Indira Devi V.P. v. Indian Overseas Bank and two respondents

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY, THE 29TH DAY OF JANUARY 2018 / 9TH MAGHA, 1939** **WP(C).No. 13986 of 2017** ## **PETITIONER:** **INDIRA DEVI V.P., MESSENGER (TEMPORARY), INDIAN OVERSEAS BANK, KADANNAPPALLY BRANCH, KANNUR DISTRICT, KERALA PIN-670501.** **BY ADVS.SRI.KALEESWARAM RAJ SRI.VARUN C.VIJAY KUM.A.ARUNA** ## **RESPONDENTS:** **1. INDIAN OVERSEAS BANK, REPRESENTED BY THE MANAGING DIRECTOR, INDIAN OVERSEAS BANK, CENTRAL OFFICE, 763, ANNAI SALAI, CHENNAI PIN-600002.** **2. MANAGING DIRECTOR, INDIAN OVERSEAS BANK, CENTRAL OFFICE, 763, ANNAI SALAI, CHENNAI PIN-600002.** **BY SRI.SUNIL SHANKAR, SC, INDIAN OVERSEAS BANK** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 13986 of 2017 (W)** ## **APPENDIX** **PETITIONER(S)' EXHIBITS EXHIBIT P1: TRUE COPY OF THE SETTLEMENT DATED 17.2.2011 EXHIBIT P2: TRUE COPY OF THE APPLICATION DATED 24.5.2011 SUBMITTED BY THE PETITIONER EXHIBIT P3: TRUE COPY OF THE LETTER DATED 31.5.2011 EXHIBIT P4: TRUE COPY OF THE CERTIFICATE BY THE BRANCH MANAGER NILESHWAR BRANCH OF RESPONDENT NO.1 TO THE PETITIONER EXHIBIT P5: TRUE COPY OF THE JUDGMENT DATED 13.7.2016 IN WPC NO.2567/2016 EXHIBIT P6: TRUE COPY OF THE REPRESENTATION DATED 13.1.2016 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P7: TRUE COPY OF THE STATEMENT PREPARED BY ONE MR.P.RAMADAS, CHIEF MANAGER EXHIBIT P8: TRUE COPY OF THE LETTER DATED 30.11.2016** ## **RESPONDENT(S)' EXHIBITS** **EXHIBIT R1(A): TRUE COPY OF SETTLEMENT EXHIBIT R1(B): TRUE COPY OF CIRCULAR NO.EST/71/2010-2011** **TRUE COPY** **P.S. TO JUDGE** **EL** ## **P.V.ASHA J.** **-----------------------------------W.P.(C) No.13986 of 2017 -------------------------------------** Dated this the 29[th] day of January, 2018 ## **JUDGMENT** The petitioner who has been working as Temporary Messenger from 15.04.2005 onwards filed this writ petition, challenging Ext.P8 letter rejecting her request for regularisation. 2. The petitioner had been working as a Temporary Messenger in the Nileswaram Branch from 15.04.2005 to 30.05.2010. She worked in Thrikkaripur Branch for the period from 01.06.2010 to 07.02.2014. Thereafter, from 08.02.2014 onwards she was working in Kadannappally Branch. 3. Ext P1 settlement was entered into between the 1[st] respondent Bank and the Employees Union on 07.02.2011, which provided for regularisation of the employees who were working on daily wages on certain conditions. The Bank agreed for absorption of W.P.(C) No.13986 of 2017 2 casual/temporary messengers/sweepers engaged in its branches located in India in a phased manner as a one time measure on condition that they should have fulfilled the eligibility criteria and the age fixed by Bank, for recruitment of messengers/sweepers as on the first date of engagement in the Bank and qualification as per norms prescribed therein. Minimum age limit for messengers was fixed as 18 years and maximum as 26 years with relaxation to those belonging to SC/ST, OBC and Ex-service men. Casual/Temporary Messengers/Sweepers who have worked more than 5 years in any branches in permanent vacancies and completed 240 or more days continuously in a calendar year as on 15.11.2010 and were still working were to be absorbed in Phase I before 30.06.2011. Those who completed more than 3 years but less than 5 years in permanent vacancies and completed 240 or more days continuously in any calendar years as on 15.11.2010 and are still working were to be 3 W.P.(C) No.13986 of 2017 absorbed in Phase II. Those who completed 240 or more days continuously in a calendar year and having engaged in permanent vacancies for less than 3 years as on 15.11.2010 and are still working were to be absorbed in phase III, subject to their submitting the required information/certificates. 4. Pursuant to Ext.P1 settlement, circulars were issued calling for applications as prescribed in the Annexure to the settlement. Petitioner submitted her application, Ext.P2 in the prescribed form in which she claimed to have work 270 days during 2009. Her application was recommended as per Ext.P3 letter. It is stated that she had produced her certificate also in support of the application. As orders were not passed on her application, petitioner filed W.P. (C) No.2567/2016, which was disposed of as per Ext.P5 judgment. Petitioner had thereafter submitted Ext P6 representation requesting for regularisation. 5. Thereafter, Ext.P8 order was passed W.P.(C) No.13986 of 2017 4 after affording a personal hearing to petitioner and considering the representation submitted by her. The Deputy General Manager rejected her request on the ground that she did not have 240 days of service in any calendar year as on 15.11.2010 and the declaration furnished by her was not correct. It was also stated that as per circular dated 23.03.2011 it was already informed that mere submission of the undertaking or certificate by the part time/ temporary messengers would not entitle them for absorption in the Bank unless approved by the Competent Authority. 6. It was found that, petitioner did not fulfill the eligibility criteria apart from the condition regarding requisite period of service. Writ Petition was filed at that stage challenging Ext.P8 order and seeking directions to the respondent to regularise the petitioner and for her re-engagement in the post of Messenger or in other equivalent post. 7. The respondents filed a counter 5 W.P.(C) No.13986 of 2017 affidavit stating that petitioner's date of birth is 09.03.1966 and she belongs to General Category. The upper age limit for appointment as messenger is 26 years. Apart from the fact that petitioner had crossed the upper age limit as on the date of her initial engagement on 15.04.2005, it was also stated that she did not have 240 days of service on daily wages in any calendar year preceding 15.11.2010. It was thus pointed out that in order to be eligible for regularisation, in tune with Ext.P1 settlement and for such regularisation all the conditions specified in the settlement has to be complied with. 8. The petitioner filed a reply affidavit stating that she had worked more than 240 days and Ext.P2 declaration was not one, signed by the petitioner alone but it was signed by the Officers under whom she worked in Nileswaram Branch. Petitioner also stated that he had been continuing in other Branches from 01.06.2010 onwards. Petitioner 6 W.P.(C) No.13986 of 2017 also claimed regularisation in the light of Paragraph 53 of the judgment in _**Secretary, State of Karnataka v. Umadevi**_ **: [(2006) 4 SCC 1]** , stating that she had completed more than 10 years and therefore she was entitled to regularisation. 9. I have heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent Bank. 10. Petitioner's claim for regularisation can be considered only in accordance with Ext P1 settlement, which provides that they should be within the age limit as on the date of their first appointment/engagement under the Bank, apart from the fact that they should have worked in 240 days in any of the calendar years as on 15.11.2010. 11. Even though, petitioner is disputing the number of days of work on the strength of Ext.P2 declaration signed by the Branch Manager of the Bank also, the fact that petitioner was over aged as on the W.P.(C) No.13986 of 2017 7 date of her first appointment itself i.e., she had already crossed 26 years as on the date of her first engagement cannot be disputed. It is clear that she did not fulfill the conditions in Ext.P1. Petitioner's claim for regularisation on the strength of Paragraph 53 of _**Secretary, State of Karnataka (Supra)**_ cannot be considered when there is already a scheme for settlement. 12. The settlement is entered into for the the benefit of those engaged on daily wages. The respondents submits that engagement on daily wages is the only prescribed method of appointment. In the above circumstances, Ext.P8 order rejecting her claim for regularisation cannot be said to be illegal. The learned counsel for the petitioner pointed out that petitioner was disengaged subsequent to Ext.P8 order. As it is pointed out that the respondents are engaging persons on daily wages, it is made clear that the dismissal of the writ petition 8 W.P.(C) No.13986 of 2017 cannot stand in the way of the respondents from engaging the petitioner even on daily wages in case there is requirement. In case petitioner submits any representation for re-engagement, the respondents shall consider the same in accordance with law. Sd/- **P.V.ASHA, JUDGE.** ww