N. Jayachandran v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **MONDAY, THE 20TH DAY OF JANUARY 2014/30TH POUSHA, 1935** ## **WP(C).No. 27918 of 2006 (W)** **---------------------------------------** **PETITIONER:** - **-------------------** **N.JAYACHANDRAN, LIBRARIAN, PANCHAYAT LIBRARY, (JAWAHARLAL NEHRU MEMORIAL VAYANASALA AND GRANDHASALA), SAMSKARIKA NILAYAM, MANANCHERRY GRAMA PANCHAYAT, MANNANCHERRY, ALAPPUZHA DIST.** **BY ADV. SRI.KALEESWARAM RAJ** **RESPONDENTS:** **------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF PANCHAYAT, THIRUVANANTHAPURAM.** **3. THE SECRETARY, MANNANCHERRY GRAMA PANCHAYAT, MANNANCHERRY, ALAPPUZHA.** **R1 & R2 BY SR. GOVERNMENT PLEADER SRI.P.FAZIL. R3 BY ADVS. SRI.V.SATHEESH SRI.A.KRISHNAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 27918 of 2006 (W)** **----------------------------------------** ## **APPENDIX** ## **---------------** ## **PETITIONER(S)' EXHIBITS:** ## **--------------------------------------** - **EXHIBIT P1: TRUE COPY OF THE NOTICE FOR SELECTION PROCESS.** - **EXHIBIT P2: TRUE COPY OF THE ORDER DATED 30.04.1993 APPOINTING THE PETITIONER IN THE LIBRARY.** - **EXHIBIT P3: TRUE COPY OF THE OFFICE COPY OF THE ORDER NO.B1 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P4: TRUE COPY OF THE REPRESENTATION DATED 24.08.2002 FILED BEFORE THE MINISTER.** - **EXHIBIT P5: TRUE COPY OF THE LETTER DATED 31.10.2003 TO THE 1ST RESPONDENT.** - **EXHIBIT P6: TRUE COPY OF THE LETTER DATED 03.07.2002 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P7: TRUE COPY OF THE LETTER DATED 02.11.2002 ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT.** **EXHIBIT P8: TRUE COPY OF THE LETTER DATED 05.07.2000 ISSUED BY THE DEPUTY SECRETARY, LOCAL SELF ADMINISTRATION TO ONE SRI.A.S.ABLIASH.** **EXHIBIT P9: TRUE COPY OF THE RESOLUTION NO.30 DATED 29.09.1999 FORWARDED BY THE PANCHAYAT TO THE 2ND RESPONDENT.** - **EXHIBIT P10: TRUE COPY OF THE COVERING LETTER DATED 02.11.1999 SENT BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT.** - **EXHIBIT P11: TRUE COPY OF THE LETTER NO.J2-7409/95 DATED 20.08.1997.** - **EXHIBIT P12: TRUE COPY OF THE LETTER DATED 06.12.1996 ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT.** - **EXHIBIT P13: TRUE COPY OF THE ORDER DATED 08.05.2002 ISSUED BY THE DMO.** - **EXHIBIT P14: TRUE COPY OF THE LETTER DATED 27.03.2001 ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT.** **EXHIBIT P15: TRUE COPY OF THE G.O.(RT) NO.351/87/LAD DATED 03.02.1987.** - **EXHIBIT P16: TRUE COPY OF THE ORDER NO.G.O.(RT)NO.2583/90/LAD DATED 25.06.1990.** **..2/-** **Msd.** **WP(C).No. 27918 of 2006 (W)** **----------------------------------------** **EXHIBIT P17: TRUE COPY OF ORDER NO.G.O.(RT) NO.358/89/LAD DATED 06.02.1990.** **EXHIBIT P18: TRUE COPY OF ORDER NO.G.O.(RT) NO.2310/90/LAD DATED 02.06.1990** **EXHIBIT P19: TRUE COPY OF THE ORDER NO.G.O.(RT)NO.2499/91/LAD DATED 03.06.1991.** **EXHIBIT P20: TRUE COPY OF THE REPLY TO THE SUBMISSION MADE BY SRI.KADAKAMPALLY SURENDRAN, MLA.** **EXHIBIT P21: TRUE COPY OF THE JUDGMENT DATED 01.07.2004 IN WP(C) NO.1555/2004.** **EXHIBIT P22: TRUE COPY OF THE ORDER DATED 06.01.2006.** ## **EXHIBIT P23: TRUE COPY OF THE CABINET DECISION.** **RESPONDENT(S)' EXHIBITS:** **----------------------------------------** ## **NIL** **//TRUE COPY//** **P.S.TO JUDGE.** **Msd.** ## **A.V.RAMAKRISHNA PILLAI, J** --------------------------------------------- W.P.(C) No.27918 of 2006 --------------------------------------------Dated this the 20[th] day of January, 2014 ## **JUDGMENT** The main prayers in this writ petition are to quash Ext.P22 along with Exts.P5, P6 and P7 on the ground that they are unjust, illegal and unconstitutional and also to direct the first respondent to pass orders regularising the service of the petitioner with effect from his initial appointment on 1.5.1993 by paying salary and allowances at par with regular librarians together with arrears by allowing the request made in Exts.P9 and P10. 2. The petitioner is working as Librarian in the library under the Mannancherry Grama Panchayat in Alappuzha since 1993. He requested for regularisation of his service. However, it was not favourably considered. Ultimately, the Government issued Ext.P22 wherein it was stated that the matter requires a policy decision and therefore, the petitioner's request cannot be considered. WPC No.27918 of 2006 2 3. The petitioner alleges that the work done by him is similar and even larger than the work done by a part-time librarian who are paid salary and D.A. and although the Government had shown favourable gestures so far, no specific order or concrete plan was promulgated. 4. The respondent filed a detailed counter wherein it is admitted that the petitioner is working as Librarian in the Mannancherry Grama Panchayat. The initial honorarium which was Rs.300/- has been periodically enhanced and now it is Rs.1400/- per month. The stand taken by the Government is that the honourarium employees who are working two or three hours a day cannot be given full salary and if the service of such librarians are regularised, the financial commitment of the Panchayat would be increased. ## 5. Arguments have been heard. 6. The questions whether the writ of mandamus would be issued in favour of temporary employees who approach the court for a direction to the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue was WPC No.27918 of 2006 3 considered by the Apex Court in **Secretary, State of Karnataka and Others** v **Umadevi and Others** (2006) 4 SCC 1). A constitutional bench of the Apex Court in **Rai Shivendra Bahadur (Dr.)** v **Governing Body of the Nalanda College** which arose out of a refusal to promote the writ petitioner therein as a Principal of a college, observed that unless the statute imposes a legal duty on the authority and the aggrieved party has a legal right under the statute or rule to enforce it, a writ of mandamus will not lie. As this classical position continues, the Apex Court in Umadevi's case held that a mandamus could not be issued in favour of the employees directing the Government to make them permanent unless the employees can show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent. 7. The learned counsel for the petitioner submitted that though the Apex Court has made such a sweeping observation, the Apex Court made a further clarification in paragraph-53 of the judgment which is extracted hereunder: WPC No.27918 of 2006 4 “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 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 irregularity 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 WPC No.27918 of 2006 5 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. Referring to the aforesaid observation, the learned counsel for the petitioner submits that the petitioner stands on a special footing as he was continuing in service since 1993. It was not on the basis of any court order; it was pointed out. 8. It was pointed out that the petitioner was continuing on administrative exigencies. Therefore, it was argued that the employment of the petitioner in the Panchayat as a Librarian was not an illegal appointment. Even if after Ext.P22 which was issued on 6.1.2006, eight years have elapsed and he is still continuing as a Librarian. Therefore, this Court is of the definite view that the matter requires a re-look by the respondent Government sympathetically in the light of the observations in paragraph-53 of the Umadevi's case. WPC No.27918 of 2006 6 In the result, this writ petition is disposed of quashing Ext.P22 along with Exts.P5 to P7 directing the respondents to consider the case of the petitioner as one which stands on its own footing in the light of the observations made by the Apex Court in paragraph-53 of Umadevi's case and also in the light of what has been stated above. This exercise shall be completed by the respondent concerned within a period of three months from today. To facilitate an early action, it shall be open to the petitioner to produce a copy of this judgment as well as a copy of the judgment of the Apex Court in Umadevi's case before the respondent concerned within a period of one month from today. **sd/- A.V.RAMAKRISHNA PILLAI JUDGE** css/ true copy P.S.TO JUDGE