Remia Mathew and Others v. Vegetable & Fruit Promotion Council, Keralam and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 23RD DAY OF JANUARY 2018 / 3RD MAGHA, 1939** **WA.No. 2382 of 2017 IN WPC. 22854/2017 .................** **AGAINST THE JUDGMENT IN WP(C) 22854/2017 of HIGH COURT OF KERALA DATED 20-11-2017** ## **APPELLANTS/PETITIONERS 1,2,6,7,8,10 & 11** ## **1 REMIA MATHEW** **OFFICE ASSISTANT, THE VEGETABLE & FRUIT PROMOTION COUNCIL, KERALAM, IDUKKI.** ## **2 KRISHNANUNNI P.S,** **OFFICE ASSISTANT, THE VEGETABLE & FRUIT PROMOTION COUNCIL, KERALAM, KBK HQ,KAKKANAD.** ## **3 AJITHKUMAR V,** **OFFICE ASSISTANT, THE VEGETABLE & FRUIT PROMOTION COUNCIL, KERALAM, KOLLAM.** ## **4 GOSH G,** **MANAGEMENT ASSISTANT, THE VEGETABLE & FRUIT PROMOTION COUNCIL, KERALAM, PALAKKAD.** ## **5 BINOY GEORGE,** **OFFICE ASSISTANT, THE VEGETABLE & FRUIT PROMOTION COUNCIL, KERALAM, PALAKKAD.** ## **6 JOYCY C J** **OFFICE ASSISTANT, THE VEGETABLE & FRUIT PROMOTION COUNCIL, KERALAM, PALAKKAD.** ## **7 REJITHA,** **OFFICE ASSISTANT, THE VEGETABLE & FRUIT PROMOTION COUNCIL, KERALAM, KANNUR.** **BY ADVS.SRI.K.RAMAKUMAR (SR.)** **SRI.T.RAMPRASAD UNNI** **SMT.ASHA BABU** **SMT.R.S.ASWINI SANKAR** **RESPONDENTS/RESPONDENTS & PETITIONERS 3,4,5 & 9:** **1. THE VEGETABLE & FRUIT PROMOTION COUNCIL, KERALAM REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, MYTHRI BHAVAN, NEAR DOORDHARSHAN KENDRA, KAKKANAD, KOCHI - 682 037.** **WA.No. 2382 of 2017** **2. THE CHIEF EXECUTIVE OFFICER, VEGETABLE & FRUIT PROMOTION COUNCIL, KERALAM MYTHRI BHAVAN, NEAR DOORDHARSHAN KENDRA, KAKKANAD, KOCHI - 682 037.** ## **3. STATE OF KERALA,** **REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF AGRICULTURE, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 695 001.** ## **4. RADHAKRISHNAN B,** **OFFICE ASSISTANT, THE VEGETABLE & FRUIT PROMOTION COUNCIL, KERALAM,ALAPPUZHA - 688 001.** ## **5. RAJEEV R,** **OFFICE ASSISTANT, THE VEGETABLE & FRUIT PROMOTION COUNCIL, KERALAM,PALAKKAD - 678 001.** ## **6. JAYAN P.B** **OFFICE ASSISTANT, THE VEGETABLE & FRUIT PROMOTION COUNCIL, KERALAM,KOLLAM - 691 001.** ## **7. BINDU S** **OFFICE ASSISTANT, THE VEGETABLE & FRUIT PROMOTION COUNCIL, KERALAM,PATHANAMTHITTA - 689 645.** **R1-R2 BY ADV. SRI.RENJITH THAMPAN (SR.)** **R1-R2 BY ADV. SRI. MAJNU KOMATH, SC, VEGETABLE AND FRUIT PROMOTION COUNCIL R3 BY GOVERNMENT PLEADER SRI.SUNIL KUMAR KURIAKOSE** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23-01-2018 ALONG WITH WA 182/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VPV** ## **P.N.RAVINDRAN & R.NARAYANA PISHARADI, JJ.** =-=-==-=-==-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= ## **W.A.Nos.2382 of 2017 & 182 of 2018** =-=-==-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= **Dated this the 23[rd ] day of January, 2018** ## **JUDGMENT** ## _**P.N.Ravindran, J.**_ These writ appeals arise from the judgment delivered by the learned single Judge on 20.11.2017 dismissing W.P.(C)No.22854 of 2017, a writ petition filed by the appellants in these writ appeals challenging the orders terminating their services. The brief facts of the case are as follows: 2. The appellants in these appeals (11 in number) were initially appointed on daily wages in the Vegetable and Fruit Promotion Council, Keralam (hereinafter referred to as “the Council” for short) which came into existence on 1.4.2001. While they were thus working on daily wages, steps were taken to terminate their services as also the services of 12 other persons. Aggrieved thereby, the said 23 persons filed W.P.(C)Nos.11109, 11132 and 11393 of 2008 in this court. After considering the rival contentions, a learned single Judge of this court dismissed the three writ petitions by Ext.R1-B judgment delivered on 3.3.2009, after entering the following finding: “ _17. It is clear from the proceedings that the initial engagement on daily wages and the provisional appointment thereafter was made without notifying the vacancies by inviting applications. This has resulted in_ ## **W.A.Nos.2382 of 2017 & 182 of 2018** ## **-:2:-** _denying an opportunity to similarly placed candidates. Therefore, the said finding in that regard is also correct. The detailed reasons have been stated in the orders of termination to the effect that the principles of reservation have not been followed and the appointment was in total violation of the recruitment rules. Going by the recruitment rules, open advertisement was necessary and in the absence of which, it should have been through Employment Exchanges or by campus recruitment. None of these methods were followed. It is also found that some of the petitioners are not even qualified in accordance with the qualifications prescribed for the post._ ” The learned single Judge however observed that before termination is effected, salary and other benefits payable to the 23 persons for the period during which they have worked, shall be paid. 3. It is not in dispute that pursuant to Ext.R1-B judgment, the services of the 23 writ petitioners were terminated on 5.3.2009 as per Ext.R1-C proceedings dated 5.3.2009 issued by the then Chief Executive Officer of the Council. The unsuccessful writ petitioners in the said three writ petitions thereafter filed W.A.Nos.574, 575 and 580 of 2009 in this court challenging Ext.R1-B judgment. The said writ appeals came up for admission hearing before a Division Bench of this court on 11.3.2009. On that day, the Division Bench passed Ext.R1-D interim order, which reads as follows: “ _Adv.Sri.N.Sugathan takes notice._ _It is made clear that in case the appellants are relieved, nobody shall be engaged from outside. If any personnel is required by the first respondent (in W.A.574/09), to the extent required, the appellants shall be continued. It is also made clear that in case_ ## **W.A.Nos.2382 of 2017 & 182 of 2018** ## **-:3:-** _the said respondent takes steps for regular recruitment as per the Regulations, the appellants shall also be permitted to participate in the process, of course, subject to their qualification. Post for further orders after two weeks._ ” 4. It appears, pursuant thereto, 12 among the appellants in the said writ appeals were again engaged on daily wage basis. Later, pursuant to a notification inviting applications, one among the 12 appellants was selected and appointed on a regular basis as Driver. The remaining 11 persons were appointed on contract basis on a consolidated salary of Rs.6,750/-. A few months later, pursuant to the decision taken by the Board of Directors, their services were regularised by Ext.P2 order dated 13.7.2015 with effect from 1.1.2015. One among the 11 persons was regularised in service as Management Assistant and the others as Office Assistant. Their probation was also declared as satisfactorily completed with effect from 1.1.2016. 5. In the meanwhile, W.A.Nos.574 and 580 of 2009 arising from Ext.R1-B judgment came up for consideration before a Division Bench of this court on 18.9.2015. Taking note of the submission made by learned counsel appearing for the Council that many among the appellants have been regularised in service, that some among them did not appear when they were offered employment on daily wage basis and one among them had resigned, the Division Bench closed the ## **W.A.Nos.2382 of 2017 & 182 of 2018** ## **-:4:-** writ appeals by Ext.P5 judgment with the observation that nothing survives to be decided on the merits. Ext.P5 judgment delivered by the Division Bench on 18.9.2015 in W.A.Nos.574 and 580 of 2009 is extracted below: “ _Heard the learned counsel appearing for the appellants, the learned Standing Counsel appearing for the respondent as also the learned Government Pleader._ _2. Both these Writ Appeals have been filed against a common judgment dated 3[rd] March, 2009. The writ petitions have been filed by the writ petitioners challenging an order by which the writ petitioners were dismissed. The petitioners in the writ petitions have challenged their termination as daily-wage-employees. The petitioners had claimed in their writ petitions that their regularisation has already been ordered by a resolution taken by the Board._ _3. The learned counsel appearing for the respondent Council in W.A.No.574/2009 has submitted that, the 1[st] , 6[th] and 7[th] appellants have already been regularised and the 2[nd] , 3[rd] and 8[th] appellants did not appear when they were offered daily-wage-employment and the 4[th] appellant had resigned._ _4. With regard to W.A.No.580/2009 all appellants were appointed except one Jasmin S., the 9[th] appellant. She was not appointed for the reason that she did not offer herself for appointment as daily wager, when called. It is submitted that in view of the subsequent events, nothing survives in the writ appeals to be decided on merits._ _Recording the aforesaid submission of the learned counsel for the respondent we close these writ appeals._ ” 6. After Ext.P5 judgment was delivered, steps were taken to terminate the services of the appellants herein as per separate orders passed on 6.10.2016. They thereupon filed W.P.(C)No.32780 of 2016 in this court. In that writ petition, an interim order was passed staying ## **W.A.Nos.2382 of 2017 & 182 of 2018** ## **-:5:-** the termination of their services. Later, W.P.(C)No.32780 of 2016 was disposed of by Ext.P6 judgment delivered on 16.2.2017 based on the submission of learned counsel appearing for the respondents that they propose to withdraw the orders of termination, reserving liberty with them to initiate appropriate legal steps in the matter. Ext.P6 judgment is extracted below: “ _The petitioners are challenging Exts.P3 to P13 orders terminating their services mainly alleging that no notice was issued before orders were issued terminating their services. The respondents filed a counter affidavit. In paragraph 13 of the counter affidavit, it is stated as follows:_ _“However, it is admitted that there is a procedural lapse i.e. the petitioners were terminated without issuing the required notice and charge memo. So, it is prayed that this Honourable Court may pleased to permit the 1[st] respondent to withdraw Exts.P3 to P13 termination orders with liberty to initiate appropriate legal steps against the illegal appointment and regularisation of the petitioners.”_ _2. I heard the learned counsel for the petitioner and the learned Standing Counsel._ _In view of the statement in paragraph 13 of the counter affidavit, the respondents are permitted to withdraw the orders of termination Exts.P3 to P13. It is made clear that this will not prevent them from issuing appropriate orders in accordance with law, as stated in paragraph 13 of the counter affidavit._ _Accordingly, the writ petition is disposed of._ ” 7. The Council thereafter issued Ext.P7 show cause notice dated 17.4.2017 calling upon the appellants to show cause why their services should not be terminated. Inter alia it was stated therein that they do not possess the qualifications for appointment to the post of Office ## **W.A.Nos.2382 of 2017 & 182 of 2018** ## **-:6:-** Assistant which is a pass in the S.S.L.C. Examination and a two wheeler driving licence. The appellants submitted individual replies. The reply submitted by the first appellant is on record as Ext.P8. She denied the statement in Ext.P7 show cause notice that as on the date of the notification, she did not possess a pass in the SSLC Examination and a two wheeler driving licence. The Council considered the reply submitted by the appellants and decided to terminate their services. Exts.P9, P9(a) and other similar orders were thereupon issued by the Chief Executive Officer of the Council on 30.06.2017, terminating the services of the appellants. The instant writ petition was thereupon filed challenging Exts.P9 and P9(b) and other similar orders and seeking a writ in the nature of mandamus, commanding the respondents to continue the appellants in service as before and to permit them to attend to their duties. The respondents entered appearance and filed a counter affidavit resisting the writ petition. After considering the rival contentions, the learned single Judge dismissed the writ petition by the impugned judgment delivered on 20.11.2017. Hence this writ appeal. 8. We heard Sri.K.Ramakumar, learned Senior Counsel appearing for the appellants in W.A.No. 2382 of 2017, Sri.P. Sreekumar, learned counsel appearing for the appellants in W.A. No.182 of 2018 and Sri.Renjith Thampan, learned Additional Advocate General instructed by Sri.Majnu Komath, appearing for the Council. ## **W.A.Nos.2382 of 2017 & 182 of 2018** ## **-:7:-** Sri.K.Ramakumar, learned Senior Counsel appearing for the appellants contended, inviting our attention to the decision of the Apex Court in _**Secretary, State of Karnataka and Others v. Umadevi and Others** [(2006) 4 SCC 1] and_ _**H.C.Puttaswamy and Others v. The Hon’ble Chief Justice of Karnataka High Court, Bangalore and Others** (1991 Supp (2) SCC 421),_ that in the instant case, the appellants are not at fault and therefore, the learned single Judge erred in dismissing the writ petition. Learned Senior Counsel submitted that as the appellants had no role to play in the disputed selection and they were selected and appointed by the Council pursuant to a decision taken by it and their services were later regularized pursuant to the decision taken by the Board of Directors, the learned single Judge erred in not interfering with the impugned orders of termination. Referring to the decision of the Division Bench of this court in _**V.Padmanabhan and Others v. Commissioner, Hindu Religious and Charitable Endowments and Others** (2007 (3) KHC 328),_ learned Senior Counsel contended that the power to review or recall an order is a substantive adjudicatory power and in the absence of a specific conferment of such powers, the Council could not have invalidated their appointment and terminated the services of the appellants. Learned Senior Counsel contended that if at this distance of time, the services of the appellants are terminated, they will be put to ## **W.A.Nos.2382 of 2017 & 182 of 2018** ## **-:8:-** serious prejudice. Sri.P.Sreekumar, learned counsel appearing for the appellants in the connected writ appeal reiterated the said submissions. 9. _Per contra_ , Sri.Renjith Thamban, learned Additional Advocate General appearing for the Council submitted that it was without inviting applications that the appellants who had suffered an adverse judgment evidenced by Ext.R1(B) were initially appointed on daily wage basis, thereafter on contract basis and later regularized in service. Learned Additional Advocate General submitted that before the appellants were thus appointed and regularized, applications had not been invited from eligible persons and that the appellants did not also possess the qualification prescribed for the post of Office Assistant. Learned Additional Advocate General submitted that the appellants have not denied the averment in paragraph 11 of the counter affidavit that the 7[th] petitioner does not possess the educational qualification of Diploma in Commercial Practice/Higher Secondary or equivalent and Certificate in Data Entry Operation Course for appointment as Management Assistant, that the other petitioners do not possess the qualification of a pass in S.S.L.C. Examination plus a two wheeler driving licence for appointment as Office Assistant and therefore, for that reason also, the appointments of the appellants were liable to be terminated. ## **W.A.Nos.2382 of 2017 & 182 of 2018** ## **-:9:-** 10. Inviting our attention to the decisions of this court in _**Sasidharan v. Reserve Bank of India** (1990 (2) KLT 573) and_ _**P.V.Prakasini v. KPSC and Others** (1993 (1) KLJ 632)_ and the decision rendered by one of us [P.N.Ravindran, J.] in _**Sakeena V.A. v. State of Kerala and Others** (2014 (3) KLT 977)_ , learned Additional Advocate General contended that, there is reserve power in every public authority to correct mistakes committed by itself and that such power to correct apparent mistakes is an absolute necessity and has to be found in every public authority, even without a specific provision, that it was in exercise of such reserve power to correct mistakes that the Council decided to terminate the services of the appellants and therefore, no exception can be taken to the orders impugned in the writ petition. Learned Additional Advocate General also contended that as the appellants did not admittedly possess the prescribed qualifications when they were appointed, merely for the reason that several years have passed after they were illegally appointed, this court cannot water down the stipulations in the rules regarding educational qualifications and uphold the appointments of persons who do not possess the qualifications prescribed for the post. 11. We have considered the submissions made at the Bar by learned counsel appearing on either side. We have also gone through the pleadings and the materials on record. Ext.R1(B) judgment ## **W.A.Nos.2382 of 2017 & 182 of 2018** ## **-:10:-** delivered by a learned single Judge of this court contains a categorical finding to the effect that the initial appointment of the appellants on daily wages and the provisional appointment thereafter, were made without notifying the vacancies or by inviting applications and that this in turn has resulted in an opportunity being denied to the similarly placed candidates. The learned single Judge also upheld the contention raised by the Council that when the appellants were appointed, the principles of communal reservation had not been followed. The learned single Judge had also taken note of the contention that some of the petitioners in the writ petition were not even qualified for the post. The said findings have not been set aside in appeal and have become final. The appellants have not produced anything to show that on the date on which their services were regularized, they possessed the qualifications prescribed for the posts in which they were regularized. Even in the memorandum of appeal, they have not denied or disputed the averment in paragraph 11 of the counter affidavit sworn to by the Chief Executive Officer of the Council that they do not possess the qualifications prescribed for the post. The said averment is not challenged even in the memorandum of appeal. The appellants have also not produced any documentary evidence to show that they possess the prescribed qualifications. The appellants who do not possess the prescribed qualifications, cannot in our opinion contend for ## **W.A.Nos.2382 of 2017 & 182 of 2018** ## **-:11:-** the position that they have a right to hold the post. 12. The Apex Court has in _**State of Punjab v. Jagdip Singh** (AIR 1964 SC 521)_ , considered the question whether it is open to the Government to correct a mistake committed by it. The question was answered in the affirmative with the following observations: _“8. The question then is as to the effect of a void order of confirmation. When an order is void on the ground that the authority which made it had no power to make it cannot give rise to any legal rights, and as suggested by the learned Advocate-General, any person could have challenged the status of the respondents as Tahsildars by instituting proceedings for the issue of a writ of quo warrant under Art. 226 of the Constitution. Had such proceedings been taken it would not have been possible for the respondents to justify their status as permanent Tahsildars and the High Court would have issued a writ of quo warranto depriving the respondents of their status as permanent Tahsildars. Now, where the Government itself realises that an order made by an authority under the Government is void, is it powerless to do anything in the matter? Is it bound to give effect to a void order and treat as confirmed Tahsildars persons who have no legal right to be treated as confirmed Tahsildars? Is it open to the Government to treat the confirmation as void and notify the persons affected and the public in general of the fact of its having done so by issuing a notification of the kind it made on October 31, 1957? In our opinion where a Government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give he will not in law be deemed to have been validly appointed to the post or given the particular status. No doubt, the Government has used the expression “de-confirming” in its notification which may be susceptible of the meaning that it purported to undo an act which was therefore valid. We must, however, interpret the expression in the light of actual facts which led up to the notification. Those facts, clearly show that the so called confirmation by the Financial Commissioner of Pepsu was no confirmation at all and was thus invalid. In view of this,_ ## **W.A.Nos.2382 of 2017 & 182 of 2018** ## **-:12:-** _the notification of October 31, 1957 could be interpreted to mean that the Government did not accept the validity of the confirmation of the respondents and other persons who were confirmed as Tahsildars by the Financial Commissioner, Pepsu.”_ 13. The Apex Court upheld the power of the Government to undo the mischief of an earlier mistaken order, which was otherwise void, conferring an undue and unmerited benefit on some of the employees. Relying on the said decision, a learned single Judge of this court held in _**Sasidharan v. Reserve Bank of India** (supra)_ that, power is inherent in any administrative authority to correct accidental mistakes committed by it. It was held that if the power to correct inadvertent mistakes is not recognized and accepted, it may lead to perpetuation of injustice and to undesirable consequences. The learned single Judge proceeded to hold that an order correcting a mistake does not affect the rights of the party benefited by the mistake as no rights legally inhered in him by virtue of the mistaken orders. The same view was reiterated by the learned single Judge in _**P.V.Prakasini v. KPSC**_ ## _**and Others** (supra) wherein it was held as follows:_ _“18. xxxxxxxxxx. Such a reserve power to correct mistakes committed by itself has to be located in every public authority in the interests of justice and to avoid arbitrariness. It is not uncommon - in fact it is a human failing that errors are committed in the conduct of human affairs. Infallibility is not a human virtue, that being a quality attributable only to the Almighty. Such a power to correct apparent mistakes is therefore an absolute necessity and has to be found in every authority, even without a specific provision as was held by me earlier in my decision_ ## **W.A.Nos.2382 of 2017 & 182 of 2018** ## **-:13:-** _in Sasidharan v. Reserve Bank of India (1990 (2) KLT 573), paragraph 7 relying on the decision in Karunakaran Nambiar v. Director of Public Instruction (1966 KLT 290) and others”._ The same view was taken by one of us (P.N.Ravindran, J) in _**Sakeena**_ ## _**V.A. v. State of Kerala and Others** (supra)._ 14. In the light of the aforesaid decisions of this court with which we concur and the binding decision of the Apex Court, we are of the opinion that the appellants, who do not admittedly possess the educational qualifications prescribed in the rules, for appointment to the posts against which they were regularized, cannot contend that their appointment cannot be invalidated after the lapse of several years, for the reason that no power of review is specifically conferred on the Council. The decisions referred to above are in our opinion an answer for the contention that in the absence of a power of review their appointments cannot be upset. We accordingly overrule the said contention. 15. As regards the contentions raised relying on _**Umadevi and Others** (supra) and_ _**H.C. Puttaswamy and Others** (supra)_ , we are of the opinion that the appellants cannot rely on the said decisions to impugn the orders terminating their services. It is too late in the day to contend that the appellants who were illegally appointed after the decision in _**Umadevi and Others** (supra)_ was rendered, should be given the benefit of continuance in service. From the observations in ## **W.A.Nos.2382 of 2017 & 182 of 2018** ## **-:14:-** paragraph 53 of _**Umadevi and Others** (supra),_ it is evident that the regularisation contemplated therein is that of employees who had as on 10.04.2006 completed ten years of service. The regularisation contemplated is not of the employees illegally appointed thereafter who later completed ten years of service. The appellants cannot therefore in our opinion claim regularisation in service. We accordingly hold that there is no merit in the instant writ appeals. The writ appeals fail and are dismissed. Sd/- ## **P.N.RAVINDRAN** **JUDGE** Sd/- ## **R.NARAYANA PISHARADI JUDGE** /true copy/ P.A. To Judge **vpv/** ss