S. Gireesh C.R.A. (Clinical Record Assistant) Service, Regional Cancer Centre, Medical College P.O., Thiruvananthapuram v. State of Kerala and Regional Cancer Centre

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU THURSDAY, THE 23RD DAY OF MARCH 2017/2ND CHAITHRA, 1939 ## WP(C).No. 30288 of 2010 (I) ## PETITIONER(S): 1. S.GIREESH C.R.A (CLINICAL RECORD ASSISTANT) SERVICE, REGIONAL CANCER CENTRE, MEDICAL COLLEGE P.O.,, THIRUVANANTHAPURAM. 2. B.JAYABALAN NAIR, SEMI SKILLED WORKERS ENGINEERING WING, REGIONAL CANCER CENTRE, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. 3. AMBILI S., CLINICAL RECORDS ASSISTANT ADMINISTRATIVE OFFICE, REGIONAL CANCER, CENTRE, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. 4. BINDU SADASIVAN, CLINICAL RECORDS ASSISTANT, CLINICAL SERVICE, REGIONAL CANCER CENTRE, MEDICAL COLLEGE P.O.,, THIRUVANANTHAPURAM. 5. Y.S.VIMAL KUMAR, HELPER REGIONAL CANCER CENTRE, MEDICAL COLLEGE P.O.,, THIRUVANANTHAPURAM. 6. SURESH KUMAR.G., ELECTRICIAN, ENGINEERING WING, REGIONAL CANCER CENTRE, MEDICAL COLLEGE P.O.,, THIRUVANANTHAPURAM. 7. GIRIJA.R., CLINICAL RECORDS ASSISTANT CLINICAL LAB, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM-695 011. 8. HARIKUMAR.S., SEMI SKILLED WORKER SUB STATION, ENGINEERING DEPARTMENT, REGIONAL CANCER CENTRE, MEDICAL COLLEGE P.O.,, THIRUVANANTHAPURAM. 9. GANGA A.P., CLINICAL RECORDS ASSISTANT REGIONAL CANCER CENTRE, MEDICAL COLLEGE P.O.,, THIRUVANANTHAPURAM. BY ADV. SRI.KALEESWARAM RAJ W.P.(C) No. 30288/2010 : 2 : RESPONDENT(S): ------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH & FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE REGIONAL CANCER CENTRE, REPRESENTED BY THE DIRECTOR, REGIONAL CANCER CENTRE, THIRUVANANTHAPURAM - 695 011. R2 BY ADV. SRI.K.R.RADHAKRISHNAN NAIR R1 BY ADV. SMT. A.C. VIDHYA, GOVERNMENT PLEADER R2 BY ADV. SRI.M.SREEKUMAR, SC R2 BY ADV. SRI.ABDUL KHARIM, SC R2 BY ADV. SRI.K.JAJU BABU (SR.) R2 BY ADV. SMT.M.U.VIJAYALAKSHMI, SC R BY SRI.K.R.RADHAKRISHNAN NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 30288/2010 : 3 : ## **APPENDIX** ## PETITIONER'S EXHIBITS: |EXT.P1|:|TRUE COPY OF THE RELEVANT PART OF THE RESOLUTION| |---|---|---| |||DATED 12.01.2000.| |EXT.P2|:|TRUE COPY OF THE ORDER DATED 13.03.2001.| |EXT.P3|:|TRUE COPY OF THE NOTE ISSUED BY RCC.| |EXT.P4|:|TRUE COPY OF RELEVANT PART OF THE ANNEXURE II| |||ENCLOSED ALONG WITH EXT.P3.| |EXT.P5|:|TRUE COPY OF LETTER DATED 20.04.2004.| |EXT.P6|:|TRUE COPY OF THE RESOLUTION.| |EXT.P7|:|TRUE COPY OF THE MINUTES OF THE MEETING OF THE RCC| |||HELD ON 28.12.2006.| |EXT.P8|:|TRUE COPY OF THE G.O.(MS) NO.36/2007 DATED| |||20.02.2007.| |EXT.P9|:|TRUE COPY OF THE ORDER DATED 23.02.2007.| |EXT.P10|:|TRUE COPY OF THE REPRESENTATION DATED 21.04.2009.| |EXT.P11|:|TRUE COPY OF THE REPRESENTATION DATED 21.04.2009| |||BEFORE THE GENERAL BODY OF RCC.| |EXT.P12|:|TRUE COPY OF LETTER DATED 21.07.2010.| ## RESPONDENTS' EXHIBITS: NIL //TRUE COPY// ## P.A. TO JUDGE rv **DAMA SESHADRI NAIDU, J. ------------------------------------------W.P. (C) No. 30288 of 2010 () -----------------------------------------Dated this the 23[rd] day of March, 2017.** ## **JUDGMENT** ## **FACTS:** The petitioners, the daily-wage earners, entered the service of the Regional Cancer Centre (RCC), Thiruvananthapuram, in different years—1998, 1999, and 2000—and have been working in various cadres. On 12.01.2000, the employer’s Executive Committee resolved to appoint a committee to go into the issue of regularisation as all those daily-wage earners had been representing that their services be regularised. The Committee, thus constituted, recommended for the employees' regularisation. 2. The Executive Committee accepted the Committee's recommendations and recommended to the Government to regularise, initially, 20 employees. When the left-out employees renewed their demand for regularisation, the Committee has resolved to regularise 50 more employees, and later two more. W.P.(C.) No.30288/2010 -2- Thus, 72 employees were regularised. 3. Left out, the nine petitioners submitted a series of representations, including Exts.P10 and P11, to the employer to have their services regularised. The employer, in turn, submitted Exts.P2 to P7 recommendations to the Government. Eventually, through Ext.P8, the Government accorded approval to the petitioner's regularisation, but prospectively. The employer, through Ext.P9, implemented the order of regularisation. When the petitioners again submitted Exts.P10 and P11 representations to the Government to give effect to their regularization retrospectively, the Government through Ext.P12 order rejected their request. Aggrieved, they have filed this writ petition. ## **SUBMISSIONS: PETITIONERS':** 4. Varun C, the learned counsel for the petitioner, has submitted that both the employer and the Government have accepted that the petitioners joined the services before 01.11.2000, the cut-off joining date for regularisation. He has also submitted that both the authorities have agreed that the petitioner's names were omitted from the list of regularised candidates inadvertently—by oversight. His singular W.P.(C.) No.30288/2010 -3- contention is that out of 72 employees regularised, the employer initially found 12 people without any qualification; therefore, their pay had not been fixed. Instead, it appointed another committee to look into the issue. Despite those employees’ lacking the Committee recommended pay fixation with retrospective effect. Their pay was accordingly fixed. Ironically, the petitioners with qualification, argues Sri Varun, though omitted by oversight, were regularised only prospectively. According to him, neither the employer nor the Government has assigned any reason. Their action, in fact, is invidiously discriminatory. To support his submissions, Sri Varun has relied on **Laila T.M. and others v. State of Kerala and others[1]** ~~.~~ ## **RESPONDENTS':** 5. Sri K. Jaju Babu, the learned Senior Counsel for the second respondent, has submitted that the Government is the sanctioning authority. Once it has decided to regularise an employee’s services prospectively, the employee cannot question that decision—a policy decision. Nor can this Court interfere with that policy decision. 6. Smt. A.C. Vidhya, the learned Government Pleader, apart 12014(2) KHC 395 W.P.(C.) No.30288/2010 -4- from adopting the submissions made by Sri Jaju Babu, has submitted that given the financial implications, the Government, having examined the issue thoroughly, has decided to regularise the petitioners only prospectively. It being a policy decision, it is not amenable to judicial review. She has relied on _**Thankaraj v. Kerala Water Authority[2]**_ and ## **Shanmugam v. Kerala Water Authority[3]** 7. Heard the learned counsel for the petitioners, the learned Standing Counsel for the 2[nd] respondent and the learned Government Pleader, apart from perusing the record. ## **ISSUE:** The employer took a policy decision: to regularise the services of its daily-waged employees, with retrospective effect. The Government approved the employer's policy. The employer, accordingly, regularised many of its employees. But a batch of nine employees were left out. The reason—the employer omitted them by oversight. Later, they too were regularised, but only prospectively. The Government cites no reason for regularising those nine employees 2 2000(1) KLT 237 32004(2) KLT 529 W.P.(C.) No.30288/2010 -5- prospectively. Can the Government's action be sustained on the anvil of Articles 14 and 16 of the Constitution of India? ## **DISCUSSION:** 8. Indeed, the issue runs in a narrow compass; the facts are not in dispute. Acting on the Committee’s recommendation, the employer did regularize the services of 72 employees. Despite 12 employees’ lacking qualification, the employer—once again, recommended by a Committee—fixed their pay retrospectively. As seen from Ext.P3 recommendation, the employer, in fact, admitted that the petitioner's services could not be regularised along with the other 72 employees, only by oversight. It, accordingly, recommended their regularisation. 9. First, the petitioners are qualified; second, they all joined the services before the cut-off date, i.e., 01.11.2000. There was no statutory impediment for the petitioners’ regularisation along with the other employees whose services had been regualrised. But for what could be termed as the employer’s oversight, the petitioners could have had the same benefit. 10. What disturbs the Court’s conscience is that the employer W.P.(C.) No.30288/2010 -6- did recommend the retroactive pay fixation of 12 unqualified employees. And the Government did give its imprimatur. But the Government meted out a different treatment to the petitioners, who suffered no disqualification. In the Ext.P12 impugned order, the Government has not assigned any reasons why it has treated these 9 petitioners separately, thereby discriminating against them. Cryptic as the Ext.P12 is, it pays to extract it, in full: “I am to invite your attention to the reference cited and to inform you that the Government is not in a position to consider your proposal at present and hence declined.” 11. Without sounding uncharitable, I may observe that if a recipient is at his benefactor’s mercy, he may not have a choice, nor can he be heard complaining. It is avarice to look into a gift horse’s mouth. But, here, both the employer and the Government are bound by the rule of law. Their action must be informed by reason. ## **DISCRIMINATION & ARBITRARINESS:** 12. A Constitution Bench in **Sukhdev Singh v. Bhagathram Sardar Singh[4]** and a three-Judge Bench of the Supreme Court in 4 (1975) 1 SCC 421 W.P.(C.) No.30288/2010 -7- ## **Ramana Dayaram Shetty v. Union of India[5]** (“R.D. Shetty”) have invoked Justice Frankfurter’s aphoristic judicial assertion in **Vitarelli v. Seaton** : It is a well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. ## 13. This Court in **Thomas v. State of Kerala[6]** ~~,~~ per Mathew J (as his Lordship then was) has observed thus: “The Government, is not and should not be as free as an individual in selecting the recipients for its largesse. Whatever its activity, the Government is still the Government and will be subject to restraints, inherent in its position in a democratic society. A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal.” ## 14. In **Erusian Equipment and Chemicals Ltd. v. State of** **West Bengal[7]** the Supreme Court has held that the Government is not like a private individual who can pick and choose the person with whom it will deal, but the Government is still a Government when it enters into contract or when it is administering largesse and it cannot, > 5 (1979) 3 SCC 489 6 AIR 1969 Ker 81 > 7 (1975) 1 SCC 70 W.P.(C.) No.30288/2010 -8- without adequate reason, exclude any person from dealing with it or take away largesse arbitrarily. When the Government is trading with the public, “the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions. . . The activities of the Government have a public element and, therefore, there should be fairness and equality. The State need not enter into any contract with anyone, but if it does so, it must do so fairly without discrimination and without unfair procedure”. ## 15. Quoting with approval both **Thomas** and **Erusian** , **R. D. Shetty** (para 12) further elaborates: “This proposition would hold good in all cases of dealing by the Government with the public, where the interest sought to be protected is a privilege. It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largesse, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largesse including award of jobs, contracts, quotas, licences, etc. must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory.” W.P.(C.) No.30288/2010 -9- 16. Consistent is the judicial view of the Constitutional Courts of this Country that arbitrariness, or state action uninformed by reasons, cannot stand the legal scrutiny. It falls foul of, among other legal principles, the principle of fairness, too. 17. Here, Neither the employer nor the Government, as has been rightly contended by the petitioners, assigns any reason why the petitioners were not treated equally along with those who are similarly placed. 18. True, this Court in **Thankaraj** has held that an employee cannot insist that his services be regularized retroactively. The facts examined, the case reveals that the employees in Kerala Water Authority demanded their regularization. When the matter reached Supreme Court, it directed the employer to regularize the employees’ services with immediate effect. This directive the employees interpreted to mean ‘retrospectively.’ A learned Single Judge of this Court has held that had it been the Supreme Court’s intention, it could have spelt it out explicitly. Further, the Court has referred to **Registrar General of India v. V. Thippa Setty[8]** and held that “if ad 8 (1998) 8 SCC 690 W.P.(C.) No.30288/2010 -10- hoc service is regularized from back date, it will disturb seniority of regularly appointed employees in the cadre.” First, the issue of regular employees getting affected does not arise here; second, nor has this Court laid down, to my mind, an invariable principle that retrospective regularization is illegal. 19. In **Shanmugam** , involving the same employer as in **Thankaraj** , the employees had their services regularized retrospectively. But, given the prejudice being caused to the regularly recruited employees, this Court has held that the newly regularized employees’ seniority should count their seniority only prospectively. 20. I gather from the above precedents of the Supreme Court and this Court that an employee cannot insist that he should be regularised from a particular date, unless he could establish an element of arbitrariness in the employer's action. Here it is not a mere element but the essence of the Government's action is vitiated by arbitrariness. 21. As has been emphatically held by a learned Division Bench of this Court in **Laila T.M.** , any irrational or arbitrary action on the part of W.P.(C.) No.30288/2010 -11- the State amounts to negation of the fundamental rights enshrined in Articles 14 and 16 of the Constitution of India. It is unreasonable and arbitrary to exclude similarly situated employees from the benefit of counting their past service on a par with the other employees. 22. The Constitutional Courts have deprecated and disapproved invidious, hostile discrimination. Here there are two sets of employees identically placed. One set of employees could not be regularised along with the other set not for their fault, but because of the omission committed by the employer. Later the employer that it ought to have regularised the services of the second set of employees, too, and it recommended. But the Government chose to regularise them only prospectively. That decision is devoid of any reason, much less justification. ## **CONCLUSION:** 23. As arbitrary and unreasonable State action cannot constitutionally be countenanced, this Court cannot but hold that the employer’s and the Government’s orders refusing to regularize the petitioners retrospectively are illegal and arbitrary. I, therefore, set W.P.(C.) No.30288/2010 -12- aside Exts.P6, P8, P9 and P12. Consequently, the Court further directs respondents 1 and 2 to regularise the petitioners' services retrospectively on a par with the other 72 employees, who had been regularized retrospectively. No order on costs. 24. As to the benefits, as could be seen from Ext.P8, 12 employees, who had not been qualified were declared to have been not entitled to arrears, but the petitioners are qualified. Therefore, that condition will not apply to the petitioners and the benefit cannot be denied arrears. No order on costs. **DAMA SESHADRI NAIDU,** **JUDGE.** Rv W.P.(C.) No.30288/2010 -13-