Abdul Aziz and Others v. State of Kerala and Kalamassery Municipality and Director, Urban Affairs Department, Government of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 5TH DAY OF DECEMBER 2017/14TH AGRAHAYANA, 1939** **WP(C).No. 3180 of 2017 (V) ---------------------------** ## **PETITIONERS:** - **-----------** **1. ABDUL AZIZ,(SUBSTITUTE WORKER), S/O. ALI, AGED 43,PALLIKKAL, KALAMASSERY MEDICAL COLLEGE (VIA), KANGARAPADY.** **2. P.V MOHANAN(SUBSTITUTE WORKER), AGED 49,S/O. VAREED,POTTACHALIL HOUSE, CUSAT P.O., KALAMASSERY.** **3. AMBIKA MOHAN (SUBSTITUTE WORKER), AGED 54,W/O. MOHANAN, KAYIPURATH HOUSE, NEAR AQUINAS COLLEGE, EDAKOCHI.** **4. MUTHULAKSHMI RAJU(SUBSTITUTE WORKER), AGED 46,W/O. RAJU,PALLIPARAMBU, THAIKKATTUKARA P.O., VIDAKUZHA,** **KALAMASSERY.** **5. MINI VIJAYAN,(SUBSTITUTE WORKER), AGED 47, W/O. VIJAYAN,** **ILLATHUPARAMBU, PALLIANKARA, H.M.T. COLONY P.O., KALAMASSERY.** **6. OMANA MUKUNDAN,(SUBSTITUTE WORKER), AGED 53,W/O. MUKUNDAN, KARPPILLY MOOLA, UNIVERSITY P.O., KALAMASSERY** **7. K.K. BABU,(SUBSTITUTE WORKER) AGED 47,S/O. KUTTAPPAN, KOCHIKKARAN PARAMBIL, ELOOR NORTH,** **UDYOGAMANDAL P.O., ALUVA.** **8. ELSY SEBASTIAN,(SUBSTITUTE WORKER), AGED 52,W/O. SEBASTIAN, KADEPARAMBU TOG PASS ROAD, KALAMASSERY.** **9. C.V SREEDEVI(SUBSTITUE WORKER), AGED 47,W/O. VENU, MADATHUMKERI, POOKKATTUPADY,EDATHALA P.O.** **10. M.D MOLY (SUBSTITUE WORKER), AGED 47, W/O. SUNNY, PALLIPARAMBIL HOUSE, 12/1149, PANAYAPPILLY,COCHIN 2.** ## **WP(C).No. 3180 of 2017 (V) ---------------------------** **11. PRASAD T.R., (SUBSTITUTE WORKER), AGED 44 S/O RAGHAVAN, THOZHUTHINKAL HOUSE, EDAPPILLY P.O.** **BY ADVS.SRI.K.S.MADHUSOODANAN SRI.M.M.VINOD KUMAR SRI.P.K.RAKESH KUMAR SRI.K.S.MIZVER SMT.S.JESSIN** **RESPONDENTS:** - **-----------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY, LOCAL SELF GOVERNMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM 695 001.** **2. DIRECTOR, URBAN AFFAIRS DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM 695 033.** **3. KALAMASSERY MUNICIPALITY, CHANGAMPUZHA NAGAR P.O., ERNAKULAM PIN 682033, REPRESENTED BY SECRETARY.** **R1 & R2 BY GOVERNMENT PLEADER SRI.B.UNNIKRISHNA KAIMAL R3 BY SRI.M.K. ABOOBACKER,SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** ## **WP(C).No. 3180 of 2017 (V) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------EXHIBIT P1 PHOTOCOPY OF THE AWARD IN ID .33/99 DATED 25-08-2003 OF INDUSTRIAL TRIBUNAL ALAPPUZHA** **EXHIBIT P2 PHOTOCOPY OF THE JUDGMENT IN W.P(C).29462/07 DATED 4-10-2007 EXHIBIT P3 PHOTOCOPY OF THE JUDGMENT IN W.P(C) NO.6743/09 DATED 17-06-2009 EXHIBIT P4 PHOTOCOPY OF THE REQUEST BEARING NO.H/6473/07 DATED 16-2-2010 EXHIBIT P5 PHTOOCOPY OF ORDER BEARING NO E6549/10 DATED 23-06-10 EXHIBIT P6 PHOTOCOPY OF THE SENIOROTY LIST BEARING NO.H6473/07 PUBLISHED ON 18-1-11 EXHIBIT P7 PHOTOCOPY OF THE AGENDA WITH DECISION NO.2 DATED 4-12-2014 EXHIBIT P8 PHOTOCOPY OF THE RELEVANT EXTRACT OF AGENDA NO 11 DATED 17-12-2016 OF 3RD RESPONDENT EXHIBIT P9 PHOTOCOPY OF THE MEMORANDUM DATED 7-11-2016 SUBMITTED TO CHIEF MINSITER** **EXHIBIT P10 PHOTOCOPY OF THE G.O.(MS).2187/2017/LSGD DATED 29.6.2017 EXHIBIT P11 PHOTOCOPY OF THE G.O.(MS).2609/2017/LSGD DATED 28.7.2017 RESPONDENT(S)' EXHIBITS -----------------------** **NIL TRUE COPY** **P.S. TO JUDGE** **EL** ## **P.V.ASHA J.** ## **------------------------------------** ## **W.P.(C).No.3180 of 2017** ## **-------------------------------------** Dated this the 5[th] day of December, 2017 ## **J U D G M E N T** Petitioners are engaged as substitute workers under the Kalamassery Municipality right from July 1996 onwards. Their claim for regularization was referred for adjudication to the Industrial Tribunal Alapuzha, which passed Ext.P1 award on 25.08.2003 ## directing as follows: “By totally ignoring the constrains of the Management Municipality, this Tribunal cannot direct them to give permanency to the workmen awaiting later Government sanction. Therefore the only relief which can be given in the facts and circumstances is that whenever any Governmental sanction is obtained by the Municipality for the appointment of additional cleaning and sanitation workers, first preference shall be given to the workmen concerned depending upon their seniority position and age. Only after the exhausting list of temporary employees, the management Municipality will have the liberty to approach the local Employment Exchange for resorting to other mode of recruitment process. Such a direction is given because of the fact that there W.P.(C).No.3180 of 2017 2 shall not be any question of any pick and choose on any extraneous consideration because these workers are in employment for the last several years and their suitability is already proved.” 2. However, the directions in the award were not complied with. Thereafter, petitioners approached the Municipality as well as this Court in several writ petitions. Finally, as a result of the Exts.P2 and P3 judgments, the Municipality considered their claim and passed a resolution on 06.02.2010 to seek permission from Government for appointing the petitioners, who were working as sanitation workers in the Municipality, as substitute workers. Based on that the Municipality, had, on 16.02.2010, as per Ext.P4 letter, addressed the Government, requesting for permission to appoint the petitioners as substitute contingent workers. In this letter, it was pointed out that the available 17 contingent workers in the Municipality, were not sufficient for carrying out the work in the Municipality and that it had engaged 28 sanitation workers on daily wages in order W.P.(C).No.3180 of 2017 3 to meet the requirements. It was pointed out that the daily waged workers had requested for appointment and the Council considered their request in the light of the G.O.(MS).No.91/2001/LSG dated 29.03.2001, by which Government had permitted the Municipalities to appoint the sanitation workers as substitute workers, the Council had considered their request in the light of the directions contained in the judgments in W.P. (C).Nos.29462 of 2007 and 16743 of 2009 and decided to seek permission to appoint the petitioners as substitute workers. 3. The Director of Urban Affairs, had, as per Ext.P5 letter dated 23.06.2016, allowed the Municipality, to appoint the sanitation workers as substitute workers. The Municipality thereafter appointed the petitioners. In the seniority list of substitute workers, issued as per Ext.P6 Circular dated 16.01.2011 of the Secretary, petitioners were included between Sl. Nos.13 and 28. It was stated that they would be appointed as permanent W.P.(C).No.3180 of 2017 4 workers, as and when the vacancies arise. As a result of subsequent representations of the petitioners, the Municipality considered their case again on 4.12.2014 and as per Ext.P7 minutes, resolved to approach Government requesting for regularization of the sanitation workers, who had been working in the Municipality for more than 20 years and have crossed the age of 60 years. 4. Petitioners filed this writ petition alleging that the Government is not taking any action on the basis of the resolution forwarded to the Municipality. However, it was found that the Municipality had not forwarded the resolution to Government. On 08.03.2017, the interim order was passed, directing the Municipality to forward the resolution to Government and directing the Government to take a decision on the resolution within a period of two months from the date of the said resolution from the 3[rd] respondent. 5. Ext.P10 order is passed thereafter, by which W.P.(C).No.3180 of 2017 5 the Government rejected the request of the Municipality, saying that the appointment of substitute workers have to be made in accordance with the G.O.(MS) No.14/82/L.B.R dated 22.04.1982 and that such appointments are to be made by the Secretary with approval from the Council. As per the said Government Order, appointments are to be made from the list forwarded by the Employment Exchange and appointment of the permanent contingent workers in Municipalities are to be made from the list of substitute workers as and when vacancies arise on the basis of seniority. Therefore, it was stated that the request of the Municipality for regularizing the sanitation workers engaged in violation of the Government Order cannot be allowed as it was contrary to the judgment of the Apex Court. Petitioner has challenged Ext.P10 order amending the writ petition incorporating prayers for the same. 6. The first respondent has filed a counter affidavit, stating that the appointment of substitute W.P.(C).No.3180 of 2017 6 workers are to be made after preparing reserve list through Employment Exchange, as per Government Order dated 22.04.1982, as stated in the order Ext.P10. According to the first respondent, as and when regular vacancies arise in the contingent establishment substitute workers are to be appointed in each category based on the seniority in the list. It is also stated that no regularization can be made, contrary to the judgment of the Apex Court in **State of Karnataka v. Umadevi and others** [2006 (4) SCC 1] and petitioners, who were engaged as daily waged/adhoc/casual for long periods cannot have any right to get regularized. 7. Heard the learned counsel for the petitioner and the learned Government Pleader. 8. Ext.P1 is an award passed by the Industrial Tribunal, Alapuzha in ID No.33 of 1999, in respect of 26 casual employees with more than three years continuous service. The issue referred for adjudication was in respect of their claim for W.P.(C).No.3180 of 2017 7 regularization in the Kalamassery Municipality as cleaning and sanitation workers. The 26 casual employees referred to therein include the petitioners. In view of the directions contained in the award the Government cannot say that petitioner's cannot be either regularized or that they do not have any right as long as they did not come through Employment Exchange. The direction in Ext.P1 award was to resort to appointment through Employment Exchange only after exhausting the list of petitioners-the workmen referred to in that case. More over, it is seen that their engagement was made with the approval of the Director of Urban Affairs, as can be seen from Ext.P5 order. Ext.P6 list was published including their name in it in tune with the directions issued by the Government and the approval of the Director of Urban Affairs. As the petitioners have been working in the Municipality since 1996 and even according to the Municipality those persons were not sufficient to meet the requirements then, it is W.P.(C).No.3180 of 2017 8 only proper that the Government sanctioned necessary posts for making the appointment of the petitioners permanent as directed in Ext.P1 award. Therefore, Ext.P10 is set aside, Government shall pass fresh orders sanctioning the requisite number of posts so as to enable the Municipality to regularize the petitioners in the post of sanitation workers in the contingent wing, within a period of 'two months' from the date of receipt of a copy of the judgment. The Municipality shall issue further orders within a further period of 'one month' and to grant all consequential benefits to petitioners. The writ petition is allowed to the above extent. Sd/- **P.V.ASHA, JUDGE.** AS