Centre for Continuing Education Kerala (established by Government of Kerala) v Deepa Das

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 12TH DAY OF JUNE 2018 / 22ND JYAISHTA, 1940 ## **WA.No. 858 of 2018 IN WPC. 22969/2017** AGAINST THE JUDGMENT IN WP(C) 22969/2017 of HIGH COURT OF KERALA DATED 14-02-2018 ## **APPELLANTS/RESPONDENTS 1 & 2** 1 CENTRE FOR CONTINUING EDUCATION KERALA (ESTABLISHED BY THE GOVERNMENT OF KERALA) REPRESENTED BY ITS DIRECTOR, ANATHARA LANE, KOWDIAR PO, THIRUVANANTHAPURAM-695003. 2 THE DIRECTOR, CENTRE FOR CONTINUING EDUCATION KERALA, ANATHARA LANE, KOWDIAR PO, THIRUVANANTHAPURAM-695003. BY ADVS.SRI.LINDONS C.DAVIS SMT.E.U.DHANYA ## **RESPONDENTS/PETITIONER & RESPONDENTS 3 & 4:** 1. DEEPA DAS.D AGED 29 YEARS, W/O SIJU I.J, KUZHIVILA VEEDU, PERUKAVU PO, THIRUVANANTHAPURAM-695573. 2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT OF KERALA, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. ## 3. ANITHA ANTONY, LIBRARY ASSISTANT, KERALA STATE CIVIL SERVICE ACADEMY, ANATHARA LANE, KOWDIAR PO, THIRUVANANTHAPURAM-695003. BY SR. GOVERNMENT PLEADER SHRI P.N. SANTHOSH BY SRI.P.M.MOHAMMED SHIRAZ THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R. RAMACHANDRA MENON & DEVAN RAMACHANDRAN, JJ.** .............................................................................. **W.A.No.858 OF 2018** ......................................................................... **Dated this the 12[th] June, 2018** ## **JUDGMENT** ## **Devan Ramachandran, J.** This appeal has been filed by the first respondent in W.P. (C)No.22969 of 2017, the Centre for Continuing Education Kerala, which is stated to be a wholly controlled organization by the Government of Kerala and therefore, coming within the sweep of Article 12 of the Constitution of India. 2. The controversy in question is with regard to the claim of the first respondent herein, who was the petitioner in the writ petition, to continue her service as a daily waged employee under the appellants, on the assertion that she has been continuing there since 02.04.2009. As per the pleadings available in the memorandum of writ petition, the first respondent says that she was engaged as a Library Attender in the first appellant's institution on 02.04.2009 and that she is fully qualified to hold **W.A.No.858 OF 2018** **2** that post, she being a graduate in English Literature and Post Graduate in Library Science. According to her, she became a Library Assistant after a period of 5 years and that once she was so working, she was constrained to take maternity leave and that she was permitted to rejoin as per Ext.P4 order, dated 10.04.2015. 3. As per her, thereafter, the appellants abruptly terminated her from service on 05.04.2016, appointing the third respondent herein, who was the 4[th] respondent in the writ petition, in her place on daily wages. 4. The writ petitioner/first respondent herein has also made certain allegations against the appellants, perhaps in an attempt to show that the action to terminate her service was actuated by malice. According to her, even though she had been retained for duty after maternity leave, she was assigned late evening shift upto 10.00 p.m. and that no steps were taken by the appellants to provide her sufficient security, thus placing her in grave fear when she had to travel back home at such late hours. **W.A.No.858 OF 2018** **3** 5. When the first respondent's service was terminated on 05.04.2016, which, she says, was done even without a formal order, she approached the Human Rights Commission, which initiated action, leading to Ext.P7 report being called for from the second appellant herein viz, the Director of the Centre for Continuing Education Kerala. Based on this report, the Human Rights Commission found that the cause shown by the appellants for terminating the service of the petitioner is completely untenable and that there was no justifiable reason to substitute her with the third respondent herein, since the post was not a regular one, for which a regular recruitment process had been initiated or concluded. 6. On such mentation, the Human Rights Commission issued an order holding that the continuance of the third respondent on daily wage from 21.07.2016, terminating the service of the first respondent herein, is illegal, unlawful and unsustainable and a consequential direction was issued to reengage the petitioner in the place of the third respondent herein. Consequent to this order of the Human Rights Commission, the **W.A.No.858 OF 2018** **4** first respondent approached the appellants for being re-engaged but the second appellant issued Ext.P9 order, which they say, was done in consultation with the Government of Kerala, refusing to do so and it is this order that was impugned before the learned single Judge. 7. The learned single Judge, on an assessment and evaluation of all the factors, both factual and legal, has entered into a conclusion that the recommendations of the State Human Rights Commission cannot be faulted with and thus gave an imprimatur to Ext. P8 order, entitling the first respondent herein to be re-engaged in the place of the third respondent herein, as was directed by the Human Rights Commission. 8. The appellants challenge the judgment of the learned single Judge on various grounds, primarily that the first respondent does not have a legal or vested right to claim continuance in service on daily wage basis in preference to the third respondent herein. 9. We have heard Mr. Lindons C Davis, the learned counsel for the appellants, Mr. P.M Mohammed Shiraz, the learned **5** ## **W.A.No.858 OF 2018** counsel for the first respondent and Mr. P.N. Santhosh, the learned Government Pleader for the official parties. 10. This writ appeal was presented on 06.04.2018 and even though the appellants sought for an interim order, this Court had declined to do so. However, we notice that inspite of the fact that no interim order was granted by this Court, the appellants were continuing to engage the third respondent herein on daily wage basis, contrary to the directions contained in the judgment of the learned single Judge. We had therefore on ## 28.05.2018 passed the following order: “ The learned counsel for the appellants seeks for further adjournment. We have been given to understand that the third respondent, despite expiry of the tenure of appointment, is still being engaged on daily wages. Since the better right of the first respondent/writ petitioner has been declared by the learned single Judge and since the matter is still to be admitted, we make it clear that the third respondent, who did not choose to contest the matter before the learned single Judge, shall never be continued to be engaged in preference to the first respondent/writ petitioner. “ 11. The learned counsel for the appellants thereafter submitted that in obedience to the directions of this Court afore **W.A.No.858 OF 2018** **6** extracted, the third respondent's service has also been terminated and that they should be permitted to conduct a fresh recruitment for the purpose of filling up this post, on contract or daily wage engagement. 12. We have examined the submission made by the learned counsel for the appellants with care but are of the view that the only issue germane is whether the directions given by the learned single Judge to retain the first respondent herein until such time as a regular vacancy is notified and filled up, should be interdicted by us in any manner. We are aware that it is settled principle of law that a person who is engaged on daily wage or contract basis may not have a locus to claim regularisation, especially in view of the affirmative declaration of law in _**Secretary, State of Karnataka and others vs. Umadevi**_ [ **2006 (4) SCC 1 ].B** We are also aware that the Hon'ble Supreme Court has restated this principle in _**Yogesh Mahajan vs. Professor R.C. Deka, Director, All India Institute of Medical Science**_ [ **2018(3) SCC 218** ], wherein it was held that no contract employee has a right to have his or her **7** ## **W.A.No.858 OF 2018** contract renewed from time to time. 13. Viewed from that perspective of the ratio in the above judgments, we have to examine only whether the present directions given by the learned single Judge to the appellants to continue the first respondent in preference to the third respondent would obtain legal support. 14. The undisputed facts on record would reveal that the post in question is not the one that is regularly sanctioned to the appellants. This is a post to which the appellants have been engaging the petitioner/first respondent herein or the third respondent, as the case may be, purely on daily wage basis. Pertinently, even though the third respondent was served notice from this Court when the writ petition was considered and also in the appeal, there is no appearance on her behalf and we are, therefore, guided to a suspicion that she is perhaps not interested in continuing in the service of the appellants. That apart, as we have already indicated above, this is not a post to which regular recruitment process has been contemplated by the appellants. They tell us even today, through their learned **W.A.No.858 OF 2018** **8** counsel, that they intend to fill up this post only on a daily wage basis or contract basis. We therefore, fail to understand why they should show this urgency or anxiety not to engage the first respondent herein, even though admittedly she is fully qualified to hold the said post. There is also no case that she was found wanting in her service or that any complaint has been raised against her, except the appellants' assertion that the first respondent had abandoned her service from 06.04.2010. Interestingly, this is not a contention they had raised either before the Human Rights Commission or when Ext.P7 report was formulated . In such view of the matter, we can only, therefore, assume and hold that this is only a self serving statement made by the appellants in order to find a defence against the claim of the first respondent. 15. In a summation of our observations above, we are certainly of the view that the learned single Judge has exercised jurisdiction without any error and that the directions contained in the judgment before us, do not suffer from any vice or infirmity. We are thus in full affirmation of the directions contained in the **9** ## **W.A.No.858 OF 2018** impugned judgment and we, therefore, dismiss this appeal confirming the same. Consequently, if the appellants choose to engage any person for the post of Library Assistant on daily wage basis, they shall offer it, at the first instance, to the first respondent herein and she will be entitled to continue in that post on the same terms as she is presently enjoying, subject to, of course, the liberty available to the appellants to fill up the post regularly and through a process of law for regular appointment. This appeal is thus ordered. ## **P.R. RAMACHANDRA MENON, JUDGE** **DEVAN RAMACHANDRAN, JUDGE** lk