General Manager, Ernakulam Regional Co-operative Milk Producers Union Ltd. v. Nithu and Others (WA No. 2484 of 2017 in W.P.(C) 12126/2011)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI TUESDAY, THE 9TH DAY OF JANUARY 2018 / 19TH POUSHA, 1939 WA.No. 2484 of 2017 IN WPC. 12126/2011 AGAINST THE ORDER/JUDGMENT IN WP(C) 12126/2011 DATED 11.08.2017 OF HIGH COURT OF KERALA APPELLANT(S)/RESPONDENT 2 TO 4: 1 GENERAL MANAGER, ERNAKULAM REGIONAL COOPERATIVE MILK PRODUCERS UNION LTD., ERNAKULAM DIARY, TRIPUNITHURA 682 301. 2 ERNAKULAM REGIONAL COOPERATIVE MILK PRODUCERS UNION LTD., REPRESENTED BY ITS MANAGING DIRECTOR, PB NO 2212,EDAPALLY P.O, ERNAKULAM 682 024. 3 DIARY MANAGER, ERNAKULAM DIARY, TRIPUNITHURA 682 301. BY ADVS.SMT.LATHA ANAND SRI.M.N.RADHAKRISHNA MENON SRI.JOSEPH SEBASTIAN (PARACKAL) RESPONDENT(S)/PETITIONER & RESPONDENTS 1 AND 2: 1. NITHU, S/O. SUKUMARAN, RESIDING AT MANJANKUZHY, PATTIMATTOM, ERNAKULAM 683 562. 2. M.K.REGIMON, S/O. KUMARAN, RESIDING AT THURUTHEL, VAIKAPRAYAR P.O, VAIKOM 686 141. 3. SMITHA BABU, D/O. NARAYANAN, RESIDING AT PULPPARAYIL HOUSE, CHETHICODE P.O, KANJIRAMATTOM, ERNAKULAM 682 315. 4. TN RAJANI, W/O. KR MURALIDHARAN, RESIDING AT KOLLATHUMKADAVIL, NADDAMA, VYMEETHY, THRIPUNITHURA 682 301. 5. PREMA M.P, D/O. PRABHAKARAN, RESIDING AT MURUTHATTIL HOUSE, IRUMPANAM P.O, ERNAKULAM 682 309. 6. BEENA BABU, W/O. BABU K.N, RESIDING AT KUMBATHIL HOUSE, KANJIRAMATTOM P.O, ERNAKULAM 686 585. 7. SABUMON K.K., S/O.KUTTAPAN, KEZHAKKEMALIYIL IRUMPOGHIKKARA, UDYANAPURAM P.O, VAIKOM 686 141. 8. AMBIKA P., W/O. LATE CHANDRAN, RESIDING AT PUNATHIL PARAMBIL, IRUMPANAM P.O, ERNAKULAM 682 301. 9. PRAKASHAN P.G, S/O. LATE GOVINDAN, RESIDING AT PANAVELLIL HOUSE, AMBIKA MARKET P.O, VAIKOM 686 145. 10. REGISTRAR OF CO-OPERATIVE SOCIETIES(DAIRY), DIRECTOR, DAIRY DEVELOPMENT DEPARTMENT, DIRECTORATE OF DIARY DEVELOPMENT, THIRUVANANTHAPURAM 01. 11. DISTRICT LABOUR OFFICER, ERNAKULAM 682 331. R6 BY ADVS. SRI.K.GOPALAKRISHNA KURUP (SR.) SMT.DEEPTHI S.MENON SRI.K.SURESH R1 BY ADVS. SRI.T.RAMPRASAD UNNI SRI.S.M.PRASANTH SMT.ASHA BABU SRI.G.RENJITH SMT.R.S.ASWINI SANKAR SRI.T.H.ARAVIND SRI.S.MANU R10, R11 BY SMT.K.R.DEEPA,GOVERNMENT PLEADER THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DG ## **P.N.RAVINDRAN & R.NARAYANA PISHARADI, JJ.** ------------------------------------------------------------------- W.A.Nos.2484, 2532, 2564, 2569, 2578, 2612, 2613 & 2614 of 2017 ------------------------------------------------------------------Dated this the 9[th] day of January, 2018 ## **J U D G M E N T** ## **P.N.Ravindran, J.** These appeals have been filed by the General Manager, Ernakulam Regional Co-operative Milk Producers Union Ltd.; the Ernakulam Regional Co-operative Milk Producers Union Ltd.; represented by its Managing Director and the Dairy Manager, Ernakulam Dairy, Thripunithura, challenging the common judgment delivered by a learned single Judge of this court on 11.08.2017 in W.P.(C).No.12126 of 2011 and connected cases. By the said judgment, the learned single Judge directed the Managing Director of the Ernakulam Regional Co-operative Milk Producers Union Ltd.(appellant No.2) to prepare a list of casual labourers among the writ petitioners working with the 2[nd] appellant as on the date of the judgment and forward it to the Director of Dairy Development (who incidentally is the Registrar of Co-operative Societies as far as Dairy Co-operative Societies are concerned) to consider their claim for regularization in terms of the judgment of the Apex Court in **State of Karnataka v.** **2** _W.A.No.2484/2017 & Conns._ **Umadevi [(2006) 4 SCC 1].** The learned single Judge has further directed that the Director of Dairy Development shall take an appropriate decision in the matter within a period of two months, after hearing the second appellant and the writ petitioners. 2. The main contention raised by the appellants in these writ appeals is that the appointments of the writ petitioners were not irregular but were illegal and therefore, they are not entitled for regularization. The fact however remains and it is not in dispute that many among the writ petitioners have put in more than ten years of service. It is also not in dispute that majority of the writ petitioners are working as Plant Attenders. The appellants have no case that the milk chilling plants and diaries can function without the writ petitioners. The appellants have no case that their services are not necessary for the effective functioning of the diaries and the milk chilling plants. It was having regard to the totality of the facts and circumstances that the learned single Judge held that the claim of the writ petitioners for regularization should be considered in the light of the observations made by the Apex Court in **State of Karnataka v. Umadevi** (supra). 3. The Apex Court has in paragraph No.53 of **State of** **3** _W.A.No.2484/2017 & Conns._ ## **Karnataka v. Umadevi** (supra) held as follows: “ 53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V.Narayanappa[11] , R.N.Nanjundappa[12] , and B.N.Nagarajan[8] and referred to in para 15 above, 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 tribunals. The question of regularization 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 thatcontext, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularity 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 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 regularization, 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 regularizing or **4** _W.A.No.2484/2017 & Conns._ making permanent, those not duly appointed as per the constitutional scheme.” 4. A Division Bench of this court has in **Jolly P.G. v. Union of India and others [2016 (2) KLJ 4]** held, after a survey of the case law on the point including the decision of the Apex Court in **Umadevi** (supra) that it is the obligation of each department of the State or each of its instrumentalities to undertake a one-time exercise and prepare the list of all casual, daily wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to the process of verification to determine whether they are working against vacant posts and possess the requisite qualifications for the post, for the purpose of regularization of their services. As stated earlier, the appellants have no case that the services of these writ petitioners are not essential or necessary. They do not dispute the fact that the petitioners have been working for more than ten years without the intervention of courts and tribunals. It is evident from the materials before us that many among the petitioners have been working for more than ten years though not at a stretch, with an artificial break at regular intervals. The learned single Judge has in the impugned judgment observed that such artificial break **5** _W.A.No.2484/2017 & Conns._ should not be taken into account for the purpose of computing the length of their service. 5. Learned counsel for the appellants further submitted that this court has while passing interim orders in W.P. (C).Nos.12126 of 2011, 12353 of 2011, 12354 of 2011 and 15931 of 2011, reserved a total number of 26 posts of Plant Attender Grade-III, but many among writ petitioners have abandoned their employment. The appellants can in no way be aggrieved by the writ petitioners abandoning their employment. It is evident from the judgment of the learned single Judge that only those writ petitioners who were working as on the date of the impugned judgment namely, 11.08.2017 will have to be considered for regularization. We, therefore, find no reason to interfere with the impugned judgment on that score. Many among the writ petitioners have been working as Plant Attenders for nearly two decades. It is also relevant in this context to note that the persons appointed on ad hoc basis who are now claiming regularization are dependents of members of Primary Milk Cooperative Societies who in turn are the milk producers. Many among the petitioners have became over aged to seek public employment. Such being the situation, we find no reason or justification to interfere with the impugned judgment. **6** _W.A.No.2484/2017 & Conns._ 6. Learned counsel for the appellants lastly submitted that though the Director of Dairy Development is the Registrar of Co-operative Societies for Dairy Co-operative Societies, the appointing authority is the Board of Directors of the Ernakulam Regional Co-operative Milk Producers Union Ltd., and therefore, the learned single Judge erred in directing the Director of Dairy Development to pass appropriate orders in the matter. Learned counsel for the appellants also submitted that the observations in paragraph 5 of the impugned judgment that the writ petitioners have been working for two decades is not factually correct and that the learned single Judge erred in describing them as experts in the field. In our opinion, this cannot be a reason to interfere with the impugned judgment. Even assuming that the writ petitioners are not experts, those among them who have completed ten years or more in service, are entitled to be considered for regularization in the light of decision of the Apex Court in **Umadevi** (supra) and the decision of the Division Bench of this court in **Jolly P.G** (supra). We however, find force in the submission of learned counsel for the appellants that the decision is to be taken by the Board of Directors and not by the Director of Dairy Development. In that view of the matter, in modification of the judgment **7** _W.A.No.2484/2017 & Conns._ delivered by the learned single Judge, we dispose of these writ appeals as under. a) The Managing Director of the 2[nd] appellant shall, within two months from the date of receipt of a copy of this judgment prepare a list of casual labourers working in the diaries and milk chilling plants within its area of operation, who had as on 11.08.2017 put in ten years of service or more and forward it to the Director of Dairy Development with a request to grant permission to absorb them in service on a regular basis. b) The Director of Dairy Development shall thereupon pass appropriate orders granting the permission sought within two months from the date of receipt of the request in that regard from the Managing Director of the 2[nd] appellant. c) If any one among such casual labourers is left out from the list thus forwarded by the Managing Director, it will be open to them to represent before the Director of Dairy Development. The Director of Dairy Development shall while granting sanction and finalising the list, take into account their grievances as well. d) The Managing Director of the 2[nd] appellant shall, after receiving the permission of the Director of Dairy Development place the matter before the Board of Directors together with the **8** _W.A.No.2484/2017 & Conns._ final list forwarded by the Director of Dairy Development and the Board of Directors shall thereupon pass an appropriate resolution and authorizing the Managing Director to issue orders regularizing the services of the persons included in the list. This shall be done within one month from the date of receipt of the approval from the Director of Dairy Development. e) We make it clear that only those among the petitioners who were in service as on date of the impugned judgment namely, as on 11.12.2017, will be entitled to the benefit of this judgment. Sd/- ## **P.N.RAVINDRAN (JUDGE)** Sd/- ## **R.NARAYANA PISHARADI (JUDGE)** True copy P.A to Judge DG