B. USHAKUMARI W/O BHASKARAN PILLAI v. STATE OF KERALA & OTHERS

W.P.(C) No.36334 of 2017 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY,THE 20TH DAY OF FEBRUARY 2019 / 1ST PHALGUNA, 1940** ## **WP(C).No. 36334 of 2017** **PETITIONER:** **B.USHAKUMARI W/O BHASKARAN PILLAI, AGED 45 YEARS,CHARUVILA PADIYATTATHIL, KOTTATHALA,MYLOM VILLAGE, KOTTARAKKARA, KOLLAM DISTRICT.** **BY ADVS. SRI.C.S.MANILAL SRI.S.NIDHEESH** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,HIGHER EDUCATION DEPARTMENT, TRIVANDRUM.695001.** - **2 THE INSTITUTE OF HUMAN RESOURCES DEPARTMENT REPRESENTED BY THE DIRECTOR, PRAJOE TOWERS, VAZHUTHACADU, TRIVANDRUM.695014** - **3 THE DIRECTOR INSTITUTE OF HUMAN RESOURCES DEVELOPMENT,PRAJOE TOWERS, VAZHUTHACADU, THIRUVANANTHAPURAM.695014** - **4 THE PRINCIPAL IHRD COLLEGE OF ENGINEERING, KOTTARAKKARA, KOTTARAKKARA, KOLLAM DISTRICT.691506.** **BY ADVS.** **SRI.DEEPU THANKAN, SC, IHRD GP- SRI SUNIL KUMAR KURIAKOSE.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.36334 of 2017 2 ## **V.G.ARUN, J.** ---------------------------------------------W.P.(C) No.36334 of 2017 ----------------------------------------------Dated this the 20[th] day of February, 2019 ## **JUDGMENT** The petitioner, a lady with 50% physical disability has approached this court to ventilate her grievance with regard to non consideration of her request to regularise her in the service of the second respondent. As per the averments in the Writ Petition, the second respondent had invited applications for appointment to the post of Office Assistant from among persons sponsored by the Employment Exchange. The Employment Exchange Officer, Kottarakara recommended the petitioner's name and accordingly the petitioner was appointed to the post of Office Assistant in the IHRD College of Engineering, Kottarakara on 8.2.2008. Though the initial appointment was for a period of 179 days, the petitioner has been working continuously in the post of Office Assistant. The Government of Kerala had issued Ext P5 order dated 5.3.2010, stipulating statutory reservation of 3% in all departments of the Government in order to fulfil the requirement of Sections 32 and 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The 30% reservation for persons with disabilities was made applicable for the first respondent also. For W.P.(C) No.36334 of 2017 3 complying with the stipulation in Ext P5, the third respondent had, as per Ext P6, sought details of employees (regular/part time/ad hoc) working in the institutions under the first respondent and having above 40% disability. Ext P7 is the reply to Ext P6 furnished by the 4[th] respondent, giving the details of two of its employees with disability above 40%, one among whom is the petitioner. Ext P8 is the report submitted by the committee constituted by the first respondent to make recommendations with respect to the functioning of the IHRD. Clause III.7 of the report is a recommendation to the Executive Committee of the first respondent to take a decision regarding the category and percentage of reservation to be provided for persons with disabilities, in accordance with G.O(MS) No.41/2010/H.Edn dated 5.3.2010. The petitioner, when faced with the threat of being sent out of service, submitted representations before various authorities including the Chief Minister, as evidenced by Exts P9 and P10. Based on the representations, a report was called for from the 4[th] respondent, with respect to the possibility of regularising petitioner's service . Accordingly, the 4[th] respondent submitted Ext P11 report, wherein it was stated that considering the age of the petitioner and her disability, and the fact that she has no further chance for getting permanent employment in Government service or Government institutions, regularisation of the petitioner's service may be considered since, by the petitioner's service being regularised, no W.P.(C) No.36334 of 2017 4 person in the institution would be adversely affected. Since, no positive decision was taken on the earlier representations submitted by her, the petitioner submitted Ext P13 representation. When the subsequent representation also did not evoke any response, the petitioner approached this court by filing W.P.(C) No.22907 of 2017. That Writ Petition was disposed of under Ext P14 judgment directing the second respondent to consider and pass orders on Ext P13 representation, after affording an opportunity of hearing to the petitioner, in the light of Exts P8 and P11 reports. Thereupon, the petitioner submitted Ext P15 highlighting her grievances and also pointing out instances where the service of similarly situated persons had been regularised. On the basis of the direction contained in Ext P14 judgment, the second respondent considered the matter and issued Ext P17 order rejecting the request of the petitioner mainly for the reason that the IHRD Special Rules do not provide for regularisation of temporary/ad hoc employees and that the Government had vide its letter dated 1.3.2016 instructed the IHRD that the files for regularisation of daily wages/temporary appointments shall not be processed henceforth. Assailing Ext P17 and seeking further reliefs the instant Writ Petition is filed. 2. The learned counsel for the petitioner relies on the Exts mentioned above, especially the reports submitted in favour of the petitioner and the direction of the Government to implement 3% W.P.(C) No.36334 of 2017 5 reservation in institutions under the IHRD, in support of the challenge against Ext P17. It is submitted that neither the recommendation nor the direction of the Government was taken into consideration by the second respondent, as would be evident from a reading of Ext P17. The learned counsel submits that Ext P17 is therefore bad for nonapplication of mind and that if the aforementioned relevant factors had been taken into consideration, there is a possibility of the petitioner's request being allowed. It is contended that the vacancies in IHRD are filled up on the basis of test/interview conducted by the Staff Selection Committee constituted for the purpose and that being the mode of appointment, there was no illegality in considering the petitioner's request for regularisation, the petitioner being a person who has sponsored by the Employment Exchange. In order to lend credence to this submission, the learned counsel has relied on the decision rendered by the Apex Court in **Union of India and others v N.Hargopal and others ((1987)3 SCC 308))** , wherein the Apex Court had acknowledged appointment through Employment Exchanges as a valid and acceptable mode of appointment. Reliance was also placed on the decision of the Hon'ble Supreme Court in **Nihal Singh v State of Punjab ((2013)14 SCC 65)),** to canvass the position that the procedure of making recruitment through Employment Exchange was held to be consistent with the requirements of Articles 14 and 16 of the Constitution of India. It is therefore, contended that in spite of W.P.(C) No.36334 of 2017 6 the decision of the Apex Court in **Secretary, State of Karnataka and others v.Umadevi and others ((2006)4 SCC 1)** , the Apex Court itself had permitted regularisation of persons appointed temporarily through Employment Exchanges and continuing in service for a long period of time. The learned counsel submits that even though, in the Writ Petition, regularisation of the petitioner's service is sought, the relief is being confined to continuance of the petitioner in the service of the 4[th] respondent, in the absence of regular or even contractual appointments being made by the first respondent and institutions under it. The learned counsel points out that even though this court, while admitting the Writ Petition, had passed an interim order directing respondents 2 to 4, that the petitioner shall be engaged on daily wage basis in case there is requirements, her service was discontinued. It is submitted that Ext P18, an order by which a similarly situated employee was re-engaged, would make it clear that even as on today there is requirements, as far as the 4[th] respondent institution is concerned. It is therefore contended that Ext P17 being bad for non-application of mind, is liable to be set aside. 3. A counter affidavit has been filed by respondents 2 to 4, refuting the averments in the Writ Petition and justifying the rejection of petitioners request for regularisation vide Ext P17 order. The learned counsel for respondents 2 to 4 submits that even as per Ext P4, the petitioner's appointment was only for a period of 179 days and W.P.(C) No.36334 of 2017 7 that, the appointment order itself, it was made clear that persons appointed under Ext P4 will not have a claim for regular appointment in IHRD under any circumstance. It is contended that neither Ext P5 nor Ext P6 would benefit the petitioner, inasmuch as identification of 3% posts reserved for persons with disability is not for the purpose of regularisation of existing temporary employees and that is with the objective of providing 3% posts reservation in future regular appointments. It is submitted that Exts P8 and P11 are only in recommendatory in nature and cannot have any persuasive force in the light of the fact that the manner of appointment to the post of Office Assistant can only be in accordance with the procedure prescribed in the Special Rules of IHRD issued by the Government as per GO(MS) No.692/14/H.Edn. dated 20.8.2014. It is further submitted that in the light of the Government's directive mentioned in Ext P17 order itself, the second respondent could not have taken an independent decision since, all decisions of the IHRD are subject to approval from the Government. The learned counsel also referred to Ext R2(b) judgment of this Court, upholding the rejection of request for regularisation made by another temporary employee. 4. It is finally submitted by the learned counsel that, due to the stringent financial position of the IHRD, no regular appointment has been effected from 2006 onwards. The learned Government Pleader also supported the contentions made on behalf of respondents 2 to 4 W.P.(C) No.36334 of 2017 8 and submitted that after the decision in _**Umadevi**_ 's case neither the Government nor any of its instrumentalities have the authority to regularise the appointment of temporary employees. 5. After careful consideration of the factual and legal contentions advanced by the learned counsel for the parties, I find no reason to interfere with Ext P17. It is a fact that the petitioner had been in the service of the second respondent from 11.2.2008 onwards, without break. The petitioner is a qualified person and is suffering from 50% physical disability. Of course, these factors call for a sympathetic consideration of the petitioners request. But that by itself cannot be a ground to interefere with Ext P17. Under the Special Rules of IHRD, there is no provision for regularising the service of temporary employees. Moreover, in the light of the specific directive issued by the Government, the second respondent could not have allowed the request for regularisation. Therefore, while refusing to interfere with Ext P17, I find substance in the contention of the petitioner that, in spite of the interim direction issued by this court to engage the petitioner on daily wage basis, in cases there is requirement, she was sent out of service and was not re-engaged thereafter. From a reading of Ext P18 it is clear that even according to the 4[th] respondent, there is a dearth of employees in the institution. Under such circumstances, respondents 2 to 4 will necessarily have to consider engaging the petitioner on temporary basis, as was done earlier, in the event of the W.P.(C) No.36334 of 2017 9 requirement pointed out in Ext P18 being still in subsistence. Even though Ext P17 does not warrant interference, in the peculiar facts and circumstances of the case, the Government can consider the request of the petitioner to permit her to continue in the service of the 4[th] respondent, till the regular appointment is effected in accordance with the procedure prescribed under the Special Rules of IHRD. Therefore, if the petitioner submits an appropriate representation, limiting her request to continuance in the service of respondents 2 to 4, in the manner she had been continuing from 2008 onwards, within a period of one month from the date of receipt of a copy of this judgment, the first respondent shall consider the request and take an appropriate decision thereon within a period of two months, after affording an opportunity of hearing to the petitioner and respondents 2 to 4. Sd/- **V.G.ARUN, JUDGE** cms W.P.(C) No.36334 of 2017 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE DISABILITY CERTIFICATE DATED 9.1.2009 ISSUED TO THE PETITIONER.** **EXHIBIT P2 TRUE COPY OF THE LETTER, LIST AND NUMBER OF PERSONS SPONSORED.** - **EXHIBIT P3 TRUE COPY OF THE MEMO DATED 8.2.2008 ISSUED BY THE PRINCIPAL.** - **EXHIBIT P4 TRUE COPY OF THE DETAILED PROCEEDINGS BY THE 3RD RESPONDENT DATED 18.4.2008,.** - **EXHIBIT P5 TRUE COPY OF THE GOVERNMENT ORDER G.O(MS) NO.41/2010 H.EDN. DATED 5.3.2010.** - **EXHIBIT P6 TRUE COPY OF THE LETTER DATED 14.6.2012 FROM IHRD.** - **EXHIBIT P7 TRUE COPY OF THE LIST ISSUED BY THE 4TH RESPONDENT WHEREIN THE PETITIONER'S NAME APPEARING AS ONE AND THE SAME.** - **EXHIBIT P8 TRUE COPY OF THE REPORT OF THE EXECUTIVE COMMITTEE OF THE 2ND RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF THE REQUEST FOR REGULARIZATION SUBMITTED TO THEN HON'BLE CHIEF MINISTER.** - **EXHIBIT P10 TRUE COPY OF THE COVERING LETTER OF THE M.L.A DATED 11.8.2015.** - **EXHIBIT P11 TRUE COPY OF THE REPORT GIVEN BY THE 4TH RESPONDENT.** - **EXHIBIT P12 TRUE COPY OF THE COVERING LETTER DATED 6.1.2016 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P13 TRUE COPY OF THE REPRESENTATION DATED 3.3.2017 SUBMITTED TO THE 2ND RESPONDENT.** - **EXHIBIT P14 TRUE COPY OF THE JUDGMENT IN WP(C) NO.22907/17 DATED 13.7.2017.** **EXHIBIT P15 TRUE COPY OF THE REPRESENTATION DATED 14.9.2017 SUBMITTED TO THE 3RD RESPONDENT.** W.P.(C) No.36334 of 2017 11 **EXHIBIT P16 TRUE COPY OF THE RELEVANT PORTION OF THE SERVICE BOOK. EXHIBIT P17 TRUE COPY OF THE ORDER DATED 13.10.2017 OF THE 3RD RESPONDENT. EXHIBIT P18 COPY OF ORDER DTD 23.1.2018** RESPONDENTS EXTS EXT R2(A) COPY OF GOVERNMENT LETTER DTD. 1.3.2016 EXT R2(B) COPY OF JUDGMENT OF THIS COURT IN WP(C) NO.2660/2017 DTD 8.8.2017 /TRUE COPY/ P.S.TO JUDGE cms