Rajeesh R. Nair and others v. State of Kerala and Kerala Tourism Development Corporation Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY, THE 17[TH] DAY OF JANUARY 2023 / 27TH POUSHA, 1944 WP(C) NO.24200 OF 2021** ## **- PETITIONERS :** 1 RAJEESH R. NAIR, AGED 44 YEARS S/O.RAVEENDRAN NAIR N, STORE ATTENDANT, KERALA TOURISM DEVELOPMENT CORPORATION, ENGINEERING ACCOUNTS WING, MASCOT SQUARE, P.B. NO.5424, THIRUVANANTHAPURAM-695 033, RESIDING AT 'USHAS', KADAMPATTUKONAM, KILIMANOOR P.O, THIRUVANANTHAPURAM-695 601. 2 BINDUKUMARI V.P, AGED 45 YEARS D/O.PRABHAKARAN NAIR, STORE ATTENDANT, KERALA TOURISM DEVELOPMENT, MASCOT HOTEL, THIRUVANANTHAPURAM-695 033, RESIDING AT SOPANAM, INDIRAJI NAGAR, CHEMPAZHANTHY P.O, THIRUVANANTHAPURAM-695 587 3 RAJALEKSHMI P, AGED 48 YEARS D/O.SURESH BABU K, STORE ATTENDANT, KERALA TOURISM DEVELOPMENT CORPORATION, ENGINEERING WING, MASCOT SQUARE, P.B. NO.5424, THIRUVANANTHAPURAM-695 033, RESIDING AT KRISHNA BHAVAN, LMS JUNCTION, ATTINGAL P.O, THIRUVANANTHAPURAM-695 101. 4 REENA A.S, AGED 38 YEARS D/O.APPUKUTTAN PILLAI, STORE ATTENDANT, KERALA TOURISM DEVELOPMENT CORPORATION, ACCOUNTS WING, MASCOT SQUARE, P.B.NO.5424, THIRUVANANTHAPURAM-695 033, RESIDING SOUDA MANDIRAM, KEEZHATTINGAL P.O, ATTINGAL, THIRUVANANTHAPURAM-695 306. 5 SINDHU C.B, AGED 45 YEARS D/O.BHASKARAN C.K, STORE ATTENDANT, KERALA TOURISM DEVELOPMENT CORPORATION, PEPPER GROVE, SULTHAN BATHERY, RESIDING AT CHAKKUMKUZHIYIL HOUSE, ATHIRATTUKUNNU P.O, KENICHERI (VIA) WAYANAD-673 596 BY ADV S.M.PRASANTH WP(C) NO.24200 OF 2021 -: 2 :- ## **- RESPONDENTS :** 1 THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF TOURISM, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695 001 2 THE KERALA TOURISM DEVELOPMENT CORPORATION LIMITED, (A GOVERNMENT OF KERALA UNDERTAKING), CORPORATE OFFICE, MASCOT SQUARE, P.B. NO.5424, THIRUVANANTHAPURAM-695 033, REPRESENTED BY ITS MANAGING DIRECTOR. 3 THE MANAGING DIRECTOR, KERALA TOURISM DEVELOPMENT CORPORATION LIMITED, (A GOVERNMENT OF KERALA UNDERTAKING), CORPORATE OFFICE, MASCOT SQUARE , P.B. NO.5424, THIRUVANANTHAPURAM-695 033. BY ADVS. SRI.JIBU T.S., GP THOUFEEK AHAMED P.A.AHAMMED THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.24200 OF 2021 -: 3 :- ## JUDGMENT ## Dated this the 17th day of January, 2023 This writ petition is filed seeking the following reliefs :- - “(i) To declare that the refusal to regularise the services of the petitioners with the KTDC is in violation of article 14, 16, 19 and 21 of the Constitution. - (ii) To call for the records leading upto Exhibit P6 and quash the same by issuing a writ of certiorari or any other appropriate writ, order or direction. - (iii) To issue a writ of mandamus or any other appropriate writ order or direction commanding the respondents to regularise the petitioners in the services of KTDC.” 2. Heard the learned counsel for the petitioners and the learned Government Pleader as well as the learned counsel appearing for the respondent Corporation. 3. It is submitted by the learned counsel for the petitioners that the petitioners have been continuing in service under the Kerala Tourism Development Corporation Limited (for short, 'the KTDC') from 2011 onwards. They were initially appointed as Accountants through Employment Exchange. Thereafter, they were accommodated in the post of Store Attendants by the KTDC and they were continuing as such. While so, requests were made by the employees who were working under the KTDC for long years for WP(C) NO.24200 OF 2021 -: 4 :- regularisation of their services. The request was rejected by the Government. The matter was taken up before this Court and by Ext.P2 judgment, this Court held that the rejection of the claim for regularisation, relying on the decision of the Apex Court in State of Karnataka v. Uma Devi [(2006) 4 SCC 1] was erroneous and that since the petitioners had been appointed after facing a proper selection procedure in sanctioned posts in the KTDC and since the regular method of appointment was also by direct selection by the KTDC, their appointments were not backdoor appointments and therefore, the decision of the Apex Court in Uma Devi's case would not apply. Consequently, the claim of the petitioners therein for regularisation of their service was directed to be considered. 4. The petitioners also approached this Court and obtained Ext.P1 judgment directing consideration of their claims as well, along with the petitioners in Ext.P2. It is submitted that the KTDC had forwarded the proposal for regularisation of all those persons, who were appointed after a due selection process and who had completed eight years of service in the KTDC. However, by Ext.P5 order dated 18.2.2021, the Government considered the proposal and directed regularisation only of such of the employees who had completed 10 years of regular service as on 31.1.2021. It is WP(C) NO.24200 OF 2021 -: 5 :- submitted by the learned counsel for the petitioners that the 1[st] and 3[rd] petitioners are only 7 days short, the 2[nd] and 4[th] petitioners are 8 days short and the 5[th] petitioner is only 9 days short of ten years of service and that if the proposal, as forwarded by the KTDC had been accepted, they would also have been regularised. It is further submitted that the petitioners are still continuing in service as Store Attendants and that there are several vacancies of Helpers available in the KTDC. It is submitted that even if the ten years period as stated in Ext.P5 is strictly adhered to, the petitioners' claim for regularisation can still be considered since the KTDC requires their services and since they were admittedly appointed after a due selection process in the year 2011. 4. The learned counsel for the petitioners also submits that even persons who had three years of contract service under the KTDC had been directed to be considered for regularisation by this Court by virtue of judgment dated 4.3.2015 in W.P.(C) No.23186/ 2014 and connected cases. 5. A counter affidavit has been placed on record by the Government defending Ext.P5 order and stating that all contract employees who had completed ten years of service on contract basis as on 31.1.2021 out of the list submitted by the KTDC were WP(C) NO.24200 OF 2021 -: 6 :- considered for regularisation. It is stated that even though the petitioners lacked only a few days to complete the specified ten years of contract service as on 31.1.2021, they are not eligible for regularisation as per the criteria fixed by the Government. It is, therefore, contended that there was nothing irregular about the decision taken by the Government. 6. Respondents 2 and 3 have also placed a counter affidavit on record. It is stated therein that the only reason why the claim of the petitioners for regularisation was rejected was due to the fact that they did not complete ten years of contract service. It is contended that they met all the other requirements for regularisation and that their names were also included in the proposal sent up by the KTDC for regularisation. 7. An additional affidavit has also been placed on record by the KTDC dated 7.10.2022, wherein, it is stated that the total number of sanctioned post of helpers in KTDC is 144 and that the method of appointment of helpers is governed by the Recruitment (Qualification and Method of Appointment) Regulations of Kerala Tourism Development Corporation Limited, 2014 and that the regular method of appointment is by direct recruitment by the KTDC from a list of candidates obtained from the Employment WP(C) NO.24200 OF 2021 -: 7 :- Exchange. The qualification prescribed therein is literacy in Malayalam, Tamil and Kannada. 8. It is submitted by the learned counsel for the petitioners that the petitioners had been appointed through the Employment Exchange pursuant to the selection conducted by the KTDC and that they have the qualification prescribed for the post of helper as well. 9. In the above factual situation, I am of the opinion that the interest of justice will be served by issuing a direction to the 1[st] respondent to consider the claim of the petitioners for regularisation in view of the fact that they have now completed 10 years of service as also in view of the fact that they were appointed pursuant to a due selection process. Admittedly, the only reason why the petitioners' claim for regularisation was not considered was because of they have not completed ten years of service as on 31.1.2021. 10. In the facts and circumstances of the instant case and in view of the fact that the petitioners are still continuing in service in the KTDC and since there is an affidavit on record stating that there are vacancies in the post of helpers available and since the petitioners were only a few days short of having ten years of service WP(C) NO.24200 OF 2021 -: 8 :- under the KTDC as on 31.1.2021, I am of the opinion that they are entitled to a reconsideration of the issue. There will, accordingly, be a direction to the 1[st] respondent to take up the claim of the petitioners for regularisation of their appointment in view of the fact that they have completed ten years of service. Appropriate orders shall be passed within a period of three months from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly. Sd/ANU SIVARAMAN JUDGE Jvt/28.1.2023 WP(C) NO.24200 OF 2021 -: 9 :- ## **APPENDIX OF WP(C) 24200/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE JUDGMENT DATED 04.02.2021 IN W.P.C NO. 2452 OF 2020 OF THIS HON'BLE COURT. Exhibit P2 TRUE COPY OF THE JUDGMENT DATED 03.09.2019 OF THIS HON'BLE COURT IN W.P.C NO. 30260 OF 2016 AND CONNECTED CASES. Exhibit P3 TRUE COPY OF THE RESOLUTION OF THE BOARD OF DIRECTORS OF THE KTDC DATED 18.09.2020. - Exhibit P4 TRUE COPY OF THE LETTER DATED 6.11.2020 WITH RELEVANT PAGES OF THE LIST OF EMPLOYEES. - Exhibit P5 TRUE COPY OF THE ORDER IN G.O(MS) NO. 3/2021/TOURISM DATED 18.2.2021. - Exhibit P6 TRUE COPY OF THE COMMUNICATION ISSUED TO THE 2ND PETITIONER BEARING NO. TOUR -B1/34/2020/TOUR DATED 18.02.2021. - Exhibit P7 TRUE COPY OF THE RELEVANT PAGES OF THE RECRUITMENT RULES ALONG WITH THE G.O.(MS) NO.311/2014/TSM DATED 11/11/2014. RESPONDENT EXHIBITS Exhibit R2(a) TRUE COPY OF LETTER NO TOUR-B 1/52/2020/TOUR DATED 3.2.2021 FOM THE GOVERNMENT TO THE 3RD RESPONDENT Exhibit R2(B) TRUE COPY OF ORDER NO KTDC/PA(6)/AQC/20111 DATED 2.2.2011 OF THE 3RD RESOPNDENT Exhibit R2(C) TRUE COPY OF LETTER NO KTDC/PA(2)/REGULATIONS2/2021 DATED 20.3.2021 FROM THE 3RD RESPONDENT TO THE1ST RESPONDENT Exhibit R2(d) TRUE COPY OF ORDER NO.KTDC/PA4/PR2014/2021 DATED WP(C) NO.24200 OF 2021 -: 10 :- **==> picture [80 x 10] intentionally omitted <==** Exhibit R2(e) TRUE COPY OF THE RELEVANT PORTION OF THE RECRUITMENT (QUALIFICATION & METHOD OF APPOINTMENT) REGULATIONS OF KERALA TOURISM DEVELOPMENT CORPORATION LIMITED - 2014.