Ajeena Beegum H. & Others v. State of Kerala & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : **THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.T.SANKARAN** TUESDAY, THE 15TH JANUARY 2008 / 25TH POUSHA 1929 **WA.No. 112 of 2008** **--------------------** _( AGAINST THE JUDGEMENT IN WPC.27782/2007 Dated 07/11/2007 )_ APPELLANTS/ PETITIONERS 4, 9,12,13, 20, 22, 24, 25, 30, 32 TO 35 & 38: ---------------------------------------------------------------------------------------------------------- 1. AJEENA BEEGUM H., JUNIOR ASSISTANT, KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION LTD., THIRUVANANTHAPURAM, RESIDING AT ANEEJA MANZIL, EAYAMIKUNNU P.O., PULAMON P.O., KOTTARAKKARA. 2. MINIMOL V., JUNIOR ASSISTANT, KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION LTD., THIRUVANANTHAPURAM, RESIDING AT KRISHNA MANDIRAM, VADACKAL P.O., ALAPPUZHA. 3. MANJU T.T., JUNIOR ASSISTANT, KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION LTD., THIRUVANANTHAPURAM, RESIDING AT SAJI BHAVAN, PANACKAL, ALIYADU P.O., VENJARAMOODU, THIRUVANANTHAPURAM. 4. SHEEBA S., JUNIOR ASSISTANT, KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION LTD., THIRUVANANTHAPURAM, RESIDING AT SHEEBA MANZIL, TC 65/67(1), NEAR V.H.S.S., THIRUVALLAM P.O., THIRUVANANTHAPURAM. 5. SEEMA K.NAIR, JUNIOR ASSISTANT, KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION LTD., THIRUVANANTHAPURAM, RESIDING AT VADAKKATHIL PUTHEN VEEDU, GANDHI NAGAR-41, ASRAMAM P.O., KOLLAM. 6. KAVITHA S.L., JUNIOR ASSISTANT, KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION LTD., THIRUVANANTHAPURAM, RESIDING AT PANICHEL VEEDU, KARIYAM, POWDIKONAM P.O., THIRUVANANTHAPURAM. **WA.No. 112 of 2008** 7. RAKESH M., JUNIOR ASSISTANT, KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION LTD., THIRUVANANTHAPURAM, RESIDING AT PUNNAVILA VEEDU, PADINJATTINKARA, KOTTARAKKARA. 8. R.RADHIKA, JUNIOR ASSISTANT, KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION LTD., THIRUVANANTHAPURAM, RESIDING AT RADHIKA BHAVAN, KALLELI BHAGOM P.O., KARUNAGAPPALLY, KOLLAM. 9. AJITHA KUMARI J.T., JUNIOR ASSISTANT, KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION LTD., THIRUVANANTHAPURAM, RESIDING AT SUKUMAR COTTAGE, KAZHIVOOR, KAZHIVOOR P.O., THIRUVANANTHAPURAM. 10. SIVAPRIYA R.V., JUNIOR ASSISTANT, KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION LTD., THIRUVANANTHAPURAM, RESIDING AT 'RAJASREE', TC 41/329, KURIYATHY, MANACAUD P.O., THIRUVANANTHAPURAM. 11. BINU V.GOPAL, JUNIOR ASSISTANT, KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION LTD., THIRUVANANTHAPURAM, RESIDING AT BLUE MOUNT, CHEMPAZHANTH P.O., THIRUVANANTHAPURAM. 12. ANJANA L.S., RECORD KEEPER, KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION LTD., THIRUVANANTHAPURAM, RESIDING AT ANJANA VILASOM, MARUTHOOR, VATTAPARA P.O., THIRUVANANTHAPURAM. 13. SANOOJA A., RECORD KEEPER, KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION LTD., THIRUVANANTHAPURAM, RESIDING AT THEKKINAKATHU VEEDU, PRAVACHAMBALAM, NEMOM P.O., THIRUVANANTHAPURAM. 14. INDIRA P., SWEEPER, KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION LTD., THIRUVANANTHAPURAM, RESIDING AT VIJAY BHAVAN, TC 15/1915, VOLTAS LANE, VAZHUTHACAUD, THIRUVANANTHAPURAM. BY ADV. SRI.P.B.SURESH KUMAR ADV. SRI.LEO GEORGE **WA.No. 112 of 2008** ## RESPONDENTS: RESPONDENTS --------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT, TRANSPORT DEPARTMENT, GOVT. OF KERALA, THIRUVANANTHAPURAM. 3. KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION LTD., REPRESENTED BY ITS MANAGING DIRECTOR, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM-695 023. 4. THE MANAGING DIRECTOR, KERALA TRANSPORT DEVELOPMENT FINANCE CORPN. LTD., TRANSPORT BHAVAN, FORT,THIRUVANANTHAPURAM-695 023. BY GOVERNMENT PLEADER SHRI K. SANDESH RAJA. BY ADV. SHRI K.R.B. KAIMAL (Sr.) BY ADV. SHRI B. UNNIKRISHNA KAIMAL. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15/01/2008 ALONG WITH W.A.No. 94 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K. BALAKRISHNAN NAIR & K.T. SANKARAN, JJ.** **................................................................................... W.A. Nos. 112 & 94 OF 2008 ...................................................................................** _**Dated this the 15[th] January, 2008**_ ## **J U D G M E N T** ## **Balakrishnan Nair, J:** The appellants in these two appeals were employees of the third respondent-Corporation. They were engaged by the Corporation without inviting applications or calling for candidates from the Employment Exchange. In other words, they were directly recruited from open market from time to time without any reference to merit or giving any chance to other similarly placed candidates, who are entitled to be considered for appointment to the posts to which the appellants were appointed. In short, they were back door entrants. The Corporation was permitted to regularise them in service by Ext.P5 Government Order dated 22.02.2006. ( W.A.No. 112 of 2008 is treated as the main case for the purpose of reference to Exhibits). Later, the Government reviewed Ext.P5 order and cancelled it by Ext.P7 order dated 12.02.2007. The said order was challenged by the appellants herein and other affected employees before this Court by filing W.P(C).No. 5122 of 2007 and connected cases. Those Writ Petitions were allowed by Ext. P8 judgment dated 13[th] July 2007, on the ground that Ext. P7 order was passed in violation of the principles of natural justice. The Government were given liberty to pass fresh orders, after affording an opportunity of being heard to the affected persons. The **W.A. Nos. 112 & 94 OF 2008** **2** contentions of both sides were kept open. The Government, after hearing both sides, passed Ext.P12 order dated 10.09.2007, holding that Ext. P5 order is an illegal order and therefore cancelled it. Thereafter, the Government issued Ext. P13 series consequential orders to all the affected employees. They challenged Exts, P12 and P13 series orders before this Court by filing W.P.(C) No.27781 of 2007 and connected cases. Those Writ Petitions were heard together and dismissed by the learned single Judge, by the common judgment dated 07.11.2007. Hence these appeals. 2. Learned counsel Shri P.B. Sureshkumar appearing for the appellants canvassed only three points before us. The learned counsel, firstly, pointed out that the judgment under appeal was rendered by the learned single Judge mainly relying on the Apex Court's decision in _**Secretary of State, State of Karnataka vs. Uma Devi**_ **[ 2006 (4) SCC 1].** But, according to him, the employees are entitled to get the protection given in paragraph 53 of that judgment . The said paragraph reads as follows: _“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._ **W.A. Nos. 112 & 94 OF 2008** **3** _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 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 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.” [Emphasis supplied.]_ The Learned counsel submitted that the benefit flowing from the above said para, has been wrongly denied by the learned single Judge. The contention taken, relying on paragraph 53 of the judgment in “ _**Umadevi**_ ” (supra), by the petitioners before the learned single Judge, has been dealt with in paragraph 18 of the judgment under appeal. The contention of the petitioners was that the observation made by the Apex Court that the regularisation made earlier _“need not be reopened based on this judgment”,_ is mandatory and the Government are **W.A. Nos. 112 & 94 OF 2008** **==> picture [7 x 9] intentionally omitted <==** bound to respect that. But, the learned single Judge took the view that, in fact, the Apex Court left the matter to the wisdom of the Government or the public authority concerned. The above observations do not come in the way of the competent authority from reviewing the order, if it thinks fit, it was held. We are of the view that the said finding of the learned single Judge is perfectly legal and valid. We concur with the reasoning and conclusion arrived at by the learned single Judge on this aspect. The Apex Court has only stated that the regularisation of casual employees made earlier need not be reopened on the strength of the said judgment. It does not preclude the Government from doing it suo motu. While re-opening regularisation of illegal appointees, if the Government incidentally rely on the principles laid down in the decision in “ _**Umadevi**_ ” (supra), the same cannot be said to be illegal. 3. Secondly, the learned counsel for the appellants contended that the decision of the learned single Judge on contention (b), made in paragraph 20 of the judgment, is unsustainable. The learned counsel for the petitioners/appellants, relying on a passage of Wade and Forsyth on Administrative Law and also the passage from Craig on Administrative Law, submitted that any administrative decision affecting the legal rights of persons cannot be reopened according to the whims and fancies of the decision makers. Finality should be attributed to such decisions also. The learned authors cannot **5** ## **W.A. Nos. 112 & 94 OF 2008** be understood as having attributed finality to all decisions. Ultra vires decisions will not be saved by the opinion of the learned authors. In the case on hand, appointments were made in violation of fundamental rights of the citizens guaranteed under Articles 14 and 16 of the Constitution of India. The decision to appoint the appellants and the further decision to regularise them were grossly arbitrary and unsupportable in law. The learned single Judge also noticed the general principles laid down in _**Secretary of State, State of Karnataka vs. Uma Devi**_ **[ 2006 (4) SCC 1]** and thereafter held that the decision rendered in gross violation of the constitutional mandate cannot claim any finality and thus overruled the contentions mentioned above. We fully endorse the above view of the learned single Judge. The appellants were selected without following any process of selection known to law. They are plainly back door entrants who have no right to claim regularisation in public employment. Therefore, the principles laid down by the learned authors in Wade and Forsyth on Administrative Law or Craig on Administrative Law are not applicable to the facts of this case. So, the learned single Judge rightly rejected the said contention. 4. Finally, the learned counsel for the appellants relied on the recent decision of the Apex Court in _**U.P. State Electricity Board vs. Pooran Chandra Pandey**_ **[2007 (4) KLT 513]** and submitted that the decision of two **6** ## **W.A. Nos. 112 & 94 OF 2008** Judges' Bench of the Apex Court has distinguished the decision in _**Secretary of State, State of Karnataka vs. Uma Devi**_ **[ 2006 (4) SCC 1]** and held that all the observations in that decision are not binding. We notice that the decision in “ _**U.P. State Electricity Board**_ “ (supra) has been rendered on the special facts of that case. The general principles laid down in _**Umadevi's**_ case apply with full force in the case on hand. Therefore, the contention of the learned counsel in this regard cannot be accepted . No other point was urged. In the result, the Writ Appeals fail and they are dismissed. **K. BALAKRISHNAN NAIR, JUDGE.** **K.T. SANKARAN, JUDGE.** **lk**