OP.No. 11685 of 2000 (N)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.M.JOSEPH** **MONDAY, THE 21ST JANUARY 2008 / 1ST MAGHA 1929** ## **OP.No. 11685 of 2000(N)** ## **----------------------------------** **PETITIONERS:** - **------------------** **1. A.RAMA, S/O. CHAKRA, AMEY COLONY, KASARAGOD.** **2. DAUAKARA, S/O.ANGARA, KOTTOOR P.O., MULIYAR VILLAGE.** **3. K.CHATHUKUTTY HARI, S/O. K.MUTHU NAIR, KUNDAKAM HOUSE, P.O.KARADKA, (VIA), MULLERIYA.** **4. A.REMESHA, S/O. LATE ANANDA, NULLIPPADY. CHENNIKKARA, KASARAGOD.** **5. H.MAHALINGA NAIK, S/O. DEVAPPA NAIK, HALAMOOLA HOUSE, P.O. BAYAR, (VIA), UPPALA, KASARAGOD DISTRICT.** **6. K,.KUNHIKRISHNAN, S/O.KUNHIORAMAN, KUNDIL HOUSE, P.O.KOTTAPPURAM, (VIA), NILESHWAR.** **7. A.LATHEESHA, S/O. LATE BABU, AMEY HOUSE, KASARAGOD.** **8. T.THAMBAN, S/O.KANNA PODUVAL E.V., THEKKUMKARA HOUSE, P.O.BALLA, VIA, ANANDASHRAM, KANHANGAD.** **9. V.M.UTHAMAN, S/O. LATE RAMAN, KOZHAKOTTU HOUSE, P.O.BADADKA, VIA CHENGALA.** **10. M.P.CHANDRAN, S/O. LATE M.P.KUNHIRAMAN ACHARY MENIKKOTTE PADINHARE VEEDU, P.O. UPPILAKKAI, NILESHWAR VIA.** ## **OP. NO.11685/2000** ## **11. A.NARAYANAN, S/O. SANJEEVA, AMEY, KASARAGOD.** **12. A.RAMA, S/O. KITTA, NALKALAM HARIJAN COLONY, VIDYANAGAR P.O.** **13. V. BALAN, S/O. AMBU,. CHANDERA P.O., MANIYAT, VIA THRIKARIPUR.** **14. K.K.KANAKAVENI, D/O. KUNHAMBU MARAR P.V. VADAKKEVALAPPIL HOUSE, P.O. NILESHWAR 671 314.** **15. CICILY M.C. W/O.PAPPACHAN, MUNICIPAL QUARTERS, ASHOK NAGAR, KASARAGOD.** **16. MADHUSOODHANAN N., S/O. NARAYANAN, MACHIPURAM HOUSE, P.O. CHERUVATHUR.** **17. K.K.GANGADHARAN, S/O. PANDU, CHICKALAMAM, P.O. MADIKKAI.** ## **BY ADV. SRI.M.SASINDRAN SRI.BEPIN VIJAYAN** **RESPONDENTS:** - **-----------------------** **1. STATE OF KERALA, REP.BY ITS SECRETARY TO GOVERNMENT DEPARTMENT OF LOCAL ADMINISTRATION, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF MUNICIPALITIES, THIRUVANANTHAPURAM.** **3. THE KASARAGOD MUNICIPALITY, REP.BY ITS SECRETARY, KASARAGOD.** - **BY GOVERNMENT PLEADER SMT.N.SUDHA DEVI** - **BY ADV. SRI.P.SANTHALINGAM SRI.A.D.SHAJAN** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 21/ 01/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP. NO.11685/2000** **ORDER ON CMP. NO.19155/2000 IN OP. NO.11685/2000** ## **DISMISSED** ## **21.01.2008 SD/- K.M.JOSEPH, JUDGE** ## **APPENDIX** ## **PETITIONERS EXHIBITS** ## **EXT.P1:- COPY OF THE RANK LIST SUBSTITUTE WORKERS IN HEALTH SECTION OF KASARAGOD MUNICIPALITY.** **EXT.P2:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DT. 30.11.93 IN OP. 13012/1993.** **EXT.P3:- COPY OF THE COMMUNICATION FROM THE SECRETARY OF THE MUNICIPALITY TO THE IST RESPONDENT DT. 17.2.97.** **EXT.P4:- COPY OF THE COMMUNICATION ISSEUD BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT DT. 16.1.98.** **EXT.P5:- COPY OF THE PROFORMA ALONG WITH THE COVERING LETTER.** **E.DXT.P6:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN OP. 8286/99. EXT.P7:- COPY OF THE ORDER DT. 15.12.99 ISSUED BY THE IST RESPONDENT.** _**/**_ **TRUE COPY/** ## **P.S. TO JUDGE** **tss** ## **K. M. JOSEPH, J.** ## **----------------------------------O.P NO. 11685 OF 2000 N ------------------------------------Dated this the 21st January, 2008** ## **JUDGMENT** There are seventeen petitioners in the Original Petition. They are working as substitute workers in the third respondent. Their names were sponsored by the Employment Exc hange and they were selected by the Municipality and a panel was created for twentyfive candidates for engagement as substitute daily waged workers. Ext.P1 is the rank list. It is the further case of the petitioners that persons included in the list will be appointed as daily waged workers. The appointment into the regular service in the public contingent establishment of the Municipality is by way of absorption from among the substitute workers according to the vacancy. It is stated that after formation of the Kasaragod District, the Municipality became the head quarters of the District and now it is a Grade I Municipality. But, the strength of the contingent workers were not enhanced. It is stated that since 1991, the petitioners are _**OP NO.11685/00 N**_ _**2**_ continuously working in the Municipality. Though there are vacancies, for want of sanction from respondents 1 and 2, they are denied regularisation in the contingent establishment of the Municipality. It is pointed out that the Government has ordered by G.O.(MS) No.107/92/LAD dated 20.4.1992 that the vacancies in the contingent establishment of the Municipality must be filled up by absorbing the substitute workers from the rank list prepared by the Municipality. Ext.P2 is a Judgment of this Court. It is stated that the Municipal Council by resolution dated 28.,12.1996 decided to request the Government to accord sanction for 28 more posts of contingent workers. Ext.P3 is the of the communication from the the copy Secretary of Municipality to the first respondent dated 17.2.1997. Details were called for by the second respondent from all Municipalities. The third respondent Municipality addressed Ext.P5. This Court was approached and by Ext.P6 Judgment, this Court directed consideration and to pass appropriate orders on Exts.P3 and P5. Ext.P7 followed. By Ext.P7, the _**OP NO.11685/00 N**_ _**3**_ Government taking note of the financial difficulties being suffered by the Municipalities, decided to issue directions to the Urban Local Bodies to introduce outsourcing of certain activities including sanitation work. Therefore the Government has directed to introduce outsourcing of sanitation works on an experimental basis in accordance with the general guidelines being issued by Government separately. 2. A Counter Affidavit has been filed by the third respondent, essentially referring to Ext.P7 order. It is stated that sanction of the Government is required for creation of new posts. It is also stated that the first petitioner has been absorbed. Petitioners seek to quash Ext.P7 and to command the third respondent to absorb the petitioners as contingent workers. A further direction is sought to the third respondent to pay wages to the petitioners which is being paid to the regular workers. Another direction sought is to command respondents 1 and 2 to take immediate steps and sanction posts as sought for in Exts.P3 and P5. _**OP NO.11685/00 N**_ _**4**_ 3. Counsel for the petitioners points out that after the filing of the Original Petition. petitioners 5,8, 11, 12, 14 and 16 have been absorbed, but they are paid only the amount which has been paid as daily wages. Petitioners were all admittedly appointed on daily wages. Regularisation is not intended to confer permanency. The appointment of the petitioners were not regular appointments. No doubt, they are entitled to be absorbed against the posts which are created with formal sanction by the Government. In such circumstances and having regard to the financial constraints, if posts are not sanctioned, it is not for this Court to sit in judgment over the same. Having regard to the nature of the appointment and having regard to the dictum laid down by the Apex Court in Secretary, State of Karnataka & Others v. Umadevi (3) and others (2006 (4) SCC 1), it cannot be said that the petitioner can claim absorption or regularisation. In such circumstances, I cannot find any illegality or any other vitiating ground to upset Ext.P7 order passed by the Government. The Original Petition is liable to be _**OP NO.11685/00 N**_ _**5**_ dismissed. Of course, it is pointed out that the benefits due to regular employees is denied to those petitioners who have been absorbed. I leave open the right of those petitioners to represent the said matter before the third respondent and pursue the matter. Subject to the above, the Original Petition is dismissed. **K. M. JOSEPH, JUDGE** kbk. ## **K. M. JOSEPH, J.** ## **O.P NO. 11685 OF 2000 N** ## **JUDGMENT** **21st January, 2008.**