Reby K.A. & Shahina K.A. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 12TH DAY OF JUNE 2017/22ND JYAISHTA, 1939** **WP(C).No. 34459 of 2016 (F) ----------------------------** ## **PETITIONER(S)/PETITIONER:** ## **------------------------** ## **1. REBY K.A.,** - **S/O.ALI,PALLIYAMTHADATHIL HOUSE,MARITHAZHAM.P.O, KANJIRAMATTOM,ERNAKULAM DISTRICT,PIN-682315.** **2. SHAHINA.K.A.,** - **W/O.ABDULLA,KINATTINKARA HOUSE,KUNJITHAI.P.O, ERNAKULAM DISTRICT.** **BY ADVS.SMT.AYSHA YOUSEFF SMT.MOLLY JACOB SRI.C.M.EBRAHIM SRI.SHOUKATH HUSAIN** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** ## **1. STATE OF KERALA** - **REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA,THIRUVANANTHAPURAM.** **2. THE SECRETARY TO GOVERNMENT,** - **GENERAL ADMINISTRATION(MINORITY WELFARE)DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM.** **3. KERALA STATE MINORITY DEVELOPMENT FINANCE** - **CORPORATION LTD., REPRESENTED BY ITS MANAGING DIRECTOR, KURDFC BUILDING, CHAKKORATHKULAM, WEST HILL.P.O, KOZHIKODE-673005.** **R1-R2 BY GOVERNMENT PLEADER SRI.RAVIKRISHNAN R3 BY ADV. SRI.P.BENNY THOMAS R3 BY ADV. SRI.D.PREM KAMATH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SKG** ## **WP(C).No. 34459 of 2016 (F)** ## **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT P1 COPY OF ORDER NO.GO(MS)NO.5535/2014/GAD DTD.15.7.2014 SANCTIONING THE POSTS EXHIBIT P2 COPY OF THE APPOINTMENT ORDER NO.365/E&A/2014/KSMDFC DTD.18.4.2015 APPOINTING 1ST PETITIONER AS OFFICE ATTENDANT EXHIBIT P3 COPY OF THE APPOINTMENT ORDER NO.365/E&A/2014/KSMDFC DTD.20.1.2015 APPOINTING 2ND PETITIONER AS JUNIOR ASSISTANT EXHIBIT P4 COPY OF ORDER NO.365/E&A/2014/KSMDFC LTD.21.1.2016 EXTENDING THE PERIOD OF CONTRACT OF THE 2ND PETITIONER EXHIBIT P5 COPY OF ORDER NO.365/E&A/2014/KSMDFC DTD.21.5.2016 EXTENDING THE PERIOD OF CONTRACT OF THE 1ST PETITIONER EXHIBIT P6 COPY OF NOTIFICATION ISSUED BY THE 3RD RESPONDENT INVITING FRESH APPLICATIONS FOR APPOINTMENT EXHIBIT P7 COPY OF THE LETTER NO.AD.C1/61/16/PARD DTD.6.10.2016. EXHIBIT P8 TRUE COPY OF THE ORDER NO.G.O.(ORDINARY) 82/2017/PAD DATED 5.1.2017 EXHIBIT P9 TRUE COPY OF THE LETTER NO.959609/MW2/16/PAD DATED 6.1.2017 EXHIBIT P10 COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 2.12.2015** **SKG** **WP(C).No. 34459 of 2016 (F) ----------------------------** **RESPONDENT(S)' EXHIBITS -----------------------** |**R3(a)**|**TRUE COPY OF THE APPLICATION DATED 13.04.2016**| |---|---| ||**SUBMITTED BY THE 1ST PETITIONER REQUESTING TO**| ||**EXTEND THE PERIOD OF CONTRACT**| |**R3(b)**|**TRUE COPY OF APPLICATION DATED 26.03.2016**| ||**REQUESTING TO EXTEND THE PERIOD OF CONTRACT**| |**R3(c)**|**TRUE COPY OF THE LETTER DATED 31.10.2016 ISSUED**| ||**BY THE GOVERNMENT TO THE 3RD PARTY**| ||**/TRUE COPY/**| ||**P.S. TO JUDGE**| **SKG** ## **K.VINOD CHANDRAN, J.** ---------------------------------------------- ## **W.P.(C).No.34459 of 2016** -------------------------------------------------------------Dated this the 12[th] day of June, 2017 ## **J U D G M E N T** The petitioners challenged their termination from employment. The learned Senior Counsel for the petitioners took me through the documents to put forward his case, which is not one of regularization, but only of continuation on contract basis till the 3[rd] respondent Corporation makes an appointment in accordance with law to the posts. 2. The 3[rd] respondent Corporation was constituted in the year 2011 to address the financial welfare of the minorities within the State, which is evident from the name of the Corporation. By Ext.P1 the Government had sanctioned ten posts in the various Regional Offices of the Corporation. A notification is issued pursuant to Ext.P1 by which the 1[st] petitioner was appointed as an Office Attendant and the 2[nd] petitioner as a Junior Assistant to the Corporation. 3. The appointments were on contract basis for an year. After the expiry of the contract period it was extended for one year by Exts.P4 and P5. Subsequently, it is terminated due to change of the Government. Ext.P6 notification was published again for appointment on contractual basis to the W.P.C.No.34459/2016 2 post, in which the petitioners were appointed and continuing. Petitioners were apprehensive of being terminated and hence approached this Court. This Court by interim order dated 20.01.2017, ordered status quo. While the petitioners were being so continued, Ext.P8 order was issued appointing one person on deputation. The petitioners were directed to be continued on daily wages, by virtue of the interim order, by Ext.P9 order. 4. The learned Senior Counsel would contend that going by the decision in **Secretary State of Karnataka v. Uma Devi [2006 (4) SCC 44]** , the petitioners have to be considered to have been regularly appointed. But however, this Court is not inclined to take such a view. **Uma Devi's case** specifically dealt with contractual/temporary appointments and subsequent regularization which was frowned upon for reason of the initial appointment being oftener than ever through the back-door. 5. The learned counsel appearing for the 3[rd] respondent Corporation, points out that though ten posts were sanctioned as per Ext.P1, the appointments had to be made only on deputation/contract as per Ext.P1 itself. The petitioners hence were appointed on contract to the W.P.C.No.34459/2016 3 Corporation. It is also submitted by the learned counsel that subsequently on expiry of the contract, on the request made by the petitioners, they were granted extension for an year, as is evident from Ext.R3(a) and R3(b). The earlier Board had made a recommendation to the Government to continue the appointment of the petitioners for a period of three years. However, on the present Government coming into office, it was decided that the contractual appointments made earlier are to be terminated. It was also directed that contractual appointments, if at all made, should be made only through the Employment Exchange. In such circumstances, the Corporation had thought it fit to accommodate a person by deputation, which was done as per Ext.P8. 6. It has to be noticed that there is no challenge against Ext.P8 order nor is the person appointed as per Ext.P8 made a party to the writ petition. Similar is the case with Ext.P9. In such circumstances, this Court would not consider the sustainability of Ext.P8 or P9. The prayer in the writ petition though is for regularization, evidently the petitioners cannot claim regularization since they accepted a contractual appointment and after expiry of the period, sought an extension which was also granted by the Corporation. The W.P.C.No.34459/2016 4 petitioners have no vested right to the post. That would not however efface the mandate on the respondent Corporation, to make appointments in accordance with the orders of the Government. 7. The Government in Ext.P1 had permitted appointment either by deputation or on contract basis. Petitioners were appointed on a contract basis. To terminate their contract there should be either a regular appointment or an appointment on contract basis in accordance with regulations issued by the Government or by way of deputation. As for a regular appointment, the Government has insisted that it shall be done only through the Public Service Commission. No attempt has been made as of now. There is also no permission granted to regularly fill up the sanctioned posts as per Ext.P1. 8. Ext.P6, which has been challenged, is again a notification for contractual appointment from the general public. The specific mandate as evident from Ext.P9 is that in making contractual appointments the instrumentalities of the State shall necessarily call for persons from the Employment Exchange. That is not the procedure followed in Ext.P6. In such circumstances, Ext.P6, at least to the extent of W.P.C.No.34459/2016 5 appointment to the post of Office Attendant and Junior Assistant are set aside. The petitioners will be continued till the Corporation appoints persons on contract basis from the Employment Exchange or makes an appointment regularly or by deputation to the post. 9. The further grievance of the petitioners is that they have been continued on daily wages as per Ext.P9 which is improper and priama facie contemptuous for the reason of an order of status quo. Learned Counsel appearing for the 3[rd] respondent submits that the petitioners were granted the regular contractual pay itself even after Ext.P9 order. Be that as it may, if there has been any reduction of pay of the petitioners after Ext.P9, the same is illegal and would be violation of the interim order. The petitioners shall continue on contractual basis till steps are taken by the Corporation as directed herein and shall be entitled to the very same emoluments as they were paid prior to Ext.P9. Writ petition would stand disposed of. No costs. ## Sd/- ## **(K.VINOD CHANDRAN, JUDGE)** TRUE COPY P.A.TO JUDGE DG/14.6.17