MANOJ M.S v STATE OF KERALA & ORS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN WEDNESDAY, THE 14[TH] DAY OF JUNE 2023/24TH JYAISHTA, 1945 OP(KAT) NO.193 OF 2023** **AGAINST THE ORDER/JUDGMENT DATED 06.01.2023 IN OA 947/2020 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/APPLICANT:** MANOJ M.S, AGED 38 YEARS, S/O.MADANAN.S, ELECTRICIAN, BIO TECHNOLOGY AND MODEL FLORICULTURE CENTRE, KAZHAKOOTTAM, THIRUVANANTHAPURAM-695582, RESIDING AT KANJIRAMVILA, GIRIJALAYAM, T.C.65/1669, THIRUVALLAM, THIRUVALLAM P.O., THIRUVANANTHAPURAM, PIN – 695027. BY ADVS. KALEESWARAM RAJ APARNA NARAYAN MENON CHINNU MARIA ANTONY ## **RESPONDENTS/RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF AGRICULTURE DEVELOPMENT AND FARMERS WELFARE, SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001. 2 DIRECTOR OF AGRICULTURE, DIRECTORATE OF AGRICULTURE, DEPARTMENT OF AGRICULTURE DEVELOPMENT AND FARMERS WELFARE, VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN – 695033. 3 BIO TECHNOLOGY AND MODEL FLORICULTURE CENTRE, REPRESENTED BY ITS ASSISTANT DIRECTOR OF AGRICULTURE, KAZHAKOOTTAM, THIRUVANANTHAPURAM, PIN – 695582. 4 ASSISTANT DIRECTOR OF AGRICULTURE, BIO TECHNOLOGY AND MODEL FLORICULTURE CENTRE, KAZHAKOOTTAM, THIRUVANANTHAPURAM, PIN – 695582. OP KAT.No.193/2023 5 SENIOR ADMINISTRATIVE OFFICER, DEPARTMENT OF AGRICULTURE DEVELOPMENT AND FARMERS WELFARE, VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN – 695033. 6 MEGHA J.S, AGED 33 YEARS, W/O.MAYOOSH M.P, RESIDING AT REVATHI, KULAMADA, KIZHAKKANELA P.O. PARIPALLY, THIRUVANANTHAPURAM, PIN – 691573. (ADDL.RESPONDENT NO.6 IS IMPLEADED AS PER ORDER DATED 29.11.2022 IN MA.2324/222 IN O.A 947/20) ADV. SRI.SAIGI JACOB PALATTY- SR.GOVERNMENT PLEADER THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 14.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ALEXANDER THOMAS & C.JAYACHANDRAN, JJ. -------------------------------------------------------------------** ## **OP KAT No.193 of 2023** _(arising out of the impugned order dated 06.01.2023 in O.A. No. 947/2020 of Kerala Administrative Tribunal, Thiruvananthapuram_ ## **---------------------------------------------------------------------------Dated this the 14[th] day of June, 2023** ## **JUDGMENT** ## **C.Jayachandran, J.** We are confronted in this Original Petition with the claim for regularisation made by a daily wage worker, who was engaged for a total period of more than ten years. Vide Annexure-A7, the service of the applicant/petitioner was decided to be terminated, since steps for regular appointment was in vogue, however permitting him to be retained till 31.03.2020. The applicant/petitioner challenged Annexure-A7 before the Kerala Administrative Tribunal, Thiruvananthapuram in O.A. No.947/2020, which was, however, repelled as per order dated 06.01.2023. The Original Petition is directed against the same. ## 2. The facts (as pleaded in the O.A): The applicant was originally engaged as an Electrician for a period of one month from 01.09.2020 in Biotechnology and Model Floriculture Centre (hereinafter referred to as 'BMFC') as could be seen from Annexure-A1 order. He was thereafter continuously engaged till the date 2 OP KAT.No.193/2023 of filing the O.A. and he would complete a period of ten years on 31.03.2020, the O.A. having been filed in June, 2020. It is the applicant’s claim that similarly situated Tissue Culture Technicians, who were hired on a temporary basis and who had completed ten years of service, were regularised by Annexure-A2 order dated 08.12.2015. The applicant possessed the requisite qualification of ITI for the post of Electrician and he is eligible for being regularised in the said post, as has been done in the case of employees covered by Annexure-A2. The 4[th] respondent, Assistant Director of Agriculture preferred Annexure-A3 representation dated 07.04.2016 to the 2[nd] respondent/ Director of Agriculture, whereby he would seek continuance of the service of the daily wage and the contractual employees, including the applicant, fully recognising their expertise, experience and dedication. As per Annexure-A4 dated 07.04.2016, the 2[nd] respondent Director approved the continuance of the daily workers and contractual employees, including the applicant. Annexure-A5 is the Government Order issued by the Government dated 26.02.2016, clause 6 of which provides that the service of person who had worked continuously for ten years or more as on the date of Annexure-A5 order can be regularised, if such service is essential and in public interest, after verifying the OP KAT.No.193/2023 3 performance, character and conduct of the person. However, as per Annexure-A6 dated 02.07.2019 issued by the 5[th] respondent, it was decided to engage Employment Exchange hands and to continue the services of the employees like the applicant until such appointments are made. Annexure-A6 is illegal, unjust and arbitrary. The applicant is entitled to the benefit of regularisation as laid down by the Honourable Supreme Court in paragraph No.53 of **Secretary, State of Karnataka v. Umadevi [(2006) 4 SCC 1]** . The applicant had rendered meritorious service even during lockdown period. From 2019 onwards, two days break in the service of the applicant, upon completion of 179 days, was documented by the respondents, though, as a matter of fact, the applicant had worked on those days as well, thereby continuing in service uninterruptedly. As such, the applicant seeks to quash Annexure-A6 order to the extent it directs continuance of the service of the applicant only until Employment Exchange hands are appointed and also for a declaration that the applicant is entitled to be regularised with effect from 01.09.2010, with consequencial benefits. 3. The 2[nd] respondent Director filed reply/counter statement contending that the applicant was not a contract employee, but was employed on daily wage basis, and that he has been continuously OP KAT.No.193/2023 4 engaged from the date of his induction, thus completing ten years in BMFC, which, however, would not entitle him to claim regularisation. Persons who are working on daily wage basis cannot claim regularisation as a matter of right. The direction in paragraph No.53 of **Umadevi (Supra)** for regularisation was only a one-time measure, with a cutoff date, wherefore, candidates who were appointed subsequent to the cutoff date, cannot claim the benefit of the directions in **Umadevi (Supra).** Regularisation directed vide Annexure-A2 was afforded to contract employees and not to persons like the applicant, who were engaged on daily wage basis. They are not on equal footing, so as to claim the benefit of Annexure-A2. The selection to the post of Electrician is through the Kerala Public Service Commission. It is in the absence of a ranked list to the subject post that decision was taken to recruit candidate through the Employment Exchange for a period of 179 days, after obtaining NOC from the P.S.C, which would ensure opportunity to other similarly qualified applicants as well. On such premise, the 2[nd] respondent would seek dismissal of the O.A. 4. As per Ext.P2 impugned order dated 06.01.2023, the Tribunal, after taking note of the rival contentions, held that the applicant will not get any right for regularisation merely because he has OP KAT.No.193/2023 5 continued as daily wage worker for a period of 10 years, especially when a properly recruited candidate is waiting outside for employment. The selection process was initiated long back and the same has achieved finality, wherefore the directions in **Umadevi (Supra)** would not help the applicant. On the strength of such findings, the O.A. was dismissed. 5. Heard Sri. Kaleeswaram Raj, learned counsel for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader on behalf of the respondents 1 to 5. Perused the records. 6. It may incidentally be stated that the 6[th] respondent herein preferred an impleading petition before the Tribunal, pointing out that she is a candidate included in the ranked list published by the P.S.C for the post of Electrician in the Agriculture Development and Farmers Welfare Department. Out of the three posts available for direct recruitment, two are remaining vacant, of which one vacancy is in BMFC, Kazhakkootam, presently occupied by the applicant in the O.A. 7. Having heard the learned counsel appearing for the respective parties, this Court finds no reason to interfere with the impugned order of the Tribunal. It is not in dispute that the applicant was engaged as an Electrician on daily wage basis, though he continued to be in service for a period of more than ten years. The law is well OP KAT.No.193/2023 6 settled that a daily wage worker, or for that matter, an employee engaged on temporary basis, cannot seek regularisation of his/her service as a matter of right. We also do not find any element of discrimination so as to invite the wrath of violation of Article 16 of the Constitution. As explained in the reply/counter statement, AnnexureA2 regularisation order was issued in respect of persons, who were appointed on contract basis; and persons like the applicant, who were appointed on a daily wage basis stands on a clear different footing. The respondents’ contention that the applicant cannot claim parity of treatment as afforded to the class envisaged in Annexure-A2 appears to be well found. We also notice that the claim made by the petitioner/applicant based on paragraph No.53 of **Umadevi (Supra)** is also untenable, in as much as the regularisation directed therein was only a one-time measure, that too in respect of persons appointed and completed ten years service as on the cutoff date stipulated therein. The said direction cannot be read or construed to apply to persons, who are appointed on daily wage basis subsequent to the said cutoff date. The contention of the applicant based on **Umadevi (Supra),** if accepted, would run contrary to the spirit and dictum laid down in **Umadevi (Supra).** We also find little merit in the reliance placed upon OP KAT.No.193/2023 7 Annexure-A5 order by the applicant. The entire gamut of Annexure-A5 is not to engage daily wage or causal workers, but to report the vacancies to the Public Service Commission. Clause 3 of Annexure-A5 specifically stipulates that appointment on daily wages does not entitle the appointee for being regularised in Government service. It is thereafter that clause 6, relied upon by the applicant exists, which is rather an exception to the dominant idea sought to be conveyed by Annexure-A5. Clause 6 is extracted hereunder: _“6. Government may place any person who has worked continuously for 10 years or more as on the date of this order, on a contract for 3 years at a time, if have the opinion that such conversion is essential and in public interest, after verifying that the performance, character and conduct of the person is excellent. However, no person working on daily wages or as casual worker will have any right or claim to be considered for appointment on contract basis, and such appointment shall be solely at the discretion of Government.”_ 8. It could be seen that the clause only directs to place a person, who had worked continuously for ten years or more, on a contract for three years at a time, if such conversion is essential and in public interest. Even for that, the clause stipulates that the same is not a right, but the sole discretion of the Government. We find that clause 6 is not of any avail to the applicant to claim regularisation. 9. We are aware that the petitioner/applicant has spent his prime time for a period more than ten years in BMFC and to send him OP KAT.No.193/2023 8 out now, though supported by legal principles, is harsh. However, as the old legal adage says, ‘hard facts cannot make bad law.’ 10. Finally, learned counsel for the petitioner has submitted that even after reporting the vacancy in question to the PSC for advising candidate in the ranked list of the PSC, there are still vacancies available under the respondents and that the respondent be directed to temporarily accommodate the petitioner in such other available vacancy. If such plea is factually correct and legally maintainable, then this judgment will not preclude the petitioner to pursue any such other option in accordance with law. In the result, this Original Petition will stand dismissed. Sd/- ## **ALEXANDER THOMAS, JUDGE** Sd/- ## **C.JAYACHANDRAN, JUDGE** ww ## **`APPENDIX OF OP(KAT) 193/2023`** ## `PETITIONER’S ANNEXURES:` |`ANNEXURE A1`|`TRUE COPY OF THE ORDER NO.BFMC 37/10 DATED`| |---|---| ||`30.09.2010 ISSUED BY THE 4TH RESPONDENT.`| |`ANNEXURE A2`|`TRUE COPY OF THE G.O(MS)NO.240/2015/AGRI DATED`| ||`08.12.2015.`| |`ANNEXURE A3`|`TRUE COPY OF THE LETTER NO.BMFC.02/2016-17 DATED`| ||`07.10.2016 SUBMITTED BY THE 4TH RESPONDENT`| ||`BEFORE THE 2ND RESPONDENT.`| |`ANNEXURE A4`|`TRUE COPY OF THE LETTER NO.SH(1)43644/16 DATED`| ||`07.04.2016 ISSUED BY THE 2ND RESPONDENT.`| |`ANNEXURE A5`|`TRUE COPY OF G.O(P)NO.28/2016/FIN DATED`| ||`26.02.2016.`| |`ANNEXURE A6`|`TRUE COPY OF ORDER NO.SH(1)5994/19 DATED`| ||`02.07.2019 ISSUED BY THE 5TH RESPONDENT.`| |`ANNEXURE A7`|`TRUE COPY OF OFFICE ORDER NO.01/2020 DATED`| ||`24.03.2020 ISSUED BY THE 4TH RESPONDENT.`| |`ANNEXURE A8`|`TRUE COPY OF THE ORDER DATED 04.10.2019 IN`| ||`O.A.2012/2019 ALONG WITH TYPED COPY.`| |`ANNEXURE R6(A)`|`TRUE COPY OF THE RANKED LIST NO.571/2022/DT IN`| ||`CATEGORY NO.404/2020 FOR THE POST OF ELECTRICIAN`| ||`ISSUED BY THE PSC.`| |`ANNEXURE R6(B)`|`TRUE COPY OF THE LETTER NO.ADFW/10621/2022-SH1`| ||`DATED 21.10.2022 OF THE STATE PUBLIC INFORMATION`| ||`OFFICER, AGRICULTURE DEVELOPMENT AND FARMER'S`| ||`WELFARE DEPARTMENT.`| |`EXHIBIT P1`|`TRUE COPY OF THE MEMORANDUM OF O.A. NO.947/2020`| ||`TOGETHER WITH ANNEXURES.`| |`EXHIBIT P2`|`TRUE COPY ORDER DATED 06.01.2023 OF THE OA`| ||`NO.947/2020.`| |`EXHIBIT P3`|`TRUE REPLY STATEMENT DATED 26.03.2022 FILED ON`| ||`BEHALF OF THE 2ND RESPONDENT.`| |`EXHIBIT P4`|`TRUE COPY OF THE MISCELLANEOUS APPLICATION FOR`| ||`IMPLEADING DATED 24.11.2022.`|