Abdul Salam N.P. and others v Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN FRIDAY, THE 21[ST] DAY OF JULY 2023 / 30TH ASHADHA, 1945** **WP(C) NO. 10885 OF 2014** ## **PETITIONERS:** 1 ABDUL SALAM.N.P. AGED 38 YEARS S/O.LATE SRI P KUNHIKOYA,CASUAL LABOURER,POWERHOUSE,KALPENI,RESIDING AT NENMPAPPADA HOUSE,KALPENI,UT OF LAKSHADWEEP 2 C.K ATTAKOYA AGED 41 YEARS S/O.LATE SRI HAMZA M,CASUAL LABOPURER,POWERHOUSE,KALPENI,RESIDING AT CHAKAKEEL HOUSE,KALPENI,UT OF LAKSHADWEEP 3 P MOHAMMEDSO.C.O KHALIDCASUAL LABOURERPOWERHOUSEKALPENIRESIDING AT POKKAYODE HOUSEKALPENI UT AGED 44 YEARS 4 HAMZA KOYA P AGED 47 YEARS S/O.LATE P.V SYED MOHAMMED KOYA,CASUAL LABOPURER,POWERHOUSE,KALPENI,RESIDING AT PALLATH HOUSE,KALPENI BY ADVS. SRI.M.R.HARIRAJ SMT.M.A.JINSA MOL SRI.P.A.KUMARAN SRI.NIRMAL V NAIR SRI.K.RAJAGOPAL SMT.VINEETHA B. ## **RESPONDENTS:** 1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVT. OF INDIA,MINISTRY OF HOME AFFAIRS,NEW DELHI PIN 110001 2 THE ADMINISTRATOR UNION TERRITORY OF LAKSHADWEEPKAVARATTI,PIN 682 555 WP(C) NO. 10885 OF 2014 :-2-: 3 EXECUTIVE ENGINEER DEPARTMENT OF ELECTRICITY,KAVARATTI,UT OF LAKSHADWEEP 4 JUNIOR ENGINEER ELECTRICAL SECTION,KALPENI,UT OF LAKSHADWEEP ADMINISTRATOR,UNION TERRITORY OF LAKSHADWEEP,KAVARATTI 5 VILLAGE DWEEP PANCHAYAT KADMAT ISLAND,UT OF LAKSHADWEEP 682 556,REPRESENTED BY ITS CHAIRPERSON BY ADVS. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA SRI.MANU.S, CGC, ADMINISTRATION OF THE UNION TERRITORY OF LA SAJITH KUMAR V.(K/373/2000) SAJITH KUMAR V.(K/373/2000) SRI.MANU.S, CGC, ADMINISTRATION OF THE UNION TERRITORY OF LA SHRI.P.VIJAYAKUMAR, ASG OF INDIA SAJITH KUMAR V.(K/373/2000) ## **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) NO. 10885 OF 2014 :-3-: ## **J U D G M E N T** Petitioners have filed this writ petition with the following prayers:- - “i)To issue a writ of mandamus or other appropriate writ, order or direction commanding the respondents to engage the petitioners as casual labourers under the 5th respondent in preference to freshers and juniors and to continue them in service without artificial breaks: - ii)To issue a writ of mandamus or other appropriate writ, order or direction commanding the respondents to consider the petitioners for regular absorption under the department of electricity considering their long service and experience;” 2. The case of the petitioners is as follows:- The petitioners had been working under the fourth respondent- Junior Engineer, Electrical Section, Kalpeni, Union Territory of Lakshadweep on contract basis from 1.12.2003 onwards to perform works of Oilmen and linemen in the Department of Electricity. Though various contractors were engaged in between, the petitioners continued to work under the fourth respondent and this was because WP(C) NO. 10885 OF 2014 :-4-: the work performed by them was those demanding special knowledge and qualification. The petitioners are all matriculates and they also have Diploma from ITI in the trade of Electrician, Mechanical Engineering, Wireman etc. They are given artificial breaks at the end of 89 days of service and then continued again for another stint of 89 days. This has been continuing for the last one decade. The petitioners have continuous service from the date of their engagement till 01.12.2012. From 01.12.2012 onwards, the respondents have adopted the method of creating an artificial break in service after 89 days each in order to defeat the claims for regularisation. The petitioners are entitled to be included in the list of casual labourers who are having specialised qualifications. According to the petitioners, the petitioners are workmen within the meaning of the term under the Industrial Disputes Act. They ought not to be terminated from service without following the procedure established under the law. Knowing about the move to terminate the service of the petitioners without considering their long service, the first petitioner filed Ext.P3 WP(C) NO. 10885 OF 2014 :-5-: representation before the fourth respondent. As per Ext.P2 interim order dated 03.07.2013, the Tribunal, in a batch of cases, directed that the casual labourers under the administration shall be grouped into five. Those with more than ten years of service and those inducted with qualification of matriculation and other specialised courses were directed to be continued until further orders. Those engaged under various schemes were directed to be rotated as per the schemes. Those, who do not fall under any of the said categories, were directed to be disengaged and replaced with the others in the waiting list. According to the petitioners, the petitioners are entitled to be included in the list of casual labourers inducted with specialised qualifications. When the petitioners came to know about the move to terminate the services without considering the long service, the first petitioner filed Ext.P3 representation before the fourth respondent. Apprehending that giving a restricted meaning to Ext.P2 interim order, the petitioners filed O.A.952/2013 before the Central Administrative Tribunal, Ernakulam Bench. Thereafter, as per Ext.P4 interim order, the Tribunal WP(C) NO. 10885 OF 2014 :-6-: directed the respondents not to disengage the petitioners till the disposal of the original application. However, the original application was finally heard along with connected matters and final orders were passed as per Ext.P5 stating that since the petitioners were engaged by the fifth respondent Kalpeni Village Dweep Panchayath, the Tribunal had no jurisdiction to entertain the original application as the fifth respondent is not an authority notified under the Act. Aggrieved by the same, the petitioners have approached this Court with the above writ petition. 3. The respondents 2 to 4 had filed counter affidavit refuting the allegations raised in the writ petition. It is contended in the counter affidavit that the averments in the petition that they have remaining ten years of service and they had passed the best years of their life in service of the respondents and will find it impossible to aspire for any other jobs at the stage of their life cannot be accepted as it has already been stated by the Secretary (Panchayath), Directorate of Panchayath that there is no room for any sympathy for WP(C) NO. 10885 OF 2014 :-7-: such casual labourers even if they had continued in service for a large number of years, which policy is perfectly in tune with the judgment of the Apex Court in the decision reported in **State of Karnataka** v. **Umadevi** [(2006) 4 SCC 1]. 4. Heard the learned counsel for the petitioners as well as the learned standing counsel for the respondents. 5. Along with the counter affidavit, the Learned Standing Counsel for respondents 2 to 4 also produced order passed by the Central Administrative Tribunal as Ext.R1(c), the judgment in OP(CAT) No. 133/2012 of this court produced as Ext.R1(d) and the judgment of this Court in W.P(C) 5289 of 2015 produced as Ext.R1(e). 6. On a perusal of judgment in W.P(C) No.5289 of 2014 produced as Ext.R1(e), it is seen that the issue of similarly situated persons was considered by this Court and it was held that the scheme for appointment for 89 days in respect of the casual labourers is consistent with Articles 14 and 16 of the Constitution of India so that the public employment, which is the wealth of the nation, can be WP(C) NO. 10885 OF 2014 :-8-: shared by the unemployed persons by rotation. It was further held that the petitioners, who were selected by pick and choose method, cannot have any valid claim for regularisation or continued engagement when several unemployed hands are awaiting appointments. 7. Following the judgment in **Hidayathulla and others** v. **Administration of the Union Territory of Lakshadweep and others** (W.PC Nos.5289 of 2015 and 26748 of 2018) [2018:KER:4199] produced as Ext.R1(e), I am of the view that this writ petition, which is also filed by similarly situated persons, deserves to be dismissed. Accordingly, the writ petition is dismissed. However, I leave open all statutory rights, available to the petitioners. Sd/- **SHOBA ANNAMMA EAPEN, JUDGE** MBS/ WP(C) NO. 10885 OF 2014 :-9-: ## **APPENDIX OF WP(C) 10885/2014** ## **' - PETITIONERS EXHIBITS:** EXHIBIT P1: A TRUE COPY OF THE RESPONSE NO 8/1/KE/2001/1656 DATED 20-06-2013 UNDER THE RIGHT TO INFORMATION ACT ISSUED TO THE 3RD PETITIONERS EXHIBIT P2: A TRUE COPY OF INTERIM ORDER DATED 3-07-2013 IN O.A 601/2013 AND CONNECTED CASES EXHIBIT P3: A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONERS EXHIBIT P4: A TRUE COPY OF THE INTERIM ORDER DATED 4-10-2013 IN OA 952/2013 ON THE FILES OF THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH EXHIBIT P5: A TRUE COPY OF FINAL ORDER DATED 6-3-2014 IN O.A 952/2013 AND CONNECTED CASES EXHIBIT P6: A TRUE COPY OF THE LABOUR REGISTER FOR WARDS 2 OF KALPENI ISLAND EXHIBIT P7: A TRUE COPY OF THE LABOUR REGISTER FOR WARDS 3 OF KALPENI ISLAND EXHIBIT P8: A TRUE COPY OF THE LABOUR REGISTER FOR WARDS 7 OF KALPENI ISLAND **RESPONDENTS' EXHIBITS** : EXHIBIT R1(A) A TRUE COPY OF CIRCULAR F.NO.5/6/2003-DOP & RD DATED 12.11.2003 ISSUED BY THE ADMINISTRATION. EXHIBIT R1(B) A TRUE COPY OF THE F.NO.5/26/2003-DOP & RD DATED 04.11.2008 REVISING THE INSTRUCTIONS DATED 12.11.2003 ISSUED BY THE ADMINISTRATION. EXHIBIT R1(C) A TRUE COPY OF THE ORDER DATED 17.08.2009 IN OA NO.611/2008 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT R1(D) A TRUE COPY OF THE COMMON JUDGMENT OF THE WP(C) NO. 10885 OF 2014 :-10-: HON'BLE HIGH COURT OF KERALA IN OP (CAT) NO.133 OF 2012 AND 606/2012. EXHIBIT R1(E) A TRUE COPY OF THE COMMON JUDGMENT IN W.P.(C) NO. 5289 OF 2015 AND W.P.(C) 26748 OF 2018. EXHIBIT R1(F) A TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.5524 OF 2015. EXHIBIT R1(G) A TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.5551 OF 2015.