Deepu S. Kumar v. K.S.R.T.C. & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** **FRIDAY, THE 19TH DAY OF AUGUST 2016/28TH SRAVANA, 1938** **W.A.No. 525 of 2015 IN W.P.(C). No. 16124/2010** **---------------------------------------------------------------AGAINST THE JUDGMENT DATED 16.01.2015 OF A LEARNED SINGLE JUDGE OF THIS HON'BLE COURT IN W.P.(C.) NO. 16124/2010 ..............................................** ## **APPELLANT/PETITIONER:** **--------------------------------------** **DEEPU S. KUMAR LECTURER IN MECHANICAL ENGINEERING, SREE CHITRA TIRUNAL COLLEGE OF ENGINEERING, PAPPANAMCODE, THIRUVANANTHAPURAM - 695 018 RESIDING AT 'SHYLADRI', NEAR INDUS MOTORS, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM** **BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.S.A.ANAND** ## **RESPONDENTS/RESPONDENTS:** **----------------------------------------------** **1. K.S.R.T.C. SREE CHITRA THIRUNAL COLLEGE OF ENGINEERING (THIRUVANANTHAPURAM) SOCIETY, PAPPANAMCODE, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, SREE CHITRA TIRUNAL COLLEGE OF ENGINEERING, PAPPANAMCODE, THIRUVANANTHAPURAM, PIN - 695 018.** **2. STATE OF KERALA REPRESENTED BY ITS SECRETARY, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **3. PRINCIPAL SREE CHITRA TIRUNAL COLLEGE OF ENGINEERING, PAPPANAMCODE, THIRUVANANTHAPURAM, PIN - 695 018.** ## **W.A.No. 525 of 2015** **4. MANAGING DIRECTOR KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM.** **R1, R3 & R4 BY SRI.BABU JOSEPH KURUVATHAZHA, SC R2 BY GOVERNMENT PLEADER SRI. N.K. THANKACHAN** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 19-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DCS** ## **ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ.** ------------------------------------------------------ ## **W.A.No.525 of 2015** ---------------------------------------------------Dated this the 19[th] day of August, 2016 ## **JUDGMENT** ## Dama Seshadri Naidu, J. The issue is the regularization of an employee who has been in service either as a guest lecturer or on a contract basis for the past 16 years, but without a regular selection process. When the appellant filed W.P. (C) No.16124/2010 seeking regularisation, it was dismissed through a judgment dated 16.01.2015. Then, aggrieved, the appellant is before us. 2. The facts in brief are that the appellant initially joined the services of the first respondent College in December 2000 as a guest lecturer in the Department of Mechanical Engineering. While he was continuing in service, the college issued a notification to appoint certain lecturers, among other things, in the Department of Mechanical Engineering and Computer Science on a contract basis. After going through the selection process, the first respondent issued Ext. P3 rank list, in which the appellant stood W.A. No. 525/2015 : 2 : fifth. But the College appointed persons only up to the fourth rank; so the appellant had been left out. 3. Soon after their appointment, three out of the four appointees resigned their position. As a result, the appellant renewed his request to have his services regularised in any vacancy occasioned by the resignations. His request rejected through Exts. P22 and P24, the appellant filed W.P.(C). No. 20883/2007, but it was dismissed on the ground that the first respondent was not an instrumentality of State: It was not amenable to Article 226 of the Constitution of India. 4. The appellant, however, carried the matter to the Apex Court, which rendered Ext. P26 judgment. On the concession made by the counsel for the respondents, the Apex Court has held that the first respondent is a State. In turn, a learned Division Bench of this Court rendered Ext. P27 judgment requiring the authorities to consider the appellant's case in the changed circumstances. In response, the first respondent through Ext. P29 order once again rejected the appellant's claim. Further aggrieved, the appellant filed W.P.(C). No. 16124/2010, the dismissal of which has led to his filing this appeal. W.A. No. 525/2015 : 3 : 5. In the above factual background, the learned counsel for the appellant has strenuously contended that the appellant had been in service for the past 16 years in one capacity or another, especially, having the requisite qualification. He has also contended that in the Department of Computer Science, similarly placed candidates were considered though they were placed at the bottom of the rank list. To elaborate, the learned counsel has stressed that in the vacancies arose after the resignation of certain candidates, two contract lecturers were regularised through Exts. P36 and P38. As a matter of parity, according to the learned counsel, the authorities ought to have considered the appellant's case, too, for regularisation. 6. The learned counsel has also drawn our attention to the fact that in 2006, through Ext. P14, the appellant was appointed on a contract basis; so he was eminently entitled to be regularised. He reiterates that the appellant had the qualification as well as the experience of about a decade by then. In this context, the learned counsel has also submitted that the person who secured the 4[th] rank and remained in service was regularised as per Ext. P11. It was based on Ext. P13. W.A. No. 525/2015 : 4 : 7. Finally, the learned counsel has drawn our attention to paragraph 39 of the statement filed by the first respondent to contend that the first respondent initially took a plea that all the appointments based on the selection process were well within one year. According to him, Exts. P36 and P38 belie that contention, for persons were appointed even beyond one year. Summing up his submissions, the learned counsel has urged this Court to allow the writ appeal, especially, because the appellant has already put in 16 years’ service. 8. The learned Standing Counsel for the first respondent has, with equal vehemence, tried to refute the appellant’s contentions. According to him, all the appointments which eventually ended in regularisation were strictly under the regnant regulations. He has further elaborated on the selection process: The persons regularised were initially appointed from Ext. P3 rank list, but not otherwise. Even about the persons appointed in the Department of Computer Science under Exts. P36 and P38, the learned Standing Counsel would contend that their appointment was also initially on a contract basis within one year after Ext. P3; the regularisation was thereafter, though. W.A. No. 525/2015 : 5 : 9. The learned Standing Counsel has drawn our attention to **Secretary, State of Karnataka and Others v. Umadevi (3)[1]** and **Ekta Shakti Foundation v. Government of NCT of Delhi[2]** to hammer home his contention that mere length of service without an employee undergoing the regular selection process would be of no avail. 10. Heard the learned counsel appearing for the appellant, the learned Standing Counsel appearing for respondents 1, 3 and 4, and the learned Government Pleader appearing for the second respondent, apart from perusing the record. ## **Issue:** 11. The doctrine of equality of opportunity or fairness of treatment has been enshrined in Article 14 of the Constitution of India. The appellant has been working temporarily for many years. Has the authorities discriminated against the appellant in refusing to regularise his services? ## **Discussion:** 12. Indeed, the issue, though undergone multiple rounds of litigation, falls in a narrow compass. Undoubtedly—and > 1 (2006) 4 SCC 1 > 2 2006(3) KLT 601 (SC) W.A. No. 525/2015 : 6 : regrettably—the appellant, perhaps hoping to get regularised one day, has continued in the first respondent college for the past 16 years. He missed the regular appointment because only the first four persons were appointed, whereas he stood fifth. Undeniably, the first three persons in the Department resigned, and it resulted in clear vacancies. 13. That said, we should add that at no point in time has the appellant been appointed after being subjected to a regular selection process. True, in 2006 he was appointed on contract basis. A perusal of Ext. P14 amply demonstrates that the appointment was in recognition of his past service as a guest lecturer and in acceptance of his request. So it cannot by any reckoning be said that the appellant's appointment in 2006 was under Ext. P3 or after any other regular selection process. 14. Indeed, in 2002 itself, through Ext. P25, the first respondent college went for a regular selection process. Though the appellant had an opportunity of redeeming himself by participating in the selection process, for reasons not clear from the record he absented himself from participating. Thus, he has missed another opportunity of getting a regular employment. W.A. No. 525/2015 : 7 : 15. Though the appellant is 42 by now, and though the chance of his securing an alternative appointment at this stage is very bleak, the fact remains that this Court as well as the Supreme Court has with unfailing regularity held that no backdoor entry into public service can be countenanced, much less encouraged. The salutary scheme of public employment is that the most competent are to be appointed, especially, after wide publicity and a transparent selection process. 16. Though the vigour of **Umadevi (3)** is felt in every sphere of public employment, it has however taken a practical view . It is not dismissive of every form of appointment other than the regular ones. In fact, the Constitution Bench has sagaciously held thus: “53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) . . . of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should W.A. No. 525/2015 : 8 : further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme. (internal citations omitted; emphasis added) 17. Evidently, their Lordships have not lumped together all the appointments in one block to be thrown out. Indeed, a desirable distinction has been made in terms of illegal appointments and irregular appointments. Without indulging in semantic speculation of what is illegal and what is irregular for the nuances are endless, suffice it to say that **Umadevi (3)** has qualified its benevolent measure of regularisation with another condition: The employees ought to have worked for ten years or more, but without the judicial intervention. 18. Post **Umadevi (3)** , another significant pronouncement on the issue is **Official Liquidator v. Dayanand**[3] . A three Judge-Bench of the Hon’ble Supreme Court has surveyed the substantive part of the case law obtaining on public employment, especially regularization of temporary, > 3 (2008) 10 SCC 1 W.A. No. 525/2015 : 9 : contractual, casual, daily wage, or ad hoc employees. It was in the backdrop of **Umadevi (3)** . **Dayanand** , in fact, traces down the shift in the judicial stand on public employment. In paras 66 and ## 68 of the Judgment, it holds thus: “The judgments of 1980s and early 1990s . . . are representative of an era when this Court enthusiastically endeavored to expand the meaning of equality clause enshrined in the Constitution and ordained that employees appointed on temporary/ad hoc/daily wage basis should be treated at par with regular employees in the matter of payment of salaries and allowances and that their services be regularized. In several cases, the schemes framed by the governments and public employer for regularization of temporary/ad- hoc/daily wag/casual employees irrespective of the source and mode of their appointment/ engagement were also approved. In some cases, the courts also directed the State and its instrumentalities/agencies to frame schemes for regularization of the services of such employees. The above noted judgments and orders encouraged the political set up and bureaucracy to violate the soul of Article 14 and 16 as also the provisions contained in the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 with impunity and the spoil system which prevailed in the United States of America in sixteenth and seventeenth century got firm foothold in this country. Thousands of persons were employed/engaged throughout the length and breadth of the country by backdoor methods. Those who could pull strings in the power corridors at the higher and lower levels managed to get the cake of public employment by trampling over the rights of other eligible and more meritorious persons registered with the employment exchanges. A huge illegal employment market developed in different parts of the country and rampant corruption afflicted the whole system. . .” (internal citations omitted) ## 19. After tracing the course of judicial pronouncements on the public employment, **Dayanand** emphatically holds that the W.A. No. 525/2015 : 10 : menace of illegal and backdoor appointments compelled the Courts to have a re-think in many subsequent judgements. Thus, the backdrop has been supplied to its later refusal to entertain the claims of ad hoc and temporary employees for regularization. 20. In the factual background, **Dayanand** has further held that given the temporary nature of the employment, more qualified and meritorious persons must have shunned applying because they knew that the employment would be temporary. Then only mediocre people must have responded to the advertisements and joined the service. Any direction for absorption, asserts **Dayanand** , would be detrimental to public interest in more than one way: first, it will compel the Government to abandon the policy decision of reducing the direct recruitment to various services; and second, this will be virtual abrogation of the statutory rules which envisage appointment to different cadres by direct recruitment. 21. In **State of Haryana v. Ram Kumar Mann[4]** the Hon’ble Supreme Court has held that the doctrine of discrimination is founded upon existence of an enforceable right. > 4 (1997) II LLJ 1039 SC W.A. No. 525/2015 : 11 : Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced with no rational basis or relationship in that behalf. The principle is not meant to perpetrate an illegality. In **State of Bihar v. Kameshwar Prasad Singh[5]** the Apex Court has further held that a wrong order cannot be the foundation for claiming equality, much less for its enforcement. Quoting both these decisions with approval, **Ekta Shakti Foundation** (supra) has held that if the executive action has not been tainted with any oblique motive, no person, especially without any enforceable right, can question the policy or its implementation by the executive. 22. Now, even going by the principle laid down in **Umadevi's** case (supra), we cannot say that the appellant has put in 10 years uninterrupted service. Nor can we say that the appellant’s initial selection was through a regular process. That apart, confining to the facts, we may say that the appellant’s continuing on the strength of interim directions from this Court at one stage or another does not make him eligible, as has been declared in **Umadevi** . We cannot, further, be oblivious that the > 5 AIR 2000 SC 2306 W.A. No. 525/2015 : 12 : appellant’s initial entry is without any reference to the regular selection process. In the facts and circumstances, we cannot but dismiss the appeal. No order on costs. **ANTONY DOMINIC Judge** **DAMA SESHADRI NAIDU Judge** DCS