IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27077 of 2008(W)
1. P.MANOJ, S/O.VASUDEVAN NAIR,
... Petitioner
Vs
1. THE PRINCIPLE SECRETARY TO GOVERNMENT,
... Respondent
2. THE DIRECTOR, INSTITUTE OF MANAGEMENT
3. THE REGIONAL DIRECTOR, REGIONAL CENTRE,
4. THE INSTITUTE OF MANAGEMENT IN
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent :SRI.R.S.KALKURA
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :18/10/2010
O R D E R
T.R.RAMACHANDRAN NAIR, J.
--------------------------
WP(C) No.27077 of 2008 (W)
--------------------------
Dated, this the 18th day of October, 2010
J U D G M E N T
Petitioner is aggrieved by the order, Ext.P8, whereby the
request to regularize the petitioner’s service as Gardner under the
3rd respondent has been rejected by the Government.
2. The petitioner was initially appointed as Gardner on
19/09/1995 and has been continuing on daily wages thereafter.
The petitioner had been moving various authorities seeking
regularization and by Ext.P2 judgment dated 24/11/2005 in WP(C)
No.14170/1999, his claim was directed to be considered, which was
rejected as per Ext.P3 order. Later the petitioner moved the Chief
Minister challenging Ext.P3. The request was forwarded to the 4th
respondent and the 4th respondent by Ext.P5 intimated the
Government that they are ready to absorb the daily waged
employees if the Government accords sanction for the same on
humanitarian considerations. Ext.P6 is a further representation,
which was also directed to be disposed of by Ext.P7 judgment.
WP(C) No.27077/2008
-2-
3. In Ext.P8 order, it is mainly pointed out that the
petitioner was appointed on daily wages and the Government have
also decided to bring all appointments in the IMG within the purview
of the Kerala Public Service Commission, as per notification dated
18/02/2008.
4. Learned counsel for the petitioner submitted that the
judgment Ext.P7, in paragraph 2, directs the Government to
consider the representation, keeping in mind, the observations of
the Supreme Court in paragraph 53 of the judgment in State of
Karnataka v. Ms.Umadevi (2006(4) SCC 1). In the operative portion
of the judgment also, the same directions have been issued. It is
pointed out that a reading of Ext.P8 order will show that the
Government has not considered the same, as is evident from
paragraph 3 of the order.
5. On a reading of the order Ext.P8, it is evident from para
3, that the Government was of the view that the petitioner is not
entitled to get regularization in the light of the directions in
Umadevi’s case, as he was appointed purely on daily wage basis.
6. For easy reference, paragraph 53 of the judgment of the
Apex Court in Umadevi’s case is extracted below :-
WP(C) No.27077/2008
-3-
“One aspect needs to be clarified. There may be cases
where irregular appointments (not illegal appointments) as
explained in S.V.Narayanappa, R.N.Nanjundappa and
B.N.Nagarajan and referred to in para 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 the courts or of tribunals.
The question of regularisation 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 abovereferred 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
regularise 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 the courts or of
tribunals and should further ensure that regular recruitments are
undertaken to fill those vacant sanctioned 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 regularisation, if
any already made, but not sub judice, need not be reopened based
on this judgment, but there should be no further bypassing of the
constitutional requirement and regularising or making permanent,
those not duly appointed as per the constitutional scheme.”
Evidently, the Apex Court was considering cases of regularization of
employees, who have completed ten years in service, and their
regularization was directed as a one-time measure. The cases,
which were directed to be considered stand on a different footing.
Merely because the petitioner was appointed on daily wages, that
WP(C) No.27077/2008
-4-
cannot be a ground to reject consideration of the matter in the light
of the principles in Umadevi’s case.
7. Learned Government Pleader submitted that the
Government had passed an order in the year 2002 refusing to
regularize provisional employees in various services, and therefore
the same principle applies as far as the petitioner is concerned. It is
further pointed out that since the Kerala Public Service Commission
is entrusted with the function to make regular appointments, the
petitioner is not entitled for regularization. But these aspects
cannot absolve the Government from considering the issue in the
light of the directions issued in Ext.P7 judgment to consider his case
in the light of paragraph 53 of the judgment in Umadevi’s case
(2006(4) SCC 1).
In that view of the matter, Ext.P8 is set aside, and there will be
a direction to the Government to reconsider the matter, and
appropriate orders will be passed after hearing the petitioner, within
a period of four months of receipt of a copy of this judgment.
This writ petition is disposed of as above.
(T.R.RAMACHANDRAN NAIR, JUDGE)
jg