M. Daniel v. State of Kerala & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **SATURDAY, THE 4[TH] DAY OF DECEMBER 2021 / 13TH AGRAHAYANA, 1943** **WP(C) NO. 15257 OF 2021** ## **PETITIONER:** M.DANIEL, AGED 59 YEARS S/O. MADHANAN, BATHEL COTTAGE, PARAVILA, PARASSALA P.O., THIRUVANANTHAPURAM-695502, PRESENTLY WORKING AS LECTURER (ON CTONTRACT), DEPARTMENT OF HISTORY, SRI. SANKARACHARYA UNIVERSITY OF SANSKRIT, (REGIONAL CENTRE) MATRHUBHOOMI ROAD, VANCHIYOOR, THIRUVANANTHAPURAM-695035. BY ADV GIRIJA K GOPAL ## **RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM DISTRICT-695001. 2 SREE SANKARACHARYA SANSKRIT UNIVERSITY, KALADY, REPRESENTED BY ITS REGISTRAR, KALADY, ERNAKULAM DISTRICT-683574. 3 THE VICE CHANCELLOR, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY, ERNAKULAM DISTRICT-683574. 4 REGIONAL DIRECTOR, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, (REGIONAL CENTRE) MATHRUBHOOMI ROAD, VANCHIYOOR, THIRUVANANTHAPURAM-695035. BY ADV S.PRASANTH (AYYAPPANKAVU) GP SRI JIMMY GEORGE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 15257 OF 2021** **2** ## **JUDGMENT** Petitioner, an M.Phil holder and a post graduate in History and English Literature was appointed as Guest Lecturer (History) in the Sree Sankaracharya University of Sanskrit on 10.6.1997, had been re-employed with some breaks and continued till the last academic year. This writ petition is filed seeking regularisation in service and it is submitted that after filing of the writ petition, respondents have not availed the service of the petitioner. 2. Appointments made in the University as lecturers on contract basis from time to time were challenged in this Court on the ground that they were made prior to coming into force of the University Statutes and Rules. This Court directed the University to cancel the appointments and direction was issued to enact the Statutes and Rules. Thereafter all the appointments as lecturers were made to the regular posts consequent to the selection conducted as per the UGC regulations. Many representations were submitted before the University for regularisation of the services of guest lecturers but of no avail. In one of the cases ie., O.P.No.9618/1998, Division Bench of this Court ordered for **WP(C) NO. 15257 OF 2021** **3** regularisation of the service of one contract lecturer Sheeja R.S. Similarly situated persons approached this Court vide W.P. (C).Nos.22010/2011, 16536/2012 and 33016/2011. University in the resolution of 2011 against item No.1 decided to regularise the services of the petitioners therein as and when the open vacancy arose in the concerned department. In that view of the matter, the writ petitions were permitted to be closed with liberty to make detailed representations as per the order dated 27.06.2016. 3. Petitioner herein submitted Ext.P15 request for regularisation to the 2[nd] respondent during September, 2016. Since it is not acted upon, approached this Court in W.P(C).40216/16, which was disposed of by this Court as per judgment dated 17.12.2016 Ext.P16, directing consideration of the representation by the University. An additional representation was also submitted on 25.1.2017 Ext.P17. As there was no positive response, petitioner filed W.P(C).4217/2019 before this Court praying regularization. In the counter affidavit filed in that writ petition, University submitted copy of the minutes of the 157[th] meeting of the Syndicate held on 21.1.2017 wherein, based **4** **WP(C) NO. 15257 OF 2021** on the judgment dated 17.12.2016 in WP(C) 40216/2016, Syndicate had rejected the representation submitted by the petitioner on the ground that appointments can be made only as per the provisions of the University Statutes. It was further contended in the counter affidavit that the decision dated 21.1.2017 of the Syndicate was not challenged, but according to the petitioner, was not served with copy of the same. In view of the stand of the University, W.P(C).4217/2019 was dismissed. 4. Petitioner submits that Ext.P23 order issued by the University on 22.11.2016 following the judgment of this Court in W.P(C).9281/12 dated 28.6.2016 pertains to regularization of one Sri.Tony K.Raphael who was similarly situated. It has also been argued that on 28.11.2021 notification has also been published inviting application for filling up of the lecturers against regular vacancies. In the sense it appears that they are sanctioned posts but intentionally are not being filled instead practice of engaging guest lecturer is being rampantly followed. University had been adopting a pick and choose policy regularising the service of few who were working as a guest lecturer but denied the regularisation to certain other persons as **WP(C) NO. 15257 OF 2021** **5** evident from the judgment as per the judgment of this Court in 28.06.2016 W.P.C 9281 & 8625/12. 5. Learned counsel for the petitioner further submitted that the stand of the respondent University in the counter affidavit has been only on the basis of the judgment rendered by Supreme Court in _**Secretary, State of Karnataka** v._ _**Uma Devi and Others**_ [2006 (4) SCC 1] wherein in paragraph 53, certain guidelines have been laid down but the fact of the matter is in the other judgment of Supreme Court in _**Nihal Singh and Others**_ v. _**State of Punjab and Others**_ [SCC 2013 (14) SCC 65], noticing the judgment in _**Uma Devi**_ (supra) and further that the creation of the cadre, sanctioning of the post though exclusively is with the authority of the state which is to be proceeded by conscious choice on the basis of some rational assessment of the need and the state did not choose to create the cadre but continued to make appointments of persons creating contractual relationship and extracting works from them for decades, rampantly directions were issued for regularisation of the services by creating necessary posts within a time bound. **WP(C) NO. 15257 OF 2021** **6** 6. Per Contra, Sri.Prasanth.S, learned counsel appearing on behalf of the University opposed the aforementioned submissions by submitting that employees of the University are appointed by the Vice Chancellor on the advice of the appropriate selection committee constituted in the manner prescribed by the statutes. Petitioner has been working as guest lecturer on contractual basis and do not get any right of regularisation on the basis of irregular appointment which was already noticed by this Court. The University has been taking the appointment of the guest lecturer as and when the workload increases. But in the absence of any sanctioned post, services cannot be regularised. 7. I have heard the learned counsel for the parties and appraised the paper book. 8. Para 53 of the judgment in _**Secretary, State of**_ _**Karnataka** v._ _**Uma Devi and Others**_ [2006 (4) SCC 1] held as under: 53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan 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 **WP(C) NO. 15257 OF 2021** **7** courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred 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. 9. Non-regularization of the petitioner and similarly situated persons is an act of complete _volteface_ on behalf of the University as in 2001 unanimously decided to regularise the services of contract employees. Perpetual appointment of the guest lecturers leads to an irresistible conclusion that there is a workload necessitating engagement of services of the guest lecturers. It was incumbent upon the University to seek the **WP(C) NO. 15257 OF 2021** **8** approval of the Government by submitting the request for increase of the sanctioned posts but no concerted effort as per the contents of the counter affidavit is spelled out. Considering the plight of such litigants and _ratio decidendi_ culled out in _**Uma**_ _**Devi**_ (supra), in _**Nihal Singh and Others**_ (supra) after pondering upon all the issues regarding the appointment of guest lectures as well as the exigency of services which reveal that guest lecturers were discharging duties viz.a.viz. the regular appointed employees in the same manner, but not only paid lesser salary also denied the right of regularisation. It would be apposite to extract the relevant paragraph of _**Nihal Singh and**_ ## _**Others**_ v. _**State of Punjab and Others**_ [SCC 2013 (14) SCC 65]: “33. It is no doubt that the assessment of the need to employ a certain number of people for discharging a particular responsibility of the State under the Constitution is always with the executive government of the day subject to the overall control of the legislature. That does not mean that an examination by a constitutional court regarding the accuracy of the assessment of the need is barred. 34. This Court in S.S. Dhanoa v. Union of India" did examine the correctness of the assessment made by the executive government. It was a case where the Union of India appointed two Election Commissioners in addition to the **WP(C) NO. 15257 OF 2021** **9** Chief Election Commissioner just before the general elections to the Lok Sabha. Subsequent to the elections, the new Government abolished those posts. While examining the legality of such abolition, this Court had to deal with an argument 10 whether the need to have additional Commissioners ceased subsequent to the election. It was the case of the Union of India that on the date posts were created there was a need to have additional Commissioners in view of certain factors such as the reduction of the lower age-limit of the voters, etc. This Court categorically held that: (SCC p. 585, para 27) "27.... The truth of the matter as is apparent from the record is that ... there was no need for the said appointments...." 35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor with reference to which the executive government is required to take rational decision based on relevant consideration. In our opinion, when the facts such as the ones obtaining in the instant case demonstrate that there is need for the creation of posts, the failure of the executive government to apply its mind and take a decision to create posts or stop extracting work from persons such as the appellants herein for decades together itself would be arbitrary action (inaction) on the part of the State. 36. The other factor which the State is required to keep in mind while creating or abolishing posts is the financial implications involved in such a decision. The creation of posts necessarily means additional financial burden on the exchequer of the State. Depending upon the priorities of the State, the allocation of the finances is no doubt exclusively within the domain of the legislature. However in the instant **WP(C) NO. 15257 OF 2021** **10** case creation of new posts would not create any additional financial burden to the State as the various banks at whose disposal the services of each of the appellants is made available have agreed to bear the burden. If absorbing the appellants into the services of the State and providing benefits on a par with the police officers of similar rank employed by the State results in further financial commitment it is always open for the State to demand the banks to meet such additional burden. Apparently no such demand has ever been made by the State. The result is the various banks which avail the services of these appellants enjoy the supply of cheap labour over a period of decades. It is also pertinent to notice that these banks are public sector banks. 37. We are of the opinion that neither the Government of Punjab nor these public sector banks can continue such a practice consistent with their obligation to function in accordance with the Constitution. Umadevi (3) judgment cannot become a licence for exploitation by the State and its instrumentalities. 38. For all the abovementioned reasons, we are of the opinion that the appellants are entitled to be absorbed in the services of the State. The appeals are accordingly allowed. The judgments under appeal are set aside. 39. We direct the State of Punjab to regularise the services of the appellants by creating necessary posts within a period of three months from today. Upon such regularisation, the appellants would be entitled to all the benefits of services attached to the post which are similar in nature already in the cadre of the police services of the State. We are of the opinion that the appellants are entitled to the costs throughout. In the circumstances, we quantify the costs to **WP(C) NO. 15257 OF 2021** **11** Rs. 10,000 to be paid to each of the appellants.” Thus this Court is left with no option but to issue direction to the respondents to take a call for regularisation of the service by making a request to the Government for increasing the number of sanctioned posts if necessary or regularise in existing sanctioned posts. Respondents shall take a call on the representation of the petitioner and pass order in accordance with law after affording an opportunity of hearing, within three months from the date of receipt of a copy of this judgment. **Sd/AMIT RAWAL JUDGE** nak **WP(C) NO. 15257 OF 2021** **12** ## **APPENDIX OF WP(C) 15257/2021** PETITIONER EXHIBITS |Exhibit P1|A TRUE COPY OF THE PROVSIONAL RANKED| |---|---| ||LIST OF CANDIDATES SELECTED FOR| ||APPOINTMENT TO THE POST OF LECTURER IN| ||HISTORY UNDER THE 2ND RESPONDENT| ||UNIVERSITY.| |Exhibit P2|A TRUE COPY OF THE EXPERIENCE| ||CERTIFICATE DATED 16/05/2018 ISSUED BY| ||THE2ND RESPONDENT.| |Exhibit P3|A TRUE COPY OF THE EXPERIENCE| ||CERTIFICATE DTED 08/05/2019 ISSUED BY| ||THE PROFESSOR IN CHARGE OF REGISTRAR,| ||SREE SANKARACHARYA UNIVERSITY OF| ||SANSKRIT.| |Exhibit P4|A TRUECOPY OF THE EXPERIENCE CERTIFICATE| ||DATED 12/07/2021 EVIDENCING HIS| ||ENGAGEMENT AS LECTGURERE IN HISTORY AT| ||THE RGIONAL CENTRE, THIRUVANANTHAPURAM.| |Exhibit P5|A TRUE COPY OF PROCEEDINGS| ||NO.1140/ADA3/06/SSUS DATED 03/02/2006| ||ISUED BY THE 2ND RESPONDENT.| |Exhibit P6|A TRUE COPY OF THE ORDER NO.| ||AD3/2291/SSUS/2011 DATED 01/03/2011| ||ISSUED BY THE 2ND RESPODNENT| ||REGULARISING THE SERVICE OF DR. REGHU| ||KUMAR.| |Exhibit P7|A TRUE COPY OF THE JUDGMENT DATED| ||18/06/2015 IN WA 1475/2013 AND CONNECTED| ||CASE.| |Exhibit P8|A TRUE COPY OF THE ORDER| ||NO.3228/AD.A2/2011/SSUS DATED 23/06/2011| ||ISSUED BY THE 2ND RESPONDENT.| **WP(C) NO. 15257 OF 2021** **13** - Exhibit P9 A TRUE COPY OF THE COMMUNICATION NO. AD.A3/9779/SSUS/2011 DATED 24/10/2011. - Exhibit P10 A TRUE COPY OF THE REPLY BEARING NO.21458/PETITON A1/2012/LS DATED 22/11/2013 FROM TEH SECRTARY OPF KERALA LEGISLATIVE SECRETARIAT. - Exhibit P11 A TRUE COPY OF THE COMMUNICATION DATED 11/11/2014 ISSUED BY THE OFFICE OF THE 1ST RESPONDENT TO THE 2ND RESPONDENT. - Exhibit P12 A TRUE COPY OF THE COMMUNICATION DATED 13/02/2015 BY THE1ST RESPONDENT ADDRESSED THE 2ND RESPONDENT. - Exhibit P13 A TRUE COPY OF THE COMMUNICATION DATED 06/03/2015. - Exhibit P14 A TRUE COPY OF THE QUERY DATED 22/05/2015 TO THE 2ND RESPONDENT. - Exhibit P15 TRUE COPY OF THE REQUEST TO THE 2ND RESPONDENT CITING REGULARISATION OF SIMILARLY PLACED EPRSONS. - Exhibit P16 A TRUE COPY OF THE JUDGMENT DATED 17/12/2016 IN WPC NO.40216/2016. - Exhibit P17 A TRUE COPY OF THE ADDITIONAL REPRESENTATION SUBMITTED BY THE PETITIONER ON 25/01/2017. - Exhibit P18 A TRUE COPY OF THE LETTER DATED 06/01/2018 THE SECRETARY OF THE EPTITIONS COMMITTEE OF THE LEGISLATURE ADDRESSED THE 1ST RESPONDENT. - Exhibit P19 A TRUE COPY OF THE COUNTER AFFIDAVIT REFUTING THE PETITIONER'S CLAIM. - Exhibit P20 TRUE COPY OF THE MINUTES OF THE157TH MEETING OF THESYNDICATE HELD ON 21/01/2017. **WP(C) NO. 15257 OF 2021** **14** Exhibit P21 A TRUE COPY OF THE 2ND RESPONDENT PRODUCED A COMMUNICATION DATED 06/03/2017. Exhibit P22 A TRUE COPY OF THE JUDGMENT DATED 19/03/2021 IN WPC NO.4217/2019. Exhibit P23 A TRUE COPY OF THE ORDER NO. AD/15108/SSUS/2016 DATED 22/11/2016 ISSUED BY THE 2ND RESPONDENT. Exhibit P24 A TRUE COPY OF THE JUDGMENT DATED 28/06/2016 IN WPC 9281/2012. Exhibit P25 A TRUE COPY OF THE ORDER NO.889/ADA3/2011/SSUC DTED 22/08/2019. Exhibit P26 A TRUE COPY OF THE JUDGMENT DATED 22/02/2018 IN WPC NO.6010/2015. Exhibit P27 A TRUE COPY OF THE ORDER DATED 07/03/2019 IN RP 480/2018 IN WPC NO.6010/2015. Exhibit P28 A TRUE COPY OF THE ORDER NO.AD.A3/15112/SSUS/2016 DATED 22.11.2016 ISSUED BY THE THEN REGISTRAR OF THE UNIVERSITY Exhibit P29.A TRUE COPY OF THE ORDER NO.AD.A2/5162/GL/05/SSUS DATED 13.7.2005 ISSUED ON BEHALF OF THE 2ND RESPONDENT