IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20728 of 2010(M)
1. ARUN P.V. UTHAMAN,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. THE DIRECTOR OF YOUTH SPORTS,
3. P.R.ASWANI RAJ,
4. THE EMPLOYMENT OFFICER,
For Petitioner :SMT.SREEDEVI KYLASANATH
For Respondent : No Appearance
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :23/07/2010
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) Nos.7473 & 20728 of 2010
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Dated this the 23rd day of July 2010
J U D G M E N T
Ext.P1 is the proceedings of the 2nd respondent
appointing the petitioner as a Physiotherapist in the scale of
Rs.1640-2960 in the Rajiv Gandhi Sports Medicine Centre,
Directorate of Sports & Youth Affairs, Vellayambalam,
Thiruvananthapuram. The appointment was on temporary
basis for a period of 179 days or till a permanent hand join
duty whichever is earlier. The petitioner continued in
service on that basis. Subsequently, Ext.P2 order was
issued on 12.10.1998 ratifying the action of the 2nd
respondent having allowed the petitioner to continue in
service and according sanction for utilizing his services on
daily wages or contract basis, till a suitable hand from the
Public Service Commission or Employment Exchange joins
W.P.(C) Nos.7473 & 20728 of 2010
-: 2 :-
duty. Again Ext.P3 and Ext.P4 orders were issued on
8.1.2003 and on 14.7.2008, reappointing the petitioner
provisionally subject to the earlier conditions. On this basis,
petitioner is continuing in service without any break.
2. According to the petitioner, steps were being
taken to terminate him and make fresh appointment
through Employment Exchange. It was on that basis the
writ petition was filed seeking an order for his
regularization and continuance in service. While admitting
this writ petition taking note of the long continuance of the
petitioner in service, this Court directed that he be retained
in service until further orders.
3. The additional 3rd respondent who got himself
impleaded in this writ petition submits that by Ext.R3(a),
the Employment Exchange invited applications from
Physiotherapists and being an eligible candidate, he also
submitted his application to the said post. Referring to
Ext.R3(b), the information obtained under the provisions of
W.P.(C) Nos.7473 & 20728 of 2010
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Right to Information Act, it is stated that he has been
sponsored for appointment under the 1st respondent against
a post reserved for Ezhava/Thiyya/Billava category. It is
contended that since the petitioner’s appointment was time
bound and subject to the condition of being replaced by
PSC/Employment Exchange hands, and as the additional 3rd
respondent has been sponsored, the petitioner is bound to
vacate the post. The learned Government Pleader filed a
counter affidavit on behalf of the 2nd respondent submits
that though the petitioner was initially engaged from 1998,
his continuance in the post was on account of the fact that
despite notifying the post no suitable candidate could be
selected. It is stated that since the appointment was
conditional and time bound, either on the satisfaction of the
condition specified or on expiry of the period, the petitioner
is bound to vacate the post.
4. Even as on date, qualifications for the post has not
been prescribed and therefore, posts that are created under
W.P.(C) Nos.7473 & 20728 of 2010
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the 1st respondent have not been notified to the PSC for
initiating recruitment process. Therefore, until then the
post will have to be occupied by persons sponsored by the
Employment Exchange. So far as the petitioner is
concerned, though his continuance was subject to the
conditions incorporated in the appointment orders, fact
remains that he is continuing in service since 1998. He
satisfies the qualification notified by the Employment
Exchange and he was selected in an interview that was
conducted by the Employment Exchange and his
appointment is to a sanctioned post. Therefore, at best his
appointment is an irregular one and is not illegal one.
5. Petitioner having continued in service for more
than 10 years and that too without any intervention of the
court, prima facie, in my view, this is a case entitled to the
exemption indicated by the Apex Court in Paragraph 44 of
the judgment reported in Secretary, State of Karnataka
& Ors. v. Umadevi & Ors. [A.I.R 2006 SC 1806] which
W.P.(C) Nos.7473 & 20728 of 2010
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reads as thus :-
“One aspect needs to be clarified. There may be
cases where irregular appointments (not illegal
appointments) as explained in S.V.Narayanappa
(Supra), R.N.Nanjundappa (Supra), and
B.N.Nagrajan (Supra), and referred to in
paragraph 15 above, of duly qualified persons in
duly sanctioned vacant posts might have been
made and the employees have continued to work
for ten years or more but without the intervention
of orders of courts or of tribunals. The question
of regularization of the services of such
employees may have to be considered on merits
in the light of the principles settled by this Court
in the cases above referred to and in the light of
this judgment. In that context, the Union of
India, the State Governments and their
instrumentalities should take steps to regularize
as a one time measure, the services of such
irregularly appointed, who have worked for ten
years or more in duly sanctioned posts but not
under cover of orders of courts or of tribunals and
should further ensure that regular recruitments
are undertaken to fill those vacant sanctioned
W.P.(C) Nos.7473 & 20728 of 2010
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posts that require to be filled up, in cases where
temporary employees or daily wagers are being
now employed. The process must be set in
motion within six months from this date. We also
clarify that regularization, if any already made,
but not sub judice, need not be reopened based
on this judgment, but there should be no further
by-passing of the constitutional requirement and
regularizing or making permanent, those not duly
appointed as per the constitutional scheme.”
Therefore, I direct the 1st respondent to consider the case of
the petitioner for regularization of him in the manner as
indicated in paragraph 44 of the judgment referred to
above. This shall be done as expeditiously as possible, at
any rate, within 3 months from the date of production of a
copy of this judgment and in the meanwhile status quo as on
date in so far as his continuance of service shall be
maintained.
6. In so far as, additional 3rd respondent is
concerned, he has also filed Writ Petition No.20728 of 2010
W.P.(C) Nos.7473 & 20728 of 2010
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praying that he shall be appointed to the post of
Physiotherapist under the 1st respondent mentioned above.
Now with the aforesaid direction in favour of the petitioner
in W.P.(C) No.7473/2010 has been issued, as far as the
petitioner in W.P.(C) No.20728/2010 is concerned, it is
directed that his case for appointment will be considered by
the 2nd respondent if there is a vacant post existing and
without disturbing the petitioner in W.P.(C) No.7473 of
2010.
Writ petition is disposed of as above.
ANTONY DOMINIC, JUDGE.
Jvt