Arun P.V. Uthaman v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932** **WP(C).No. 20728 of 2010(M)** **-------------------------------------** ## **PETITIONER(S) :-** - **----------------------** **ARUN P.V. UTHAMAN, 'DAFFODILS', VARUVILAKATHU HOUSE, SRA/B-18, SARVODAYAM ROAD, SANTHIVILA, NEMOM P.O., THIRUVANANTHAPURAM-695 020.** - **BY ADV. SMT.SREEDEVI KYLASANATH** **SRI.V.SADASIVAN SMT.V.J.SAFEENA SMT.SHALEENA RAJAN** ## **RESPONDENT(S) :-** **------------------------** **1. STATE OF KERALA, REP. BY THE PRINCIPAL SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF YOUTH SPORTS, DIRECTORATE OF YOUTH AND SPORTS AFFAIRS, JIMMY GEORGE INDOOR STADIUM, VELLAYAMBALAM, THIRUVANANTHAPURAM-695 010.** **3. P.R.ASWANI RAJ, PHYSIOTHERAPIST, RAJIV GANDHI SPORTS MEDICINE CENTRE, JIMMY GEORGE INDOOR STADIUM, VELLAYAMBALAM, THIRUVANANTHAPURAM-695010.** **4. THE EMPLOYMENT OFFICER, PROFESSIONAL AND EXECUTIVE EMPLOYMENT EXCHANGE, KALPAKA NAGAR, THIRUVANANTHAPURAM-24.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/07/2010 ALONG WITH W.P.(C)No.7473 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ANTONY DOMINIC, J.** **~~~~~~~~~~~~~~~ W.P.(C) Nos.7473 & 20728 of 2010 ~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 23[rd] day of July 2010** ## **J U D G M E N T** Ext.P1 is the proceedings of the 2[nd] respondent appointing the petitioner as a Physiotherapist in the scale of Rs.1640-2960 in the Rajiv Gandhi Sports Medicine Centre, Directorate of Sports & Youth Affairs, Vellayambalam, Thiruvananthapuram. The appointment was on temporary basis for a period of 179 days or till a permanent hand join duty whichever is earlier. The petitioner continued in service on that basis. Subsequently, Ext.P2 order was issued on 12.10.1998 ratifying the action of the 2[nd] respondent having allowed the petitioner to continue in service and according sanction for utilizing his services on daily wages or contract basis, till a suitable hand from the Public Service Commission or Employment Exchange joins W.P.(C) Nos.7473 & 20728 of 2010 -: 2 :- duty. Again Ext.P3 and Ext.P4 orders were issued on 8.1.2003 and on 14.7.2008, reappointing the petitioner provisionally subject to the earlier conditions. On this basis, petitioner is continuing in service without any break. 2. According to the petitioner, steps were being taken to terminate him and make fresh appointment through Employment Exchange. It was on that basis the writ petition was filed seeking an order for his regularization and continuance in service. While admitting this writ petition taking note of the long continuance of the petitioner in service, this Court directed that he be retained in service until further orders. 3. The additional 3[rd] respondent who got himself impleaded in this writ petition submits that by Ext.R3(a), the Employment Exchange invited applications from Physiotherapists and being an eligible candidate, he also submitted his application to the said post. Referring to Ext.R3(b), the information obtained under the provisions of ## W.P.(C) Nos.7473 & 20728 of 2010 -: 3 :- Right to Information Act, it is stated that he has been sponsored for appointment under the 1[st] respondent against a post reserved for Ezhava/Thiyya/Billava category. It is contended that since the petitioner's appointment was time bound and subject to the condition of being replaced by PSC/Employment Exchange hands, and as the additional 3[rd] respondent has been sponsored, the petitioner is bound to vacate the post. The learned Government Pleader filed a counter affidavit on behalf of the 2[nd] respondent submits that though the petitioner was initially engaged from 1998, his continuance in the post was on account of the fact that despite notifying the post no suitable candidate could be selected. It is stated that since the appointment was conditional and time bound, either on the satisfaction of the condition specified or on expiry of the period, the petitioner is bound to vacate the post. 4. Even as on date, qualifications for the post has not been prescribed and therefore, posts that are created under W.P.(C) Nos.7473 & 20728 of 2010 -: 4 :- the 1[st] respondent have not been notified to the PSC for initiating recruitment process. Therefore, until then the post will have to be occupied by persons sponsored by the Employment Exchange. So far as the petitioner is concerned, though his continuance was subject to the conditions incorporated in the appointment orders, fact remains that he is continuing in service since 1998. He satisfies the qualification notified by the Employment Exchange and he was selected in an interview that was conducted by the Employment Exchange and his appointment is to a sanctioned post. Therefore, at best his appointment is an irregular one and is not illegal one. 5. Petitioner having continued in service for more than 10 years and that too without any intervention of the court, prima facie, in my view, this is a case entitled to the exemption indicated by the Apex Court in Paragraph 44 of the judgment reported in **Secretary, State of Karnataka & Ors.** v. **Umadevi & Ors.** [A.I.R 2006 SC 1806] which W.P.(C) Nos.7473 & 20728 of 2010 -: 5 :- reads as thus :- “One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V.Narayanappa (Supra), R.N.Nanjundappa (Supra), and B.N.Nagrajan (Supra), and referred to in paragraph 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 courts or of tribunals. The question of regularization 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 regularize 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 courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned W.P.(C) Nos.7473 & 20728 of 2010 **==> picture [30 x 10] intentionally omitted <==** 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 regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.” Therefore, I direct the 1[st] respondent to consider the case of the petitioner for regularization of him in the manner as indicated in paragraph 44 of the judgment referred to above. This shall be done as expeditiously as possible, at any rate, within 3 months from the date of production of a copy of this judgment and in the meanwhile status quo as on date in so far as his continuance of service shall be maintained. 6. In so far as, additional 3[rd] respondent is concerned, he has also filed Writ Petition No.20728 of 2010 W.P.(C) Nos.7473 & 20728 of 2010 **==> picture [30 x 10] intentionally omitted <==** praying that he shall be appointed to the post of Physiotherapist under the 1[st] respondent mentioned above. Now with the aforesaid direction in favour of the petitioner in W.P.(C) No.7473/2010 has been issued, as far as the petitioner in W.P.(C) No.20728/2010 is concerned, it is directed that his case for appointment will be considered by the 2[nd] respondent if there is a vacant post existing and without disturbing the petitioner in W.P.(C) No.7473 of 2010. Writ petition is disposed of as above. ## **ANTONY DOMINIC, JUDGE.** Jvt