Don Jose K. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **THURSDAY, THE 27TH DAY OF SEPTEMBER 2018 / 5TH ASWINA, 1940** **OP(KAT).No. 348 of 2018** **AGAINST THE ORDER IN OA 2160/2017 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 12-04-2018** ## **PETITIONER/5TH APPLICANT:** **DON JOSE K. AGED 31 YEARS SON OF JOSE KALLELI, CLINICAL INSTRUCTOR, GOVERNMENT COLLEGE OF NURSING, ERNAKULAM - 683503 (RESIDING AT KALLELI HOUSE, PANANJAKAM, P.O.MANNUTHI, THRISSUR-680651)** **BY ADVS. SRI.V.A.MUHAMMED SRI.M.SAJJAD** ## **RESPONDENTS/RESPONDENTS 1 TO 18 AND APPLICANTS 1 TO 4** **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY AFFAIRS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001.** **2 THE DIRECTOR DIRECTORATE OF MEDICAL EDUCATION, P.O.MEDICAL COLLEGE,THIRUVANANTHAPURAM-695011.** - **3 THE JOINT DIRECTOR OF NURSINIG EDUCATION DIRECTORATE OF MEDICAL EDUCATION, P.O MEDICAL COLLEGE,THIRUVANANTHAPURAM-695011.** O.P.(KAT).348/2018 2 - **4 THE PRINCIPAL** **GOVERNMENT COLLEGE OF NURSING,COCHIN MEDICAL COLLEGE AND HOSPITAL,P.O.H M T COLONY, KALAMASSERY-683503.** - **5 SMT.MINI SACHARIAS** **AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER ASSISTANT PROFESSOR, GOVERNMENT COLLEGE OF NURSING, P.O.H M T COLONY,KALAMASSERY-683503.** - **6 SMT.INDU BALAKRISHNAN** **AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER,ASSISTANT PROFESSOR, GOVERNMENT COLLEGE OF NURSING, P.O.H M T COLONY,KALAMASSERY-683503.** - **7 SRI.ELBY P.PAUL** - **AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER,ASSISTANT PROFESSOR, GOVERNMENT COLLEGE OF NURSING, P.O.H M T COLONY,KALAMASSERY-683503.** - **8 SMT.RENY.C.A. AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER,ASSISTANT PROFESSOR, GOVERNMENT COLLEGE OF NURSING, P.O.H M T COLONY,KALAMASSERY-683503.** - **9 SMT.SALEENA MELEPIDIYAN AGED AND FATHER'S NAME NOT KNOWN TO THE PETITIONER,ASSISTANT PROFESSOR, GOVERNMENT COLLEGE OF NURSING, P.O.H M T COLONY,KALAMASSERY-683503.** - **10 SMT.JASMINE MARY KURIAN AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER,ASSISTANT PROFESSOR, GOVERNMENT COLLEGE OF NURSING, P.O.H M T COLONY,KALAMASSERY-683503.** - **11 SMT.RENI.P.VARGHESE** - **AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER,ASSISTANT PROFESSOR, GOVERNMENT COLLEGE OF NURSING, P.O. H M T COLONY,KALAMASSERY-683503.** O.P.(KAT).348/2018 3 |**12**|**SRI.KANNAN.K.V**| |---|---| ||**AGE AND FATHER'S NAME NOT KNOWN TO THE**| ||**PETITIONER,INCUMBENT LECTURER,**| ||**GOVERNMENT COLLEGE OF NURSING,**| ||**P.O.H M T COLONY,KALAMASSERY-683503.**| |**13**|**SRI.ANSAL.M.M**| ||**AGE AND FATHER'S NAME NOT KNOWN TO THE**| ||**PETITIONER,INCUMBENT LECTURER,**| ||**GOVERNMENT COLLEGE OF NURSING,P.O.H M T COLONY,**| ||**KALAMASSERY-683503.**| |**14**|**SMT.SUSHAMA.P**| ||**AGE AND FATHER'S NAME NOT KNOWN TO THE**| ||**PETITIONER,INCUMBENT LECTURER,**| ||**GOVERNMENT COLLEGE OF NURSING,**| ||**P.O.H M T COLONY,KALAMASSERY-683503.**| |**15**|**SMT.NEETHA AUGUSTINE**| ||**AGE AND FATHER'S NAME NOT KNOWN TO THE**| ||**PETITIONER,INCUMBENT LECTURER,**| ||**GOVERNMENT COLLEGE OF NURSING,**| ||**P.O.H M T COLONY,KALAMASSERY-683503.**| |**16**|**SMT.NEETHU.K**| ||**AGE AND FATHER'S NAME NOT KNOWN TO THE**| ||**PETITIONER,INCUMBENT LECTURER,**| ||**GOVERNMENT COLLEGE OF NURSING,**| ||**P.O. H M T COLONY,KALAMASSERY-683503.**| |**17**|**SRI.UNNIKRISHNAN.K**| ||**AGE AND FATHER'S NAME NOT KNOWN TO THE**| ||**PETITIONER,INCUMBENT LECTURER,**| ||**GOVERNMENT OF COLLEGE OF NURSING,**| ||**P.O. H M T COLONY,KALAMASSERY-6583503.**| |**18**|**SMT.GEETHA.M**| ||**AGE AND FATHER'S NAME NOT KNOWN TO THE**| ||**PETITIONER,INCUMBENT LECTURER,**| ||**GOVERNMENT COLLEGE OF NURSING,**| ||**P.O.H M T COLONY,KALAMASSERY-683503.**| |**19**|**SMT.BETSY SHERIN MATHEW**| ||**AGED 31 YEARS**| ||**WIFE OF SHIJ MATHEW ABRAHAM,CLINICAL INSTRUCTOR,**| ||**GOVERNMENT COLLEGE OF NURSING,**| ||**ERNAKULAM-683503(RESIDING AT THEKKEKALAM HOUSE,**| ||**P.O.CHENAMKARY,ALAPPUZHA-688501.**| O.P.(KAT).348/2018 4 **20 SMT.MARY JUVITTA AGED 32 YEARS WIFE OF CLIAN D' SILVA,CLINICAL INSTRUCTOR, GOVERNMENT COLLEGE OF NURSING,ERNAKULAM-683503, (RESIDING AT VELUTHEDATH HOUSE,CHAKOLAPARAMBU, P.O.THEVARA,ERNAKULAM-682013).** **21 SMT.THRESSIAMMA ANTONY AGED 40 YEARS WIFE OF JIMMON.M.J,CLINICAL INSTRUCTOR, GOVERNMENT COLLEGE OF NURSING, ERNAKULAM-683503(RESIDING AT MANJALEKAL HOUSE, P.O.KURIKAD,THIRUVANKULAM,ERNAKULAM-682305.** **22 SMT.CHIPPY.R, AGED 32 YEARS WIFE OF JOSHY M.RAJ,CLINICAL INSTRUCTOR, GOVERNMENT COLLEGE OF NURSING,ERNAKULAM-683503, (RESIDING AT ANUGRAHA HOUSE,PRAYAR NORTH, OCHIRA,ALAPPUZHA-690547.** ## **R1 TO 3 BY GOVERNMENT PLEADER SRI ANTONY MUKKATH** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 27.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** O.P.(KAT).348/2018 5 ## **JUDGMENT** _Ravikumar, J._ This original petition is filed against order dated 12.04.2018 passed by the Kerala Administrative Tribunal in O.A (EKM) No.2160/2017. The petitioner herein filed the said O.A along with four other applicants mainly challenging Annexure A12 order whereby their request for absorption into Government service was rejected. They had sought for further reliefs in the O.A. Their claims and contentions were stoutly refuted by the respondents. The Tribunal, after consideration of the rival contentions, passed the impugned order dismissing the O.A. While dismissing the O.A, the Tribunal had directed respondents 1 to 3 therein to disburse the salary due to the applicants including the petitioner herein during the period they had worked on the strength of the interim order passed by the Tribunal in the O.A. It is aggrieved by the said order that this original petition is filed. 2. We have heard the learned counsel for the petitioner and also the learned Government Pleader. **O.P.(KAT) 348/2018** 6 3. The petitioner and respondents 19 to 22 were the applicants in the O.A. They were engaged on contract basis as Clinical Instructors for a period of one year, either during the year 2012 or during the year 2013, in the College of Nursing, Kochi in accordance with the terms and conditions. The College of Nursing, Kochi was established by the Co-operative Academy of Professional Education (CAPE). It was functioning in the same compound of Co-operative Medical College, Kochi. Co-operative Medical College was taken over by the Government and subsequently, the Government took over the Nursing College as well. Obviously, the applicants continued as Clinical Instructors beyond the period of contract and in fact, they continued as such, on the strength of the interim order passed by the Tribunal. The grievance of the petitioner is that the claim of the applicants for absorption into the Medical Education Service based on the service rendered by them on contract basis was wrongly rejected by the Government as per Annexure A12. The Tribunal, evidently, upon considering the provisions of law as also the position of law, held that the petitioner and other applicants therein got no right to seek **O.P.(KAT) 348/2018** 7 for absorption into Government service as a matter of right after taking over of the Nursing College by the Government. The fact that the petitioner and other applicants were engaged on contract basis is not in dispute. Evidently, the Nursing College was taken over by the Government on 22.4.2014 and brought under Medical Education Department. The contention of respondents 1 to 3 before the Tribunal was that after taking over of the Nursing College on 22.4.2014, the appointments up to the post of Assistant Professor could be effected only through the Kerala Public Service Commission (KPSC). The learned counsel for the petitioner submitted that the Tribunal had passed the impugned order ignoring its findings in the earlier order in Annexure A9 dated 22.5.2017 in O.A.No.2233/2016. In fact, the said O.A was filed by the petitioners herein along with respondents 19 to 22 herein. Virtually, the prayers therein and the prayers in the O.A from which the captioned original petition arose, are the same. Evidently, as per Annexure A9, the Tribunal had directed the first respondent to re-consider the claim for absorption after affording an opportunity of hearing to the applicants as also to the additional **O.P.(KAT) 348/2018** 8 respondents therein, on Annexure A7 and A8 representations. To enable such consideration, the impugned Annexure A9 marked as such in the said O.A. was set aside. It is the consideration of the said representations, in compliance with the directions in Annexure A9, that culminated in Annexure A12 order. A scanning of the impugned order would reveal that the Tribunal had declined to accept the contentions of the petitioner and the aforesaid applicants in the light of the judgment of the Hon'ble Apex Court in _**Secretary, State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1]**_ and accordingly, held that the petitioner and other applicants are not entitled to get absorption into the Government service. 4. In the context of the contentions, it is only appropriate to refer to the decision of the Hon'ble Apex Court in **Umadevi (3)** . It is only befitting to bear in mind the caution sounded by the Apex Court that wide powers under Article 226 are not intended to be used for issuance of directions to defeat the concept of social justice, equal opportunity for all and the constitutional scheme of public employment. **O.P.(KAT) 348/2018** 9 ## 5. Paragraph 43 of the decision in **Umadevi (3)** is worthy to be extracted in the said context. It reads thus:- Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It **O.P.(KAT) 348/2018** 10 is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of adhoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates. Thus, evidently, in unambiguous terms, the Apex Court held that **O.P.(KAT) 348/2018** 11 contractual appointment would come to end at the end of the contract. At any rate, in the light of the declaration of law in **Umadevi (3)** , there cannot be any doubt with respect to the position that the petitioners who were engaged only on contract basis in the Nursing College by the CAPE which was subsequently taken over by the Government with effect from 22.4.2014 cannot be heard to contend that despite the fact that they were engaged only on contract basis, they should be absorbed into Government service viz., in the service of the Medical Education Department. As noticed hereinbefore, appointments up to the post of Assistant Professors in Medical Education Department could be effected only through KPSC. When recruitment is left to KPSC, there cannot be any absorption of persons engaged purely on contract basis by CAPE. In that view of the matter, we do not find any reason to hold that Annexure A12 is illegal. Needless to say that the order passed by the Tribunal confirming the same also cannot be held as illegal. At the same time, it is a fact that the petitioner and the other applicants had continued as Clinical Instructors even subsequent to the taking over of the College by the Government on the strength of **O.P.(KAT) 348/2018** 12 the interim order passed by the Tribunal in the original application. Since their services were utilised, the Tribunal had issued a direction to disburse the salary attached to the said post to the petitioner and the other applicants during the period of such continuance. We do not find any reason to interfere with the said direction. While maintaining the said direction, this original petition is dismissed. The learned counsel for the petitioner submitted that petitioner is entitled to get salary in the regular scale of pay attached to the Clinical Instructors during the said period. No specific direction has been issued by the Tribunal in that regard. In case the petitioner got any grievance with respect to the salary, upon disbursement, it will be open to the petitioner to take up such grievance appropriately. Subject to the above, the original petition is dismissed. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/A.M.BABU (JUDGE)** **O.P.(KAT) 348/2018** 13 ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER IN OA(EKM)NOI.2160/2017 DATED 12.04.2018 OF THE KERALA ADMINISTRATIVE TRIBUNAL.** **EXHIBIT P2** **TRUE COPY OF THE ORIGINAL APPLICATION(EKM)NO.2160 OF 2017 FILED BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL ALONG WITH JOINT APPLICATION.** **EXHIBIT P3 TRUE COPY OF THE M.A.2334/2017 FILED IN O.A.(EKM)NO.2160/2017.** **EXHIBIT P4** **TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE RESPONDENTS 1 TO 4** **EXHIBIT P5** **TRUE COPY OF THE G.O(MS)NO.71/16/H&FWD DATED 04.03.2016 OF THE GOVERNMENT.** **EXHIBIT P6 TRUE COPY OF THE DECISION REPORTED IN 2017(1)SCC 148.** ## **RESPONDENTS' EXHIBITS:NIL** ## **spc/**