In the High Court of Kerala at Ernakulam, WP(C) Nos. 9615/2021 & 29015/2021

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE V.G.ARUN`** ``` FRIDAY, THE 20[TH] DAY OF MAY 2022 / 30TH VAISAKHA, 1944 ``` ## **`WP(C) NO. 29015 OF 2021`** ## **`PETITIONER/S:`** ``` AMMINI AGED 60 YEARS W/O.K.S. GEORGE, VELOOR ENPATHIL HOUSE, ARPOOKARA WEST P.O, KOTTAYAM - 686008. ``` ``` BY ADV MATHEW PHILIP EDAPPALLIL ``` ## **`RESPONDENT/S:`** |**`1`**|**`STATE OF KERALA`**| |---|---| ||**`REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH AND`**| ||**`FAMILY WELFARE DEPARTMENT, SECRETARIAT,`**| ||**`THIRUVANANTHAPURAM - 695001.`**| |**`2`**|**`SUPERINTENDENT`**| ||**`MEDICAL COLLEGE HOSPITAL, GANDHINAGAR P.O, KOTTAYAM -`**| ||**`686008.`**| ## **`OTHER PRESENT:`** ## **`GP VENUGOPAL V.`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.05.2022, ALONG WITH WP(C).9615/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NOs. 9615 & 29015 OF 2021 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE V.G.ARUN`** ``` FRIDAY, THE 20[TH] DAY OF MAY 2022 / 30TH VAISAKHA, 1944 WP(C) NO. 9615 OF 2021 ``` ## **`PETITIONER/S:`** - **`1 ARIFA BEEVI AGED 60 YEARS VAZHAKALAYIL HOUSE, PERUMBAIKADU P.O. KOTTAYAM 686 016.`** - **`2 LEELAMANI, PRASANTH NIVAS, LAKATTOOR P.O. KOTTAYAM 686 502.`** - **`3 RADHA, PARAMPIL HOUSE, KUMARAKOM NORTH P.O. KOTTAYAM 686 563.`** - **`4 RADHAMANI S, THAZHATHEKUTTU HOUSE, KUMARANALLOOR P.O. KOTTAYAM 686 016.`** - **`5 SUDHARMA THANKAPPAN, KURIYATTEL HOUSE, KAIPUZHA P.O. KOTTAYAM 686 602.`** - **`6 SYAMALA KUMARI, THAZHATHEKUTTU HOUSE, KUMARANALLOOR P.O. KOTTAYAM 686 016.`** ``` BY ADV MATHEW PHILIP EDAPPALLIL ``` ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, TRIVANDRUM 695 001.`** - **`2 SUPERINTENDENT, MEDICAL COLLEGE HOSPITAL, GANDHINAGAR P.O. KOTTAYAM 686 008.`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON ``` ``` 20.05.2022, ALONG WITH WP(C).29015/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NOs. 9615 & 29015 OF 2021 ``` ``` 3 ``` ## **JUDGMENT** ## **Dated this the 20[th] day of May, 2022** The petitioners were engaged on daily wages for doing cleaning works at the Kottayam Medical College Hospital. Though engaged on daily wages, the petitioners continued in service for continuous periods ranging from 21 to 34 years. Till 2017, menial workers like the petitioners were allowed to continue as long as they could. While so, the Additional Chief Secretary to Government issued a letter dated 28.11.2007 to the Superintendent, Medical College Hospital, Kottayam directing that, from among the 104 employees working on daily wage basis, those above 60 years as on 31.10.2017 should be terminated and a fresh proposal submitted with respect to the others (Ext.P12). This resulted in the order dated 12.12 2017 of the 2nd respondent(Ext.P5), terminating the service of 20 employees who had completed 60 years of age (Ext.P5). Apprehending similar treatment, the petitioners approached this Court in W.P(C) No. 26876/2020 and obtained a direction to the Government to consider their representation (Ext.P2). Accordingly, the Government considered the representation and ``` WP(C) NOs. 9615 & 29015 OF 2021 ``` ``` 4 ``` rejected it under Ext.P3 order. Hence, these writ petitions, seeking to quash Ext P3 Government Order G.O (Rt) No. 792/2021/H&FWD dated 29.3.2021, along with Ext. P12 Government Letter No.K3/118/2017/H&FWD dated 28.11.2017 and to direct the respondents to retain the petitioners till a final decision is taken by this Honourable Court. For convenience, the documents are referred to as described in W.P(c) No. 9615 0f 2021. 2. Learned Counsel for the petitioner assailed Ext.P12 on the ground that the letter directing the second respondent to terminate the daily waged employees above 60 years as on 30.10.2017, does not contain the reason for issuing such direction. Reliance is placed the decision in **Kerala Brahmana Sabha v. Vamana Prabhu and others** [ **2019 (3) KLT 438]** , wherein a Division Bench of this Court, after referring to a series of earlier decisions, reiterated the requirement of stating reasons while passing administrative and quasi judicial orders. Assailing Ext.P3, learned Counsel submitted that the reasons mentioned in the order are patently wrong. The reason that continuance of daily wages employees beyond sixty years will ``` WP(C) NOs. 9615 & 29015 OF 2021 ``` ``` 5 ``` not be conducive to their health cannot stand in the light of Ext.P6 Government Order, allowing the part time contingent employees in its service to continue up to the age 70 years and Ext.P14, by which employees engaged by the Hospital Development Society are allowed to continue up to 65 years. The reason that records pertaining to the service rendered by the petitioners are not available cannot also be countenanced in the light of the undisputed fact that payments to the petitioners are being affected directly from the District Treasury as evidenced by Exts.P8 and P9 documents. The finding in Ext.P3 that the petitioners were not appointed against sanctioned posts is contended to be baseless, since contingent appointments are never made to sanctioned posts and are affected to meet certain contingencies. In support of this proposition the decision of the Apex Court in **State of U.P v Ajay Kumar [(1997) 4 SCC 88]** is cited. Finally, it is contended that, if at all the termination is upheld, there should be a direction to pay compensation to the petitioners under Section 25 (f) of the Industrial Disputes Act (‘the Act’ for short),as the termination amount to retrenchment. 3. Learned Government Pleader submitted that the ``` WP(C) NOs. 9615 & 29015 OF 2021 ``` ``` 6 ``` petitioners have no legal right to seek continuance as they were engaged on daily wages by the second respondent when there was shortage of cleaning staff. Such engagement was not to any sanctioned post or after conducting a selection process. These aspects were considered by the Government while passing Ext.P3 order, as discernible from paragraphs 4 and 5, which reads as under; “4) Government have examined the matter in detail with reference to the records produced and the report of the Principal, Government Medical College, Kottayam. The petitioners were engaged as cleaning staff on daily wages by the Superintendent of the Government Medical College, for the smooth functioning of the hospital, when there was shortage of cleaning staff. There are no proper records regarding their appointment. When there arose regular vacancy of Hospital Attenders, the Principal tool necessary action to fill those vacancies by terminating the service of the above mentioned staff. Against this decision, they moved the Hon’ble High Court and obtained stay order. They continued in service based on this order of the Hon’ble Court. ## 5) There were 104 such employees in Government ``` WP(C) NOs. 9615 & 29015 OF 2021 ``` ``` 7 ``` Medical College, kottayam. Most of them were engaged only for 14 days. They are / were not working on the sanctioned posts. They are working in addition to the staff working under the HDS, which is against the rules. Hence, Government vide letter No.K3/118/2017/H&FWD dated 28.11.2017, directed the Superintendent / Principal, Government Medical College, Kottayam to weed out those who have completed 60 years of age. Accordingly, Superintendent, Government Medical College has terminated the service of 24 such employees upto December 2019. But the applicants, who were to be terminated from service on 31.12.2020 moved the Hon’ble High Court praying for a direction to retain them up to the age of 70 years.” 4. It is submitted that the 24 daily waged employees disengaged pursuant to Ext.P12 and P5 orders did not raise any objection and the petitioners also did not challenge Ext.P12 for more than 3 years. The petitioners cannot seek parity with the service conditions of part time contingent employees in the Government or contractual employees appointed by the Hospital Development Society, since these employees were to sanctioned posts appointed after a due selection process. ``` WP(C) NOs. 9615 & 29015 OF 2021 ``` ``` 8 ``` 5. Indisputably, the petitioners were appointed on daily wages, without undergoing any selection procedure whatsoever. Of course, pursuant to their appointment, the petitioners continued on daily wages for long years. But, such continuance will not confer any right on the petitioners for continuance or regularization in service as laid down in **State of Karntaka Vs.** **Umadevi and others [(2006) 4 SCC 1]** and subsequent decisions. The contention regarding lack of reasons in Ext.P12 cannot also hold good in the light of Ext. P3 well reasoned order issued by the Government, pursuant to this Court’s direction. The contention of the learned Government Pleader that, having been appointed on daily wages by the second respondent, to tide over the shortage of cleaning staff, that too without undergoing any selection process, the petitioners service cannot be equated with that of the contingent employees in Government service or the contractual employees appointed by the Hospital Development Society is also well founded. The alternative contention that the petitioners are workmen and therefore entitled for the benefit under Section 25 (f)of the Act has to be agitated before the proper forum. ``` WP(C) NOs. 9615 & 29015 OF 2021 ``` ``` 9 ``` For the aforementioned reasons the writ petition is dismissed, without prejudice to the petitioners’ right to approach the appropriate forum for raising their claims, if any, under the Industrial Disputes Act. . **Sd/V.G ARUN JUDGE** SJ ``` WP(C) NOs. 9615 & 29015 OF 2021 ``` ``` 10 ``` ## **`APPENDIX OF WP(C) 9615/2021`** |**`PETITIONER EXHIBITS`**|| |---|---| |**`EXHIBIT P1`**|**`TRUE COPY OF THE PETITION DATED 27.11.2020`**| ||**`SUBMITTED TO THE FIRST RESPONDENT BY THE 1ST`**| ||**`PETITIONER ARIFA BEEVI.`**| |**`EXHIBIT P1 (A)`**|**`TRUE COPY OF THE PETITION DATED 27.11.2020`**| ||**`SUBMITTED TO THE FIRST RESPONDENT BY THE 2ND`**| ||**`PETITIONER LEELAMANI.`**| |**`EXHIBIT P1 (B)`**|**`TRUE COPY OF THE PETITION DATED 27.11.2020`**| ||**`SUBMITTED TO THE FIRST RESPONDENT BY THE 3RD`**| ||**`PETITIONER RADHA.`**| |**`EXHIBIT P1 (C)`**|**`TRUE COPY OF THE PETITION DATED 27.11.2020`**| ||**`SUBMITTED TO THE FIRST RESPONDENT BY THE 4TH`**| ||**`PETITIONER RADHAMANI S.`**| |**`EXHIBIT P1 (D)`**|**`TRUE COPY OF THE PETITION DATED 27.11.2020`**| ||**`SUBMITTED TO THE FIRST RESPONDENT BY THE 5TH`**| ||**`PETITIONER SUDHARMA THANKAPPAN.`**| |**`EXHIBIT P1 (E)`**|**`TRUE COPY OF THE PETITION DATED 27.11.2020`**| ||**`SUBMITTED TO THE FIRST RESPONDENT BY THE 6TH`**| ||**`PETITIONER SYAMALA KUMARI.`**| |**`EXHIBIT P2`**|**`TRUE PHOTOCOPY OF JUDGMENT IN WPC 26876 OF`**| ||**`2020 DATED 28.1.2021.`**| |**`EXHIBIT P3`**|**`TRUE PHOTOCOPY OF GOVT. ORDER G.O.`**| ||**`RT.NO.792/21/H & FWD DATED 29.3.2021`**| ||**`REJECTING EXT P1 SERIES.`**| |**`EXHIBIT P4`**|**`TRUE PHOTO COPY OF IDENTITY CARD IN THE NAME`**| ||**`OF ARIFA BEEVI.`**| |**`EXHIBIT P4 (A)`**|**`TRUE PHOTO COPY OF IDENTITY CARD IN THE NAME`**| ||**`OF LEELAMANI.`**| |**`EXHIBIT P4 (B)`**|**`TRUE PHOTO COPY OF IDENTITY CARD IN THE NAME`**| ||**`OF RADHA..`**| |**`EXHIBIT P4 (C)`**|**`TRUE PHOTO COPY OF IDENTITY CARD IN THE NAME`**| ||**`OF RADHAMANI S.`**| |**`EXHIBIT P4 (D)`**|**`TRUE PHOTO COPY OF IDENTITY CARD IN THE NAME`**| ||**`OF SUDHARMA THANKAPPAN.`**| |**`EXHIBIT P4 (E)`**|**`TRUE PHOTO COPY OF IDENTITY CARD IN THE NAME`**| ||**`OF SYAMALA KUMARI.`**| |**`EXHIBIT P5`**|**`TRUE PHOTO COPY OF TERMINATION ORDER DATED`**| ||**`12.12.2017 OF THE 2ND RESPONDENT.`**| |**`EXHIBIT P6`**|**`TRUE COPY OF G.O. (P) 831/80/(253)/FIN DATED`**| ||**`3.11.1980 FIXING RETIREMENT AGE AS 70 YEARS`**| ||**`TO PART TIME CONTINGENT EMPLOYEES OF STATE.`**| |**`EXHIBIT P7`**|**`TRUE COPY OF G.O.(P) 35/2016/FIN DATED`**| ||**`5.3.2016 GRATING PENSION AND RETIREMENT`**| ``` WP(C) NOs. 9615 & 29015 OF 2021 ``` ``` 11 ``` ``` BENEFITS TO PART TIME CONTINENT EMPLOYEES OF STATE. ``` ``` EXHIBIT P8TRUE PHOTO COPY OF STATEMENT OF ACCOUNTS OF THE FIRST PETITIONER. EXHIBIT P9TRUE PHOTO COPY OF STATEMENT OF ACCOUNTS OF THE FIFTH PETITIONER. EXHIBIT P10TRUE PHOTO COPY OF CERTIFICATE OF PARTICIPATION IN INFECTION CONTROL AND HOSPITAL WASTE MANAGEMENT ISSUED TO 4TH PETITIONERS RADHAMANI. EXHIBIT P10 (A)TRUE PHOTO COPY OF CERTIFICATE OF PARTICIPATION IN HIV/AIDS TRAINING PROGRAMME ISSUED TO THE 4TH PETITIONER, RADHAMANI. EXHIBIT P10 (B)TRUE PHOTO COPY OF CERTIFICATE ATTESTING TRAINING IN ADULT BASIC LIFE SUPPORT, TRIAGING HAND HYGIENE AND HOSPITAL WASTE DISPOSAL ISSUED TO THE 4TH PETITIONER, RADHAMANI. EXHIBIT P11TRUE COPY OF CASE LAW 1997 KHC 3590 (STATE OF UP VS. AJAY KUMAR). Exhibit P14TRUE COPY OF GOVERNMENT ORDER NO.G.O.RT NO.2466/2018/H & FWD DATED 02/08/2018 RAISING RETIREMENT AGE TO 65 YEARS. Exhibit P15TRUE COPY OF JUDGEMENT IN 2019(3) KHC 991, KERALA BHRAHMANA SABHA VS. VAMANA PRABHU AND ORS. Exhibit P15(a)TRUE COPY OF JUDGEMENT IN 2022(1) KLT 277, VIJAYAKUMAR VS. COMMISSIONER. Exhibit P15(b)TRUE COPY OF JUDGEMENT IN 2022(1) KLT 65, THADEVOOS VS. KOCHI CORPORATION. ``` ``` WP(C) NOs. 9615 & 29015 OF 2021 ``` ``` 12 ``` ## **`APPENDIX OF WP(C) 29015/2021`** ``` PETITIONER EXHIBITS Exhibit P1IDENTITY CARD DW 07 OF THE PETITIONER. Exhibit P2TRUE PHOTOCOPY OF THE TERMINATION ORDER DATED 12.12.2017 OF THE 2ND RESPONDENT. Exhibit P3TRUE PHOTOCOPY OF JUDGMENT IN WPC 26876/2020 OF THIS HON'BLE COURT. Exhibit P4TRUE COPY OF STAY ORDER UP TO 14.12.21 IN WPC 9615 OF 2021. Exhibit P5TRUE PHOTOCOPY OF G.O(RT) NO. 792/2021 H & FWD DATED 29.3.2021. Exhibit P6TRUE PHOTOCOPY OF GOVT. LETTER NO.K3/118/2017/H&FWD DATED 28.11.2017. Exhibit P7TRUE COPY OF GO(P) 831/80/(253) FIN DATED 3.11.80 (RETIREMENT AT 70 YEARS) Exhibit P8TRUE COPY OF G.O(P) 35/2016/FIN DATED 5.3.16 (GRANTING PENSION AND GRATUITY). Exhibit P9COPY OF STATEMENT OF ACCOUNT OF SB ACCOUNT OF PETITIONER WITH SBI. Exhibit P10COPY OF REPRESENTATION DATED 9.11.2021 OF THE PETITIONER TO THE FIRST RESPONDENT. Exhibit P11COPY OF POSTAL ACKNOWLEDGEMENT OF EXT P10. ```