Jafar K.T. v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE THE CHIEF JUSTICE MR.MOHAN M.SHANTANAGOUDAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 1ST DAY OF FEBRUARY 2017/12TH MAGHA, 1938 WA. NO.1969 OF 2016 () IN WP(C).19936/2016** **-----------------------** **(AGAINST THE JUDGMENT DATED 17-08-2016 IN WP(C) NO.19936/2016.)** ## **APPELLANT(S)/PETITIONER: -----------------------** **JAFAR.K.T, S/O.MUHAMMED, AGED 37, KADANTHODIKA HOUSE, MUNDA P.O, NILAMBUR, MALAPPURAM DISTRICT, PIN 679 331.** **BY ADV. SRI.S.VIDYASAGAR** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** **1. STATE OF KERALA,** - **REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. SECRETARY LOCAL SELF GOVERNMENT DEPARTMENTS, THIRUVANANTHAPURAM-695 001.** **3. DIRECTOR OF PANCHAYATH, OFFICE OF THE DIRECTOR OF PANCHAYATH, THIRUVANANTHAPURAM-695 001.** **4. SECRETARY, VAZHIKKADAVU GRAMA PANCHAYATH, PANACHAMOODU P.O,** **THIRUVANANTHAPURAM-695 505.** **R1 TO R3 BY SENIOR GOVERNMENT PLEADER SRI.ARAVIND KUMAR BABU** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** # **MOHAN M.SHANTANAGOUDAR, C.J. & ANIL K. NARENDRAN, J** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. No.1969 of 2016 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1[st] day of February, 2017 ## **JUDGMENT** ## Mohan M.Shantanagoudar, C.J. The judgment dated 17.8.2016 passed in W.P(C) No.19936 of 2016 is appealed against by the unsuccessful writ petitioner. 2. The appellant was engaged on daily wage basis as LDV Grade II driver of Vazhikkadavu Grama Panchayat since 2007 by virtue of Exhibit P1 resolution dated 19.4.2007 issued by the 4[th] respondent. The case of the appellant is that as per Exhibit P2 experience certificate issued by the Panchayat, he has a continuous service of more than 9 years and 60 days as driver and he is continuing without any break. When the Panchayat, by Exhibit P3 resolution and Exhibit P4 notification, was about to terminate the services of the appellant as a daily wager, he approached this Court by filing W.P(C) No.19936 of 2016, which came to be dismissed by the impugned judgment. 3. The sum and substance of the case of the appellant is that by virtue of his long and continuous engagement, that too, when he **-:2:-** WA.1969/16 was appointed after due process of selection and interview held by the Panchayat, he cannot be terminated from service. 4. It is well settled that a person, who is engaged on daily wage basis, does not have any right to seek continued engagement or regularisation in service. If any right is accrued to him under the Industrial laws, it is open for him to pursue such remedies. 5. Be that as it may, the fact remains that the appellant was appointed as a driver on daily wage basis from 19.4.2007 onwards, as borne out from Exhibit P1 resolution. Hence, at the initial stage itself, it was made clear to the appellant that his service as driver in the Panchayat is on daily wage basis. However, he continued in service on daily wage basis for some more period. ## 6. In **Sadanandan** v. **State of Kerala and Others** [2016 (5) KHC 377], a Division Bench of this Court, in which, one among us [AKN(J)] was a member, held that the true effect of the direction contained in paragraph (53) of the judgment of the Constitution Bench in **State of Karnataka** v. **Umadevi** [(2006) 4 SCC 1] is that all persons who have worked for more than 10 years as on 10.4.2006 (the date of decision in Umadevi's case) without the protection of any interim order of any Court or Tribunal, in vacant **-:3:-** WA.1969/16 posts, possessing the requisite qualification are entitled to be considered for regularisation. Paragraphs (14) to (18) of the said judgment read thus: 14. In Umadevi's case (supra) a Constitution Bench of the Apex Court has laid down the principle that, no temporary, contractual or casual employee can invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. Paragraph 47 of the judgment reads thus; " **47.** When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in WA.1969/16 ## **-:4:-** cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post." 15. However, in paragraph 53 of Umadevi's case (supra), the Constitution Bench carved out an exception to the general principles enumerated in paragraph 47. Paragraph 53 of the judgment reads thus; " **53.** One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore v. S.V. Narayanappa (1967 (1) SCR 128), R.N. Nanjundappa v. T. Thimmiah (1972 (1) SCC 409) and B.N. Nagarajan v. State of Karnataka (1979 (4) SCC 507) 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 of Tribunals. The question of regularisation of the services of such employees may have to be considered on merits in **-:5:-** WA.1969/16 the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one time measure, the services of such irregularly 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 regularisation, 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 regularising or making permanent, those not duly appointed as per the constitutional scheme." 16. In **Amarkant Rai v. State of Bihar (2015 (8) SCC 265)** the Apex Court observed that, the objective behind the exception carved out in paragraph 53 of Umadevi's case (supra) was to permit regularisation of such appointments, which are irregular but not illegal, and to ensure security of employment of those persons who had served the State Government and its instrumentalities for more than ten years. **-:6:-** WA.1969/16 17. In **State of Karnataka v. M.L. Kesari (2010 (9) SCC 247)** the Apex Court explained the principles laid down by the Constitution Bench in Umadevi's case (supra) and also the meaning of 'irregular' and 'illegal' appointment referred to therein. In that context, the Apex Court held that, the exception contained in Umadevi's case (supra) is applicable, if the following conditions are fulfilled; (i) the employee concerned should have worked for ten years or more in duly sanctioned post without the benefit or protection of the interim order of any Court or Tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years; (ii) The appointment of such employee should not be 'illegal', even if 'irregular'. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be 'illegal'. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be 'irregular'. Therefore, Umadevi's case (supra) casts a duty upon the concerned Government or instrumentality, to take steps to regularise the services of those irregularly appointed employees who had served **-:7:-** WA.1969/16 for more than ten years without the benefit or protection of any interim orders of Courts or Tribunals, as a onetime measure. 18. In M.L. Kesari's case (supra), the Apex Court explained that, the object behind the direction contained in paragraph 53 of Umadevi's case (supra) is two-fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of Courts or Tribunals, before the date of decision in Umadevi was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on dailywage/ ad-hoc/casual for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. Therefore, the true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi's case) without the protection of any interim order of any Court or Tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The Apex Court has also made it clear that, the fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi's case or that such exercise was undertaken only in regard to a limited few, WA.1969/16 ## **-:8:-** will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi's case as a one-time measure. “ 7. In the instant case, the appellant has been engaged on daily wages as driver since 2007 and his service was continued from time to time. As evident from Exhibit P4, applications are invited to the temporary post of Driver-cum Office Assistant, and Accountantcum-Data Operator at Vazhikkadavu Grama Panchayat under the NREGA programme on daily wages from the eligible candidates only on 15.6.2016. Since, it is not open for the appellant to seek continued engagement or regularisation in service, that too, when it was made known to him that his service was purely temporary and on daily wage basis, the learned single Judge is justified in dismissing the writ petition. Hence, no interference is called for. Appeal fails and the same stands dismissed. Sd/- Mohan M. Shantanagoudar, Chief Justice Sd/- Anil K. Narendran, Judge krj.1/2