High Court of KeralaDivision Bench2020-01-09Original Petition dismissed; costs awarded to r...

Razeena K.H. v. State of Kerala and others

Case / Petition Number:OP(KAT).176/2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
V. G. Arun
Judgment Date: 2020-01-09
Court Decision / Holding: We, hence reject the Original Petition leaving the parties to suffer their respective costs.
Final Disposition: Original Petition dismissed; costs awarded to respondents (petitioner to bear own costs).

Parties to the Case

Appellants / Petitioners

Razeena K.H.

Respondents

State of Kerala, represented by its Secretary to Government, Personnel and Administration Department
Deputy Director of Nursing Services
Secretary to Govt. Health and Family Welfare (C) Department
Secretary to Govt., Health and Family Welfare (S) Department
Director of Medical Education
Director of Health Department
Principal, School of Nursing, Government Medical College, HMT Colony, Kalamassery
Anitha Thomas
Uma S. Menon

Legal Representation & Advocates

Counsels for Petitioners

• K.R. Sajith
• S. Ananthakrishnan
• N.K. Subramanian

Counsels for Respondents

Case Synopsis & Summary

The petition, OP(KAT).176/2019, arises from Razeena K.H., a nursing tutor on contract with CAPE, who seeks continuance in the Nursing College after government take-over and regularisation. The matter mirrors earlier litigation on regularisation of contract employees, notably OP(KAT).348/2018 (Don Jose K. v. State of Kerala), where the Division Bench held that contract employees do not acquire a right to continued service or regularisation merely due to take-over. The judgment reiterates the Supreme Court’s Umadevi principle from Secretary, State of Karnataka v. Umadevi that Article 226 powers cannot be wielded to undermine social justice and the constitutional framework of public employment. Petitioner contends that a Government-constituted committee and annexures recommended absorption/continuation pending absorption decisions, and that post-takeover actions should reflect those recommendations. Respondents counter that the committee could not, by its nature, recommend regularisation; postings must be created through public recruitment and qualified hands must be appointed to posts. The court agrees with the Division Bench in denying regularisation for those without necessary qualifications and emphasizes transparency and merit in filling posts. Ultimately, the petition is dismissed, following Umadevi and Don Jose K. precedent, with costs.

Provisions of Law Cited

Constitution of India, Article 226

Legal Doctrines & Maxims

Social justice
Equal opportunity for all
Constitutional scheme of public employment
Umadevi principle: Article 226 powers cannot be used to defeat social justice

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that on take-over by the Government, contract nursing tutors should be continuated in the nursing college and regularised, as a matter of substantive justice, arguing that a Government-formed committee recommended absorption of contract employees (Annexures A22–A23) and that salaries/service concerns were to be studied by a Special Committee. They assert that delay in absorption is unjust and that regularisation is warranted where qualifications are met, consistent with prior decisions allowing absorption.

Contentions of Respondents

The respondents deny any recommendation for regularisation by the Committee and emphasise that regularisation cannot override necessary qualifications. They argue that appointments must be made for posts created post-takeover through transparent recruitment from the general public and that contract employees lacking essential qualifications cannot be regularised. They rely on Umadevi to caution against using Article 226 to bypass merit-based recruitment and the established posts that require qualifications.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Don Jose K. v. State of Kerala	OP(KAT).348/2018	Positive	The Division Bench decision in OP(KAT).348/2018 is cited as binding precedent on the issue of contract employees not having a right to continuance or regularisation post-takeover; the current court aligns with its conclusions.
Secretary, State of Karnataka v. Umadevi	2006 (4) SCC 1	Positive	Umadevi is cited for the caution that Article 226 powers cannot be used to defeat social justice and the constitutional scheme of public employment; the current judgment follows the Umadevi principle in denying regularisation to non-qualifying contract employees.

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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 K.VINOD CHANDRAN** **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 09TH DAY OF JANUARY 2020 / 19TH POUSHA, 1941** ## **OP(KAT).No.176 OF 2019** ## **OA 370/2018 DATED 02-04-2019 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER** **RAZEENA K.H., AGED 32 YEARS W/O.FIRDOUSE, NURSING TUTOR, GOVT. SCHOOL OF NURSING, GOVERNMENT MEDICAL COLLEGE, HMT COLONY, KALAMASSERY, PIN - 683 503, RESIDING AT WEST ANIKKATTU HOUSE, KUTTAMASSERY, ALUVA, PIN - 683 105. (MOB.NO.9656254022).** **BY ADVS. SRI.K.R.SAJITH SRI.S.ANANTHAKRISHNAN SRI.N.K.SUBRAMANIAN 1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, PERSONNEL AND ADMINISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001. 2 THE DEPUTY DIRECTOR OF NUSING SERVICES, VANCHIYOOR P.O., THIRUVANANTHAPURAM, PIN - 695 035. 3 THE SECRETARY TO GOVT.HEALTH AND FAMILY WELFARE (C) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001. 4 THE SECRETARY TO GOVT., HEALTH AND FAMILY WELFARE (S) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001. 5 THE DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM, MEDICAL COLLEGE P.O., PIN - 695** ## **RESPONDENTS** OP(KAT).176/2019 2 ## **011.** - **6 THE DIRECTOR OF HEALTH DEPARTMENT, THIRUVANANTHAPURAM, VANCHIYOOR P.O., PIN - 695 035.** - **7 THE PRINCIPAL, SCHOOL OF NURSING, GOVERNMENT MEDICAL COLLEGE, HMT COLONY, KALAMASSERY, PIN - 683 503.** - **8 ANITHA THOMAS,** - **W/O.FIJO JOSEPH, AGED 34 YEARS, NURSING TUTOR, GOVT. SCHOOL OF NURSING, GOVERNMENT MEDICAL COLLEGE, HMT COLONY, KALAMASSERY, PIN - 683 503, RESIDING AT MUKALEL HOUSE, PUTHUSSERY MUGHAL, VADAKODE P.O., KANGARAPPADY, PIN - 682 021. (8547275108).** - **9 UMA S.MENON,** - **W/O.SAJIN P.RAVI, AGED 33 YEARS, NURSING TUTOR, GOVT. SCHOOL OF NURSING, GOVERNMENT MEDICAL COLLEGE,HMT COLONY, KALAMASSERY, PIN - 683 503, RESIDING AT SREERANGAM HOUSE, AQUEDUCT ROAD, VADACODE P.O., KANGARAPPADY, PIN - 682 021. (9961148140).** ## **OTHER PRESENT:** ## **SR.GP SRI.ANTONY MUKKATH** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 09-01-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(KAT).176/2019 3 ## **JUDGMENT** ## **Dated : 9th January 2020** ## **K.Vinod Chandran, J.** 1.A Nursing Tutor who was appointed on contract basis in the Nursing School under the Co-operative Academy for Professional Education (CAPE) is before us seeking continuance in the Nursing College after the take over by the Government and also regularisation. The very same issue with respect to regularisation of contract employees who were appointed by the Society and their continuance after take over by the Government, was considered by a Division Bench in OP(KAT).348/2018 ( **Don Jose K. v. State of Kerala)** by decision dated 27.9.2018. 2.The Division Bench found that the contract employees have no right to be continued or regularised especially noticing the binding precedent of the Hon'ble Supreme Court in **Secretary, State of Karnataka v. Umadevi (2006 (4)** OP(KAT).176/2019 4 **SCC 1).** We need only extract paragraph 4 of the aforesaid judgment which is as below : “In the context of the contentions, it is only appropriate to refer to the decision of the Hon'ble Apex Court in Umadevi (3). It is only befitting to bear in mind the caution sounded by the Apex Court that wide powers under Article 226 are not intended to be issued for issuance of directions to defeat the concept of social justice, equal opportunity for all and the constitutional scheme of public employment.” 3.We respectfully agree with the succinct findings of the Division Bench. The learned counsel appearing for the petitioner, however, would urge that there are certain facts which were not considered by the Division Bench and that the said facts would place the whole issue in a totally different perspective. OP(KAT).176/2019 5 4. It is the submission of the learned counsel for the petitioner that there was a Committee constituted at the time of take over and the report of the Committee, produced in Annexure-A23, specifically states that the persons, who are continued on contract basis too have the required qualifications. It is also recommended that they should be continued. The Special Officer appointed at the time of take over had also by Annexure-A22 recommended continuance of the contract/daily wage employees till a decision is taken by the Government on the absorption of staff in Government service. It is the compelling submission of the learned counsel that the Committee had in fact recommended such absorption on which recommendation the Government has not taken a decision till now. It is also pointed out from the reply statement dated 7.2.2019 filed before the Tribunal, that a Special Committee is constituted to study and submit a report regarding the salary and service OP(KAT).176/2019 6 related matters of employees in Colleges of Nursing and School of Nursing. The employees were allowed to be retained in the same post till the Special Committee submits the report. It is the submission of the learned counsel that Special Committee had submitted a report recommending absorption of the contract employees. 5. The learned senior Government Pleader, Sri.Antony Mukkath, specifically refutes the contention that there was any recommendation made by the Special Committee. It is pointed out that the Committee, by virtue of the nature of its constitution, could not have made any recommendation for regularisation as it was specifically constituted only to study and submit a report regarding the salary and service related matters of employees in the College of Nursing & School of Nursing. There was no scope for the Committee to recommend regularisation of the contract employees. Further it is submitted that as per the recommendation of the Committee, OP(KAT).176/2019 7 appointments are to be made on the basis of the post creation of Assistant Professors. 21 posts of Assistant Professors are said to have been created for School of Nursing out of which 9 were filled up by the existing regular employees of the Society. As far as the Assistant Professors are concerned, the essential qualification required is Post Graduation and many of the contract employees only have Graduation. That is the case with the petitioner also. - 6.The contention of the learned counsel for the petitioner is also on the ground that the Principal has rejected a representation filed by the contract employees which was challenged before the Kerala Administrative Tribunal. In fact the rejection of the representation by the Principal was also on a direction issued by the KAT as sought for by the contract employees. The Principal's decision cannot regulate the Government's decision on regularisation, is the submission. It is also OP(KAT).176/2019 8 argued that, till now the Government has not decided on the regularisation as well. 7. We are unable to accept the contention of the petitioner that the Government's decision is awaited since it is the Governments consistent stand that appointments are to be made to the newly created posts, of qualified hands after calling for applications from the general public. Even otherwise, we are of the opinion that the Government cannot attempt regularisation especially of persons who do not have necessary qualifications. Going by the binding precedent in **Umadevi** (supra) as has been held by another Division Bench in OP(KAT).348/2018, the status of the contract employees do not change on the take over by the Government. They do not acquire any better right for continuance merely by reason of the take over having been made by the Government. Upon the Government, there lies a more onerous responsibility to appoint qualified hands to the OP(KAT).176/2019 9 existing and newly created posts from the public, ensuring transparency and equal participation of one and all qualified to apply. We see from Annexure-A23 that the Committee is one appointed to look into the service conditions of the employees of the School of Nursing and Colleges of Nursing. As rightly pointed out by the learned Senior Government Pleader, there could be no regularisation recommended by such a Committee. In such circumstances, we do not think that there is any ground for taking a different view from that taken by the Division Bench in the cited decision. We, hence reject the Original Petition leaving the parties to suffer their respective costs. Sd/- ## **K.VINOD CHANDRAN, Judge** Sd/- ## **V.G.ARUN, Judge** Mrcs/10.1. OP(KAT).176/2019 10 ## **APPENDIX** **EXHIBITS:** - **EXHIBIT P1** **TRUE COPY OF THE ORIGINAL APPLICATION NAMELY O.A.(EKM) 370 OF 2018.** - **EXHIBIT P1-A1 TRUE COPY OF THE APPOINTMENT LETTER NO.E28623/2008/CMC/5494 DATED 28/07/2010 OF THE MEDICAL DIRECTOR OF CO-OPERATIVE MEDICAL COLLEGE, KALAMASSERY.** - **EXHIBIT P1-A2 A TRUE COPY OF THE REPRESENTATION DATED 03/11/2012 OF THE 1ST APPLICANT SUBMITTED BEFORE THE MANAGEMENT OF CO-OPERATIVE MEDICAL COLLEGE, KALAMASSERY.** - **EXHIBIT P1-A3 REPRESENTATION DATED 23/12/2013 SUBMITTED BY THE 1ST APPLICANT BEFORE THE 4TH AND 5TH RESPONDENTS.** - **EXHIBIT P1-A4 TRUE COPY OF THE REPRESENTATION DATED 01/01/2014 FILED BY THE 1ST APPLICANT BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P1-A5 TRUE COPY OF THE LETTER NO.503/ADV.C1/2014/P&ARD DATED 09/01/2014 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P1-A6 TRUE COPY OF THE GOVT. ORDER NO.G.O.(RT) NO.124/2014/HFW DATED 22/04/2014.** - **EXHIBIT P1-A7 TRUE COPY OF GOVT. ORDER NO.G.O.(MS) NO.1365/2015/HFW DATED 08/05/15.** - **EXHIBIT P1-A8 TRUE COPY OF GOVT. ORDER NO.G.O.(MS) 3060/2015/HFW DATED 19/09/2015.** - **EXHIBIT P1-A9 TRUE COPY OF LETTER NO.MC.3/41633/2014/DHS DATED 16/11/2015 OF THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM.** - **EXHIBIT P1-A10 TRUE COPY OF GOVT. ORDER G.O.(MS) NO.36/2017/HFW DATED 15/03/2017.** - **EXHIBIT P1-A11 TRUE COPY OF REPRESENTATION DATED 04/04/2017 FILED BY THE 1ST APPLICANT BEFORE THE 5TH RESPONDENT.** - **EXHIBIT P1-A12 TRUE COPY OF REPRESENTATION DATED 04/04/2017 FILED BY THE 2ND APPLICANT BEFORE THE 5TH RESPONDENT.** OP(KAT).176/2019 11 - **EXHIBIT P1-A13 TRUE COPY OF REPRESENTATION DATED 04/04/2017 FILED BY THE 3RD APPLICANT BEFORE THE 5TH RESPONDENT.** - **EXHIBIT P1-A14** - **TRUE COPY OF THE COVERING LETTER DATED 17/04/2017 RECEIVED BY THE 1ST APPLICANT FROM THE 8TH RESPONDENT.** - **EXHIBIT P1-A15 TRUE COPY OF THE ORDER NO.O.A.NO.1378/2017 DATED 12/07/2017 AND 11/08/2017 OF THE HON'BLE TRIBUNAL.** - **EXHIBIT P1-A16 TRUE COPY OF THE STATEMENT LETTER NO.G1/28888/207/DME DATED 05/12/2017 OF THE DIRECTOR OF MEDICAL EDUCATION.** **EXHIBIT P1-A17 TRUE COPY OF THE STATEMENT DATED FILED BY 1ST APPLICANT BEFORE THE 5TH RESPONDENT.** - **EXHIBIT P1-A18 TRUE COPY OF THE STATEMENT DATED FILED BY 2ND APPLICANT BEFORE THE 5TH RESPONDENT.** - **EXHIBIT P1-A19 TRUE COPY OF THE STATEMENT DATED FILED BY 3RD APPLICANT BEFORE THE 5TH RESPONDENT.** - **EXHIBIT P1-A20 TRUE COPY OF THE STATEMENT ORDER NO.G1/28888/2017/DME DATED 29/01/2018 OF THE DIRECTOR OF MEDICAL EDUCATION.** - **EXHIBIT P1-A21 MISCELLANEOUS APPLICATION DATED 8/2/2018 FILED UNDER RULE 4(4)(A) OF THE RULES FOR PERMISSION TO JOIN THE APPLICANTS TOGETHER AND TO FILE SINGLE APPLICATION.** - **EXHIBIT P2 TRUE COPY OF THE M.A.(EKM) 2015/2018.** - **EXHIBIT P2-A22 TRUE COPY OF THE GOVT. ORDER NO.E.3/084/2012/CMC/2939 DATED 24/05/2014.** - **EXHIBIT P2- A23 TRUE COPY OF THE REPORT SUBMITTED BY THE COMMITTEE FORMED BY THE GOVERNMENT AS PER ORDER NO.3060/2015 HEALTH & FAMILY WELFARE DEPARTMENT DATED 19/09/2015. OBTAINED UNDER THE RTI ACT BY LETTER NUMBER 193/C2/2018/HFW DATED 24/04/2018.** - **EXHIBIT P2-A24 TRUE COPY OF THE FILE NO.42/2/2018/HFW HAVING 86 PAGES RELATES TO THE CREATION OF NINE POSTS OF NURSING TUTORS BY GOVT. ORDER ANNEXURE A-10, RECEIVED UNDER RTI ACT BY THE 1ST APPLICANT BY LETTER** OP(KAT).176/2019 12 **NO.42/C2/2018/HFW DATED 6/3/2018.** - **EXHIBIT P2-A25 TRUE COPY OF THE REPRESENTATION DATED 03/11/2012 FILED BY THE 3RD APPLICANT BEFORE THE CAPE.** - **EXHIBIT P3 TRUE COPY OF M.A.(EKM) NO.2481 OF 2018.** - **EXHIBIT P3-A26 TRUE COPY OF INTERIM ORDER DATED 9/2/2018 PASSED BY THIS HON'BLE TRIBUNAL AND COVERING LETTER ADDRESSED TO 7TH RESPONDENT.** - **EXHIBIT P3-A27 TRUE COPY OF ORDER NO.E/823/2018/GCNE DATED 01/12/2018 OF TERMINATION OF SERVICE OF THE APPLICANTS/PETITIONERS.** - **EXHIBIT P4 TRUE COPY OF M.A.(EKM) NO.2521 OF 2018 FILED IN O.A.(EKM) 370 OF 2018.** - **EXHIBIT P4-A28 TRUE COPY OF LETTER DATED 5/12/2018 FILED BY THE 1ST APPLICANT BEFORE THE PRINCIPAL.** - **EXHIBIT P4-A29 TRUE COPY OF LETTER DATED 5/12/2018 FILED BY THE 2ND APPLICANT BEFORE THE PRINCIPAL.** - **EXHIBIT P4-A30 TRUE COPY OF LETTER DATED 5/12/2018 FILED BY THE 3RD APPLICANT BEFORE THE PRINCIPAL.** - **EXHIBIT P4-A31 TRUE COPY OF LETTER DATED 5/12/2018 SEND BY THE ADVOCATE TO THE 5TH RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF M.A.(EKM) NO.370 DATED 23/02/2019.** - **EXHIBIT P5-A32 TRUE COPY OF SUBJECT ALLOTMENT AND DUTY CHART OF FACULTY IN THE GOVT. NURSING COLLEGE ISSUED BY THE PRINCIPLE GOVT OF NURSING.** - **EXHIBIT P5-A33 TRUE COPY OF MINUTES OF HIGH LEVER COMMITTEE MEETING HELD ON 6/8/2014 UNDER THE CHAIRMANSHIP OF THE HON'BLE MINISTER, FOR CO-OPERATION.** - **EXHIBIT P5-A34 TRUE COPY OF THE LETTER NO.E5-178/2015/GMCE DATED 9/9/2015 ADDRESSED TO THE GOVT. ALONG WITH REPORT OF THE PRINCIPAL GOVT.SCHOOL OF NURSING.** - **EXHIBIT P5-A35 TRUE COPY OF THE GOVT. ORDER NO.GO(RT) NO.71/2016/HFW DATED 04/03/2016.** OP(KAT).176/2019 13 **EXHIBIT P5-A36 TRUE COPY OF THE ORDER NO.GO(MS) NO.181/2016/H&FWD DATED 7/9/2016. EXHIBIT P5-A37 TRUE COPY OF THE REPLY DATED 11/1/2019 FROM THE HEALTH AND FAMILY WELFARE DEPARTMENT, THIRUVANANTHAPURAM WITH APPLICATION. EXHIBIT P6 TRUE COPY OF MEMO DT.17/12/2018 FILED IN O.A.(EKM) 370 OF 2018 BY THE GOVERNMENT PLEADER. EXHIBIT P7 TRUE COPY OF THE REPLY STATEMENT DATED 12/2/2019 OF THE 5TH RESPONDENT FILED IN O.A.(EKM) 370 OF 2018. EXHIBIT P8 TRUE COPY OF THE REPLY STATEMENT DATED 25/2/2019 FILED BY THE APPLICANTS IN O.A. (EKM) 370 OF 2018. EXHIBIT P9 TRUE COPY OF THE M.A.(EKM) 421/19 DATED 12/02/2019 TO VACATE INTERIM ORDER. EXHIBIT P10 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS DATED 18/02/2019. EXHIBIT P11 THE CERTIFIED COPY OF THE ORDER OF THE HON'BLE TRIBUNAL DT.2/4/2019 IN O.A.(EKM) 370 OF 2018.** True copy