY ADVS.
SRI.B.RAGHUNATHAN
DR.STANLY CHAZHOOR
SRI.K.JALADHARAN
SRI.V.M.JACOB
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME
UP FOR ADMISSION ON 22.05.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
OP(KAT) No.368/2019
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JUDGMENT
SHOBA ANNAMMA EAPEN, J.
The State and its officials, who were the respondents
before the Kerala Administrative Tribunal,
Thiruvananthapuram in OA No.1908 of 2017, have come up
before this Court with this original petition challenging the
order of the tribunal dated 18.12.2018. The respondent herein
was the applicant before the tribunal.
2. The respondent/applicant, who was engaged as
barber on daily wages in the General Hospital,
Thiruvananthapuram, approached the tribunal seeking
regularization of his service. According to him, he was
engaged on daily wages from 1980 onwards and is continuing
in service as of today. Though he sought for regularization of
service, it was not considered and proceedings were initiated
to disengage him from service. Aggrieved by the same, he
approached the tribunal. The tribunal, after a detailed
consideration of the issue, allowed the original application
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and directed the petitioners herein to sanction a post of
"Barber" in the Government Hospital, Thiruvananthapuram
and to issue appropriate orders regularizing the respondent
against the said post. Hence, this original petition.
3. The learned Government Pleader submitted that
the service of the respondent was utilized as a barber for
preparation of surgical operations from 1980 to 1988 and
1996 to 2001 in the General Hospital, Thiruvananthapuram
and thereafter, from 2002 onwards, the respondent was doing
voluntary service. It is further submitted that the respondent
moved the government for regularization; and as per
Ext.R4(c) communication dated 08.06.2005, the Government
directed the Director of Health Department,
Thiruvnanathapuram to allow him to continue in service as
barber on daily wages; and accordingly, he is still continuing
in the said status as of today. The learned Government
Pleader pointed out that Annex.R4(c) dated 08.06.2005 is not
an appointment letter, but only an order allowing him to do
voluntary service as barber in the hospital since the post of
"Barber" was abolished in 1968. It is further submitted that as
per Annex.A5 clarification letter dated 13.01.2017, it was
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informed that the voluntary service of the respondent can be
utilized as and when service of a barber is needed in the
hospital and accordingly, he was allowed to do barber work on
daily wages as and when needed in the hospital. According to
the learned Government Pleader, the respondent having been
engaged on daily wages, he cannot claim regularization in a
post which is not in existence; and therefore, there is no
violation of principles of natural justice.
4. Per contra, the learned counsel for the respondent
submitted that the respondent has been working in the
General Hospital, Thiruvananathapuram from 1980 onwards
in the operation theatre for surgery preparation and he had an
uninterrupted service of 30 years and therefore, is entitled for
regularization in the existing post of "Barber" in the General
Hospital, Thiruvananthapuram. It is further submitted that the
respondent having completed 56 years of age, if not appointed
as "Barber", gross injustice will be caused to him.
5. We have given a thoughtful consideration of the
rival contentions raised on both sides. The issue involved in
this case is the regularization of service of the respondent in
the post of "Barber", who has been doing barber works on
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daily wages in the General Hospital, Thiruvananthapuram.
6. As could be seen from Annex.R4(c) letter dated
08.06.2005, the respondent was permitted to continue on
daily wages till a regular appointment is effected. Though the
petitioners have raised an averment that the respondent was
giving a voluntary service, Annex.R4(c) reveals that the
petitioners have permitted the respondent to continue on daily
wages till a regular appointment is effected.
7. When this matter came up for consideration on
19.05.2022, this Court passed the following order;
"The competent authority among the respondents in
the above I.A. will immediately furnish instructions to the
learned Government Pleader, on the plea of the applicant for
payment of salary during the period which he has not been
paid, and if no instructions are furnished, this Court will be
constrained to pass orders in the above I.A. on the basis of
available pleadings and materials on record.
The respondents will also furnish instructions as to
whether sanctioned post of Barber is vacant, as referred to
in Anx.A-5 letter No.B2-2191/2014/GHT dated 13.1.2017
issued by the Superintendent, General Hospital,
Thiruvananthapuram, addressed to the Director of Health
Services, and if so, the said vacant post shall not be filled up
without getting orders from this Court."
Similarly on 01.06.2022, this Court passed the following
order;
"Pursuant to the order dated 19.05.2022, it is the
submission of the learned Government Pleader, on
instructions, that the respondent has admittedly worked only
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for a period from August 2021 to January 2022, and that he
can be paid the daily wages applicable for the days on which
he has so worked. Although the learned counsel for the
respondent submits that the respondent has been working in
the establishment even thereafter and continues to do so,
this aspect is disputed by the learned Government Pleader
who undertakes to file a counter affidavit clarifying the
service particulars of the respondent. Taking note of the
rival submission, pending the filing of a detailed counter
affidavit by the learned Government Pleader, we direct the
petitioners 3 and 4 to ensure that the respondent is paid the
wages for the period from August 2021 to January 2022 for
the work done by him in the establishment, within three
weeks from today."
However, no affidavit was filed by the appellants clarifying the
service particulars of the respondent.
8. It is the case of the respondent that from 1980
onwards, he has been working as barber on daily wages in the
General Hospital, Thiruvananthapuram. However, so far, no
post of "Barber" was created by the government in the
General Hospital, Thiruvananthapuram. It may not be proper
for the tribunal or this Court to direct the government to
create a post of "Barber" in the General Hospital,
Thiruvananthapuram and appoint the respondent in the said
post as it is a policy decision to be taken by the government.
However, on the basis of the contentions raised by the
respondent, it appears that the service of a barber is highly
necessary in the General Hospital, Thiruvananthapuram for
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surgery preparation.
9. In Union of India & Others v. Ilmo Devi & Another
[(2021) 20 SCC 290], the apex court held that part-time
employees are not entitled to seek regularization as they are
not working against any sanctioned post and there cannot be
any permanent continuance of part-time temporary employees
as held. It is further held that part-time temporary employees
in a government run institution cannot claim parity in salary
with regular employees of the government on the principle of
equal pay for equal work.
10. It is very clear that the respondent being a daily
waged employee, cannot seek regularization of service unless
the post of "Barber" is created by the government, which is a
policy decision to be taken by the petitioners herein. Though
the respondent was working on daily wages in the General
Hospital, Thiruvananathpuram from 1980 onwards, there was
some interrupted service. A daily waged worker shall not have
a legal right to be made permanent unless he/she fulfills the
criteria provided in the regularization policy. If he/she is
otherwise engaged in infraction of the rules or if his/her
engagement is in violation of the provisions of the
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Constitution, the said illegal engagement shall not be
regularized. In Ilmo Devi (supra), it was held that even the
regularization policy to regularize the services of the
employees working on temporary status and/or casual
labourers is a policy decision and in judicial review, the Court
cannot issue mandamus and/or issue mandatory directions to
do so. In State of Maharashtra & Another v. R.S. Bhonde &
Others [(2005) 6 SCC 751], it was held that the status of
permanency cannot be granted when there is no post.
11. In this case, admittedly, no post of "Barber" has
been created by the government so far, however, the
respondent was engaged to do barber works on daily wages.
Therefore, we are of the view that interest of justice would be
best met if the respondent is permitted to continue to work on
daily wages until a new post of "Barber" is created in the
hospital and a regular employee is appointed in the said post
or till the respondent attains the maximum age as per the
rule, whichever is earlier, if his employment on daily wages is
still continuing.
Accordingly, the original petition is disposed of, as
follows;
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a) The impugned order of the tribunal is set aside. The
respondent is permitted to continue to work on daily
wages until a new post of "Barber" is created in the
hospital and a regular employee is appointed in the said
post or till the respondent attains the maximum age as
per the rule, whichever is earlier, if his employment on
daily wages is still continuing.
b) Annex.R4(a) representation submitted by the respondent
for regularization of services shall be considered by the
petitioners within a period of three months from the date
of receipt of a certified copy of this judgment.
SD/-
A. MUHAMED MUSTAQUE
JUDGE
SD/-
SHOBA ANNAMMA EAPEN
JUDGE
bka/-
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APPENDIX OF OP(KAT) 368/2019
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE O.A.NO.1908/17 ALONG WITH
ANNEXURES BEFORE THE KERALA ADMINISTRATIVE
TRIBUNAL.
EXHIBIT P1(A1) TRUE COPY OF THE ORDER DATED 05.08.1988
ISSUED BY THE SUPERINTENDENT GENERAL
HOSPITAL THIRUVANANTHAPURAM SHOWING THAT
APPLICANT IS WORKING AS BARBER FROM
01.04.1980.
EXHIBIT P1(A2) TRUE COPY OF THE CERTIFICATE ISSUED BY
SUPERINTENDENT GENERAL HOSPITAL
THIRUVANANTHAPURAM DATED 21.04.2001.
EXHIBIT P1(A3 TRUE COPY OF THE ORDER NO.B2-77/2016/GHT
DATED 11.04.2017 ISSUING WAGES FOR THE
MONTH OF MARCH 2017 TO SRI.MOHANAN S.
EXHIBIT P1(A4) TRUE COPY OF THE ORDER NO.HDC 4166/2002/JH
DATED 11.02.
EXHIBIT P1(A5) TRUE COPY OF THE LETTER NO.B2-
2191/2014/GHT DATED 13.01.2017 ISSUED THE
2ND RESPONDENT.
EXHIBIT P1(A6) TRUE COPY OF THE LETTER DATED 11.04.2017
ISSUING REPRESENTATION TO THE 3RD
RESPONDENT FOR REGULARIZING THE POST OF
BARBER BY THE APPLICANT AT GENERAL
HOSPITAL THIRUVANANTHAPURAM.
EXHIBIT P2 TRUE COPY OF MISCELLANEOUS APPLICATION MA
NO.3315/2017 BY THE RESPONDENT TO ACCEPT
ADDITIONAL DOCUMENTS ALONG WITH EXHIBITS.
EXHIBIT P2(A7) TRUE COPY OF THE INTERIM ORDER PASSED IN
OA NO.1908/2017 DATED 09.10.2017 BY THE
TRIBUNAL.
EXHIBIT P2(A8) TRUE COPY OF THE ORDER PASSED BY THE 4TH
RESPONDENT WITH NO.B2-2191/2014/GHT DATED
NIL DIRECTING THE APPLICANT TO DO
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ADDITIONAL DUTY IN 9TH WARD.
EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BY
THE FOURTH PETITIONER AND ADOPTED BY THE
THIRD PETITIONER DATED 20.12.2017 ALONG
WITH EXHIBITS.
EXHIBIT P3 (R4)(A) TRUE COPY OF THE REPRESENTATION OF THE
APPLICANT DATED 23.09.2004.
EXHIBIT P3(R4)(B) TRUE COPY OF THE REPORT NO.B2/6309/04/GHT
DATED 08.12.2004.
EXHIBIT P3(R4)(C) TRUE COPY OF THE GOVERNMENT LETTER
NO.14821/F2/05/H&FWD DATED 08.06.2005.
EXHIBIT P4 TRUE COPY OF THE ORDER OF THE KERALA
ADMINISTRATIVE TRIBUNAL DATED 18.12.2018.
RESPONDENT EXHIBITS
Exhibit R1(a) TRUE COPY OF THE REQUEST SUBMITTED BY
RESPONDENT TO 4TH PETITIONER DATED
6.12.2021
Exhibit R1(b)2 TRUE COPY OF LETTER NO.B2-6309/2004/GHT
DATED 14.12.2021 OF 4TH PETITIONER
