Anith Kumar Chathoth v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **MONDAY, THE 19TH DAY OF SEPTEMBER 2016/28TH BHADRA, 1938** ## **WP(C).No. 28816 of 2008 (E)** **----------------------------** **PETITIONER(S): -------------** **ANITH KUMAR CHATHOTH, COMPUTER OPERATOR POVERTY ALLEVIATION UNIT (FORMERLY DISTRICT RURAL DEVELOPMENT AGENCY), DISTRICT PANCHAYATH, POST BOX NO.9, UP HILL,, MALAPPURAM.** ## **BY ADV. SMT.JAYASREE MANOJ** ## **RESPONDENT(S):** **--------------** **1. STATE OF KERALA, REPRESENTED BY** **PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT (RURAL DEVELOPMENT), SECRETARIAT,, THIRUVANANTHAPURAM.** ## **2. POVERTY ALLEVIATION UNIT,** **(FORMERLY DISTRICT RURAL DEVELOPMENT AGENCY), DISTRICT PANCHAYATH, POST BOX NO.9, UP HILL, MALAPPURAM, REPRESENTED BY ITS, PROJECT DIRECTOR.** **3. PROJECT DIRECTOR, POVERTY ALLEVIATION UNIT, (FORMERLY DISTRICT RURAL DEVELOPMENT AGENCY), DISTRICT PANCHAYATH, POST BOX NO.9, UP HILL, MALAPPURAM.** ## **BY ADV. GOVERNMENT PLEADER SRI.UNNIKRISHNA KAIMAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 28816 of 2008 (E)** ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXT.P1: TRUE COPY OF THE G.O(MS)70/2006 LSG(RD) DEPT. DATED 01.03.2006** **EXT.P2: TRUE COPY OF THE REPRESENTATION DATED 02.03.2006 SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE MINISTER FOR LOCAL SELF GOVERNMENT** **EXT.P3: TRUE COPY OF THE LETTER DATED 04.03.2006 ISSUED BY THE PROJECT OFFICER, DRDA TO THE FIRST RESPONDENT** **EXT.P4: TRUE COPY OF THE REPRESENTATION DATED 30.08.2006 SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE MINISTER FOR LOCAL SELF GOVERNMENT** **EXT.P5: TRUE COPY OF THE REPRESENTATION DATED 02.01.2006 SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE CHIEF MINISTER** **EXT.P6: TRUE COPY OF THE LETTER DATED 07.02.2006 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER** **EXT.P7: TRUE COPY OF THE G.O(MS)169/2007 LSGD DATED 29.06.2007** **EXT.P8: TRUE COPY OF THE LETTER DATED 25.07.2006 ISSUED BY THE THIRD RESPONDENT TO THE FIRST RESPONDENT** **EXT.P9: TRUE COPY OF THE RESOLUTION DATED 10.08.2007 OF THE MALAPPURAM DISTRICT PANCHAYATH** **EXT.P10: TRUE COPY OF THE LETTER DATED 18.08.2007 ISSUED BY THE THIRD RESPONDENT TO THE FIRST RESPONDENT** **EXT.P11: TRUE COPY OF THE G.O(RT)1266/2001 LSGD DATED 29.03.2001** **EXT.P12: TRUE COPY OF THE PROCEEDINGS DATED 21.02.2005 OF THE EXECUTIVE DIRECTOR, KERALA TOTAL SANITATION AND HEALTH MISSION, THIRUVANANTHAPURAM** **EXT.P13: TRUE COPY OF THE LETTER DATED 08.02.2008 ISSUED BY THE THIRD RESPONDENT TO THE DEPUTY DEVELOPMENT COMMISSIONER, COMMISSIONERATE FOR RURAL DEVELOPMENT, THIRUVANANTHAPURAM** **EXT.P14:TRUE COPY OF THE REPRESENTATION DATED 01.02.2008 SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE CHIEF MINISTER** **EXT.P15:TRUE COPY OF THE REPRESENTATION DATED 01.07.2008 FILED BY THE PETITIONER BEFORE THE PRINCIPAL SECRETARY LOCAL SELF GOVERNMENT** **EXT.P16:TRUE COPY OF THE LETTER DATED 17.07.2008 ISSUED BY THE COMMISSIONER, COMMISSIONERATE OF RURAL DEVELOPMENT, THIRUVANANTHAPURAM TO THE PROJECT DIRECTORS POVERTY ALLEVIATION UNITS (DRDA)** **EXT.P17: TRUE COPY OF THE LETTER DATED 22.07.2008 ISSUED BY THE PROJECT DIRECTOR TO THE COMMISSIONER FOR RURAL DEVELOPMENT WITH ITS ENCLOSURE** **EXT.P18: TRUE COPY OF THE ORDER DATED 28.07.2008 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER RESPONDENTS' EXHIBITS: NIL** **//TRUE COPY//** **P A TO JUDGE** **A.K.JAYASANKARAN NAMBIAR, J. ............................................................. W.P.(C).No.28816 of 2008 ............................................................. Dated this the 19[th] day of September, 2016** ## **J U D G M E N T** The petitioner herein was appointed as a Computer Operator in the District Rural Development Agency (DRDA) on daily wage basis with effect from 18.02.1999. It is stated that he was appointed as such pursuant to a screening procedure, and that he possesses the requisite qualification for functioning as a Computer Operator, being a graduate in Commerce with a Post Graduate Diploma in Computer Applications. While the petitioner continued to work as a Computer Operator on daily wage basis, the DRDA was dissolved and the assets and liabilities of the organisation were transferred to the District Panchayath with effect from 01.07.2006. As a consequence, a Poverty Alleviation Unit was constituted under the District Panchayath and and the erstwhile staff of the DRDA were posted as staff of the Poverty Alleviation Unit under the District Panchayath. A Deputy Development Commissioner was also designated as Project Director and was given charge of the Poverty Alleviation Unit. The petitioner was employed as a Computer -2- ## **W.P.(C).No.28816 of 2008** Operator, on daily wage basis, under the Poverty Alleviation Unit of the District Panchayath, Malappuram. In the writ petition, the petitioner is aggrieved by the rejection of her application for regularisation in the services of the District Panchayath. It is her contention that, while Exts.P1 and P7 orders passed by the Government would indicate that persons similarly situated as the petitioner, who had rendered more than 7 years continuous service as daily wage workers under the DRDA, were regularised in the services of the DRDA, and in the services of the Poverty Alleviation Unit under the respective District Panchayath, the petitioner's application for regularisation was rejected by Ext.P18 order dated 28.07.2008, without citing any reason. In the writ petition, Ext.P18 order is impugned, inter alia, on the ground that, the said order which is passed in response to a representation preferred by the petitioner, does not contain any reasons as to why a differential treatment had to be meted out to the petitioner, while others similarly placed could be considered for regularisation, in some cases against supernumerary posts that were created solely for the purposes of regularising the said persons. -3- **W.P.(C).No.28816 of 2008** 2. A counter affidavit has been filed on behalf of respondents No.1 and 3. In the counter affidavit filed on behalf of the 1[st] respondent, the stand taken is essentially with regard to the rights inhering in a daily wage employee to claim regularisation in service. It is stated, with reference to various decisions of the Supreme Court, that a person working on daily wage basis does not have a right to claim regularisation in services notwithstanding the number of years of service that is put in. It is pointed out with reference to the decision in **Secretary, State of Karnataka and others v. Umadevi (3) And Others (2006 (4) SCC 1)** that merely because an employee continued on daily wages for sometime, he would not be entitled to be absorbed in regular service merely on the strength of such continuance in service on daily wage basis. The counter affidavit of the 1[st] respondent is silent, however, as to why the petitioner alone was chosen for a differential treatment in the matter of regularisation when, as seen from Ext.P7 order, persons similarly situated as the petitioner, and who had more than 7 years continuous service as daily wage employees were regularised under the Poverty Alleviation Units on a supernumerary basis and on condition that, on the retirement of -4- ## **W.P.(C).No.28816 of 2008** the said persons, the post itself would cease to exist. In the counter affidavit filed on behalf of the 3[rd] respondent, the stand taken is that there is no sanctioned post of Computer Operator in the DRDA and it was under these circumstances that the petitioner's service could not be regularised under the DRDA. 3. The writ petition was admitted in 2008 and by an interim order dated 29.09.2008, the respondents were directed not to terminate the services of the petitioner until further orders. It is seen that the said interim order continues to be in force and accordingly, the petitioner has been continuing in service, albeit on daily wage basis, from 2008 till date. 4. I have heard the learned counsel appearing for the petitioner as also the learned Government Pleader appearing for the respondents. 5. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that while it is now well settled through the decisions of the Supreme Court in -5- **W.P.(C).No.28816 of 2008** ## **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. I 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 the District 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 been 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 -6- ## **W.P.(C).No.28816 of 2008** 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.P1 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, 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. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/19.09.16