KERALA VETERINARY AND ANIMAL SCIENCE UNIVERSITY & REGISTRAR v. PRAVEENA P. and OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** ## **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **THURSDAY, THE 24[TH] DAY OF MARCH 2022 / 3RD CHAITHRA, 1944 WA NO. 1232 OF 2021** **AGAINST THE JUDGMENT DATED 17.03.2021 IN WP(C) 29102/2020** **OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS NO.2 & 3:** - **1 KERALA VETERINARY AND ANIMAL SCIENCE UNIVERSITY LAKKIDI P.O., POOKKODE, WAYANAD 673 576, REPRESENTED BY ITS REGISTRAR** - **2 REGISTRAR KERALA VETERINARY AND ANIMAL SCIENCE UNIVERSITY, LAKKIDI P.O., POOKKODE, WAYANAD 673 576** **BY ADV SMT.AYSHA YOUSEFF, SC, KERALA VETERINARY AND ANIMAL SCIENCES UNIVERSITY** ## **RESPONDENTS/PETITIONER & R1:** - **1 PRAVEENA.P., AGED 27 YEARS, D/O.PRABHAKARAN, PRARATHOLIL HOUSE, KARIMPUZHA P.O., PALAKKAD DISTRICT** - **2 VISHNU P.V. AGED 27 YEARS** - **S/O.VENUGOPAL, PULAKKAL HOUSE, THOTTIPPAL P.O., THRISSUR DISTRICT** - **3 BINTO BENNY AGED 27 YEARS** - **S/O.BENNY, NEELANKAVIL HOUSE, ADAT P.O., THRISSUR DISTRICT** :2: ## **W.A. No.1232 of 2021** - **4 YADHUKRISHNAN K.M. AGED 27 YEARS S/O.MURALEEDHARAN K.R., KALIYAN HOUSE, MUTTITHADI P.O, BHARATHA, THRISSUR DISTRICT** - **5 NITHIN RAJAN AGED 27 YEARS S/O.RAJAN M.P., MAROTTIKUNNATH HOUSE, KORUMBISSERY, IRINJALAKUDA P.O., THRISSUR DISTRICT.** - **6 STATE OF KERALA, REPRESENTED BY ITS SECRETARY ANIMAL HUSBANDRY AND DIARY DEVELOPMENT, SECRETARIAT, THIRUVANANTHAPURAM** **BY ADV V.M.KRISHNAKUMAR BY GOVERNMENT PLEADER SRI.BIJOY CHANDRAN** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON** **24.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** :3: ## **W.A. No.1232 of 2021** ## **JUDGMENT** ## **A.K.Jayasankaran Nambiar, J.** The Kerala Veterinary and Animal Science University and its Registrar are the appellants before us aggrieved by the judgment dated 17.03.2021 of the learned Single Judge in WP(C).No.29102 of 2020. 2. The brief facts necessary for disposal of the Writ Appeal are as follows: The writ petitioners, who were Diploma holders in Poultry Production conducted by the University, had approached this Court through the Writ Petition aforementioned seeking a direction to the University to regularise their services under the University in the category of Farm Assistant, Lab Attendant and Poultry Attendant respectively, in which they had been working as daily wage employees for almost 8 years in the past. They had preferred a representation before the University seeking the benefit of regularisation of their service but the said representation was rejected by the University, inter alia, on the ground that as per the statutory provisions governing the University, recruitment to non-teaching staff had necessarily to be :4: ## **W.A. No.1232 of 2021** through the Kerala Public Service Commission and regularisation was not an option available for recruitment under the said statutory scheme. It was this rejection order that was impugned in the Writ Petition, where a direction was also sought to the respondents to frame a scheme for regularisation of the petitioners and other similar daily wage workers as permanent workers in the post of Farm Assistant, Lab Attendant and Poultry Attendant, and thereafter, to regularise their services as such. 3. The learned Single Judge, who considered the matter placed reliance on the decisions of the Supreme Court in **State of Karnataka v. Umadevi [2006 (4) SCC 1]** , **Jammu and Kashmir v. District bar Association Bandipora [2017 (3) SCC 410]** and **Hargurpratap Singh v. State of Punjab [2007 (13) SCC 292]** to find that notwithstanding the statutory provisions, which mandated that the recruitment to non-teaching staff in the University had to be through the Kerala Public Service Commission, the fact that the University had not reported vacancies for a long time necessitated a direction to the University to frame a scheme of regularisation and to permit the petitioners to continue in daily wage employment till such time as the aforesaid scheme was framed in the University. :5: **W.A. No.1232 of 2021** 4. In the appeal before us, it is the submission of Smt.Aysha Youseff, the learned Standing counsel for the appellant University that the directions in **State of Karnataka and Others v. KGSD Canteen Employees' Welfare Association and Others [2006 KHC 61]** at paragraph 44 of which judgment the Court has observed as follows: “44. The question which now arises for consideration is as to whether the High Court was justified in directing regularization of the services of the respondents. It was evidently not. In a large number of decisions, this Court has categorically held that it is not open to a High Court to exercise its discretion under Article 226 of the Constitution either to frame a scheme by itself or to direct the State to frame a scheme for regularising the services of ad hoc employees or daily wage employees who had not been appointed in terms of the extant service rules framed either under a statute or under the proviso to Art. 309 of the Constitution. Such a scheme, even if framed by the State, would not meet the requirements of law as the executive order made under Art. 162 of the Constitution cannot prevail over a statute or statutory rules framed under the proviso to Art. 309 thereof. The State is obligated to make appointments only in fulfilment of its constitutional obligation as laid down in Art. 14, 15 and 16 of the Constitution and not by way of any regularization scheme. In our constitutional scheme, all eligible persons similarly situated must be given opportunity to apply for and receive considerations for appointments at the hands of the authorities of the State. Denial of such a claim by some officers of the State time and again had been deprecated by this Court. In any view, in our democratic polity, an authority howsoever high it may be cannot act in breach of an existing statute or the rules which hold the field.” :6: ## **W.A. No.1232 of 2021** 5. The learned counsel would also place reliance on a three Judge Bench decision of the Supreme Court in **State of Jammu and Kashmir and Others v. District Bar Association [2016 KHC 6815]** (produced as Ext.P7 in the Writ Petition), where at paragraph 19 the following principles have been reiterated by the Supreme Court while discussing the permissibility of regularisation as a method of recruitment. “19. The principles will have to be formulated bearing in mind the position set out in the above judgments. Regularisation is not a source of recruitment nor is it intended to confer permanency upon appointments which have been made without following the due process envisaged by Art. 14 and Art.16 of the Constitution. Essentially a scheme for regularisation, in order to be held to be legally valid, must be one which is aimed at validating certain irregular appointments which may have come to be made in genuine and legitimate administrative exigencies. In all such cases it may be left open to Courts to lift the veil to enquire whether the scheme is aimed at achieving the above objective and is a genuine attempt at validating irregular appointments. The State and its instrumentalities cannot be permitted to use this window to validate illegal appointments. The second rider which must necessarily be placed is that the principle as formulated above is not meant to create or invest in a temporary or ad hoc employee the right to seek a writ commanding the State to frame a scheme for regularisation. Otherwise, this would simply reinvigorate a class of claims which has been shut out :7: ## **W.A. No.1232 of 2021** permanently by Uma Devi. Ultimately, it would have to be left to the State and its instrumentalities to consider whether the circumstances warrant such a scheme being formulated. The formulation of such a scheme cannot be accorded the status of an enforceable right. It would perhaps be prudent to leave it to a claimant to establish whether he or she falls within the exceptions carved out in paragraph 53 and falls within the ambit of a scheme that may be formulated by the State. Subject to the riders referred to above, a scheme of regularisation could fall within the permissible limits of Uma Devi and be upheld.” 6. She would also point out that in the instant case, none of the petitioners had a continuous service of more than 8 years under the University and even this period of 8 years was one computed based on the broken spells of service that was discharged by the petitioners in the University. She would reiterate, therefore, that the petitioners could not have aspired for regularisation, which is an exceptional method of recruitment and even when justified only in the circumstances enumerated by the Supreme Court in the case of **Uma Devi Supra** . 7. Per contra, it is the submission of Sri.V.M.Krishnakumar, the learned counsel for the petitioners that the principles laid down by the Supreme Court in the case of **Uma Devi Supra** cannot be read strictly and to the detriment of persons like the petitioners. It is contended that the period of 10 years mentioned in **Uma Devi Supra** is only indicated :8: ## **W.A. No.1232 of 2021** and not to be treated as a cut off limit for the purposes of considering claims for regularisation. He would point out that in the ultimate analysis it is the long tenure of service rendered by a person on daily wage basis against a sanctioned post in the University that has to determine the entitlement of the petitioners for a right to regularisation. He would submit that in the case of the petitioners those criteria have been met, and therefore, the learned Single Judge was correct in law in directing the University to frame a scheme of regularisation. He would also submit that the petitioners now do not stand to get a fresh employment on account of their age and the direction of the learned Single Judge has to be seen against the back drop of the inaction on the part of the University to resort to regular appointments through the Public Service Commission. 8. On a consideration of the rival submissions, while we do find that there has been some delay on the part of the University in reporting vacancies to sanctioned posts, we feel that the same by itself will not confer a right on persons such as the petitioners to claim regularisation in service based on the 8 years of broken service put in by them in the University. As has already been noticed above, regularisation is not to be seen as a source of recruitment nor was it intended to confer permanency upon appointments which have been :9: ## **W.A. No.1232 of 2021** made without following the due process envisaged by Articles 14 and 16 of the Constitution of India. The scheme of regularisation is essentially one that is intended to overcome the defect of irregularities in the initial appointment when it is apparent that irregularly appointed employees have been forced to continue to work on temporary basis in sanctioned posts in the University for a long period of time, the lower limit of which was pegged at 10 years by the Supreme Court in **Uma Devi Supra** . It is also discernible from the judgment of the Supreme Court relied on by the learned counsel for the appellants that the formulation of a scheme of regularisation cannot be accorded the status of an enforceable right since it leads to recruitment through an unconventional method, which would affect the claims of others, who seek appointment to the posts in the University. In a very recent judgment in the **State of Gujarat and Others v. R.J. Pathan and Others (Civil Appeal No.1951 of 2022)** , the Hon'ble Supreme Court reversed the finding of the Division Bench which directed to consider the cases of the respondents therein for absorption and regularisation sympathetically and if necessary by creating supernumerary posts on the ground that they had worked for 17 years. While reversing this finding, the Supreme Court held that the direction to create the supernumerary posts is unsustainable and that no direction can be :10: ## **W.A. No.1232 of 2021** issued by the High Court under Article 226 of the Constitution of India for absorption/regularisation of the employees who were appointed in a temporary unit created for a particular project. We are, therefore, of the view that on the facts of the instant case, the writ petitioners have not made out a case for a regularisation of their services under the University and inasmuch as the learned Single Judge has allowed the Writ Petition by accepting the contentions of the writ petitioners and directing the University to frame a scheme for regularisation, we deem it appropriate to set aside the impugned judgment of the learned Single Judge. Resultantly, the Writ Appeal is allowed by setting aside the judgment of the learned Single Judge and dismissing the Writ Petition. Sd/- ## **A.K.JAYASANKARAN NAMBIAR JUDGE** Sd/- **MOHAMMED NIAS C.P. JUDGE** mns **W.A. No.1232 of 2021** :11: ## **APPENDIX** **PETITIONERS ANNEXURES: NIL** ## **RESPONDENTS ANNEXURES:** **ANNEXURE R1(A): TRUE COPY OF THE EXPERIENCE CERTIFICATES ISSUED TO THE 3RD PETITIONER BY THE KERALA VETERINARY AND ANIMAL SCIENCE UNIVERSITY ON 08.12.2015.** **ANNEXURE R1(B): TRUE COPY OF THE EXPERIENCE CERTIFICATE ISSUED BY THE MANNUTHY CENTRE TO THE 3RD PETITIONER ON 31.07.2017** **ANNEXURE R1(C): TRUE COPY OF THE CERTIFICATE ISSUED BY THE KERALA VETERINARY AND ANIMAL SCIENCE UNIVERSITY THIRUVIZHAMKUNNU DATED 31.07.2017 TO THE 3RD PETITIONER.** **ANNEXURE R1(E): TRUE COPY OF THE CERTIFICATE DATED 04.01.2020 TO THE 3RD PETITIONER** **ANNEXURE R1(F): TRUE COPY OF THE PROCEEDINGS NO.CASPS/RFPP/ESTT/2021-22(XI) DATED 7.1.2022** **ANNEXURE R1(G): TRUE COPY OF THE PROCEEDINGS NO.CASPS/RFPP/ESTT/2021-22(II) DATED 11.11.2021** **ANNEXURE R1(H): TRUE COPY OF THE PROCEEDINGS NO.CASPS/RFPP/ESTT/2021-22(III) DATED 11.11.2021** **ANNEXURE R1(I): TRUE COPY OF THE PROCEEDINGS NO.CASPS/RFPP/ESTT/2021-22(III) DATED 9.9.2021** **ANNEXURE R1(J): TRUE COPY OF THE PROCEEDINGS NO.CASPS/RFPP/ESTT/2021-22(XII) DATED 7.1.2022** :12: **W.A. No.1232 of 2021** **ANNEXURE R1(K): TRUE COPY OF THE CERTIFICATE ISSUED TO THE 5[TH] PETITIONER DATED 10.07.2018** **ANNEXURE R1(L): TRUE COPY OF THE CERTIFICATE ISSUED TO THE 5[TH] PETITIONER DATED 8.07.2014** **ANNEXURE R1(M): TRUE COPY OF THE CERTIFICATE ISSUED TO THE 5[TH] PETITIONER DATED 4.01.2020** **ANNEXURE R1(N): TRUE COPY OF THE CERTIFICATE ISSUED TO THE 1[ST] PETITIONER DATED 01.10.2013** **ANNEXURE R1(O): TRUE COPY OF THE CERTIFICATE ISSUED TO THE 1ST PETITIONER DATED 21.11.2014** **ANNEXURE R1(P): TRUE COPY OF THE CERTIFICATE ISSUED TO THE 1ST PETITIONER DATED O1.10.2015** **ANNEXURE R1(Q): TRUE COPY OF THE CERTIFICATE ISSUED TO THE 1ST PETITIONER DATED 26.11.2016** **ANNEXURE R1(R): TRUE COPY OF THE CERTIFICATE ISSUED TO THE 4TH PETITIONER DATED 31.01.2019** **ANNEXURE R1(S): TRUE COPY OF THE CERTIFICATE ISSUED TO THE 1ST PETITIONER DATED 04.01.2020** **ANNEXURE R1(T): TRUE COPY OF THE CERTIFICATE ISSUED TO THE 2ND PETITIONER DATED 15.07.2015** **ANNEXURE R1(U): TRUE COPY OF THE CERTIFICATE ISSUED TO THE 2ND PETITIONER DATED 31.07.2017** **ANNEXURE R1(V): TRUE COPY OF THE CERTIFICATE ISSUED TO THE 2ND PETITIONER DATED 31.01.2019** **ANNEXURE R1(W): TRUE COPY OF THE ORDER DATED 13.05.2020 ISSUED BY THE 1ST RESPONDENT TO THE 2ND PETITIONER** **//TRUE COPY//** **P.A TO JUDGE**