Badarudeen K. v. Secretary to Government Local Self Government Department, Government Secretariat, Thiruvananthapuram, and Secretary, Tribunal for Local Self Government Institutions, Sreemoolam Buildings, District Court Complex, Thiruvananthapuram

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 14TH DAY OF FEBRUARY 2018 / 25TH MAGHA, 1939 **OP(KAT).No. 37 of 2018** AGAINST THE ORDER DATED 28.11.2017 IN OA 1074/2017 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM ## **PETITIONER(S)/APPLICANT.** BADARUDEEN K. AGED 55 YEARS, DRIVER, DAILY WAGES, OFFICE OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, DISTRICT COURT COMPLEX, VANCHIYOOR, THIRUVANANTHAPURAM.695035, RESIDING AT VATTAVILA VEEDU, VELLAYANI JUNCTION, NEMOM PO, THIRUVANANTHAPURAM, KERALA.695020. BY ADV.SRI.M.SREEKUMAR ## **RESPONDENTS/RESPONDENTS:** 1. THE SECRETARY TO GOVERNMENT LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. KERALA.695001 2. THE SECRETARY, TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, SREEMOOLAM BUILDINGS, DISTRICT COURT COMPLEX, VANCHIYOOR, THIRUVANANTHAPURAM, KERALA.695035 BY SR. GOVERNMENT PLEADER SHRI P.N. SANTHOSH THIS OP (KERALA ADMINISTRATIVE TRIBUNAL) HAVING COME UP FOR ADMISSION ON 14-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 37 of 2018 (Z) ## **APPENDIX** ## PETITIONER(S)' EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION NO.1074/2017 FILED BY THE PETITIONER BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 8.6.17. EXHIBIT P2 TRUE COPY ORDER IN O.A NO.1074/17 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 19.6.2017 EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT DATED 8.2017 FILED BY THE 2ND RESPONDENT IN O.A NO.1074/17 BEFORE THE KAT. EXHIBIT P4 TRUE COPY OF LETTER NO.LSGD-IA 4/262/LSGD DATED 10.7.2017 OF THE 1ST RESPONDENT. EXHIBIT P5 TRUE COPY OF REPRESENTATION FILED BY THE PETITIONER BEFORE 1ST RESPONDENT DATED 8.11.2017 EXHIBIT P6 TRUE COPY OF ORDER IN O.A NO.1074/17 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 21.11.17 EXHIBIT P7 CERTIFIED COPY OF ORDER IN O.A NO.1074/17 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 28.11.17 /TRUE COPY/ P.S. TO JUDGE. ## **P.R. RAMACHANDRA MENON & DEVAN RAMACHANDRAN, JJ.** .............................................................................. **O.P(KAT)No.37 OF 2018** ......................................................................... **Dated this the 14[th] February, 2018** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** Grievance is in respect of the direction given by the Kerala Administrative Tribunal as per Ext.P7 order, whereby the prayer for regularisation has been declined to be acted upon, but for directing the Government to consider the grievance projected in Annexure A11 representation to have continuous engagement as it is being pursued now and to pass appropriate orders thereon in the manner specified therein. 2. Heard both the sides. 3. The sequence of events mentioned in the Original Petition reveals that the petitioner was engaged as Driver on daily wage basis from 08.07.2005. The State Government had constituted the Tribunal for Local Self Government Institutions as per G.O.(P)N0.52/2004/LSGD dated 05.02.2004 and posts were created as per the subsequent Government Order dated **O.P(KAT)No.37 OF 2018** **2** 06.04.2004. Pursuant to Annexure A1 G.O. dated 29.01.2005, some additional posts, including that of Driver were created and sanction was given to the second respondent to appoint a driver on daily wage basis as per Annexure A2 G.O. dated 06.07.2005. It was accordingly, that the petitioner was appointed to the post of Driver as per Annexure A3 dated 08.07.2005 and he is continuing in the said post ever since the appointment, as above. 4. The petitioner, despite the above long tenure of service on daily wage basis was never regularised by the authorities and in the said circumstance, a claim was putforth for granting the benefit of regularisation. The facts and figures were forwarded to the Government by the Tribunal as well, as disclosed from Annexure A5. The representation preferred by the petitioner was rejected by the Government placing reliance on the verdict passed by the Supreme Court in _**State of Karanataka vs. Umadevi and others**_ [ **(2006)4 SCC** 1]. This made the petitioner to file another representation by way of Annexure A6, also with reference to the necessity to invoke Rule 39 of Part II KS & SSR. The petitioner also made a reference to the **O.P(KAT)No.37 OF 2018** **3** Government Order dated 26.02.2016 (G.O(P)No.28/2016/Fin) causing regularisation of persons engaged under similar circumstances and who had already crossed 10 years' of service on daily wage basis. It was thereafter that the matter was pursued before the Tribunal by filing Ext.P1 O.A. with the following prayers: _“i) to declare that the Applicant is eligible and entitled to continue in service until a person is regularly appointed through regular process of selection._ _ii) to direct the respondents to allow the applicant to continue on daily wages until a person is regularly appointed through regular process of selection._ _iii) to direct the 1[st] respondent to consider A6 representation in accordance with law as expeditiously as possible. ”_ 5. When the matter came up for consideration before the Tribunal, Ext.P2 interim order was passed directing not to disengage the petitioner from service. Ext.P3 reply statement was filed by the second respondent pointing out the circumstances under which engagement was made. It was also stated that all the posts, except the post of Presiding Officer and that of the Secretary, were permitted to be filled up by way of **O.P(KAT)No.37 OF 2018** **4** deputation. The post of Driver was also sought to be filled up as mentioned above, as instructed by the Government. This was sought to be challenged by the petitioner stating that he was entitled to be regularised in service. The claim was rejected by the first respondent as per Ext.P4 dated 10.07.2017. The petitioner was being continuously engaged for specified term of 179 days as revealed from Annexure A9 dated 01.04.2016 and was continuing as above. 6. In the further course of proceedings, the Tribunal dealt with the matter in detail and the interim order already passed on 19.06.2017 came to be varied as per Ext.P6, whereby the course sought to be pursued for filling up the vacancies by way of deputation was permitted to be continued, however holding that till such time, the petitioner could be engaged. Met with the situation, the petitioner filed Annexure A11 representation dated 08.11.2017, copy of which has been produced as Ext.P5, for causing the matter to be re-considered or at least to accommodate him in any of the Department in Thiruvananthapuram district. Reliance was also sought to be **O.P(KAT)No.37 OF 2018** **5** placed on the verdict passed by the Apex Court in _**State of Haryana and others vs. Piara Singh & ors**_ [ **(1992) 4 SCC 118** ] and the observation made by the Supreme Court in paragraph 53 of the verdict in _**Secretary, State of Karnataka**_ _**vs. Umadevi & ors**_ [ **(2006) 4 SCC 1** ]. The matter was considered by the Tribunal and it was accordingly, that Ext.P7 verdict was passed on 28.11.2017 causing Annexure A11 representation to be disposed of, after affording an opportunity of hearing to the applicant within three months, as specified therein . This made the petitioner to feel aggrieved, who has approached this Court by filing this O.P.. 7. When the matter came up for consideration before this Court on the last occasion, the learned Government Pleader was required to get instruction as to whether any 'policy decision' has been taken by the Government or whether any steps are proposed to be taken for regularising the service of the Drivers engaged on daily wages in the 'Local Authorities' in respect of the persons who were continuing in service for quite long. The learned counsel for the petitioner made available a copy of the **O.P(KAT)No.37 OF 2018** **6** Government Order bearing No.G.O(MS)No.138/2015 dated 01.07.2015 passed by the Government in respect of the Health Department, where service of similarly situated persons who were engaged on daily wage basis and continuing for more than 10 years were ordered to be regularised. The learned counsel submits that there has been several other instances of regularisation in various other Departments as well and nonconsideration of the claim of the petitioner in this regard is arbitrary and discriminatory in all respects. The learned counsel seeks to have the matter re-considered by the Government exhaustively, also with reference to such similar orders. 8. In the said circumstance, we do not find it necessary to go into the merits of the case. The first respondent is directed to re-consider Annexure A6, while considering Annexure A11 and pass appropriate orders, in accordance with law, also taking note of the relevant orders, if any, passed by the Government under similar circumstances and affording an opportunity of hearing to the petitioner. This shall be done at the earliest, at any rate, within three months from the date of receipt of a copy of the **7** ## **O.P(KAT)No.37 OF 2018** judgment. The order under challenge stands modified to the said extent, so as to facilitate such exercise. The Original Petition is disposed of. **P.R. RAMACHANDRA MENON, JUDGE** **DEVAN RAMACHANDRAN, JUDGE** lk