Hidayathulla and others v. Administration of the Union Territory of Lakshadweep and others

W.P(C).No.5289/15 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY ,THE 20TH DAY OF AUGUST 2018 / 29TH SRAVANA, 1940** ## **WP(C).No. 5289 of 2015** ## **PETITIONER/S:** - **1 HIDAYATHULLA, AGED 38 YEARS, S/O.HAMZATH, SUBAIDA MANZIL,BAKAKADA,KAVARATTI.** - **2 SULIMAN K.P, S/O.KIDAVE KUTTIPAPPEPURA,KAVARATTI.** - **3 SHAJAHAN T.K, S/O.HAMZA MARIKKILAM THIRINIKADU,KAVARATTI.** - **4 MUHAMMED SHAFI, S/O.SAYEDPOO, KAKACHIYAPURA,ARADAM KAVARATTI.** - **5 HUSSAINALI, S/O.LATE MUHAMMED KUTTITHAYAPUA,CHERIYATHODA,KAVARATTI.** - **6 KHAIR, S/O.MUTHU PULEENAKEEL,KUTTIPAPURA,KAVARATTI.** - **7 SAVAD T.K, S/O.MUHAMMED A.P. THIRINIKKADU,KAVARATTI.** - **8 MUSTHAFA, S/O.SAYEED, BAKAKADA KUTTIPAPEPURA, KAVARATTI.** - **9 SALEEM, S/O.HAMZATH, VELODA THOOSHIYAPURA,KAVARATTI.** - **10 BASHEER, S/O.LATE MUHAMMED, PUTHIYA ILLAM PALLIPURA,KAVARATTI.** - **11 ABOOBAKER, S/O.KUNHIKUNHI PALLAM,BEERANTHODA,KAVARATTI.** - **12 MUJEEB RAHMAN, S/O.ALIKOYA, UTAHMPOKAKADA CHEKIKULAM CHETTA,KAVARATTI.** W.P(C).No.5289/15 2 - **13 ALIKOYA, S/O.BASHA KELIYAM,PULIPURA,KAVARATTI.** - **14 KADEESA, AGED 44 YEARS, D/O.UKKAS UMBIYAPURA HOUSE,KAVARATTI.** - **15 ABDUL KHADER, S/O.LATE KUNHIKUNHI,KUNNINAMEL AGAM,KAVARATTI.** - **16 YACOOB, S/O.YOUSEF, CHENDIPURA PULEENAKEEL,KAVARATTI.** - **17 P.V.ABOOBACKERSO.MUTHUKOYA MUTTHAMMADA,KAVARATTI.** - **18 P.I.NAZEER, S/O.LATE K.P.HAMZATH PUTHIYA ILLAM,KAVARATTI.** - **19 THANGAKOYA, AGED 33 YEARS, S/O.CHARIYAKOYA.E KOLIYALA HOUSE,KAVARATTI.** - **20 MUHSIN, S/O.KOYAMMA K.P. KUNNUMPURA HOUSE,KAVARATTI.** **BY ADVS. SRI. K.B. GANGESH SMT. SMITHA CHATHANARAMBATH** ## **RESPONDENT/S:** - **1 ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP, KAVARATTI REPRESENTED BY THE ADMINISTRATOR 682555.** - **2 DIRECTOR OF PANCHAYATS, DEPARTMENT OF PANCHAYATS ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP,KAVARATTI.682555** - **3 DIRECTOR, DEPARTMENT OF AGRICULTRUE ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP,KAVARATTI.682555.** - **4 DIRECTOR, DEPARTMENT OF ANIMAL HUSBANDORY. ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP,KAVARATTI.682555.** W.P(C).No.5289/15 3 |**5**|**DIRECTOR, DEPARTMENT OF SCIENCE & TECHNOLOGY**| |---|---| ||**ADMINISTRATION OF THE UNION TERRITORY OF**| ||**LAKSHADWEEP,KAVARATTI.682555.**| |**6**|**DEPUTY COLLECTOR, KAVARATTI – 682555.**| |**7**|**KAVARATTI VILLAGE (DWEEP) PANCHAYATH,KAVARATTI,**| ||**REPRESENTED BY ITS EXECUTIVE OFFICER-682555.**| **BY ADVS. SRI.MANU.S, CGC ADMINISTRATION OF THE UNION TERRITORY OF LA SRI.S.RADHAKRISHNAN, SC, LAKSHADWEEP ADMN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20.08.2018 ALONG WITH W.P(C).NO.26748/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **JUDGEMENT** These 2 writ petitions are filed by Casual Labourers engaged in Village Panchayats in Lakshadweep. In W.P(C).No.5289 of 2015, the petitioners challenge Ext.P26 order issued by the Secretary(Panchayats), Directorate of Panchayats under the Administration of the Union Territory of Lakshadweep (`Administration' for short), on 12.2.2015 in implementation of the orders passed by the Central Administrative Tribunal, Ernakulam in O.A.No.29 of 2013 and connected cases. The operative portion of Ext.P26 order reads as follows: > _“1) All the casual labourers engaged by the departments and the Panchayats including those who have been categorized under group A & B and continued based on the interim order of the Hon'ble Central Administrative Tribunal shall be retrenched by 20[th] February, 2015. All the Departmental Heads shall ensure compliance of this direction by issuing a certificate to that effect which would reach the Directorate of Panchayats within a week after such retrenchment and latest by 25[th] February, 2015._ > _2) The Village (Dweep) Panchayats will update the existing labourer roaster with fresh applications seeking for employment of casual nature under UTL/Panchayats._ W.P(C).No.5289/15 4 _The application for registering in this roaster will contain age, educational qualification and other specialized skills, if any, possessed by the candidates. All the Village (Dweep) Panchayats should be ready with the fresh roaster within 20 days from the issuance of this order. The list should be made available for the public in the noitce board of the Panchayat and in the website of the Administration within 15 days from the issuance of this order. The Executive Officers will forward copies of the finalized list of labourers to the Director of Panchayats for record._ _3) Once the existing casual labourers under the departments and Panchayats including category A & B casual labourers are disengaged, the Village (Dweep) Panchayats will update the existing labourer roaster currently maintained the Executive Officers with fresh applications from such disengaged casual labourers in a standard/applications Software to be developed by the NIC. Till such time the software is ready the Executive Officers shall maintain the list in a register for which a uniform format is prescribed as annexure A to this order. Whenever the Departments make requisition for casual labourers the concerned Panchayats will depute the labourers according to seniority taking into account the particular skill, if any, or otherwise. Once the software is ready the same will be accessible in the public domain of the Lakshadweep Administration._ _4) All the casual labourers who are engaged will have a maximum tenure of 89 days of engagement and thereafter their services will get automatically terminated. Subsequent engagement will only be on rotation and as per seniority._ _5) Wherever there are necessities for engaging Casual Labourers for specific jobs which require technical knowhow and experience on long term basis in view of the nature of work, the departments shall make proposals through the Secretary of the respective department and obtain approval of the Hon'ble Administrator for engaging them based on a contract agreement for a period not exceeding 10 months. Thereafter a fresh list of such skilled casual labourers from the list of Panchayat Roaster will be obtained by the UTL departments for future engagement for another 10 months._ _To ensure consistency with the policy of the administration, no department under the Administration or the Panchayats are permitted to take the decisions on the matter of engagement of labourers directly, in deviation of the above instructions, without the knowledge of Department of Panchayat._ _In exercise of the powers conferred on the Administrator, under section 60 of the Lakshadweep Panchayats Regulation, 1994, it is further ordered that all the conditions in this order will also be applicable to the labouers engaged by the Village (Dweep) Panchayats and the District Panchayat.”_ In effect the Secretary of Panchayat ordered that the maximum duration of engagement of a Casual Labourer shall be 89 days and on completion of 89 days, another set of casual labourers will be appointed on rotation basis. 2. According to the petitioners, they have been continuing as Casual Labourers for the period from 1993, 1999, 2000, 2001, 2002, 2003, etc. Exts.P1 to P19 experience certificates produced by them, show that they were being engaged continuously but imposing break for one day each on completion of every 89 days. The petitioners filed the writ petition apprehending termination of their services W.P(C).No.5289/15 5 based on Ext.P26 order. 3. In W.P(c).No.26748 of 2018, the petitioners are boat drivers/helpers engaged in the Islands Amini and Kadamath since the year 2009 as stated in the experience certificate Ext.P2 series. Their engagements were also continuous, but with break for one day on completion of every 89 days. They are challenging Ext.P8 scheme which is the same as Ext.P26 in W.P(c).No.5289/2015. Since the issue arising for consideration is the same, these Writ Petitions are considered and disposed of together. W.P(c) No.5289 of 2015 is treated as the leading case and the documents produced are referred to in the manner in which they are described in the said Writ Petition. 4. According to the petitioners, they are engaged by the Village Panchayat. The scheme Ext.P26 is formulated by the Secretary of the Panchayats. It is their case that when the petitioners had approached the CAT apprehending termination of their services, their Original Applications happened to be dismissed on the basis of the contention raised by the Administration that they are engaged by the Village Panchayat and hence the CAT does not have the jurisdiction to entertain the original applications. Therefore, it is contended that the respondents are estopped from issuing orders like Ext.P26 as they do not have the authority to issue orders as to their engagement. 5. It is pointed out that similarly situated persons, who were also engaged as casual labourers in the Village Panchayats with a break of one day after the 89 days spell of service, approached the CAT in O.A.NO.29 of 2013 and the CAT had, as W.P(C).No.5289/15 6 per Ext.P24 order, directed to maintain status quo. It is stated that the Secretary(Panchayats) had issued Exts.P21 and P22 orders on 30.03.2013, in implementation of the order dated 17.08.2009 in O.A. No.611 of 2008, prescribing the procedure for engagement of labourers and directing the Village Panchayats to prepare and maintain village wise Labour registers and prescribing the schedule for preparing labour registers. The petitioners submit that though the direction of the CAT to prepare a list of casual labourers and to engage them on rotation basis in various departments, was affirmed in O.P.(CAT) No.133/2012, while dismissing the SLP(Civil) No.26011/2013, the Apex Court granted liberty to the petitioners to agitate all the questions, if any, before the Tribunal. 6. Respondents 1 to 7 have filed a counter affidavit stating that Ext.P26 order is issued in implementation of the order dated 06.03.2014 of the CAT in O.A.29 of 2013. It is stated that the opportunity for employment in Lakshadweep is meagre; but when manpower is required for menial jobs, casual labourers were being engaged for short duration; consequent to the 73[rd] amendment of the Constitution, the President of India notified Lakshadweep Panchayat Regulations, 1994; after formulation of the Panchayats and the rules and regulations, it was decided that the authority to select and engage casual labourers shall be the Panchayats and they were empowered to sponsor casual labourers for the departments and to engage casual labourers in the Panchayats; detailed instructions were issued as per Ext.R1(a) circular dated 12.11.2003 for registration and engagement of casual labourers and thereafter Ext.R1(b) revised instructions were issued in 2008; CAT in Ext.R1(c) W.P(C).No.5289/15 7 order in O.A. 611/2008 directed engagement of casual labourers after inviting applications and based on date of registration with employment exchange; the respondents were directed to ensure that only those registered were given employment and that all those registered persons were getting employment for equal days of work in a month available in the department/panchayath and to issue a job card through Panchayat, under the national rural employment guarantee scheme. It is stated that in Ext.R2(d) judgment the Division Bench of this Court had not interfered with the scheme of giving engagement for 89 days. In O.A. 29 of 2013 and connected cases a large number of casual labourers who were engaged for 89 days sought for regularisation. By Ext.P24 common order the prayer for regularisation was rejected. Administration was directed to streamline the entire process of engagement of casual labourers; by the same order the O.As filed by casual labourers engaged in Village Panchayats were dismissed as not maintainable. Ext.P26 was issued thereafter in compliance of Ext.P24 order in O.A.29 of 2013 and connected cases, in order to give minimum employment to maximum persons with the intention of distributing the available employment and to ensure that the islanders are getting some employment in a year. It is stated that the administration has uploaded list of casual labourers in all the islands in their official portal in order to ensure transparency; every Panchayat will maintain and update its labour roster containing age, educational qualification and other specified skills if any possessed by the candidates. 7. Petitioners point out that in the light of the judgment in _**Administrator v.**_ W.P(C).No.5289/15 8 _**Naderkoya**_ [2005 KHC 248], the Administration does not, have jurisdiction to issue orders like Exts.P26/P8. It is the contention of the learned counsel for the petitioner that when the petitioners are engaged by the Village Panchayats in Lakshadweep, it is for the Village Panchayats to decide whether they are eligible to continue or not. It is their further contention that if at all their services are liable to be terminated, it has to be strictly in terms of Chapter 5A of the Industrial Disputes Act. The action of the Village Panchayat in violation of the procedure contemplated under those provisions is therefore liable to be interdicted. On the other hand, it is the contention of the respondent Administration that Regulation 60 of Lakshadweep Panchayat Regulations, 1994, which deals with the powers of the Administrator, provides that Administrator shall exercise his control over the Panchayats either directly or through officers by general or special order. Apart from that, Regulation 64 empowers the Administrator or any officer authorised by him to issue any direction to the Panchayat when it appears that certain things to be done by the Panchayat are to be done in accordance with law. 8. The respondents point out that the orders impugned are in accordance with Ext.R1(c) order of the CAT which is affirmed in Ext.R1(d) judgment of this Court. It is their case that the purpose behind Ext.P26 order is to see that maximum unemployed hands in the Panchayat are getting opportunity to get employment at least for 89 days rather than confining the opportunities for employment to a few persons and that the petitioners will also get their share of 89 days in accordance with their turn on rotation. W.P(C).No.5289/15 9 9. The learned Standing counsel for the respondents pointed out the judgments of this Court in W.P(c).Nos.10572/2018, 10825/2018 dismissing the cases of similarly situated casual labourers who sought regularisation. Sri.Manu also relied on the judgments in _**Nanda Kumar v. State of Bihar & others**_ : (2014)5 SCC 300, _**Jeemon V.R & others v. State of Kerala & others**_ : 2012(1) KHC 397, _**State of Rajastan & others v. Daya Lal & others**_ : (2011) 2 SCC 429, _**Harminder Kaur & others v. Union of India & others**_ : (2009) 13 SCC 90 and _**Pinaki Chatterjee & others V Union of India & others**_ : (2009) 5 SCC 193 in support of his contention that daily wagers are not entitled to continuance in service or for regularisation; when they were not engaged by any recognised procedure and they are not appointed to any post they cannot have any right to continue in service; no direction is called for in favour of the petitioners who are not appointed by any regular process of recruitment, in the light of _**State of Karnataka v. Uma Devi**_ : (2006) 4 SCC 1. 10. Having heard the learned Counsel on either side, it is clear that the petitioners do not have a case that their initial engagement was by any process of selection. Therefore, it is evident that their appointments were not made in tune with constitutional scheme, consistent with Articles 14 and 16 of the Constitution of India. 11. Their appointment was admittedly as casual labourers though they were being engaged for the last several years imposing a break after every 89 days. They do not have a case that they were being engaged against any particular sanctioned post. Therefore, they cannot have any right to resist Ext.P26 order which provides for the procedure to ensure equal opportunity in employment to the eligible hands who W.P(C).No.5289/15 10 find a place in the register to be maintained. Ext.P26 order only prescribes the procedure to be followed by the Pancayats for engagement of casual labourers. The petitioners do not have any right to continue in service on the ground that the direction is not issued by the Village Panchayat. There is nothing illegal in issuing guidelines to the Panchayat to see that the Panchayat acts with transparency and it ensures employment to the unemployed islanders consistent with the constitutional Scheme as directed in the judgment of the Apex Court in State of _**Karnataka v. Uma Devi**_ : (2006) 4 SCC 1. 12. The judgment in _**Naderkoya**_ 's case relied on by the learned counsel for the petitioner is seen rendered in a totally different context, when the Tribunal directed the Administration to frame a scheme for granting temporary status to the casual labourers, contrary to the order of another bench of the Tribunal. The question considered was whether it was legal or proper for the Tribunal or the courts to advise the executive in matters of policy; that judgment does not give rise to any claim for the petitioners to continue in service beyond 89 days or to get regularised, on the ground that Ext.P26 is issued by the the administration. Ext.P26 is an order issued by the Secretary, Panchayats, in Directorate of Panchayats under whom Panchayats come, as per the Regulations. Therefore, I am unable to accept the contention that Ext.P26 order is without authority and therefore the petitioners are entitled to continue in service. 13. In W.P.(C) No. 27618/2017 this Court had already considered the case of similarly situated persons who challenged the very same order, though all the W.P(C).No.5289/15 11 contentions raised in this writ petition had not come up for consideration in that case. However, it was held that the scheme for appointment for 89 days is consistent with Articles 14 and 16 of the Constitution of India, so that public employment, which is the wealth of the nation, can be shared by the unemployed persons by rotation. 14. Therefore, the impugned scheme cannot be said to be illegal in any respect as already found in the judgment in W.P(c).No.27618 of 2017. Moreover, in the light of judgments ( _supra_ ) relied on by the Learned Standing Counsel, starting from _**Umadevi**_ 's case, the petitioners who were selected by pick and choose method cannot have any valid claim for regularisation or continued engagement when several unemployed hands are awaiting appointments. Their cases are also liable to be considered for employment for 89 days as per their turn, once the register is prepared pursuant to Ext P26 order. 15. However, it is seen that the respondents are operating a single list for engaging persons for any employment, irrespective of the qualification requires or nature of employment. Such a procedure will cause unnecessary delay in providing employment/utilising the services of qualified hands at the earliest opportunity. I am of the view that preparation of separate lists for posts/employments which require special/technical qualification will be appropriate and it would serve the interest of employee as well as employer. Apart from avoiding delay in getting qualified hands, the aspirants for employment will have an idea about the possible intervals between each spell of their appointments. The respondents shall consider whether such separate list is necessary to avoid delay. W.P(C).No.5289/15 12 16. The learned Counsel for the petitioners vehemently argued that in the light of the judgment in _**Paramanand v. Nagar Palika & others**_ : (2003)9 SCC 290, the village Panchayat is an industry and the petitioners are workmen and therefore the respondents are bound to observe the provisions contained in Chapter VA of the Industrial Disputes Act, 1947 (ID Act) and the right of the petitioners under the Industrial Disputes Act requires adjudication by this court. But I find that when there is a statutory forum to adjudicate the disputes under the ID Act, the petitioners would be free to approach it and this judgment will not stand in the way of adjudicating the same. With the above observations, these writ petitions are disposed of. **Sd/P.V.ASHA Judge** rtr/ ## **APPENDIX** ## **PETITIONER'S/S' EXHIBITS:** **EXT.P1: TRUE COPY OF THE EXPERIENCE CERTIFICATE OF THE 1ST PETITIONER DATED 23.03.2013.** **EXT.P2:TRUE COPY OF THE EXPERIENCE CERTIFICATE OF THE 2ND PETITIONER DATED 16.04.2011.** **EXT.P3:TRUE COPY OF THE EXPERIENCE CERTIFICATE OF THE 3RD PETITIONER DATED 23.03.2013.** **EXT.P4:TRUE COPY OF THE EXPERIENCE CERTIFICATE OF THE 4TH PETITIONER DATED 23.03.2013.** W.P(C).No.5289/15 13 **EXT.P5:TRUE COPY OF THE EXPERIENCE CERTIFICATE OF THE 5TH PETITIONER DATED 23.03.2013.** **EXT.P6:TRUE COPY OF THE EXPERIENCE CERTIFICATE OF THE 6TH PETITIONER DATED 15.04.2013.** **EXT.P7:TRUE COPY OF THE EXPERIENCE CERTIFICATE OF THE 7TH PETITIONER DATED 03.04.2013.** **EXT.P8:TRUE COPY OF THE EXPERIENCE CERTIFICATE OF THE PETITIONER DATED 22.03.2013.** **EXT.P9:TRUE COPY OF THE EXPERIENCE CERTIFICATE OF THE 1ST PETITIONER DATED 22.03.2013.** **EXT.P10:TRUE COPY OF THE EXPERIENCE CERTIFICATE OF THE 1ST PETITIONER DATED 22.03.2013.** **EXT.P11:TRUE COPY OF THE EXPERIENCE CERTIFICATE OF THE 1ST PETITIONER DATED 22.03.2013.** **EXT.P12:TRUE COPY OF THE EXPERIENCE CERTIFICATE OF THE 1ST PETITIONER DATED 23.03.2013.** **EXT.P13:TRUE COPY OF THE EXPERIENCE CERTIFICATE OF THE 1ST PETITIONER DATED 23.03.2013.** **EXT.P14:TRUE COPY OF THE EXPERIENCE CERTIFICATE OF THE 1ST PETITIONER DATED 23.03.2013.** **EXT.P15:TRUE COPY OF THE EXPERIENCE CERTIFICATE OF THE 1ST PETITIONER DATED 23.03.2013.** **EXT.P16:TRUE COPY OF THE EXPERIENCE CERTIFICATE OF THE 1ST PETITIONER DATED 23.03.2013.** **EXT.P17:TRUE COPY OF THE EXPERIENCE CERTIFICATE OF THE 1ST PETITIONER DATED 20.06.2013.** **EXT.P18:TRUE COPY OF THE EXPERIENCE CERTIFICATE OF THE 1ST PETITIONER DATED 17.04.2013.** **EXT.P19:TRUE COPY OF THE EXPERIENCE CERTIFICATE OF THE 1ST PETITIONER DATED 11.04.2013.** **EXT.P20:TRUE COPY OF ORDER PASSED BY 6TH RESPONDENT CATEGORIZING 20TH PETITIONER AS CASUAL LABOURER HAVING MORE THAN 10 YEARS SERVICE.** W.P(C).No.5289/15 14 **EXT.P21:TRUE COPY OF ORDER F NO.5/14/2012 DOP(PART) (2) DATED 30.03.2013 ISSUED BY THE SECRETARY (PANCHAYATS).** **EXT.P22: TRUE COPY OF ORDER F NO.5/14/2012 DOP(PART) (1) DATED 30.03.2013 ISSUED BY THE SECRETARY,PANCHAYATS.** **EXT.P23: TRUE COPY OF ORDER F NO.2/1/2012-DOP /257 DATED 07.03.2012.** **EXT.P24: TRUE COPY OF INTERIM ORDER DATED 03.07.2013 PASSED BY CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN O.A.NO.29/2013 AND CONNECTED CASES.** **EXT.P25: TRUE COPY OF THE ORDER IN O.A.NO.29/2013 AND CONNECTED CASES PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 06.03.2014.** **EXT.P26: TRUE COPY OF ORDER ORDER F.NO.5/8/2014-D.O.P DATED 12.02.2015.** ## **RESPONDENTS' EXHIBITS** **EXT.R1(a): TRUE COPY OF THE CIRCULAR F.NO.5/6/2003-DoP & RD DATED 12.11.2003.** **EXT.R1(b): TRUE COPY OF THE F.NO.5/26/2003-DoP & RD DT.4.11.2008.** **EXT.R1(c): TRUE COPY OF THE ORDER DATED 17.8.2009 IN O.A.NO.611/2008.** **EXT.R1(d): TRUE COPY OF THE COMMON JUDGMENT IN OP(CAT) NO.133 OF 2012 AND 606 OF 2012.**