Madhu. V v Union of India and others (W.P.(C) No. 2311 of 2018)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 29TH DAY OF JUNE 2018 / 8TH ASHADHA, 1940** **WP(C).No. 2311 of 2018** **----------------------** ## **PETITIONER:** **-----------** **MADHU. V, JUNIOR RESEARCH ENGINEER, FLUID CONTROL RESEARCH INSTITUTE, KANJIKODE WEST, PALAKKAD - 678 623.** **BY ADVS.SRI.KALEESWARAM RAJ KUM.A.ARUNA KUM.THULASI K. RAJ** ## **RESPONDENT(S):** - **--------------** **1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF HEAVY INDUSTRIES, UDYOG BHAVAN, NEW DELHI - 110 011.** **2. CHAIRMAN, FLUID CONTROL RESEARCH INSTITUTE(FCRI), FCRI GOVERNING COUNCIL (JOINT SECRETARY DEPARTMENT OF HEAVY INDUSTRIES) UDYOG BHAVAN, NEW DELHI - 110 0011.** **3. FLUID CONTROL RESEARCH INSTITUTE, REPRESENTED BY ITS DIRECTOR, KANJIKODE, PALAKKAD - 678 621.** **4. THE DIRECTOR,** - **FLUID CONTROL RESEARCH INSTITUTE, KANJIKODE, PALAKKAD - 678 621.** **R1 & R2 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL SRI.SUVIN R.MENON, CGC R3 & R4 BY SRI.P.RAMAKRISHNAN, SC** **ADVS. SMT.PREETHI RAMAKRISHNAN (P-212) SRI.C.ANIL KUMAR SRI.T.C.KRISHNA SMT.ASHA K.SHENOY SRI.PRATAP ABRAHAM VARGHESE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** **WP(C).No. 2311 of 2018 (L) -------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **----------------------** **EXHIBIT P1 TRUE COPY OF THE OFFICE ORDER DATED 14-06-2006. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 12-06-2006. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 31.1.2008.** **EXHIBIT P4 TRUE COPY OF THE EMAIL COMMUNICATION REGARDING THE DATE OF THE INTERVIEW.** **EXHIBIT P5 TRUE COPY OF THE INTERNAL TRANSFER ORDER DATED 31-1-2012.** - **EXHIBIT P6 TRUE COPY OF THE SALARY SLIP OF THE PETITIONER FOR THE MONTH OF DECEMBER 2017.** - **EXHIBIT P7 TRUE COPY OF THE CONTRIBUTORY PROVIDENT FUND RULES OF THE FCRI.** - **EXHIBIT P8 TRUE COPY OF THE RELEVANT PAGES OF THE FCRI STAFF RULES.** **EXHIBIT P9 TRUE COPY OF THE OFFICE ORDER DATED 30-06-1990.** **EXHIBIT P10 TRUE COPY OF THE RECRUITMENT AND PROMOTION RULES 2015.** - **EXHIBIT P11 TRUE COPY OF THE PROCEEDINGS OF THE INTERVIEW OF THE ELECTION COMMITTEE FOR THE POST OF JUNIOR RESEARCH ENGINEER OF THE PETITIONER DATED 9.12.2011.** - **EXHIBIT P12 TRUE COPY OF THE LEAVE LETTER OF THE PETITIONER DATED 16.1.2018.** - **EXHIBIT P13 TRUE COPY OF THE MEDICAL CERTIFICATE OF THE PETITIONER DATED 12.1.2018.** - **EXHIBIT P14 TRUE COPY OF THE PRESCRIPTION LIST FROM THE AYURVEDA HOSPITAL, THATHAMANGALAM DATED 16.1.2018.** - **EXHIBIT P15 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 16.1.2018 OF THE GOVERNMENT MEDICAL OFFICER, GOVT. AYURVEDA COLLEGE.** - **EXHIBIT P16A TRUE COY OF THE LEAVE APPLICATION OF THE PETITIONER DATED 9.2.2018.** - **EXHIBIT P16B TRUE COPY OF THE LEAVE APPLICATION OF THE PETITIONER DATED 23.2.2018.** - **EXHIBIT P16C TRUE COPY OF THE LEAVE LETTER DATED 10.3.2018.** - **EXHIBIT P17A TRUE COPY OF THE PROCEEDINGS OF THE INTERVIEW OF THE ELECTION COMMITTEE FOR THE POST OF JUNIOR RESEARCH ENGINEER OF THE PETITIONER DATED 9.12.2011.** ## **WP(C).No. 2311 of 2018 (L)** **-------------------------** **EXHIBIT P17B TRUE COPY OF THE PAY WARD RECEIPT ISSUED BY THE GOVT. AYURVEDA HOSPITAL THATHAMANGALAM. EXHIBIT P17C TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY THE GOVT. AYURVEDA HOSPITAL THATHAMANGALAM. EXHIBIT 18 TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED TO THE PETITIONER ON 10.5.2018. EXHIBIT P19 TRUE COPY OF THE REPLY DATED 21.5.2018 OF THE PETITIONER. EXHIBIT P20 TRUE COPY OF THE REQUEST DATED 26.4.2018 OF THE PETITIONER. EXHIBIT P21 TRUE COPY OF THE REQUEST DATED 28.5.2018.** ## **RESPONDENTS' EXHIBITS:** **---------------------** **EXHIBIT R2A TRUE COPY OF THE SALARY SLIPS OF THE PETITIONER PRIOR TO AND AFTER THE INTERVIEW DATE. EXHIBIT R2B TRUE COPY OF THE SELECTION NOTE SELECTING THE PETITIONER. EXHIBIT R2C TRUE COPY OF THE ATTENDANCE REGISTER FOR THE MONTH FEBRUARY 2016. EXHIBIT R2D TRUE COPY OF THE ATTENDANCE REGISTER FOR THE MONTH JANUARY 2017. EXHIBIT R2E TRUE COPY OF THE ATTENDANCE REGISTER FOR THE MONTH JANUARY 2018. EXHIBIT R2F TRUE COPY OF THE CONTRACTUAL STAFF PAYMENT LIST AS ON 31.12.2016. EXHIBIT R2G TRUE COPY OF THE ADVERTISEMENT NOTIFIED IN THE YEAR 2010. EXHIBIT R2H TRUE COPY OF THE ADVERTISEMENT NOTIFIED IN THE YEAR 2011. EXHIBIT R2I TRUE COPY OF PETITIONER'S APPLICATION TI THE POST OF RESEARCH ENGINEER. EXHIBIT R2J TRUE COPY OF THE RECRUITMENT RULE, 2015. EXHIBIT R3A TRUE COPY OF ORDER ENGAGING THE PETITIONER AS JUNIOR ENGINEER ON CONTRACT BASIS. EXHIBIT R3B TRUE COPY OF INTERNAL NOTE DATED 2.4.2007. EXHIBIT R3C TRUE COPY OF RELEVANT EXTRACT OF THE ATTENDANCE REGISTERS FOR THE MONTH OF FEBRUARY 2016, JANUARY 2017 AND JANUARY 2018. EXHIBIT R3D TRUE COPY OF LIST OF CONTRACT EMPLOYEES AS ON 31ST DECEMBER 2016.** **WP(C).No. 2311 of 2018 (L)** ## **-------------------------** **EXHIBIT R3E TRUE COPY OF ADVERTISEMENT NOTIFIED IN THE YEAR 2010. EXHIBIT R3F TRUE COPY OF ADVERTISEMENT NOTIFIED IN THE YEAR 2011. EXHIBIT R3G TRUE COPY OF APPLICATION SUBMITTED BY THE PETITIONER FOR THE POST OF RESEARCH ENGINEER. EXHIBIT R3H TRUE COPY OF RECRUITMENT AND PROMOTION RULES 2015. /TRUE COPY/ P.S.TO JUDGE** **mbr/ 11.07.2018.** ## **P.V.ASHA, J.** ## **W.P.(C) No.2311 of 2018** ## **Dated this the 29[th] day of June, 2018** ## **JUDGMENT** The petitioner, who has been working under the 3[rd] respondentFluid Control Research Institute, since June 2006, filed this writ petition apprehending termination from service, seeking directions to the respondents to extend him all the benefits of a regular employee. 2. The initial appointment of the petitioner was as Junior Research Engineer for the period from 14.06.2006 to 30.01.2008 on contract basis and thereafter he worked as Junior Research Fellow from 31.01.2008 to 30.01.2012. The case of the petitioner is that while working as Junior Research Fellow he had attended an interview for regular appointment to the post of Junior Research Engineer held on 09.12.2011 and thereafter on the basis of selection in that interview he has been working as Junior Research Engineer. It is stated that in the official records maintained by the 3[rd] respondent, petitioner was described as Junior Research Engineer only, without specifying the nature of appointment and not as a contract employee. It is also pointed out that contributory provident fund was also being deducted from his salary as seen from Exts.P6 and P7. The petitioner W.P.(C) No.2311/18 **==> picture [14 x 9] intentionally omitted <==** claims that he has been working as regular employee since 10.12.2011 and he satisfies all the qualifications prescribed in Ext.P8 staff rules of 3[rd] respondent as well as Ext.P10 rules. Asserting that the petitioner is being denied the benefits of regular employees he has filed this writ petition seeking directions to the respondents to grant him all the benefits admissible to regular employees. While claiming that petitioner is a regular employee and is entitled to get the benefits of a regular employee, petitioner also claims that he shall not be replaced by another contract employee. 3. Respondents 1 and 2 as well as respondent no.3 have filed separate counter affidavits denying the contention of the petitioner that he has been working as Junior Research Engineer, producing documents relating to the service rendered by the petitioner, under the 3[rd] respondent. Along with the counter affidavit, the 3[rd] respondent has produced Ext.R3(a) note dated 14.06.2006, by which the petitioner was originally appointed on contract basis for one year on a consolidated remuneration of Rs.6,000/- (Rupees Six thousand only) Attendance registers for the relevant periods are produced to show that petitioner was working on contract basis. Ext.R3(c) is the extract of attendance register for the month of February 2016, January 2017 and January 2018 in which the petitioner's name is shown among the W.P.(C) No.2311/18 **==> picture [14 x 9] intentionally omitted <==** contract employees. In Ext.R3(d) list of contract employees as on 31.12.2016 the petitioner's name figure serial no.(1). It is stated that recruitment of Engineers in regular cadre is made after advertisement and the 3[rd] respondent had conducted such selection after issuing Exts.R3(e) and R3(f) notifications in 2010 and 2011. It is stated that petitioner did not submit application pursuant to Ext.P10 notification, which was for appointment of Research Engineers. Though petitioner submitted Ext.R3(g) application pursuant to Ext.R3(f) notification issued in 2011, for appointment as Research Engineer, and was called for interview, it is stated that he was not selected, since he did not have the requisite qualification and eligibility prescribed for that post, viz. degree in Engineering with 65% marks in the qualifying examination and upper age limit fixed was 30 years. Producing Ext.R3(g) application it is pointed out that petitioner is having only 60.2% marks in B.TEch Degree in Mechanical Engineering. It is also pointed out that as per the recruitment rules the petitioner is not qualified for appointment as Research Engineer and he is over aged. It is stated that even after the interview held in 2011, petitioner continues to be a contract employee. 4. Respondents 1 and 2 have also filed counter affidavit, with more or less similar contentions. It is the case of the respondents that W.P.(C) No.2311/18 **==> picture [14 x 9] intentionally omitted <==** the petitioner continued as contract employee all along. It is stated that upper age limit fixed for appointment as Junior Research Engineers under the 3[rd] respondent is 30 years and hence petitioner is not qualified for regular appointment. It is stated that the petitioner was engaged only on contract basis and no appointment order has been issued to him so as to claim that he is a regular appointee; even though call letters for attending interview were sent to the contract employees, no regular offer has been made to any of the contract employees. According to them the petitioner was interviewed and was recommended for selection as Junior Engineer initially on contract basis and accordingly he got appointment in 2006 in which he continued till 2008 and on subsequent appointments also, he continued on contract basis. Producing the payment list of contract staff as on 31.12.2016 as Ext.R2(f) it is stated that the petitioner was given payment as admissible to the contract employees. It is also stated that the petitioner had not applied for any posts against the advertisements made in Ext.R2(g) and (h) in the year 2010 and 2011, though he applied for the post of Research Engineer in the year 2011 as per Ext.R2(i) application. But in that selection the petitioner was not successful, as he did not satisfy the educational qualification and age limit. It is further stated that he was called for an interview for the W.P.(C) No.2311/18 **==> picture [14 x 9] intentionally omitted <==** post of Junior Research Engineer in December 2011 as per Ext.P4. However, he was not selected. It is stated that petitioner was never appointed as Junior Research Engineer and it was only an error the petitioner was designated as JRE, whereas contract employees are marked as JE(C). 5. The petitioner has filed a reply affidavit producing Ext.P11 proceedings of the selection committee for the post of Junior Research Engineer and asserted that he was ranked no.1 and on that basis he was continuing. 6. Though the petitioner claimed that he is continuing on the basis of selection in Ext.P11, the respondents have made available the original minutes and stated that the list, in which the petitioner was ranked no.1, prepared by the selection committee, was never operated, since two of the members of the selection committee did not agree with others and put their signature. Respondents stated that the petitioner completed his Engineering Degree course in 10 years with 60% marks. 7. The learned counsel for the petitioner submitted that petitioner had met with an accident and he had to undergo surgery, on account of which he could not complete the B.Tech Degree course in time. It is also pointed out that the respondents are maintaining two W.P.(C) No.2311/18 **==> picture [14 x 9] intentionally omitted <==** attendance registers and that in one register petitioner is shown as regular employee. 8. In Ex.P11 proceedings of the selection committee, there were 8 members. The proceedings show that six persons have signed below the select list drawn. It is stated therein that based on written test, academic merit, experience and performance in the interview the Committee recommends selection of 7 candidates mentioned therein and recommended that a panel might be operated subject to the vacancy and requirement for the relevant positions. 9. Heard the contentions on either side. What is to be decided in this case is whether the petitioner has any right to be granted the benefits of a regular employee. The petitioner has not produced any order of appointment. It is stated that the practice under the respondents has been, after engaging the employees on contract basis, promising them regular appointment and therefore petitioner was under the impression that he would also be given regular appointment. It is also stated that he was under the impression that he was a regular appointee. Though the learned counsel for the petitioner, relied on the judgment of the this court in _**A.M.Prabhakarn Nair vs. Union of India and ors.: (1992) IILLJ 732 Ker,**_ in support of the claim for the benefits as regular employee, W.P.(C) No.2311/18 **==> picture [14 x 9] intentionally omitted <==** the said judgment has been reversed in the judgment dated 29.09.1994 in W.A.No.1282 of 1991. 10. From the materials on record, I find that the petitioner has not been regularly appointed on the basis of any process of selection. Even though it is true that he had appeared for an internal selection and a rank list was prepared, the said rank list was never operated as it was not approved by the 3[rd] respondent. Though the petitioner submits that several persons have been appointed by the 3[rd] respondent without any regular process of selection, this Court can only direct the respondents to make appointments strictly in accordance with law. Admittedly the appointments under the 3[rd] respondent are governed by recruitment rules. The petitioner himself has produced the recruitment rules prior to and subsequent to 2015. 11. As at present the petitioner is continuing on contract basis though without any agreement. It is also pointed out that respondents are proceeding with disciplinary action against the petitioner. According to the petitioner, such proceedings are initiated as a retaliatory measure for approaching this court. It is made clear that respondents will be free to initiate disciplinary proceedings in accordance with law. At the same time, such proceedings shall not be for having approached this Court. If any W.P.(C) No.2311/18 **==> picture [14 x 9] intentionally omitted <==** action is warranted that shall be only in accordance with law and consistent with the principles of natural justice. The writ petition is disposed of as above. Sd/- **P.V.ASHA JUDGE** rkc