Anith Kumar Chathoth v. Principal Secretary to Government, Local Self Government Department (Rural Development), Government Secretariat, Thiruvananthapuram; Commissioner for Rural Development, Commissionerate for Rural Development, SwaraJ Bhavan, Thiruvananthapuram; Poverty Alleviation Unit (formerly District Rural Development Agency), District Panchayath, Malappuram District, represented by its Project Director; Project Director, Poverty Alleviation Unit (formerly District Rural Development Agency), District Panchayath, Malappuram District

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 31ST DAY OF MAY 2018 / 10TH JYAISHTA, 1940** **WP(C).No. 5476 of 2017** ## **PETITIONER(S)** **ANITH KUMAR CHATHOTH, AGED 45 YEARS, COMPUTER OPERATOR, POVERTY ALLEVIATION UNIT (FORMERLY DISTRICT RURAL DEVELOPMENT AGENCY) DISTRICT PANCHAYATH, POST BOX NO. 9, UP HILL, MALAPPURAM DISTRICT, S/O.BALAN NAIR, CHATHOTH HOUSE, QUILNADY, KOZHIKODE DISTRICT.** **BY ADVS.SRI.SANTHARAM.P SRI.K.A.MOHAMED HARIS** ## **RESPONDENT(S) :** **1. THE PRINCIPAL SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT(RURAL DEVELOPMENT)IN KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. COMMISSIONER FOR RURAL DEVELOPMENT, COMMISSIONERATE FOR RURAL DEVELOPMENT , SWARAJ BHAVAN, NANTHANCODE, THIRUVANANTHAPURAM.** ## **3. POVERTY ALLEVIATION UNIT** **(FORMERLY DISTRICT RURAL DEVELOPMENT AGENCY), DISTRICT PANCHAYATH, POST BOX NO.9, UP HILL, MALAPPURAM DISTRICT, REPRESENTED BY ITS PROJECT DIRECTOR.** **4. PROJECT DIRECTOR, POVERTY ALLEVIATION UNIT(FORMERLY DISTRICT RURAL DEVELOPMENT AGENCY), DISTRICT PANCHAYATH, POST BOX NO.9, UP HILL, MALAPPURAM DISTRICT-673 001.** **BY SR.GOVERNMENT PLEADER SRI.BIJOY CHANDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-05-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** **11.06.2018** **WP(C).No. 5476 of 2017 (H)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE JUDGMENT OF THIS COURT DATED 19/19/2016 IN W.P.(C)NO. 28816/2008(E). EXHIBIT P1(A) TRUE COPY OF THE INTERIM ORDER DATED 29/09/2008 PASSED BY THIS COURT IN W.P.(C)NO. 28816 OF 2008. EXHIBIT P2 TRUE COPY OF THE G.O.(RT)NO.158/2017/LSGD DATED 19/01/2017, REJECTING THE CLAIM OF THE PETITIONER. EXHIBIT P3 TRUE COPY OF THE CERTIFICATE ISSUED BY THE PRINCIPAL SYSTEM ANALYST OF THE NATIONAL INFORMATION CENTRE DATED 21/11/1997. EXHIBIT P4 TRUE COPY OF THE MBA CERTIFICATE ISSUED BY THE PERIYAR UNIVERSITY, TAMILNADU. EXHIBIT P5 TRUE COPY OF THE CERTIFICATE ISSUED BY THE PROJECT DIRECTOR AND JOINT PROGRAMME CO-ORDINATOR NATIONAL RURAL EMPLOYMENT GUARANTEE PROGRAMME (KERALA) DATED 31/05/2010. EXHIBIT P6 TRUE COPY OF THE G.O.(M.S)NO.70/2006/LSGD DATED 01/03/2006 ISSUED FOR REGULARIZATION OF THE SIMILARLY SITUATED EMPLOYEES OF 2ND RESPONDENT. EXHIBITP 6(A) TRUE COPY OF THE G.O(M.S)NO.1669/2007/LSGD DATED 29/06/2007 ISSUED FOR REGULARIZATION OF THE SIMILARLY SITUATED EMPLOYEES OF 2ND RESPONDENT. EXHIBIT P7 TRUE COPY OF THE LETTER ISSUED BY THE MALAPPURAM DISTRICT PANCHAYATH DURING AUGUST 2007. EXHIBIT P8 TRUE COPY OF THE COMMUNICATION DATED 07/02/2006 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P8(A) TRUE COPY OF THE COMMUNICATION DATED 28/07/2008 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P9 TRUE COPY OF THE GOVERNMENT ORDER ISSUED FOR THE REGULARIZATION OF THE EMPLOYEE VIDE G.O(M.S)NO.342/2013/LSGD DATED 23/10/2013. EXHIBIT P9(A) TRUE COPY OF THE GOVERNMENT ORDER G.O(M.S)NO.68/2011/LSGD DATED 28/02/2011. EXHIBIT P9(B) TRUE COPY OF THE GOVERNMENT LETTER NO.1759/EA4/2005/LSGD DATED 11/01/2006. EXHIBIT P9(C) TRUE COPY OF THE GOVERNMENT ORDER G.O(M.S)NO.252/2012/LSGD DATED 05/10/2012.** ## **WP(C).No. 5476 of 2017 (H)** **EXHIBIT P9(D) TRUE COPY OF THE GOVERNMENT ORDER G.O(M.S)NO.112/2015/CO-OP DATED 03/09/2015. EXHIBIT P9(E) TRUE COPY OF THE GOVERNMENT ORDER G.O(M.S) NO. 45/15/LSGD DATED 10/03/2015. EXHIBIT P9(F) TRUE COPY OF THE GOVERNMENT ORDER G.O(KI)NO.572/2013/FINANCE DATED 21/11/2013. EXHIBIT P9(G) TRUE COPY OF THE PROCEEDINGS OF THE SECRETARY, STATE INSTITUTE OF RURAL DEVELOPMENT KOTTARAKKARA ORDER NO. 203/D/93/SIRD DATED 23/11/1999. EXHIBIT P9(H) TRUE COPY OF THE GOVERNMENT ORDER G.O(M.S)NO.144/2010/LSGD DATED 09/07/2010. EXHIBIT P9(I) TRUE COPY OF THE GOVERNMENT ORDER G.O(M.S)NO.151/2010/LSGD DATED 16/07/2010.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.S.TO JUDGE** **Msd. 11.06.2018** ## **P.V.ASHA, J.** ## **W.P.(C) No.5476 of 2017-H** ## **Dated this the 31[st] day of May, 2018** ## **JUDGMENT** This writ petition is filed challenging Ext.P2 order rejecting the request of the petitioner for regularisation. The petitioner has been working as Computer Operator in the Poverty Alleviation Unit in the District Panchayat (formerly the District Rural Development Agency). He continues as Computer Operator on daily wages without any break. Petitioner is a graduate in Commerce with Post Graduate Diploma in Computer Application. It is stated that his initial appointment was after being successful in a selection process and that he was having all the qualifications for appointment to the post. 2. Government had regularised some of the persons who were appointed in similar circumstances, as per G.O.(Ms) No.79/2006/LSG(RD) dated 01.03.2006. Thereupon petitioner submitted representation requesting for regularisation. As no action was taken on it, he approached this Court in WP(C) No.28816 of 2008 and by Ext.P1 judgment this Court directed the respondents to consider his request if necessary by creating a supernumerary post. It is pointed out that petitioner had been retained on the basis of Ext.P1(a) interim order passed in WP(C) No.28816 of 2008 on 29.09.2008 in which the termination of his services were stayed. W.P.(C) No.5476/17 :2: 3. The contention of the 2[nd] respondent is that there was no post of Computer Operator in the Poverty Alleviation Unit under respondents 3 or 4 and it was not possible to regularise the petitioner's service. It is also stated that his request cannot be considered in view of the judgment of the apex court in _**Secretary, State of Karnataka & others vs. Umadevi & others : 2006 (4) SCC (1)**_ . However this Court in Ext.P1 judgment, considered the petitioner's case and held as follows: _5. On a consideration of the facts and circumstances of the case and the submissions made across the bar, 1 find that while it is now well settled through the decisions of the Supreme Court in Secretary, State of Karnataka and others v. Umadevi (3) and Others (2006 (4) SCC 1) and subsequent pronouncements, that a person appointed on daily wage basis, and continuing on the said basis for a number of years cannot, by reason merely of the said continuance, claim regularisation in service under the employer in question. 1 find, however, in the instant case, that persons similarly situated as the petitioner, have been considered for regularisation and granted regularisation under the services of_ _**t h e D i s t r i c t** Panchayath concerned, by the respondent Government under such circumstances, it is incumbent upon the Government, to state the reasons, if any exist, for the differential treatment meted out to the petitioner, who like the others whose services have boon regularised, had more than 7 years continuous service at the time of filing of the writ petition, and has been continuing in service for almost 8 years thereafter, based on the interim order passed by this Court. In my view, the Government ought to consider the case of the petitioner for a similar treatment, as extended to others similarly placed as the petitioner, in the matter of regularisation and a decision taken by the Government expeditiously. The Government has also to bear in mind the fact that the petitioner is now more than 44 years old and it would be difficult for him to seek alternate employment on regular basis at this point in time. Accordingly, I dispose the writ petition with a direction to the 1[st] respondent to consider the case of the petitioner in the light of Exts.Pl and P7 orders that have been passed in the case of persons similarly situated as the petitioner, for regularisation in services, if need be through creation of a supernumerary post to accommodate the petitioner,_ W.P.(C) No.5476/17 **==> picture [14 x 9] intentionally omitted <==** _within a period of three months from the date of receipt of a copy of this judgment. It is made clear that, till such time as orders are passed by the 1[st] respondent as directed, and communicated to the petitioner, the interim order passed by this Court shall continue to remain in force._ 4. Thereafter Ext.P2 order was passed stating that the post of Computer Operator in the Poverty Alleviation Unit is not a sanctioned post as per the guidelines in DRDA Administration Fund and that Poverty Alleviation Units are temporary establishments and posts in these establishments cease to exist when the project ends. It was also stated that there is no provision for regularising daily waged employees and in order to regularise the applicants posts have to be created. They have also relied on the judgment of the apex court in _**Valsamma vs. State of Kerala**_ in which it is stated that employees who were not selected as per the procedure for regular appointment that is by issuing notification, conducting written test, interview etc. have no right for regularisation or absorption against regular vacancies and their continuance will not be a relevant point for consideration. It was also stated that regularisation of daily wage workers after 09.10.2006 in Government institutions would be in violation of the directions of the apex court in _**State of Karnataka vs. Uma Devi**_ . 5. The petitioner has filed this writ petition challenging Ext.P2 order. It is pointed out that rejection of his request is in violation of the W.P.(C) No.5476/17 **==> picture [14 x 9] intentionally omitted <==** directions contained in Ext.P1 judgment. The petitioner has produced Exts.P6, P6(a) and P9 orders by which daily waged employees who were working in the rural development agencies were regularised. Ext.P6 is an order regularising 11 persons who were working on daily wages as Driver, Night Watchman, Road Roller Driver etc. Ext.P6(a) order was issued on 29.06.2017 regularising six persons as Driver, Road Roller Driver etc. By Ext.P9 order another Driver was regularised. 6. The learned Government Pleader points out that the petitioner who continued on the basis of the interim order of this court, as can be seen from Ext.P1(a) order from 2008 onwards is not entitled to the benefit of paragraph 53 of the judgment in _**Umadevi's**_ case. It is also pointed out that those who were regularised as per Exts.P6, P6(a) and Ext.P9 were working as Drivers/Night Watchman and petitioner has been working as Computer Operator for which there is no post available. 7. This Court has already considered the contention of the respondents that there is no post of Computer Operator, before directing regularisation in Ext.P1 judgment. It was after taking note of those fact that the respondents were directed to consider the case of the petitioner in the light of Exts.P1 and P7 orders (in WP(C) No.28816/2008) passed in the case of similarly situated persons if W.P.(C) No.5476/17 **==> picture [14 x 9] intentionally omitted <==** necessary by creation of supernumerary post. In the above circumstances the respondents cannot raise such contentions in this writ petition, when they did not choose to file any writ appeal against Ext.P1 judgment. In the above circumstances, I find that the Government has not considered the case of the petitioner as directed in Ext.P1 judgment. Ext.P2 order cannot be said to an order passed in tune with the findings and observations contained in Ext.P1 judgment. Therefore this court is constrained to set aside Ext.P2. The respondents are directed to pass fresh orders on the question of regularisation of petitioners, in tune with the observations contained in Ext.P1 judgment within a period of two months from the date of receipt of a copy of the judgment. Sd/- **P.V.ASHA JUDGE** rkc