Baby M.P. v. State of Kerala and Kerala Water Authority

W.P(C).9649/2014 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS FRIDAY, THE 28[TH] DAY OF JANUARY 2022 / 8TH MAGHA, 1943 WP(C) NO. 9649 OF 2014** ## **PETITIONER/S:** BABY M.P, FITTER,WATER SUPPLY SUB DIVISION,KERALA WATER AUTHORITY,VADAYAMPADY.P.O,PUTHENCRUZ,PIN682308,ERNAKULAM. BY ADVS. SRI.K.P.KAMALAKARA BABU SRI.N.KRISHNA PRASAD ## **RESPONDENT/S:** 1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY,WATER RESOURCE DEPARTMENT,GOVERNMENT, SECRETARIAT,THIRUVANANTHAPURAM. 2 KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR,JALA BHAVAN,VELLAYAMBALAM POST,TRIVANDRUM. BY ADVS. GOVERNMENT PLEADER SRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY SRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY ## **OTHER PRESENT:** GP SRI.V.VENUGOPAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).9649/2014 2 ## **JUDGMENT** The writ petitioner was provisionally appointed as a Shift Operator in the second respondent Kerala Water Authority on 10.09.1985 under Rule 9(a)(1) of the KSSR by Ext.P2 order. Earlier, by Ext.P1 proceedings dated 03.07.1984, notification was issued to fill up the vacancies of Shift Operators in the second respondent, on provisional basis, subject to the conditions therein. In Ext.P1, it was provided that the persons sponsored by the employment exchange as well as those who responded to Ext.P1 notice would be considered for selection. Thus, the candidates were considered for selection from two categories, (i) those sponsored by the employment exchange and (ii) those who responded to the notice inviting applications. By Ext.P2 composite order, three persons were appointed. It included the writ petitioner, who was appointed pursuant to his direct application and two others, who were sponsored by the employment exchange. 2. Subsequently, the above two persons, who were sponsored by the employment exchange and provisionally appointed by Ext.P2 were regularized with effect from 19.09.1990. The writ petitioner who was not regularized submitted representations seeking his regularization. Subsequently, by Ext.P4 order of the Government and W.P(C).9649/2014 3 Ext.P5 consequential order, it was clarified that, petitioner could not be regularized with effect from the date of regularization of the other two employees, since he was not sponsored by the employment exchange. He could only be regularized with effect from 30.06.2004. The writ petitioner filed W.P(C).No.32579 of 2006, which resulted in Ext.P6 judgment, by which, the second respondent/Water Authority was directed to consider representations submitted by the writ petitioner. By Ext.P7, his request was again declined on the ground that, the Government alone could reconsider Exts.P4 and P5. Subsequently, he submitted Ext.P8 application to the Government. Ext.P9 order was issued rejecting the above representations. In the meanwhile, Ext.P10 order was issued on 15.03.2014 directing to stop payment of adhoc allowances paid to the petitioner and to recover payments made in excess. These orders are under challenge in the above writ petition. 3. Separate counter affidavits were filed by the first respondent/Government and the second respondent/Kerala Water Authority. In both the writ petitions, identical stand taken by the authorities was that, the petitioner though, appointed pursuant to Ext.P1 notification, was appointed not through the employment exchange and as such, he was not entitled to seek the benefit of the judgment of the Supreme Court in **Jacob v. Kerala Water Authority** W.P(C).9649/2014 4 **[1990 KHC 449]** by which, several employees in various institutions including the Kerala Water Authority were ordered to be regularized. The stand taken by the Government as well as by the Water Authority was that, in Jacob's case, Supreme Court dealt with regularization of employees engaged through employment exchange only and did not consider the persons appointed directly from the open market. Hence, the petitioner was not entitled for any claim. It was also contended that, in Jacob's case, the employees recruited through employment exchange alone were considered for regularization. The service of the petitioner was regularized by the Government vide G.O.No.739/2004/WRD dated 30.06.2004 with effect from the date of order. 4. Assailing the stand taken by the Water Authority as well as by the Government, learned counsel for the writ petitioner contended that, Rule 9(a)(1) of the KSSR speaks only about temporary/provisional employment. There is no stipulation in the said Rule that the candidates who are considered for appointment under Rule 9(a)(1) shall be sponsored only from the employment exchange. Therefore, the appointment of the petitioner was clearly in terms of Rule 9(a)(1) of the KSSR, more particularly, in the light of Exts.P1 and P2. It was contended that, there was no justification for taking a view that the service of the petitioner was not liable to be W.P(C).9649/2014 5 regularized on the Supreme Court judgment in Jacob's case on the score that he was not sponsored by the employment exchange. The view taken by the respondent was contrary to the language and spirit of Rule 9(a)(1) of the KSSR. It was contended that, the Supreme Court in Jacob's case specifically directed the second respondent to regularize the service of all temporary employees appointed in terms of Rule 9(a)(1) of the KSSR, who fell within category-II mentioned therein, with effect from 19.09.1990. The Supreme Court did not make any distinction between a temporary employee sourced from the employment exchange, vis-a-vis a temporary employee like the petitioner, who responded to the notification issued by the second respondent. It was further contended that the stand taken in Exts.P4, P5, P7 and P9 meting out a differential treatment to the petitioner on the basis that, he was not sponsored by the employment exchange was directly in the teeth of judgment of this Court in **Binu v. State of Kerala** [2002(3) KLT 133]. 5. Rule 9(a)(1) of the KSSR empowers the appointing authority to appoint a person temporarily otherwise than in accordance with the Rule, if it was necessary in public interest and where an emergency has arisen to fill up any particular post, which was already vacant, immediately. A perusal of the judgment in Jacob's case shows that the Supreme Court essentially considered the W.P(C).9649/2014 6 question of regularization of the employees who were appointed pursuant to Rule 9(a) of the KSSR. After having considered that the employees in the Water Authority came from four different sources, it was inter alia directed that the services of workers employed by the authority in between 01.04.1984 and 04.08.1996 will be regularized with immediate effect, if they possessed the requisite qualifications for the post prescribed on the date of appointment of the concerned worker. There is nothing in the judgment to indicate that the Supreme Court considered the question whether the employees were engaged through Employment Exchanges. No such distinction is seen carved out in the judgment between persons sponsored by the employment exchange and those who were appointed from other sources. 6. Clause (vi) of Ext.P1 provides that, employment exchange should be notified for advising candidates. It further provides that, in addition to addressing the employment exchange, notices inviting applications should be published in the notice board kept in the office of the appointing authority. Selection of candidates for filling up the post provisionally, should be done considering the candidates advised by the employment exchange and it was further provided that, applications were to be invited by publishing in the notice board. It was clarified that the selection of candidates for filling up the post W.P(C).9649/2014 7 provisionally, should be done considering the candidates advised by the employment exchange and applications received in response to the notices published. By Ext.P2 order, three candidates, which included two persons sponsored by the Employment exchange, and also the petitioner were appointed. The above shows that, all were appointed pursuant to the same notification. All the candidates were appointed by the same selection process. Ext.P1 has not been revoked nor modified. In the above circumstances, the reasoning given by both the respondents that, employees who are not sponsored by the employment exchanges are not entitled to be regularized and that, it was so held by the Supreme Court in Jacob's case does not appear to be sustainable. There is absolutely no justification in making such an artificial distinction between two categories when neither Rule 9(a)(1) of the KSSR nor Jacob's case is made such a distinction. Evidently, the writ petitioner is entitled for the benefit of the decision in Jacob's case. To that extent, the writ petition is liable to be allowed. 7. In the light of the findings above, it is declared that the petitioner is a provisional employee appointed in terms of the Rule 9(a)(1) of the Kerala State and Subordinate Rules Category II of the decision of the Supreme Court in Jacob v. Water Authority [1990 KHC 449] and is liable to the regularized in terms of direction No.II W.P(C).9649/2014 8 contained in the judgment. Consequently, Exts.P4, P5 and P7 and P9 are quashed. Respondents 1 and 2 are directed to take steps to regularize the service of the petitioner in accordance with Jacob's case as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment. Accordingly, the writ petition is disposed of. Sd/- **SUNIL THOMAS JUDGE** ## **Sbna/** W.P(C).9649/2014 9 ## **APPENDIX OF WP(C) 9649/2014** |PETITIONER EXHIBITS|| |---|---| |EXHIBIT P1|EXT.P1 COPY OF THE PROCCEDINGS DATED| ||03/07/1984 ISSUED BY THE MANAGING DIRECTOR OF| ||THE SECOND RESPONDENT| |EXHIBIT P2|EXT.P2 COPY OF ORDER NO.E1.3/83 DATED| ||10/09/1985| |EXHIBIT P3|EXT.P3 COPY OF THE ORDER APPOINTING SRI.SHINE| ||T.S.IN TERMS OF RULE 9(A)(1)OF THE KS & SSR| |EXHIBIT P4|EXT.P3(A) COPY OF THE ORDER APPOINTING| ||SRI.GOPALAKRISHNAN IN TERMS OF RULE 9(A)(1)OF| ||THE KS & SSR| |EXHIBIT P5|EXT.P4 COPY OF THE G.O(RT)739/2004/WRD DATED| ||30/06.2004| |EXHIBIT P6|EXT.P5 COPY OF THE ORDER DATED 10/08/2004| |EXHIBIT P7|EXT.P6 COPY OF THE JUDGMENT DATED 23/01/2013| ||IN WP(C)32579/2006| |EXHIBIT P8|EXT.P7 COPY OF THE ORDER OF THE SECOND| ||RESPONDENT DATED 13/04/2013| |EXHIBIT P9|EXT.P8 COPY OF THE REPRESENTATION OF THE| ||PETITIONER DATED 30/05/2013| |EXHIBIT P10|EXT.P9 COPY OF THE GOVERNMENT ORDER DATED| ||05/12/2013| |EXHIBIT P11|EXT.P10 COPY OF THE PROCEEDINGS DATED| ||15/03/2014| |EXHIBIT P12|TRUE COPY OF THE INTIMATION ORDER DATED| ||15.06.1984| |EXHIBIT P13|TRUE COPY OF THE ORDER DATED 20.06.1986|