High Court of KeralaSingle Judge2017-05-22Writ petitions disposed of. Pre-2013 appointmen...

RadhaKrishnan C.K. v. State of Kerala and others

Case / Petition Number:WP(C).Nos.14246, 29324 & 31704/2009, 24930, 31013 & 31331/2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Muhamed Mustaque
Judgment Date: 2017-05-22
Court Decision / Holding: The court sustains the challenge to the impugned Government Orders directing regularisation, holding that regularisation is not a valid recruitment method and would violate equal opportunity; however, appointments made before 2013 shall be treated as valid and the Bank is directed to regularise them under the existing arrangement. No further appointments should be made under the impugned Government Orders.
Final Disposition: Writ petitions disposed of. Pre-2013 appointments in Kasaragod District Cooperative Bank treated as valid and to be regularised; Government Orders directing further regularisation not to be implemented; Bank need not make further appointments under those orders.

Parties to the Case

Appellants / Petitioners

RadhaKrishnan C.K.

Respondents

State of Kerala represented by the Secretary, Social Welfare (A) Department, Thiruvananthapuram
State of Kerala represented by the Secretary, Co-operative Department, Thiruvananthapuram
The Joint Registrar of Co-operative Societies, Kasaragod
The Kasaragod District Co-operative Bank Ltd., represented by the General Manager, Kasaragod

Legal Representation & Advocates

Counsels for Petitioners

• Sri. T. Sethumadhavan
• Sri. K. Jayesh Mohankumar
• Sri. Pushparajan Kodoth
• Smt. Vandana Menon

Counsels for Respondents

• Sri Mohammed Hashim (Special Govt. Pleader for Rs1-R3)
• Sri M. Sasindran
• Sri George Poonthottam

Case Synopsis & Summary

This judgment deals with the legality of Government Orders directing the regularization of temporary employees with disabilities employed through Employment Exchanges in Kasaragod District Co-operative Bank. The petitioner, RadhaKrishnan C.K., challenges the Regularisation/Regular appointment orders issued by the Government on 30.11.2007, 14.07.2009 and later guidance dating up to 2013, arguing that regularisation is not a lawful mode of recruitment and that Schedule I of the Co-operative Societies Act requires appointments in those banks to be made through the Kerala Public Service Commission under Section 80(3A). The Court notes that the Bank raised the challenge only in 2013 and that appointments made prior to that challenge should not be disturbed. It emphasizes that the statutory provision (Section 80(3A) and related Rules) aims at a transparent public employment procedure and equality of opportunity (Articles 14 and 16 of the Constitution), and that the Government Orders would violate these principles by creating a class-based preference for disabled candidates by virtue of past sponsorship. The court relies on the principle from Umadevi to hold that regularisation as a recruitment pathway is contrary to constitutional goals. Consequently, the petitions are disposed of with a directive that pre-2013 appointments be treated as valid but no further regularisations under the impugned orders are mandated.

Provisions of Law Cited

Co-operative Societies Act, Schedule ICo-operative Societies Act, Section 80(3A)Constitution of India, Articles 14, 16Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995

Legal Doctrines & Maxims

Equality of opportunity is the hallmark of employment in such welfare structures, flowing from Article 16 of the Constitution.
Regularisation is not a valid mode of recruitment; Government orders directing regularisation undermine transparent recruitment and equal opportunity.
Umadevi (Secretary) principle: regularisation cannot substitute for proper recruitment and cannot create a protected class based on past sponsorship.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that Government Orders directing regularisation of disabled, temporary employees procured through Employment Exchange are not permissible under the Co-operative Societies Act and violate the principles of equality of opportunity enshrined in Articles 14 and 16. Regularisation cannot substitute for a transparent recruitment process, and extending benefits only to a class of disabled employees undermines the merit-based, PSC-led appointment framework.

Contentions of Respondents

The Government and the Bank contend that the circulars/orders aim to regularise deserving employees who served for limited periods, and fall within a policy of providing opportunities to persons with disabilities, consistent with statutory directives and constitutional guarantees.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Secretary, State of Karnataka and others v. Umadevi (3) and others	2006 (4) SCC 1	Positive	The court relies on Umadevi to emphasize that regularisation cannot be used as a recruitment method and that equal opportunity requires rule-based, transparent selection processes.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **MONDAY, THE 22ND DAY OF MAY 2017/1ST JYAISHTA, 1939** **WP(C).No. 14246 of 2009 (A) ---------------------------** **PETITIONER:** **-----------** **RADHAKRISHNAN C.K., S/O.KUNHIKANNAN, AGED 30 YEARS, KAINTHAR HOUSE, KALANAD VILLAGE, P.O.PARAVANADUKKAM, KASARAGOD - 671 317.** **BY ADVS.SRI.T.SETHUMADHAVAN SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH SMT.VANDANA MENON** **RESPONDENTS:** - **------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, SOCIAL WELFARE (A) DEPARTMENT, THIRUVANANTHAPURAM.** **2. STATE OF KERALA, REPRESENTED BY THE SECRETARY, CO-OPERATIVE DEPARTMENT, THIRUVANANTHAPURAM.** **3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, KASARAGOD.** **4. THE KASARAGOD DISTRICT CO-OPERATIVE BANK LTD., REPRESENTED BY THE GENERAL MANAGER, BANK ROAD, KASARAGOD 671 121.** - **R1 TO R3 BY SPECIAL GOVT. PLEADER SRI.MOHAMMED HASHIM R4 BY SRI.M.SASINDRAN, SC BY ADV. SRI.GEORGE POONTHOTTAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-04-2017 ALONG WITH WPC.29324/2009 & CONNECTED CASES, THE COURT ON 22-05-2017 DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 14246 of 2009 (A) ---------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT. P1 : TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED BY THE MEDICAL BOARD DATED 24.9.1997.** **EXT. P2 : TRUE COPY OF THE DISCHARGE CERTIFICATE DATED 1.7.1999 ISSUED BY THE 4TH RESPONDENT BANK.** **EXT. P3 : TRUE COPY OF THE GAZETTE NOTIFICATION ISSUED BY THE 1ST RESPONDENT DATED 3.12.2007.** **EXT. P4 : TRUE COPY OF THE CIRCULAR ISSUED BY THE 1ST RESPONDENT DATED 21.5.2008.** - **EXT. P4A : TRUE COPY OF THE RELEVANT PORTION OF THE LIST PUBLISHED BY THE 1ST RESPONDENT.** **EXT. P5 : TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE CHAIRMAN, DISTRICT LEGAL SERVICE AUTHORITY, KASARAGOD, DATED 30.9.2009.** - **EXT. P6 : TRUE COPY OF THE PROCEEDINGS DATED 8.11.2008 OF THE DISTRICT LEGAL SERVICE AUTHORITY, KASARAGOD.** **EXT. P7 : TRUE COPY OF THE ORDER REAPPOINT THE PETITIONER AS PEON IN THE BANK DATED 25.1.2010.** **EXT. P8 : TRUE COPY OF THE PROCEEDINGS DATED 6.6.2011 DECLARING THE PROBATION OF THE PETITIONER AND REGULARIZING HIS SERVICE.** ## **RESPONDENTS' EXHIBITS:** **EXT.R4A : A TRUE COPY OF THE GOVERNMENT ORDER DATED 14.7.2009. EXT.R4B : A TRUE COPY OF THE COMMUNICATION DATED 3.12.2008.** **//TRUE COPY//** **P.S. TO JUDGE** **mbr/** ## **A. Muhamed Mustaque, J.** ==================================== W.P.(C)Nos.14246, 29324 & 31704/2009, 24930, 31013 & 31331/2013 ==================================== Dated this the 22[nd] day of May, 2017. ## **JUDGMENT** 1. Kasargode District Co-operative Bank is included in Schedule I of the Co-operative Societies Act, hereinafter referred to as the “Act”. for short. Under Section 80(3A) of the Act, inserted in the year 1995, recruitment of conditional service of officers and servants of the Society included in Schedule I shall be resorted to through the Kerala Public Service Commission. 2. In all these writ petitions, a question is revolved around on the validity of the Government Order to regularize the service of persons with disability who were appointed in the Bank temporarily through Employment Exchange for a period of 179 days. Government, in fact, passed different orders directing the Bank to regularize W.P.(C)Nos.14246, 29324 & 31704/2009, 24930, 31013 & 31331/2013 -:2:- temporary employees, who are having disability. First of such order is to regularize such employees, who had worked during 15.8.1998 to 15.8.1999. This order was issued on 30.11.2007. This was followed by another order dt.14.7.2009. Government also issued yet another order dt.7.8.2013 to regularize temporary employees having disability, who were appointed during 16.8.1999 to 31.12.2003. The Bank filed two writ petitions in the matter in the year 2013. The other writ petitions were filed by the candidates, alleging noncompliance of the Government Order. The earliest writ petition was filed in the year 1999 by three employees. In the writ petitions filed by the employees, a common order was passed by this court on ## 22.12.2009. It reads as follows: _“In all these three writ petitions, handicapped persons who were earlier working in the Kasaragode District Co-operative Bank and were retrenched later seek the benefits of Government Circulars directing Cooperative Societies to accommodate such persons in future vacancies. Originally the Society took the stand that there are no vacancies to which the petitioners_ W.P.(C)Nos.14246, 29324 & 31704/2009, 24930, 31013 & 31331/2013 -:3:- _can be accommodated. Now the Joint Registrar has filed affidavit to the effect that there are six newly sanctioned vacancies of Peons in the Bank in which the petitioners can be accommodated._ _In the above circumstances, I direct the Bank to appoint these writ petitioners to those sanctioned posts provisionally, subject to the result of the writ petitions, within a period of two weeks from today.”_ 3. Pursuant to the above order, the petitioners, who approached this Court, were appointed. It is submitted that their probation has been declared and service regularized. 4. The question arises for consideration in these writ petitions is as to the legality of the Government Order. Before adverting to the scope of the Government Order, it may be appropriate to refer to the challenge made by the Bank. The Bank made the challenge only in the year 2013. The Bank has not questioned the Government Order, which was issued in the years 2007 and 2009, within a reasonable time. The Bank also did not challenge the interim orders passed by this Court. In that scenario, this court is of the view that W.P.(C)Nos.14246, 29324 & 31704/2009, 24930, 31013 & 31331/2013 -:4:- appointments already made prior to a challenge need not be interfered with. 5. Then question would arise whether Bank is bound to implement the Government Order to regularize the appointment of temporary employees after the challenge laid by the Bank. This court is of the view that the issue can be answered even without adverting to the power of the Government. The Government appears to have ignored the mandate of the statutory provision under Section 80(3A) and the Rules made thereunder. By virtue of the statutory provision, legislature intended to have a transparent procedure for appointment in the Banks referred to in the Schedule _._ This is in essence giving implementation of goal of Article 14 of the Constitution whereby, equal opportunity is ensured to such candidates, who form as a homogeneous class by virtue of their ability or disability. The legislature intended to have procedure akin to public employment in the Scheduled Bank under the Act. Equality of opportunity is the W.P.(C)Nos.14246, 29324 & 31704/2009, 24930, 31013 & 31331/2013 -:5:- hallmark in such employment and that right is flowed from Article 16 of the Constitution. In fact, there is no classification of the employees, based on the nature of disability, as referable under the Persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Few among the class, identified as disabled, cannot march over the other eligible disabled candidates, merely by virtue of the appointment by anterior time. 6. Regularisation is not the mode of recruitment. Therefore, the State cannot resort to regularize the appointment of candidate, who by mere chance of his turn, happened to be sponsored by the Employment Exchange. It is to be noted that benefits of the Government Order will be available only to such candidates who had worked in a particular period. This court cannot ignore the principles laid down by the Honourable Apex Court in _**Secretary, State of Karnataka and others v. Umadevi (3) and others**_ [2006 (4) SCC 1] and the other binding judgments. The nature of direction in the W.P.(C)Nos.14246, 29324 & 31704/2009, 24930, 31013 & 31331/2013 -:6:- Government Order is antithesis to the constitutional goal of equal opportunity. If Government Order is implemented, other eligible candidates, having disability, will be deprived of the opportunity to obtain employment. Therefore, leaving open the question as to the exercise of executive power, the writ petitions are disposed of as follows: The appointments made in the Kasaragode District Cooperative Bank, prior to 2013 shall be treated as valid and the Bank is directed to treat those employees as regularized employees under them. Challenge made by the Bank as against the impugned orders is sustained, without upsetting the appointments made prior to the year 2013. The Bank need not make further appointment based on the impugned Government Order. **A.Muhamed Mustaque, Judge.** sl.