High Court of KeralaSingle Judge2019-03-25Writ petition allowed in part; Ext.P13 quashed ...

Krishna Kumar J.S. and others v. State of Kerala and others

Case / Petition Number:WP(C).No. 19936 of 2018

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Hon. Mrs. Justice Anu Sivaraman
Judgment Date: 2019-03-25
Court Decision / Holding: Ext.P13 is set aside. There will be a direction to the first respondent to consider Exts.P7 and P9, and Ext.P12 representations, and to pass appropriate orders after hearing the relevant representatives of the second respondent, delivering a speaking order in accordance with law. Orders shall be passed within two months from receipt of a copy of this judgment. The writ petition is allowed to that extent.
Final Disposition: Writ petition allowed in part; Ext.P13 quashed and directions issued for a speaking order on absorbed posts

Parties to the Case

Appellants / Petitioners

Krishna Kumar J.S.
Balakrishnan AcharI P.P.
Ravi Kumar P.
Sree Kumar R.
Sundaresan K.
Rajan G.
Anil S.
Binu B.
Pushpalal S.

Respondents

State of Kerala represented by the Secretary, Department of Industries, Secretariat, Thiruvananthapuram-695001
The Kerala Minerals and Metals Limited, Sankaramangalam, Chavara, Kollam, PIN-691553, represented by Managing Director
Managing Director, The Kerala Minerals and Metals Limited, Sankaramangalam, Chavara, Kollam, PIN-691553
Member Secretary, Joint Plant Management Committee, Titanium Sponge Project, Vikram Sarabhai Space Centre, Thiruvananthapuram-695022

Legal Representation & Advocates

Counsels for Petitioners

• Dr. K.P. Pradeep
• Smt. T. Thasmi
• Sri. K.P. Kesavan Nair
• Sri. Sanand Ramakrishnan
• Sri. T.T. Biju

Counsels for Respondents

• Sri. Jaishankar V. Nair
• Smt. Latha Anand
• Sri. Sunil Kumar KuriaKose
• Government Pleader

Case Synopsis & Summary

The petitioners, eight or nine contract-based technical employees of Kerala Minerals and Metals Limited, challenge Exts.P10 and P13 government orders and seek reconsideration in light of Exts.P7, P9 and Ext.P12 representations submitted by the second respondent employer. The petitioners were appointed on contract following a due selection process in 2010, with the company recommending creation of sanctioned posts and absorption of the petitioners as regular employees as early as 30.07.2012 (Ext.P3). Despite repeated representations to sanction regular posts, Ext.P10 extended the contract only up to 2017, and Ext.P13 communicated rejection, citing the Umadevi doctrine from State of Karnataka v. Umadevi. The petitioners contend that Umadevi does not apply here because they were selected through a proper process in 2010 and the company had sought regularisation by proposing sanctioned posts. They argue Ext.P13 is merely a government communication and cannot become a legally operative executive order without due consideration of claims, and that the Government should decide the matter under Article 166 of the Constitution. The Court notes the petitioners’ appointment through due process and that the lack of sanctioned posts necessitated contractual appointments. It holds Ext.P13 cannot be relied upon to reject the claims and directs the Government to decide Exts.P7, P9 and Ext.P12 representations after hearing, issuing a speaking order in accordance with law within two months. The writ petition is ordered accordingly.

Provisions of Law Cited

Article 166 of the Constitution of India

Legal Doctrines & Maxims

Umadevi doctrine (regularisation of ad hoc/contract employees)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners were appointed on contract after due selection in 2010 and continued in service with appointment orders. They refer to Ext.P3 (minutes showing post creation) and Exts.P7, P9, P12 submitting regularisation proposals. Ext.P10 extended contracts; Ext.P13, a government communication, rejected absorption by relying on the Umadevi doctrine. They contend Umadevi has no application here since appointments were post-selection and the company sought sanctioned posts. Ext.P13 is not a final executive order; Government should decide legally under Article 166 after hearing the petitioners and second respondent. They request quashing Ext.P13 and directing consideration of Exts.P7, P9 and Ext.P12 with a speaking order within law.

Contentions of Respondents

The respondents emphasize the lack of sanctioned posts and the need for contractual appointments in the absence of regular posts. They rely on the government communication Ext.P13 and argue that absorption requires due procedure and policy compliance; Umadevi principles may be relevant to regularisation of ad hoc/contract employees, and the government must follow due process and consider sanctioned posts before regularising. The government’s role is to assess regularisation within legal and financial constraints, and to issue a reasoned order after hearing the parties.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
State of Karnataka v. Umadevi	(2006) 4 SCC 1	Distinguished	The court explicitly states that the Umadevi decision has absolutely no application to the instant case, distinguishing it and declining to rely on it for rejection of the petitioners' claims.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY ,THE 25TH DAY OF MARCH 2019 / 4TH CHAITHRA, 1941** ## **WP(C).No. 19936 of 2018** ## **PETITIONERS:** |**1**|**KRISHNA KUMAR J.S.**| |---|---| ||**AGED 38 YEARS**| ||**S/O.D.SIVARAJAN, VIJAYA LEKSHMI NIVAS, CHERUSSERI**| ||**BHAGAM, CHAVARA P.O.,**| ||**KOLLAM, PIN-691583.**| |**2**|**BALAKRISHNAN ACHARI P.P.**| ||**S/O.P.V.PARAMU ASARI, PUTHAN VILAYIL,**| ||**EDACKADU P.O.,**| ||**KOLLAM, PIN-691552.**| |**3**|**RAVI KUMAR P.**| ||**S/O.PARAMESWARAN PILLAI, KOCHANTTAYYATH VEEDU,**| ||**CHERUSSERI BHAGOM, CHAVARA P.O., KOLLAM,**| ||**PIN-691583.**| |**4**|**SREE KUMAR R.**| ||**S/O.RAJAN PILLAI, KATTIL PUZHA, KOIVIL P.O., KOLLAM,**| ||**PIN-691890.**| |**5**|**SUNDARESAN K.**| ||**S/O.KUNJU PILLAI, ATHIRA BHAVAN, PAVUMBA (SOUTH)**| ||**P.O., KARUNAGAPPALLY, KOLLAM, PIN-690574.**| |**6**|**RAJAN G.**| ||**S/O.GEORGE D., BETHEL MANDIRAM, KUZHIVILA,**| ||**THOZHUKKAL, NEYYATTINKARA P.O., TRIVANDRUM,**| ||**PIN-695121.**| |**7**|**ANIL S.**| ||**Z/O.ZACHARIAS, ROSE VILLA, KOVIL THOTTAM,**| ||**CHAVARA P.O.,**| ||**KOLLAM, PIN-691583.**| |**8**|**BINU B.**| ||**S/O.BALACHANDRAN J., BINU BHAVANAM, POROOKKARA,**| ||**EDAPALLY KOTTA P.O., CHAVARA, KOLLAM,**| ||**PIN-691583.**| **WP(C).No. 19936 of 2018 2** - **9 PUSHPALAL S.** **S/O.SOMADETHAN M.K., PONNALAYAM, PRAYAR SOUTH, ALUMPEEDIKA P.O., OACHIRA, KOLLAM, PIN-690547.** **BY ADVS. DR.K.P.PRADEEP SMT.T.THASMI SRI.K.P.KESAVAN NAIR SRI.SANAND RAMAKRISHNAN SRI.T.T.BIJU** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF INDUSTRIES, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE KERALA MINERALS AND METALS LIMITED SANKARAMANGALAM, CHAVARA, KOLLAM, PIN-691553, REPRESENTED BY IS MANAGING DIRECTOR.** - **3 MANAGING DIRECTOR THE KERALA MINERALS AND METALS LIMITED SANKARAMANGALAM, CHAVARA, KOLLAM, PIN-691553.** - **4 MEMBER SECRETARY JOINT PLANT MANAGEMENT COMMITTEE TITANIUM SPONGE PROJECT, MATERIAL MANAGEMENT DIVISION, VIKRAM SARABHAI SPACE CENTRE, THIRUVANANTHAPURAM-695022.** - **BY ADVS. SRI.JAISHANKAR V.NAIR, CGC SMT.LATHA ANAND, SC** **SRI.SUNILKUMAR KURIAKOSE, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 19936 of 2018 3** ## **JUDGMENT** The petitioners have approached this Court challenging Exts.P10 and P13 orders of the Government and seeking reconsideration in the light of Exts.P7 and P9 requests submitted by the second respondent employer. 2. It is submitted by the learned counsel for the petitioners that the petitioners, who were engaged in technical posts under the second respondent, had been continuing in service on the strength of appointment orders issued to them as early as in October, 2010. The Company had recommended the creation of posts and the absorption of the petitioners as permanent employees as early as by Ext.P3 proceedings dated 30.7.2012. Further requests had been made **WP(C).No. 19936 of 2018 4** by the petitioners before the Government and representations had also been forwarded by the petitioners to the Government seeking consideration of the proposal sent up by the Company for sanctioning of regular posts and absorption of petitioners as against the said posts. However, it is submitted that the period of contract of petitioners is being extended only from year to year and Ext.P10 extension by order dated 1.8.2017 is produced and challenged. It is stated that in spite of repeated requests by the Company and representations preferred by the petitioners, the requests have been rejected by a cryptic communication by Ext.P13 relying on the decision of the Apex Court in State of Karnataka v. Umadevi [(2006)4 SCC 1] 3. The learned counsel for the petitioner would contend that the decision in Umadevi's **WP(C).No. 19936 of 2018 5** case (supra) has absolutely no application in the instant case, where petitioners had been appointed against the posts after due undergoing selection process in the year 2010 and the Company itself had submitted repeated requests before the Government seeking sanction for creation of the posts and the regularisation of the petitioners who were appointed after the selection process. It is further contended that Ext.P13 which is only a communication from the Government to the second respondent cannot due duty for an executive order by the Government after due consideration of the claims raised. 4. I have considered the contentions advanced and heard the learned Government Pleader as well as the learned counsel appearing for the second respondent. 5. It is apparent that the petitioners had **WP(C).No. 19936 of 2018 6** been appointed pursuant to a due selection process. The reason for appointing them on contract basis was the lack of availability of sanctioned posts for regular appointment. The Company has submitted a proposal for the creation of posts and also for the regularisation of petitioners' appointment against the said posts. 6. In the above view of the matter, I am of the opinion that Ext.P13, which is only a letter issued by the Government Secretary to the second respondent cannot be relied on to reject the claim raised by the Company as well as the petitioners. I am of the opinion that the Government is liable to take a proper decision in accordance with law and to pass an order in terms of Article 166 of the Constitution of India. **WP(C).No. 19936 of 2018 7** In the above view of the matter, Ext.P13 is set aside. There will be a direction to the first respondent to take up Exts.P7 and P9 requests submitted by the second respondent as well as Ext.P12 representation preferred by the petitioners and to pass appropriate orders thereon after hearing the appropriate representatives of the second respondent as well and pass speaking order in accordance with law. Orders shall be passed, within a period of two months from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. ## **SD/-** ## **ANU SIVARAMAN** ACM / 25.03.2019 **JUDGE** **WP(C).No. 19936 of 2018 8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE NOTIFICATION DATED 313-2010 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P1(A) TRUE COPY OF THE NOTIFICATION DATED 287-2010 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P2 TRUE COPY OF THE OFFER OF APPOINTMENT NO.TP/PD/R-90/10 DATED 4-10-2010 OF THE 1ST PETITIONER.** - **EXHIBIT P2(A) TRUE COPY OF THE OFFER OF APPOINTMENT NO.TP/PD/R-90/10 DATED 4-10-2010 OF THE 2ND PETITIONER.** - **EXHIBIT P2(B) TRUE COPY OF THE OFFER OF APPOINTMENT NO.TP/PD/R-90/10 DATED 4-10-2010 OF THE 3RD PETITIONER.** - **EXHIBIT P2(C) TRUE COPY OF THE OFFER OF APPOINTMENT NO.TP/PD/R-90/10/5700 DATED 4-10-2010 OF THE 4TH PETITIONER.** - **EXHIBIT P2(D) TRUE COPY OF THE OFFER OF APPOINTMENT NO.TP/PD/R-90/11/444 DATED 27-01-2011 OF THE 5TH PETITIONER.** - **EXHIBIT P2(E) TRUE COPY OF THE OFFER OF APPOINTMENT NO.TP/PD/R-90/11/445 DATED 27-01-2011 OF THE 6TH PETITIONER.** - **EXHIBIT P2(F) TRUE COPY OF THE OFFER OF APPOINTMENT NO.TP/PD/R-90/10 DATED 4-10-2010 OF THE 7TH PETITIONER.** - **EXHIBIT P2(G) TRUE COPY OF THE OFFER OF APPOINTMENT NO.TP/PD/R-90/11/443 DATED 27-01-2011 OF THE 8TH PETITIONER.** - **EXHIBIT P2(H) TRUE COPY OF THE OFFER OF APPOINTMENT NO.TP/PD/R-90/11/446 DATED 27-01-2011 OF** **WP(C).No. 19936 of 2018 9** ## **THE 9TH PETITIONER.** **EXHIBIT P3** **TRUE COPY OF THE MINUTES OF THE MEETING OF THE JPMC DATED 30-7-2012.** - **EXHIBIT P4 TRUE COPY OF THE MINUTES OF THE MEETING OF THE JPMC HELD ON 19-12-2012.** - **EXHIBIT P5 TRUE COPY OF THE MINUTES OF THE MEETING OF JPMC DATED 10-5-2013.** - **EXHIBIT P6 TRUE EXTRACT OF MINUTES OF 229TH BOARD MEETING OF THE 2ND RESPONDENT HELD ON 30-03-2017.** - **EXHIBIT P7 TRUE COPY OF THE REQUEST NO.TSP/PD/PL24/17 DATED 24-4-2017 OF THE 2ND RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 15-12-2016.** - **EXHIBIT P9 TRUE COPY OF THE REQUEST NO.TSP/PD/PL24/13 DATED 16-04-2013.** - **EXHIBIT P10 TRUE COPY OF THE GOVERNMENT ORDER G.O. (RT)NO.1096/2017/ID DATED 01-08-2017.** - **EXHIBIT P11 TRUE COPY OF THE FILE NOTE IN FILE NO.IND-H3/128/2017-IND OF THE 1ST RESPONDENT.** - **EXHIBIT P12 TRUE COPY OF THE REPRESENTATION DATED 04-10-2017.** - **EXHIBIT P13 TRUE COPY OF THE COMMUNICATION NO.INDH3/128/2017-IND DATED 27-04-2018.**