Rijas Harith V.H. v Kerala State Minorities Development Finance Corporation Ltd and The Deputy Manager, Regional Office, Kerala State Minorities Development Finance Corporation Ltd and The State of Kerala, Department of Minority Welfare

W.P.(C).No.7205/19 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 16TH DAY OF JULY 2019 / 25TH ASHADHA, 1941** ## **WP(C).No.7205 of 2019** ## **PETITIONER:** **RIJAS HARITH V.H. AGED 38 YEARS S/O.V.A HARITH, VALIYAKATH HOUSE, PERIKKAPPALAM, KADUNGHALLERE ROAD, THOTTAKKATTUKARA P.O, ALUVA 683108. BY ADVS. SRI.P.K.IBRAHIM SMT.K.P.AMBIKA SRI.A.L.NAVANEETH KRISHNAN** ## **RESPONDENTS:** |**1**|**KERALA STATE MINORITIES DEVELOPMENT FINANCE**| |---|---| ||**CORPORATION LTD.**| ||**GROUND FLOOR, KURDFC BUILDING,**| ||**CHAKKORATHUKULAM, WESTHILL P.O, KOZHIKODE 673**| ||**005.**| ||**REPRESENTED BY ITS MANAGING DIRECTOR.**| |**2**|**THE DEPUTY MANAGER,**| ||**REGIONAL OFFICE, KERALA STATE MINORITIES**| ||**DEVELOPMENT FINANCE CORPORATION LTD, 1ST FLOOR,**| ||**PWD REST HOUSE BUILDING, PATHADIPAALAM,**| ||**KALAMASSERY, PIN 682 033.**| W.P.(C).No.7205/19 2 **3 STATE OF KERALA, DEPARTMENT OF MINORITY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM 695 001 REPRESENTED BY ITS PRINCIPAL SECRETARY.** **BY ADVS. SRI.KALEESWARAM RAJ** **KUM.A.ARUNA KUM.THULASI K. RAJ SMT.MAITREYI SACHIDANANDA HEGDE SMT.RIYA RAYMOL IYPE SRI.VARUN C.VIJAY** **OTHER PRESENT:** ## **SUNIL KUMAR KURIAKOSE GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.06.2019, THE COURT ON 16.07.2019 DELIVERED THE FOLLOWING:** W.P.(C).No.7205/19 3 ## **JUDGMENT** ## 1.This writ petition is filed with the following prayers:- “i) To declare that petitioner is entitled to get his period of contract extended by 1 year at a time and permit him to continue as Deputy Manager of the 1[st] respondent until regular hand join duty by recruitment through PSC and issue consequential direction in the nature of writ of mandamus to the 1[st] respondent to extend the period of contract as has been done in the case of other employees. ii) to declare that the 3[rd] respondent has no power or authority in the matter of appointment against the sanctioned post in the service of the 1[st] respondent and issue consequential direction not to interfere in the business of appointing employees by the 1[st] respondent.” 2. The petitioner, who was working as Deputy Manager in the first respondent corporation approached this Court seeking continuance in service. It is stated that the petitioner was first appointed on 8.6.2014 for a period of one year. The contract for appointment had been extended from year to year till 2019. It is stated that by Exhibit P8 resolution, the Board of Directors of the first respondent Corporation decided to extend the service of all contract employees, including the W.P.(C).No.7205/19 4 petitioner, since there was organisational requirement for the same. Exhibit P8 decision was forwarded to the Government seeking concurrence. It is stated that by Exhibit P9, the Government declined the request for extension in respect of the petitioner and one other Deputy Manager, Smt.Binditha B. Concurrence was granted for extending the term of 17 other contractual employees. 3. The contention of the petitioner is that there was no requirement for Government concurrence for extension of the period of contract. It is stated that the services of one set of contractual employees cannot be done away with only to replace them with another set and that the action of the respondents in rejecting the request for concurrence in respect of two employees alone is completely illegal and unwarranted. It is stated that the petitioner is being discriminated against for no reason whatsoever and that he is entitled to continue in service in view of the fact that he had been working from 2014 onwards, without giving room for any complaint. The decision of the Apex court in **Pyara Singh** W.P.(C).No.7205/19 5 - **v. State of Haryana** [(1992) 4 SCC 118] and another judgment of Delhi High Court **in Abhinav Chaudary and Ors** - **v. Delhi Technological University and Another** [2015 (2) SLJ 218] are relied on in support of the contentions. - 4.A statement has been placed on record by the the first respondent. It is stated that services of two Deputy Managers are not required in the Corporation and that as such the persons who have the longest period of service have been sent out. - 5.The petitioner thereafter submitted a reply affidavit stating that the Board of Directors, being the appointing authority had resolved to extend the term of the contract of all the contractual employees and the decision to single out the petitioner for a differential treatment was taken by the Government without any justification. 6. A counter affidavit has been filed on behalf of the third respondent as well. It is stated that the contract period of the W.P.(C).No.7205/19 6 petitioner had been extended for one year from 2.2.2018 and the period expired on 1.2.2019. It is stated that the Government had decided to extend the contract of 17 employees and terminated the contract of two others. It is stated that the method of appointment is through PSC and that contractual appointments are being made only till regular hands join duty. 7.A further statement has been placed on record by the respondents as required by this Court. It is stated that the Board of Directors had met on 30.5.2019 and had considered the necessity for retaining the Deputy Managers under the respondents. It was found that there is no requirement for a Deputy Manager at the offices at Ernakulam and Kozhikode. It is stated that there is financial stringency for retaining the services of the employees who are not required due to lack of workload. It is stated that the work at Ernakulam office is being ably managed by a Senior Assistant and the services of the petitioner, who is working as Deputy Manager in the said office is not required. W.P.(C).No.7205/19 7 - 8.The learned counsel for the petitioner has submitted an application to amend the writ petition and to challenge the decision taken by the Board of Directors as well. 9.I have considered the contentions advanced. It is clear from the pleadings on record that the regular appointments under the first respondent are through PSC. It appears that the steps for making appointments through PSC has not been carried out till date. The respondents had, therefore, resorted to contract appointments in all the sanctioned posts. By Exhibit P8, the Board of Directors of the first respondent had sent up a list of employees working in the Board on contract basis for extension. It is stated in Exhibit P8 that as per Government Order No.56/2017/Fin.dated 28.4.2017, contract appointments may be extended by the department head for one year and further extension shall be made only after obtaining approval from the Government. The Board had, therefore, decided to extend the contract period, subject to concurrence of the Government. However, by Exhibit P9, W.P.(C).No.7205/19 8 it appears that a decision had been taken to extend the period of contract of all the 17 employees, except the petitioner and one other Deputy Manager. 10.It was contended by the learned counsel appearing for the first respondent that the decision not to extend the term of contract of two Deputy Managers had been taken in view of the fact that their services were not essential and due to financial stringency. It is stated that the first respondent did not require the services of two Deputy Managers and it was felt that the Deputy Managers engaged on contract should be sent out on first come first go basis. It is stated that the Board had met and had taken a decision not to extend the services of two Deputy Managers, since their services were not required and since the Board is facing acute financial stringency. The Board meeting held on 30.5.2019 has considered the issue. It is stated that the question has been re-examined and it was found that there is financial stringency for retaining the services of two employees and W.P.(C).No.7205/19 9 since the work in the two offices is being carried out without any hindrance, the services of the petitioner and another Deputy Manager are being dispensed with. 11.Having considered the contentions advanced, I am of the opinion that this Court cannot direct an employer, who pleads that it does not require the services of contract employees, to extend the contract. The respondents are taking a definite stand that they do not require services of two Deputy Managers and that, as such, the two persons appointed to the post on contract basis are liable to be retrenched on a first come first go basis. It is stated that the petitioner and Smt.Binditha being the persons who were engaged on contract basis as Deputy Managers earlier in point of time than the others, are liable to be sent out of service. - 12.Though it is true that this Court cannot direct the respondents to engage employees, who, according to them, are not required, I am of the considered view that the W.P.(C).No.7205/19 10 respondents cannot be permitted to pick and choose contractual employees, according to their whims and fancies. The first respondent had, by Exhibit P8 sent up a request for extension of contract in respect of all the employees. By Exhibit P9, the Government directed retrenchment of two. It is now sought to be explained by the first respondent that it was on account of financial stringency and lack of necessity that the term of two Deputy Managers were not extended. Be that as it may, I am of the definite opinion that the respondents cannot be permitted to substitute the services of the petitioner with that of another contractual employee. It is not in dispute before me that the regular method of appointment to the post under the first respondent is by recruitment through the PSC. In view of the specific contention raised by the first respondent that the first respondent does not require the services of two Deputy Managers, I make it clear that the post held by the petitioner can be filled up only by making regular appointment through the PSC. In case the respondent requires personnel in any W.P.(C).No.7205/19 11 post of Deputy Manager before such regular appointment can be made, the petitioner, who had been sent out of service only on the ground of lack of requirement, will be entitled to reengagement on contract basis. The writ petition is ordered accordingly. Sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.7205/19 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER G.O(MS) NO. 5535/2014/GAD DATED 15-07-2014 ACCORDING SANCTION TO OPEN 2 REGIONAL OFFICES AND CREATING REQUIRED POSTS IN THE REGIONAL OFFICE.** - **EXHIBIT P2 TRUE COPY OF THE CIRCULAR DATED 13-052015 ISSUED BY THE STATE OF KERALA PROVIDING GUIDELINE IN THE MATTER OF APPOINTING CONTRACT EMPLOYEES** - **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 08-06-2014 APPOINTING THE PETITIONER TO THE POST OF DEPUTY MANAGER** **EXHIBIT P4 TRUE COPY OF THE NOTIFICATION DATED 25/8/2016 EXHIBIT P5 TRUE COPY OF THE RANK LIST DATED 28-012017 APPROVED BY THE BOARD OF THE 1ST RESPONDENT IN RESPECT OF THE POST OF DEPUTY MANAGER** - **EXHIBIT P6 TRUE COPY OF THE ORDER NO. A3/2017 DATED 01-02-2017 APPOINTMENT AND MAKING HIM IN-CHARGE OF THE GENERAL MANAGER.** **EXHIBIT P7 TRUE COPY OF THE EMPLOYMENT EXECUTED ON 1-03-2018.** **EXHIBIT P8 TRUE COPY OF THE RESULUTION OF THE 1ST RESPONDENT DATED 07-01-2019 TO EXTEND THE PERIOD OF CONTRACT EMPLOYMENT OF 19 STAFF ALREADY IN SERVICE BY ONE YEAR.** **EXHIBIT P9 TRUE COPY OF THE ORDER OF THE GOVERNMENT DATED 2-03-2019.** W.P.(C).No.7205/19 13 **EXHIBIT P10** **TRUE COPY OF THE MINUTES OF THE MEETING DATED 30.5.2019 OF THE BOARD OF DIRECTORS OF THE 1ST RESPONDENT CORPORATION.** **RESPONDENT'S EXHIBITS:** ## **ANNEXURE I** TRUE COPY OF THE EXTRACT OF THE MINUTES OF THE MEETING OF THE BOARD OF DIRECTORS OF THE 1ST RESPONDENT CORPORATION HELD ON 30.5.2019 AT 2.30 PM. **EXHIBIT R1(a)** TRUE COPY OF THE ORDER DATED 7-03-2019 ISSUED BY THE MANAGING DIRECTOR OF THE KERALA STATE MINORITY CORPORATION. **EXHIBIT R(b)** TRUE COPY OF THE ORDER DATED 22-02-2018 EXTENDING THE CONTRACT PERIOD OF THE PETITIONER. **EXHIBIT R3(a)** A TRUE COPY OF THE G.O.(P) NO. 56/17/FIN DATED 28-04-2017 **EXHIBIT R3(b)** A TRUE COPY OF G.O(RT) NO.1110/18/GAD DATED 21-02-2018 True copy PS To Judge