Biju Gopinath v. State of Kerala & Ors.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 24TH DAY OF FEBRUARY 2021 / 5TH PHALGUNA, 1942** ## **WP(C).No.668 OF 2020(G)** ## **PETITIONER:** **BIJU GOPINATH., AGED 43 YEARS S/O. GOPINATHAN NAIR, OLD WAITER, TEA COUNTY, HILL RESORTS, KTDC MUNNAR, IDUKKI 685 612, RESIDING AT PARANTHANATH HOUSE, PURAPUZHA P.O. THOUPUZHA, IDUKKI DISTRICT 685 583.** **BY ADVS. SRI.KALEESWARAM RAJ SRI.VARUN C.VIJAY KUM.A.ARUNA KUM.THULASI K. RAJ** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF TOURISM, SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **2 KERALA TOURISM DEVELOPMENT CORPORATION LTD., REPRESENTED BY MANAGING DIRECTOR, MASCOT SQUARE, THIRUVANANTHAPURAM 695 033.** - **3 MANAGING DIRECTOR,** **KERALA TOURISM DEVELOPMENT CORPORATION LTD.,, MASCOT SQUARE, THIRUVANANTHAPURAM 695 033.** **BY SRI.P.A.AHAMED, SC BY ADV. SRI.THOUFEEK AHAMED** ## **OTHER PRESENT:** ## **GP-SRI.SUNIL KUMAR KURIAKOSE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.668 OF 2020(G)** **2** ## **J U D G M E N T** The petitioner says that he is working on contract basis as a Waiter in the services of the Kerala Tourism Development Corporation Ltd. (KTDC) from the year 2004 and that he was originally recommended to be regularized in its services along with 41 others, as is evident from Ext.P2. He says that, however, the Government, without assigning any specific reason, approved regularization of only 33 persons and therefore, that nine among them, including himself, were left out. 2. The petitioner says that even before the afore mentioned order of regularization had been issued by the Government, it appears that two among them had approached this Court by filing W.P.(C)Nos.21965/2011 and 23186/2014; but that even before the said writ petitions were considered by this Court, the Managing Director of the KTDC made further proposal for regularization of nine persons - including himself, who were left out from the earlier round of regularization, through a proceeding dated 17.08.2016. 3. The petitioner says that, however, instead of **WP(C).No.668 OF 2020(G)** **3** regularizing all the nine who had been so recommended by the Chairman of the KTDC, Government has now issued Ext.P3 order, dated 05.11.2019, regularizing only two among them, namely Sri.Manoj Kumar R.D and Sri.Balunath V.S. **,** solely for the reason that they are the petitioners in the aforementioned W.P.(C)Nos.21965/2011 and 23186/2014 respectively; holding that others are not so entitled. 4. The petitioner says that the reasons in Ext.P3 are completely untenable since, there was no reasonable cause why only two among the nine, who are recommended by the Managing Director of the KTDC, alone were granted the benefit of regularization. He says that merely because they had chosen to approach this Court at a time when all the nine were awaiting this benefit from the year 2014, it was not proper to have confined the benefits to them alone; and that this is absolutely without basis because their rights ought to have been determined by the subsequent proposal given by the KTDC in the year 2016. The petitioner, therefore, prays that Ext.P3, to the extent to which his regularization has been denied by the Government, be set **WP(C).No.668 OF 2020(G)** **4** aside. 5. I have heard Smt. Thulasi Raj - learned counsel for the petitioner, Sri.Thoufeek Ahammed - learned Standing Counsel for the KTDC and the learned Government Pleader - Sri.Sunil Kumar Kuriakose, appearing for the official respondents. 6. The facts involved in this case would show that the KTDC initially recommended regularization of 42 persons - including the petitioner - through Ext.P2 dated 10.04.2015, which was done on the basis of a judgment of this Court dated 04.03.2015, in W.P.(C)No.5904/2011 and connected matters. 7. However, out of this 42, only 33 were regularized and therefore, the Managing Director of the KTDC, thereafter, issued Ext.R2(a) recommendation seeking that the balance nine also be regularized. The petitioner is one among them. 8. Normally, therefore, the Government ought to have considered regularization of all the nine persons as one class and ought to have granted it or rejected it as a whole. **WP(C).No.668 OF 2020(G)** **5** 9. However, what has been done by the Government, through Ext.P3, is that two among the nine persons, who had earlier approached this Court by filing W.P. (C)Nos.21965/2011 and 23186/2014 respectively, has been granted the said benefit; while others have been denied it, saying that they had not approached this Court and obtained orders. 10. I certainly fail to understand how the Government could have chosen two from among the nine persons in this manner, particularly when it has been unequivocally settled by the Hon'ble Supreme Court in **State of U.P. & Others v. Arvind Kumar Srivasthava & Others [2015 (1) SCC 347],** that when a particular set of employees are given relief by the Court, all other identically situated persons need to be treated alike, by extending that benefit. 11. In the case at hand, even though two among the nine persons had approached this Court in the year 2014 seeking the benefit of regularization, the Managing Director of the KTDC made the requisite recommendation only in the year 2016, in favour of all of them. Obviously, therefore, Government ought to **WP(C).No.668 OF 2020(G)** **6** have considered the recommendation of the KTDC in its full and could not have been swayed by the fact that two among these nine persons had approached this Court earlier. 12. This is not a case where the petitioner can be construed to be a 'fence sitter' either, because he claims relief on the strength of Ext.R2(a) recommendation made by the Managing Director of the KTDC on 17.08.2016, without any reference to the writ petitions filed by the afore mentioned two persons. 13. Therefore, Government cannot deny relief to the petitioner on the strength of the principles of 'sit back theory' because the petitioner - though had not approached this Court – had been agitating his claims before the competent Authority of the KTDC, which had led to the recommendation being made by its Managing Director through Ext.R2(a). 14. In the afore circumstances, I find no reason whatsoever in the Government having issued Ext.P3 denying the benefit of regularization to the petitioner, merely because he had not chosen to approach this Court earlier, as had been done by **WP(C).No.668 OF 2020(G)** **7** the two persons mentioned therein. Resultantly, I order this writ petition and set aside Ext.P3, to the extent to which it relates to the petitioner and direct the Government to reconsider his case based on Ext.R2(a) recommendation made by the Managing Director of the KTDC and to issue an appropriate order thereon, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. **SD/-** rp **DEVAN RAMACHANDRAN JUDGE** **WP(C).No.668 OF 2020(G)** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **EXHIBIT P2** **EXHIBIT P3** **TRUE COPY OF THE JUDGMENT DATED 04.05.2015 IN WPC NO. 21965 OF 2011 AND CONNECTED CASES.** **TRUE COPY OF THE ORDER NO. KTDE/PA6/RECON/2015 DATED 10.04.2015 ISSUED BY THE 3RD RESPONDENT.** **TRUE COPY OF THE GO (MS) NO. 20/2019/TOURISM DATED 05.11.2019.**