Nelvin Tomy and Fahad T.V. v. State of Kerala and Kerala Feeds Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 20TH DAY OF JANUARY 2021 / 30TH POUSHA, 1942** ## **WP(C).No.25329 OF 2019(M)** ## **PETITIONERS:** **1 NELVIN TOMY AGED 34 YEARS PLANT ENGINEER, KERALA FEEDS LTD., KARUNAGAPPALLY, KOLLAM DISTRICT, PIN-690518. 2 FAHAD T.V. PLANT ENGINEER, KERALA FEEDS LIMITED, THIRUVANGOOR, KOZHIKODE DISTRICT, PIN-673 305.** **BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.V.VARGHESE SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.K.N.REMYA SMT.L.ANNAPOORNA SHRI.VISHNU V.K. KUM.ABHIRAMI K. UDAY** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF ANIMAL HUSBANDRY, DAIRYING AND HOUSING, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001 2 KERALA FEEDS LTD., KALLETTUMKARA.P.O., THRISSUR DISTRICT, PIN-680683, REPRESENTED BY ITS MANAGING DIRECTOR 3 MANAGING DIRECTOR, KERALA FEEDS LTD, KALLETTUMKARA.P.O., THRISSUR DISTRICT, PIN-680683 R2-3 BY ADV. SRI.P.BENNY THOMAS R2-3 BY ADV. SRI.D.PREM KAMATH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-122020, THE COURT ON 20-01-2021 DELIVERED THE FOLLOWING:** **WP(C).No.25329 OF 2019** **2** ## **JUDGMENT** This writ petition is filed seeking the following prayers:- _“i) call for the records leading to Exts.P18 and P19 and quash them by the issuance of a writ of certiorari or any other appropriate writ, order or direction._ _(ii) declare that the petitioners are entitled to regularization in service as Officers (Production and Maintenance), in two of the existing vacancies and that open selection to the said post, as notified by Ext.P11 can be conducted only against the vacancies remaining after the regularization of the petitioners._ _(iii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to regularize the petitioners in service as Officers (Production and Maintenance) against two of the existing vacancies and grant them all consequential benefits._ _(iv) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents not to go in for selection pursuant to Ext.P11 notification for the post of Officer (Production and Maintenance), before regularizing the service of the petitioners in two of the existing vacancies in the above post.”_ 2. Heard the learned counsel for the petitioners and the learned Government Pleader as well as Sri.S.Sreekumar, the learned Senior Counsel appearing for the respondents 2 and 3. 3. The petitioners were appointed as Plant Engineers as per Exts.P5 **WP(C).No.25329 OF 2019** **3** and P6 appointment orders after a due process of selection conducted pursuant to Exts.P1 and P2 notifications. The notifications calling for applications specifically provided that the appointment would be on contract basis, but was likely to be made permanent on arising of permanent vacancies. It is submitted that it was in anticipation of creation of posts as sought for by the 2[nd] respondent before the Government that it was notified that the appointments are likely to be made permanent when the posts are sanctioned. It is submitted that by Ext.P10 order dated 26.04.2018, three posts of Officers (Production and Maintenance), which is the re-designation of Plant Engineers, had been sanctioned by the Government. However, instead of regularizing the petitioners in service, the respondents notified all the posts for open selection as per Ext.P11. The petitioners had approached the respondents seeking regularization of their services in terms of the notification and by Ext.P12 judgment, the issue was directed to be considered. When the respondents continued with the process of selection notified by Ext.P11, this writ petition was filed. Thereafter, Ext.P18 communication was issued by the Government rejecting the claim for regularization on the basis of the judgment of the Apex Court **WP(C).No.25329 OF 2019** **4** in **State of Karnataka v. Umadevi** .[(2006) 4 SCC 1]. Pursuant thereto, Ext.P19 order was issued rejecting the claim of the petitioners for regularization. The petitioners have challenged Exts.P18 and P19 orders issued by the 1[st] and 2[nd] respondents. 4. It is submitted by the learned counsel for the petitioners that the rejection of the claim for regularization by Ext.P18 on the short ground that the regularization of contractual appointees is interdicted by the Apex Court in **Umadevi's** case is completely untenable and is issued without considering the factual aspects of the matter. It is submitted that it was at a time when the request for sanction of posts was pending before the Government that Ext.P2 notification had been issued for contractual appointments of Plant Engineers. Ext.P2 notification specifically stated that the appointment would be on contractual basis but was liable to be made permanent on arising of permanent vacancies. It is submitted that while the petitioners were continuing in service, Ext.P10 order dated 26.04.2018 had been passed sanctioning three posts of Officer (Production and Maintenance). It is therefore contended that the petitioners' contractual appointments were liable to be made permanent in terms of the notification. **WP(C).No.25329 OF 2019** **5** 5. A counter affidavit has been placed on record by respondents 2 and 3. It is submitted that the appointment of the petitioners was specifically on contract basis and that their claim for regularization could not be considered. It is submitted that the question of regularization of the petitioners' service had been specifically considered by the Board of the Company and it was found that the petitioners were working on contract basis as Plant Engineers and they could, at best, be entitled only to an opportunity to apply along with other eligible candidates for appointment to the post of Officer (Production and Maintenance). It is submitted that the question of regularization was considered by the Government also and by Ext.R2(b) order dated 30.09.2019, the request was rejected. It is submitted that the petitioners who were only contractual employees do not have any right to claim regularization in service on the basis of their earlier contractual appointment. 6. Having considered the contentions, I notice that the request of the petitioners for regularization has been rejected by the Government on the short ground that regularization of contractual employees is not contemplated as a method of appointment to the posts sanctioned **WP(C).No.25329 OF 2019** **6** by the Government as per Ext.P10. The specific contention of the petitioners that the petitioners had been appointed pursuant to a notification which specified that their appointments are likely to be made permanent when permanent vacancies arise has apparently not been considered by the Government. It is the petitioners' specific case that they had been appointed on a contract basis after a due process of selection. The notification inviting applications also specified that the appointments are likely to be made permanent. It is thereafter that the posts of Officer (Production and Maintenance) had been sanctioned by the Government by Ext.P10. The only reason for the rejection of the petitioners' request is the judgment of the Apex Court in **Umadevi's** case. However, the judgment in **Umadevi's** case was with regard to back door appointments _de hors_ the recruitment rules. In the instant case, apart from the fact that the appointment was initially made on a contract basis, there is no contention that the petitioner's appointments had been made through any back door means. The notification, as a matter of fact, specified that the appointments are likely to be regularized when regular vacancies arise. 7. In the above view of the matter, I am of the opinion that Ext.P18 **WP(C).No.25329 OF 2019** **7** communication issued by the Government rejecting the petitioners' claim for regularization on the ground that the decision of the Apex Court in **Umadevi's** case stands in the way of such consideration is _per se_ illegal. Moreover, Ext.P18 is only in the nature of a letter from the Government to the 3[rd] respondent and does not amount to an executive order passed in consideration of the claim for regularization. Pursuant to Ext.P12 judgment, the Company considered the representation submitted by the petitioners. However, it was on the basis of the communication from the Government that the request of the petitioners for regularization was rejected. 8. In the above view of the matter, I am of the opinion that Ext.P18 and resultant Ext.P19 decision of the Company are vitiated by lack of application of mind. Exts.P18 and P19 are, therefore, set aside. There will be a direction to the 1[st] respondent to consider the request of the petitioners for regularization, taking specific note of the contention that the petitioners had been appointed on a contractual basis pursuant to Ext.P2 notification which specified that their appointments are liable to be regularized when permanent vacancies arise. Orders shall be passed by the Government, after hearing the **WP(C).No.25329 OF 2019** **8** petitioners as well as the authorized representative of the 2[nd] respondent, within a period of three months from the date of receipt of a copy of this judgment. Till such time, further steps for selection to 2 posts of Officer (Production and Maintenance) shall be kept in abeyance and the petitioners shall be permitted to continue in service. This writ petition is ordered accordingly. ## **ANU SIVARAMAN** **JUDGE** ## **SJ/NP** **WP(C).No.25329 OF 2019** **9** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE NOTIFICATION IN THE MATHRUBHUMI DAILY DATED 12.06.2013** **EXHIBIT P2 TRUE COPY OF THE NOTIFICATION DATED 14.06.2013 PUBLISHED ON THE OFFICIAL WEBSITE OF THE KERALA FEED LTD.** **EXHIBIT P3 TRUE COPY OF THE MINUTES OF THE INTERVIEW HELD ON 20TH AUGUST 2013 FOR THE SELECTION OF PLANT ENGINEER IN MECHANICAL** **EXHIBIT P4 TRUE COPY OF THE MINUTES OF THE INTERVIEW HELD ON 20TH AUGUST 2013 FOR THE SELECTION OF PLANT ENGINEERINSTRUMENTATION** **EXHIBIT P5 TRUE COPY OF THE ORDER NO.KFL/2112/13/C/938/14 DATED 22.02.2014 OF THE 3RD RESPONDENT TO THE 1ST PETITIONER** **EXHIBIT P6 TRUE COPY OF THE ORDER NO.KFL/2112/13/6869/13 DATED 11.09.2013 OF THE 3RD RESPONDENT TO THE 2ND PETITIONER EXHIBIT P7 TRUE COPY OF THE ORDER OF APPOINTMENT OF THE 1ST PETITIONER TO THE POST OF SENIOR GRADE-GRADE III** **EXHIBIT P8 TRUE COPY OF THE MINUTES OF THE BOARD MEETING HELD ON 22.05.2016 OF THE BOARD OF DIRECTORS OF THE KERALA FEEDS LTD. EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 06.04.2017 IN WP(C)NO.23839/2016 OF THIS HON'BLE COURT EXHIBIT P10 TRUE COPY OF THE GO(MS)NO.13/2018/AHD DATED 26.04.2018 EXHIBIT P11 TRUE COPY OF THE NOTIFICATION DATED 28.02.2019 ISSUED BY THE KERALA FEEDS LTD** **WP(C).No.25329 OF 2019** **10** **EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 07.05.19 IN WP(C)NO.13100/2019 OF THIS HON'BLE COURT EXHIBIT P13 TRUE COPY OF THE HALL TICKET ISSUED TO THE 1ST PETITIONER BY THE KERALA FEEDS LTD. ON 12.07.2019 EXHIBIT P14 TRUE COPY OF THE HALL TICKET ISSUED TO THE 1ST PETITIONER BY THE KERALA FEEDS LTD. ON 03.09.2019 EXHIBIT P15 TRUE COPY OF THE HALL TICKER ISSUED TO THE 2ND PETITIONER BY THE KERALA FEEDS LTD.ON 03.09.2019 EXHIBIT P16 TRUE COPY OF THE O(MS)NO.222/14/AD DATED 01.10.2014 EXHIBIT P17 TRUE COPY OF THE MEETING OF THE BOARD OF DIRECTORS OF THE 2ND RESPONDENT HELD ON 27/10/2018 EXHIBIT P18 TRUE COPY OF THE GOVERNMENT LETTER NO.F2/122/2019-AH DATED 30/9/2019 EXHIBIT P19 TRUE COPY OF THE ORDER NO.MD/M47/L48/49 DATED 5/11/2019 OF THE 3RD RESPONDENT EXHIBIT P20 TRUE COPY OF THE OFFICE ORDER NO.KFL/439/99/L-488/18 DATED 13/3/2018 OF THE 3RD RESPONDENT** - **EXHIBIT P21 TRUE COPY OF THE COUNTER AFFIDAVIT SWORN TO BY THE 3RD RESPONDENT IN WPC NO.23839/2016** **RESPONDENT'S EXHIBITS:** **EXHIBIT R2(a) TRUE COPY OF THE MINUTES OF THE BOARD MEETING DATED 27/10/2018** **EXHIBIT R2(b) TRUE COPY OF THE GOVERNEMNT ORDER DATED 30/9/2019.** True copy PS to Judge