Haridas and others v State of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **&** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 7TH DAY OF MARCH 2018 / 16TH PHALGUNA, 1939** **WA.No. 130 of 2018 IN WPC. 21499/2011** **…............... AGAINST THE JUDGMENT IN WP(C)21499/2011 of HIGH COURT OF KERALA DATED 16.10.2017** ## **APPELLANTS/PETITIONERS 1 TO 3,5,6&8** ## **1 HARIDAS** **S/O. VELAYUDHAN, VARANI, KADAKKAMKUNNAM, PALAKKAD.** - **2 M. CHENTHAMARA @ CHENTHAMARAKSHAN, S/O. MADHAVAN, VASANTHA NIVAS, S.N NAGAR, MALAMPUZHA, PALAKKAD.** **3 BABY K.R** **S/O. RAMAKRISHNAN, KALLINGAL HOUSE, KARADIYODE, MALAMPUZHA, PALAKKAD.** - **4 HARI V, S/O. VISWANATHAN, JANAKI NIVAS, CHERAD, MALAMPUZHA.** - **5 SURESH, S/O. VISWANATHAN, JANAKI NIVAS, CHERAD, MALAMPUZHA.** **6. WILLSON, S/O. VARGHESE, CHOVALLOOR HOUSE, KANJIRAKKADAVU, MALAMPUZHA, PALAKKAD.** **BY ADVS.SMT.APARNA RAJAN** - **SRI.SREEDHAR RAVINDRAN SMT.LIZA MEGHAN CYRIAC** ## **RESPONDENTS/RESPONDENTS:** **1. STATE OF KERALA REPRESENTED BY ITS SECRETARY** **DEPARTMENT OF WATER RESOURCES,** - **SECRETARIAT, THIRUVANANTHAPURAM 695 001.** **2. THE DISTRICT COLLECTOR, PALAKKAD (CHAIRMAN, DISTRICT TOURIST PROMOTION COUNCIL), PALAKKAD DISTRICT 678 001.** **3. THE CHIEF ENGINEER (IRRIGATION & ADMINISTRATION DEPARTMENT) THIRUVANANTHAPURAM 695 001.** **4. THE EXECUTIVE ENGINEERING, IRRIGATION DIVISION, MALAMPUZHA, PALAKKAD 678 001.** **BY GOVERNMENT PLEADER SRI.SUNIL KUMAR KURIAKOSE.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **vpv** ## **P.N. Ravindran & Devan Ramachandran, JJ.** **- - - - - - - - - - - - - - - - - - - - - -- - -** ## **W.A.No.130 of 2018** **- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 7[th] March, 2018** ## **JUDGMENT** ## **Devan Ramachandran, J.** The appellants herein are the petitioners in W.P.(C) No.21499 of 2011. They filed the writ petition primarily seeking regularisation of their services under the third respondent on the assertion that they are engaged as unskilled manual labourers in the various gardens attached to the Malampuzha Dam in Palakkad District. 2. The appellants say that they have put in more than 15 years of service as unskilled workers and that the work, in which they are engaged, is of a recurring nature and which require their services continuously without any break. The appellants submit that the unskilled workers in Malampuzha garden were being regularised as HR, SLR and CLR workers periodically by the Government by issuing appropriate orders from time to time in the past. 3. According to them, since they were not regularised in such fashion, they approached this court by filing W.P.(C) No.19613 of 2006, which was disposed of by a judgment of this court, directing them to make appropriate representation to the District Collector. The appellants say that instead of taking an apposite decision as directed WA 130/2018 2 by this court, the District Collector forwarded their representation to the Chief Engineer. The Chief Engineer is thereafter stated to have called for a list from the Curator of the Malampuzha Gardens relating to the employees working as HR labourers and the appellants say that they were also included in such list, a copy of which has been placed as Ext.P7. The appellants submit that in spite of all these, since they were not regularised in service, they approached this court again in W.P.(C) No.2215 of 2009 which culminated in Ext.P8 judgment, wherein directions were given to the Government to decide upon their claims for regularisation. They say that this led the Government to issue Ext.P9 order, wherein the claims of the appellants and others similarly placed, were rejected on the ground that the earlier Government Order, dated 20.1.1990, on which reliance was placed by the appellants, would not apply to them since there was a cut off date fixed therein which stipulated that only those employees who were in service as on 19.5.1983 would be entitled to absorption. They say that this amounts to a discrimination among persons who are working in the Malampuzha gardens, merely on the fortuitous reason that some of them were not in service as on 19.5.1983 and that the denial of such benefits to the persons who came into service subsequently would amount to violation of the principles of natural justice. 4. We notice that the learned single Judge, on an assessment of WA 130/2018 3 the materials on record, concluded that the appellants have an alternate efficacious remedy by way of raising an industrial dispute under the provisions of the Industrial Disputes Act, 1947 and thus relegated them to such remedies, giving them an opportunity to move the Government for raising an industrial dispute. Consequential orders were also issued that if such a dispute is raised, the same shall be considered for reference within a period of two months. 5. The appellants impugn this judgment of the learned single Judge before us primarily stating that it was not necessary for them to have been relegated to the mechanism under the Industrial Disputes Act, because it is admitted by the Government that they were serving in the Malampuzha gardens for the last several years uninterruptedly and because the earlier Government Order had already given such benefits to similarly placed persons who were in service on 19.5.1983. 6. We heard Sri P.Ravindran, learned senior counsel assisted by Smt.Aparna Rajan, learned counsel for the appellant and Sri Sunilkumar Kuriakose, learned Government Pleader. 7. Before we endeavour into any assessment of the appellants' claim, we must immediately say that the judgment of the learned single Judge relegating the appellants to a remedy under the Industrial Disputes Act cannot find forensic favour on account of the express declaration of law in this area by a Division Bench of this court in WA 130/2018 4 ## **Executive Engineer, Neendakara Fishing Harbour Division** v. **The General Secretary, Neendakara Port and Fishing Harbour** **CLR Workers Union** (2018 (1) KHC 909). This judgment was delivered as early as on 6.4.2010 but reported recently. The declaration in the said judgment is that a tribunal constituted under the Industrial Disputes Act cannot consider any such reference because the Public Services Act excludes any such consideration by the tribunal. It was also declared that the provisions of the Public Services Act is plenary in its nature and any consideration of the question of regularisation of public servants can only be done under its provisions and not under the provisions of the Industrial Disputes Act or any other analogous statutes. In view of the express declaration of law, it is certain that the conclusions of the learned single Judge in the judgment impugned before us cannot find favour in law. 8. That apart, the fact remains that the appellants have been continuing in service for several years. It is also not in dispute that their predecessors, who were in service until 19.5.1983, have already been regularised by the Government by order dated 20.1.1990. The only reason why the appellants were excluded from its ambit is because of the cut off date fixed in that order and on account of the prescriptions therein. Sri P.Ravindran, learned senior counsel submits that the classification of employees into two categories merely on the WA 130/2018 5 basis of a date that is arbitrarily fixed by the Government is unreasonable, unconstitutional and contrary to the provisions of law. He says that there is no rational nexus shown with any objective that is sought to be achieved. He vehemently submits that the classification is completely illusory and intended to deny the benefits of the earlier Government Order to the appellants herein. 9. The learned Government Pleader submits that there is no classification per se among the employees but it was on account of a cut off date specified in the earlier Government order and also on account of the various judgments that the Government was compelled to act in a particular manner. He says that the earlier order of the year 1990 had been issued taking into account the criteria followed based on the number of days worked and the necessity of workers and since these are matters within the domain of the policy of the Government, it would not be possible for this court to intervene in the same, as has been declared by the Honourable Supreme Court in various decisions. 10. We have considered the submissions of learned senior counsel and learned Government Pleader as above. 11. As is clear from the counter affidavit filed on behalf of the third respondent, the Government had decided to regularise CLR workers as per the Government Order dated 20.1.1990 of only those WA 130/2018 6 persons who were in service upto 19.5.1983. The deponent of the said affidavit says that no decision has been taken on Government level regarding regularisation of CLR/SLR/HR workers and that any regularisation can be granted only in terms of the Government Order above mentioned, viz. the Government Order dated 20.1.1990. Nothing else been stated in the counter affidavit except that as per the existing orders the appellants are not entitled to regularisation. Of course, we notice the assertion therein that none of the petitioners/appellants herein have been engaged to work more than 180 days and that they were engaged only for 5 to 30 days of work per annum. 12. As has been rightly pointed out by the learned Government Pleader, it would not be within the province of this court, while acting under Article 226 of the Constitution of India, to direct the Government to evolve a policy or to pursue it with respect to the question of regularisation of workers. It is certainly left to the wisdom of the Government, taking into account the relevant criterion, to decide whether any such policy is required to be contemplated and if so, of what kind. We do not propose to say anything conclusively on this. However, we are certainly of the view that the Government had earlier taken a decision with respect to the regularisation of employees similarly placed, as is clear from Ext.P9 Government Order, it would be WA 130/2018 7 enjoined upon them to consider the case of the appellants also, taking into account the criteria that was evolved by the Government earlier or based on the criteria that may be taken by them in future. We are only saying that the denial of the appellants' claim merely because 1990 Government Order did not apply to them, cannot appeal to our conscience. The question as to whether they are entitled to the benefit of the 1990 Government Order or whether they are entitled to a similar benefit to be given through a subsequent order has not been considered by the Government in Ext.P9 and, therefore, we are certainly of the view that the appellants should be allowed such a consideration. To pave way for such consideration of the claim of the appellants at the hands of the Government, we deem it appropriate to strike down Ext.P9, to the extent which it relates to the appellants. 13. Ext.P9, is therefore, quashed to the above extent and this writ appeal is disposed of directing the competent authority in the Government to reconsider the claim of the appellants for regularisation, based on such relevant criteria as was earlier fixed or to be fixed by the Government in its wisdom and then to decide whether any such benefit, as given to their predecessors in service through Government Order dated 20.1.1990 can be extended to them also. This exercise shall be completed by the Government as expeditiously as possible but not later than six months from the date of receipt of a WA 130/2018 8 copy of this judgment, after affording an opportunity of being heard to one among the appellants or their duly authorised representative. In the meanwhile, until such time as a decision is taken by the Government in that regard, the interim order passed by this court on 18.1.2018, staying the termination of the services of the appellants will continue to hold force and they will be allowed to so continue, subject to further orders to be passed by the Government. This appeal is thus ordered. ## **(P.N. Ravindran, Judge)** **(Devan Ramachandran, Judge)** **kav/**