Preetha I.V. and Others v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 22[ND] DAY OF JUNE 2022 / 1ST ASHADHA, 1944** ## **WP(C) NO. 21169 OF 2019** ## **PETITIONERS:** - **1 PREETHA I.V AGED 39 YEARS RESIDING AT SRI.SRI, VKRA-141-A, KADAIYAKKONAM LANE, VAZHOTTUKONAM, VATTIYURKAVU P.O, THIRUVANANTHAPURAM 695 013** - **2 SUBHA A.G NAIR,PAZHAMBARAKONATHU VEEDU, MARUKIL, KRISHNAPURAM, ORUTTAMBALAM, THIRUVANANTHAPURAM 695 507** - **3 SREEJA K.S, KALLIPPARAKUZHI, THADATHARIKATHU VEEDU, PANNIYODE, THIRUVANANTHAPURAM 695 575** - **4 GEETHA P, TC 36/1068, SREEKRISHNA NILAYAM, ENCHAKKAL, THIRUVANANTHAPURAM 695 011** **BY ADVS. P.NANDAKUMAR SRI.S.ANEESH SMT.AMRUTHA SANJEEV** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT,HIGHER EDUCATION (B) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001** - **2 UNIVERSITY OF KERALA, REPRESENTED BY ITS REGISTRAR, THIRUVANANTHAPURAM 695 034** - **3 THE VICE CHANCELLOR, UNIVERSITY OF KERALA, THIRUVANANTHAPURAM 695 034** **BY ADV SRI.THOMAS ABRAHAM, SC** **WP(C) NO. 21169 OF 2019** **2** ## **OTHER PRESENT:** ## **SMT RESMI THOMAS-GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 21169 OF 2019** **3** ## **J U D G M E N T** The petitioners are stated to be persons with disabilities, who had been working with the Kerala University initially on a temporary basis and thereafter, on a daily wage basis, for considerable long periods of time. They say that they, therefore, represented to the University and to the Government with a plea to regularize them in services, which led to Ext.P10 order being issued by the former on 25.07.2015, directing the latter to regularize them, but without creating supernumerary post. 2. The petitioners allege that, nothing happened after that, which constrained them to approach this Court and obtain Ext.P11 judgment, directing the University to consider their application. They submit that, however, Ext.P12 order was thereafter issued by the University, refusing to accede to their request for regularization solely for the reason that all posts had been reported to the Kerala Public Service Commission (KPSC). 3. The petitioners assert that the stand of the University in Ext.P12 was without factual basis and contrary to the truth and that they, therefore, approached this Court again by filing W.P. (C)No.37792/2017, which culminated in Ext.P14 judgment, wherein, it has been unequivocally recorded that the University reported all vacancies, except 'eight', to the KPSC, which arose consequent to **WP(C) NO. 21169 OF 2019** **4** promotions to higher cadre. The petitioners point out that this Court thus, directed the Government to take a decision as to their regularization in any of the aforementioned eight vacancies, but that they have now issued Ext.P15 maintaining stoic silence on this aspect, but merely saying that no such regularization can be offered after the vacancies had been reported by the University to the KPSC. 4. The petitioners, therefore, pray that Ext.P15 be set aside and the Government be directed to allow the University to regularize their services without any further delay. 5. The afore submissions of Smt.Amrutha Sanjeev – learned counsel for the petitioners, were answered by Sri.Thomas Abraham – learned Standing Counsel for the University, relying upon a statement filed by him, wherein, the specific averment is to the effect that the Government had directed the University to entrust the appointment of their non-teaching staff to the KPSC, through two orders of the years 2010 and 2011. He added that, therefore, when Ext.P10 order was issued to the University by the Government, asking that no supernumerary posts be created, it became impossible for them to accommodate the petitioners, since every vacancy had already been reported to the KPSC. He, however, conceded, to a pointed question from this Court, that, in Ext.P14 judgment, it has been recorded that eight vacancies were available even after the reporting to the KPSC had been completed; but submitted that unless the Government specifically **WP(C) NO. 21169 OF 2019** **5** instructs his client, it will not be possible for them to regularize the petitioners against the same. He thus prayed that this writ petition be dismissed as against his client. 6. Smt.Resmi Thomas – learned Government Pleader, submitted that Ext.P15 has been issued in strict compliance with the directions in Ext.P14 judgment, noticing that the petitioners were reengaged on daily wage basis, after they were terminated from their temporary employment earlier. She added that, since the appointment to the non-teaching posts in the Universities have been entrusted with the KPSC, no regularization of persons like petitioners is possible in view of the affirmative declarations of the Hon'ble Supreme Court in **Secretary, State of Karnataka and others v. Umadevi(3) and others [2006 (4) SCC 1].** She concluded her submissions arguing that the Government also found it necessary to reject the petitioners' claims, because, if they are allowed, similar requests will arise from physically disabled persons from other Universities. 7. I have considered the afore submissions and have gone through the various materials, including the judgments of this Court delivered in the past. 8. It is uncontested - in fact being admitted, that, in Ext.P14 judgment, a learned Judge of this Court was told and he has so recorded, that eight vacancies are still available in the University, after all others were reported to the KPSC. The learned Judge has further **WP(C) NO. 21169 OF 2019** **6** recorded that such vacancies arose consequent to the effecting of promotion to higher cadre; and specific directions were issued therein to the Government to take a decision on the regulation of the petitioners 'in any of the eight vacancies now available'. When such a conclusive direction had been given, one fails to gather how the Government could have issued Ext.P15 in the manner it has been so done, without adverting to this issue at all, but relying upon **Umadevi** _(supra)_ to say that no regularization is possible. Even going by this judgment of the Hon'ble Supreme Court, they are only illegal appointments which cannot be regularized, but the service of the petitioners which commenced through a valid process, is certainly not inhibited for such benefit, at least as a one time measure. 9. The Government appears to have lost its way under the impression that the University has reported all vacancies to the KPSC and therefore, that any further claim for regulation would open up a Pandora's box of such claims from other persons. 10. However, since the petitioners have obtained Ext.P14 judgment, it was incumbent upon the Government to have considered their regularization in one of the 8 vacancies available in the University, particularly when Ext.P10 order had been issued by them as early as in the year 2015, specifically permitting the University to do so provided there were vacancies. In the afore circumstances, I cannot find the reasons stated in **WP(C) NO. 21169 OF 2019** **7** Ext.P15 worthy of favour and I consequentially, order this writ petition and quash it; with a resultant direction to the competent Authority of the Government to reconsider the claims of the petitioners in the light of the afore observations, as also the various documents referred to by me, and after affording an opportunity of being heard to them, as also to the competent official of the University; thus culminating in an appropriate new order as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. **SD/-** **DEVAN RAMACHANDRAN JUDGE** rp **WP(C) NO. 21169 OF 2019** **8** ## **APPENDIX OF WP(C) 21169/2019** ## **PETITIONER EXHIBITS** |**EXHIBIT P2**|**TRUE COPY OF DISCHARGE CERTIFICATE ISSUED TO THE**| |---|---| ||**2ND PETITIONER DATED 13-09-2005**| |**EXHIBIT P2**|**TRUE COPY OF DISCHARGE CERTIFICATE ISSUED TO THE**| ||**2ND PETITIONER DATED 19-12-2005**| |**EXHIBIT P3**|**TRUE COPY OF DISCHARGE CERTIFICATE ISSUED TO THE**| ||**3RD PETITIONER DATED 14-03-2006**| |**EXHIBIT P4**|**TRUE COPY OF DISCHARGE CERTIFICATE ISSUED TO THE**| ||**4TH PETITIONER DATED 20-06-2008**| |**EXHIBIT P5**|**TRUE COPY OF REPRESENTATION DATED 22-07-2013**| ||**SUBMITTED BY THE PETITIOENRS BEFORE THE 3RD**| ||**RESPONDENT**| |**EXHIBIT P6**|**TRUE COPY OF THE NOTE SUBMITTED TO THE DEPUTY**| ||**REGISTRAR , ADMINISTRATION**| |**EXHIBIT P7**|**TRUE COPY OF THE LETTER DATED 11-02-2014 ISSUED**| ||**FROM THE 2ND RESPONDENT TO THE 1ST RESPONDENT**| |**EXHIBIT P8**|**TRUE COPY OF THE LETTER DATED 24-04-2014 FROM THE**| ||**1ST RESPONDENT TO THE 2ND RESPONDENT**| |**EXHIBIT P9**|**TRUE COPY OF THE REPLY DATED 02-06-2014 FROM THE**| ||**2ND RESPONDENT TO THE 1ST RESPONDENT**| |**EXHIBIT P10**|**TRUE COPY OF THE LETTER DATED 25-07-2015 ISSUED BY**| ||**THE 1ST RESPONDENT**| |**EXHIBIT P11**|**TRUE COPY OF JUDGMENT DATED 15-04-2016 IN WP(C) NO.**| ||**14363 OF 2016**| |**EXHIBIT P12**|**TRUE COPY OF MEMO DATED 22-08-2017 ISSUED TO THE**| ||**1ST PETITIONER.**| **9** ## **WP(C) NO. 21169 OF 2019** **EXHIBIT P13 TRUE COPY OF THE MINUTES OF THE MEETING OF THE SYNDICATE OF KERALA UNIVERSITY DATED 12-05-2017** **EXHIBIT P1 TRUE COPY OF DISCHARGE CERTIFICATE ISSUED TO THE 1ST PETITIONER DATED 02-04-2005 EXHIBIT P14 TRUE COPY OF JUDGMENT IN WP(C) NO. 37792 OF 2017 DATED 05-12-2018 EXHIBIT P15 TRUE COPY OF G.O(RT) NO. 620/2019/H.EDN DATED 2004-2019 ISSUED BY THE 1ST RESPONDEENT.** **RESPONDENT EXHIBITS EXHIBIT R1(A) TRUE COPY OF THE GOVERNMENT ORDER BEARING NO.GO(P).40/2011/SJD DATED 18.05.2013**