K.S. Sabu v Union of India

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI MONDAY, THE 26TH DAY OF FEBRUARY 2018 / 7TH PHALGUNA, 1939 OP (CAT).No. 1128 of 2011 AGAINST THE ORDER/JUDGMENT IN OA 631/2010 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 18-10-2010 PETITIONER/APPLICANT IN THE OA K.S.SABU, TOURIST INFORMATION OFFICER, INDIA TOURISM, WILLINGTON ISLAND,KOCHI. BY ADV.K.R.B.KAIMAL (SR) ANIL K.NAIR B.UNNIKRISHNA KAIMAL T.ISSAC ## RESPONDENTS/RESPONDENT IN THE OA: 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY TO MINISTRY OF TOURISM,, TRANSPORT BHAVAN, PARLIAMENT STREET, NEW DELHI-110001. ## 2. REGIONAL DIRECTOR(S), INDIA TOURISM, GOVT OF INDIA, SOUTHERN, REGIONAL OFFICE, 154, ANNA SALAI, CHENNAI-600002. 3. MANAGER, GOVERNMENT OF INDIA TOURIST OFFICE, WILLINGTON ISLAND, COCHIN-682003. 4. STAFF SELECTION COMMISSION, REPRESENTED BY ITS DEPUTY DIRECTOR, SOUTHERN, REGION, EVK SAMPATH BLDG. COLLEGE ROAD, CHENNAI-600006. R1-4 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA R1-R4 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R1-R4 BY ADV. SMT.O.M.SHALINA, CGC THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 26-02-2018, ALONG WITH O.P.(CAT) NOS.3603 OF 2011 AND 22 OF 2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R.RAMACHANDRA MENON & R.NARAYANA PISHARADI, JJ.** ******************************** O.P.(CAT) Nos.1128 and 3603 of 2011 & 22 of 2014 ------------------------------------------------------------Dated this the 26[th] day of February, 2018 ## **JUDGMENT** ## **P.R.RAMACHANDRA MENON ,J** The issue involved in all these cases is substantially similar. 2. Heard the learned counsel for the petitioner/applicant in O.P.(CAT) Nos.1128 of 2011 and 22 of 2014 as well as the learned Standing Counsel for the petitioners in O.P.(CAT) No.3603 of 2011. The first two cases have been preferred by the petitioners/applicants before the Tribunal, whereas the other case has been filed by the respondents in O.A.No.631 of 2010. The facts and figures are referred to as given in O.P.(C) No.1128 of 2011, the leading case, except where reference is made separately, depending upon the context. 3. The petitioner/applicant was appointed as Tourist Information Officer at Thiruvananthapuram Airport based on the qualification prescribed in Annexure A1 dated 02/12/1986 on 2 O.P.(CAT) Nos.1128/2011 & conn.cases adhoc basis. It was clearly stipulated in Annexure A1 that the appointment shall be in the pay scale of Rs.1400-40-1800-EB-502300 and that such arrangement will continue till he is regularised by the Staff Selection Commission. It is stated that the appointment came to an end and later it was renewed from time to time and finally Annexure A4 order dated 22/05/1990 was passed whereby it was extended until further orders. It was stated that the Staff Selection Commission conducted a written test and the petitioner participated in the process of selection for the post of Information Assistant, which was subsequently renamed as Tourism Information Officer. Though the petitioner/applicant cleared the written test, he could not attend the interview because of some ailment. 4. By the passage of time, an application was submitted for regularising his service by giving age relaxation, which came to be rejected as per Annexure A5 dated 21/12/1990. Ext.A6 is yet another petition for regularisation and the Director General of Department of Tourism recommended the case of the petitioner for regularisation, which was turned down by the Staff Selection 3 O.P.(CAT) Nos.1128/2011 & conn.cases Commission as per Ext.A7, holding that no age relaxation was possible in the case of the petitioner/applicant as he was only serving on adhoc basis and was not a Departmental candidate. It is seen from various proceedings particularly Exts.A8, A9, A10 and A11 that service of the petitioner/applicant was sought to be regularised by taking up the matter before the competent authority. The subsequent representation preferred by the petitioner/applicant was forwarded by the Regional Director to the Ministry of Tourism, New Delhi along with Ext.A14 dated 28/06/2010. The Central Government turned down the proposal by Ext.A15 office memorandum dated 09/07/2010 holding that regularisation was not possible and that the service of the petitioner/applicant was to be terminated. It was accordingly, that Ext.A16 was issued on 14/07/2010 putting an end to the service which made the petitioner/applicant to approach the Tribunal with the following prayers: _“(i) To direct the respondents to regularize the services of the applicant as Tourist Information Officer taking into account his passing the Staff Selection Commission_ O.P.(CAT) Nos.1128/2011 & conn.cases 4 _Test held on 15.05.1988 and the interview held in pursuance of Ann.A1._ _Or Alternatively_ _(ii) to direct the respondents to permit the applicant to appear in the next Staff Selection Commission Examination for appointment as Tourism Information Officer, granting him relaxation in age limit,_ _(iii) to direct the respondents not to terminate the services of the applicant as Tourist Information Officer till the applicant is given an opportunity to get his services regularised, either by appearing in the Test to be conducted by the Staff Selection Commission, or otherwise._ ## _And_ _(iv) to set aside Annexure A15 dated 09.07.2010 issued by the 1[st] respondent and Annexure A16 dated 14.07.2010 issued by the 2[nd] respondent._ _(v) to issue such other appropriate orders or directions this Hon'ble Tribunal may deem fit, just and proper in the facts and circumstances of the case.”_ O.P.(CAT) Nos.1128/2011 & conn.cases 5 5. The claim was sought to be resisted by the Department by filing Ext.P2 written statement, mainly contending that the candidate was not duly qualified as per the Recruitment Rules and further that he was not entitled to get regularised as a matter of right. After hearing both sides, the Tribunal passed Ext.P4 order denying the benefit of regularisation, but permitted the petitioner/applicant to continue in the post on adhoc basis, which made the petitioner/applicant to feel aggrieved, who is before this Court by way of O.P.(CAT) No.22/2014. At the same time, the Department, being aggrieved by the direction given to engage the applicant on adhoc basis, has also come up before this Court by filing O.P (CAT) No.3603/2011. Both the matters are pending. While so, it is revealed from the proceedings in O.P.(CAT) No.22 of 2014 preferred by the petitioner/applicant that, while serving the Department on adhoc basis, he got involved in a trap case set up by the Anti-corruption unit of the CBI, Cochin for accepting bribe, joining hands with somebody else. It was, accordingly, that he was arrested on 02/10/2011 as an accused in the case bearing No.RC.31(A)/2011-CBI/Cochin for the offences punishable under O.P.(CAT) Nos.1128/2011 & conn.cases 6 Section 120B I.P.C read with Sections 7, 12 and 13(1)(d) of the Prevention of Corruption Act. Pursuant to the arrest, as ordered in Ext.A6, the petitioner/applicant was directed not to attend the office till further orders. 6. The petitioner/applicant filed Annexure A7 representation stating that the order virtually amounted to suspension and hence that he might be given the subsistence allowance. The claim was not acceded to by the Department, as, according to them, there was no suspension but for the consequential instruction not to attend the office, pursuant to the arrest; more so, since he was continuing as an adhoc employee. This was challenged by filing O.A.No.651/2012 with the following prayer: _“i) an order directing the 2[nd] respondent to consider Annexure A-7 representation and to grant subsistence allowance to the applicant for the period from 7-10-2011 onwards in accordance with the provisions of Fundamental Rules 53._ _ii) such other order or direction as this Hon'ble Tribunal may deem fit and proper in_ O.P.(CAT) Nos.1128/2011 & conn.cases 7 _the facts and circumstances of the case.”_ 7. The claim was resisted by the Department. After hearing both the sides, the Tribunal passed Ext.P4 order, whereby it was specifically held that the idea and understanding of the petitioner was thoroughly wrong and misconceived. It was accordingly, that interference was declined and the O.A was dismissed, which made the petitioner to approach this Court by filing O.P.(CAT) No.22 of 2014. Learned counsel for petitioner/applicant points out that right from 1986, he was serving the Department absolutely without any break and he was entitled to continue and to be regularised in service. It is also pointed out that the Apex Court has made it clear in **State of Karnataka v. Umadevi** [(2006) 4 SCC 1], particularly paragraph 53, that persons like the applicant are entitled to be regularised in service, having completed more than 10 years of service and having been appointed in sanctioned posts and having entered the Department not through back door. Engagement of the petitioner/applicant having been considered by the Department and since the Department had forwarded the application with 8 O.P.(CAT) Nos.1128/2011 & conn.cases recommendation to the Government to have the service regularised, it was never open for the Department to take a u- turn. 8. Learned Standing Counsel appearing for the respondents in these original petitions and representing petitioners/Department in O.P(CAT) No.3603 of 2011 submits that regularisation has been ordered by the Apex Court under certain circumstances as discernible from paragraph 53, read with paragraphs 15, 16 and 17 of the judgment in **Umadevi** (supra). It is pointed out that the petitioner/applicant was never duly qualified in terms of the relevant recruitment rules governing the post and it was only to meet the need of the hour that an arrangement was made on adhoc basis. It is also made clear in Annexure A1 that regularisation could be given only by the Staff Selection Commission and since the Staff Selection Commission did not find the petitioner/applicant as a suitable person to be appointed or regularised, the request was turned down, which is not assailable under any circumstances, submits the learned Standing counsel. 9 O.P.(CAT) Nos.1128/2011 & conn.cases 9. The point to be considered is whether any direction could be given to the Department to regularize the service of the petitioner/applicant. Though he is having considerable extent of service right from 1986, it is settled law that an adhoc employee does not acquire any vested right to be regularized, whatever may be the length of such engagement. If at all the benefit is to be extended, he has to come within the purview of the law declared by the Supreme Court in **Umadevi** (supra), which is stated was not possessed by the petitioner/applicant. It is in the said circumstances, that the prayer for regularization was denied by the Tribunal as per Ext.P4. That apart, the subsequent conduct of the petitioner reveals the nature of the person concerned. It is stated that the criminal case is still pending and as such, we are not expressing anything on the merits of the case. Since the offences alleged are under Section 120B I.P.C, read with Sections 7, 12 and 13(1)(d) of the Prevention of Corruption Act and admittedly since the petitioner was arrested on 02/10/2011 the Department directed not to report in office, especially when he was engaged only on adhoc basis. We find nothing wrong on O.P.(CAT) Nos.1128/2011 & conn.cases 10 the part of the Department in having issued the said proceedings. The idea of the petitioner that he comes within the purview of Rule 53 of the Fundamental Rules, is held as not correct. As per Ext.P4 order, the Tribunal held that it is not a question of suspension of service. We find no reason to interfere with the verdict passed by the Tribunal. In the said circumstances, O.P.(CAT) Nos.1128/2011 and 22 of 2014 fail and they are dismissed accordingly. O.P.(CAT) No.3603/ 2011 filed by the Department stands allowed. No costs. ## **P.R.RAMACHANDRA MENON, JUDGE** **R.NARAYANA PISHARADI, JUDGE** jsr