Santhamma T. v. State of Kerala and The State Institute of Languages, Nalanda

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 18[TH] DAY OF MAY 2022 / 28TH VAISAKHA, 1944** ## **WP(C) NO. 16367 OF 2019** ## **PETITIONER/S:** SANTHAMMA T., AGED 56 YEARS THOTTINKARA PUTHEN VEEDU, MAILAKKARA, NAYYAR DAM P.O., THIRUVANANTHAPURAM-695572. BY ADVS. P.NANDAKUMAR S.ANEESH ## **RESPONDENT/S:** 1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF CULTURAL AFFAIRS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE STATE INSTITUTE OF LANGUAGES, NALANDA, THIRUVANANTHAPURAM-695003, REPRESENTED BY ITS DIRECTOR. BY ADV GOVERNMENT PLEADER ## **OTHER PRESENT:** GP VENUGOPAL V. SC FOR R2 P.C.SASIDHARAN **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.03.2022, THE COURT ON 18.05.2022 DELIVERED THE FOLLOWING:** W.P.(C) No.16367 of 2019 -2- ## **JUDGMENT** Dated this the 18[th] day of May, 2022 The petitioner is a physically challenged person with 40% disability. She has passed the certificate course in book binding conducted by the Government of Kerala and has undergone training in book binding at the Vocational Training Centre for physically handicapped. The petitioner has also undergone skill training in hand composing, proof reading, letter press machine works and book binding. The petitioner had registered her name at the Vocational Rehabilitation Centre for Handicapped and based on her qualifications, the petitioner's name was sponsored by the Centre and she was appointed as Binder at the Vijnanamudranam Press under the second respondent on 17.02.1998. While she was continuing as Binder based on such engagement, W.P.(C) No.16367 of 2019 -3- the Managing Committee of the second respondent decided to appoint the petitioner and few other physically challenged Binders/Workers, who had been working for more than 10 years, on pay scale basis. The decision was implemented with effect from 02.02.2009, subject to approval from the Government. Thereafter, by letter dated 18.02.2010, the second respondent requested the Government to regularise the service of the petitioner and other physically challenged persons working in the Vijnanamudranam Press. The first respondent rejected the request by Ext.R1(b) order dated 14.05.2013. In the meantime, the petitioner had approached the Kerala State Human Rights Commission seeking regularisation and by Ext.P4 order, the Commission directed the Government to take immediate decision and regularise the service of the petitioner and other physically challenged workers before 31.03.2014. W.P.(C) No.16367 of 2019 -4- 2. Aggrieved by Ext.R1(b) decision of the Government, rejecting her request for regularisation, the petitioner filed W.P.(C) No.4817 of 2013 before this Court. On their part, the second respondent challenged Ext.P4 order of the Human Rights Commission in W.P.(C) No.25985 of 2014. Later, the second respondent withdrew its writ petition. W.P.(C) No.4817 of 2013 filed by the petitioner was thereafter ordered, directing the respondents to implement the directions in Ext.P4 order of the Human Rights Commission. The direction in Ext.P6 judgment was implemented vide Ext.P7 order dated 07.12.2018, regularising the service of the petitioner and others with effect from the date of the order. Even though the petitioner made a request to grant regularisation with effect from the date of her initial appointment or at least from the date on which she was appointed on pay scale basis, the Government, by Ext.P8 order, rejected the W.P.(C) No.16367 of 2019 -5- request. Hence, this writ petition seeking the following reliefs; _“i) To call for the records leading to Exhibit P8 and quash the same by the issuance of a Writ of Certiorari._ _ii) To issue a Writ of Mandamus directing the respondents to regularize the service of the petitioner as L.D.Binder with effect from 02.02.2009._ _iii) To issue a Writ of Mandamus_ _directing the respondents to grant the petitioner minimum pension and other terminal benefits considering her qualifying service with effect from 02.02.2009.”_ 3. Learned Counsel for the petitioner contended that the petitioner had acquired the requisite qualification/training prior to her appointment as Binder in the Vijnanamudranam Press on 17.02.1998. After appointment, the petitioner had continued in service without break, which factor was taken into consideration by the second respondent for appointing her and others on pay scale basis with effect from W.P.(C) No.16367 of 2019 -6- 02.02.2009. The second respondent itself had sought the Government's approval for regularising the petitioner's service, but the Government rejected the request for no valid reason. Learned Counsel relied on Ext.P9 to point out that in similar cases, the Government had ordered regularisation, exercising its power under Rule 39 of the KS&SSR. It is argued that the Human Rights Commission having directed regularisation with effect from 31.03.2014 and this Court having ordered implementation of the direction, the first respondent committed a gross illegality in granting regularisation only with effect from 07.12.2018, the date of Ext.P7 order. 4. It is submitted that the petitioner attained the age of superannuation on 31.01.2019 (56 years), but is allowed to continue up to 60 years, treating her to be a new entrant and granting her the benefit of enhancement of retirement under the newly introduced National W.P.(C) No.16367 of 2019 -7- Pension Scheme. It is pointed out that in spite of the extended period of service, the petitioner will not even get the minimum pension, for want of the requisite minimum qualifying service. Reliance is placed on the Division Bench decision in _**Laila T.M and others v. State of Kerala and**_ _**others [ILR 2014 (2) Ker.841]**_ and the Apex Court decision in _**Sukumaran V v. State of Kerala and**_ _**another [2020 (8) SCC 106]**_ to contend that the employees, whose labour is extracted by the employer for a long period of time, has the right to get their past service counted for service benefits including pension. 5. Learned Government Pleader refuted the contentions and submitted that the petitioner was initially appointed on piece rate basis to tide over the dearth of sufficient staff at the Vijnanamudranam Press. Later the governing body of the second respondent decided to appoint three W.P.(C) No.16367 of 2019 -8- differently abled persons as Binders and certain others as Binder Workers. Accordingly, Ext.P3 order dated 11.02.2009 was passed giving scale of pay to the petitioner and others. The request to regularise the petitioner's service was rejected by Ext.R1(b), finding that the recruitment to posts in the second respondent was entrusted with the Public Service Commission and the second respondent had not yet framed its service rules. It is true that the Human Rights Commission and this Court directed to regularise the service of the petitioner, but the Government had to take into consideration various factors, including the fact that the petitioner was initially engaged on piece rate basis without undergoing any selection process. The decisions relied on by the petitioner are rendered on entirely different set of facts and the petitioner has no legal right to seek regularisation with effect from the date on which her salary was fixed on pay scale basis. W.P.(C) No.16367 of 2019 -9- Even otherwise, no such relief can be granted since the petitioner has not challenged Ext.P7 Government order. The decision in _**Surendra Kumar**_ _**and others v. Greater Noida Industrial**_ _**Development Authority and others [(2015) 14 SCC**_ _**382]**_ is relied on to contend that the date of contractual appointment cannot be reckoned for the purpose of regularisation. 6. The fact that the petitioner was initially engaged on daily wage basis (piece rate) and that, by Ext.P3, the second respondent had appointed the petitioner on pay scale basis with effect from 02.02.2009 onwards, is not in dispute. In this regard, it is pertinent to note that the decision at Ext.P3 was taken subject to approval by the Government. The petitioner has no case that Ext.P3 decision was approved by the Government at any point of time. On the other hand, Ext.R1(b) would show that the petitioner's -10- ## W.P.(C) No.16367 of 2019 request for regularisation was turned down. In the above factual background, I find substantial merit in the contention of the learned Government Pleader that the petitioner's claim for regularisation with effect from 02.02.2009 cannot be countenanced, particularly when Ext.P7 Government order is not under challenge. The petitioners in _**Laila T.M**_ had been appointed as Leprosy Inspectors through Employment Exchanges and had continued in service for two decades. The Division Bench found that the petitioners were recruited to achieve the national and human right health and welfare goal of eradication of Leprosy. In that context, it was observed that, having extracted their labour, the petitioners cannot be left high and dry and refusal to count their past service for benefits, including pension, is irrational, inhuman and unreasonable. Even after making such observation, the court ## W.P.(C) No.16367 of 2019 -11- refused to interfere with the impugned order, to the extent it directed regularisation with effect from the date of the order. In _**Sukumaran**_ _**V**_ , the Apex Court held that the service of a regularly recruited person, who had earlier worked as CLR, should be counted for pension. As rightly pointed out by the learned Government Pleader, the facts involved in those decisions are different and the dictum laid down therein cannot be applied to the case at hand. In my view, the more important aspect is the direction of the Human Rights Commission to regularise the petitioner's service before 31.03.2014, followed by the judgment of this Court to give effect to that direction. In the wake of Exts.P4 and P6, the Government was bound to regularise the petitioner's service at least with effect from 31.03.2014. The delay on the part of the Government in implementing the ## W.P.(C) No.16367 of 2019 -12- directions of the Human Rights Commission and this Court is no justification for making the regularisation effective from the date of Ext.P7 order (7.12.2018). Hence, to that extent, Ext.P7 order is liable to be interfered with. In the result, the writ petition is disposed of, quashing Exts.P7 and P8 to the extent they direct regularisation of the petitioner's service with effect from 07.12.2018. Consequently, the Government is directed to pass fresh order regularising the petitioner's service, strictly in terms of the direction contained in Ext.P4 order, as affirmed by Ext.P6 judgment. The order, as directed above, shall be issued within two months of receipt of a copy of this judgment. **==> picture [34 x 12] intentionally omitted <==** ## **V.G.ARUN JUDGE** Scl/ W.P.(C) No.16367 of 2019 -13- ## **APPENDIX OF WP(C) 16367/2019** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE DISABILITY CERTIFICATE DATED 17.04.2007 ISSUED BY THE MEDICAL BOARD, MEDICAL COLLEGE, THIRUVANANTHAPURAM. EXHIBIT P2 TRUE COPY OF THE MINUTES OF MEETING OF THE 2ND RESPONDENT DATED 04.02.2008. EXHIBIT P3 TRUE COPY OF ORDER OF THE 2ND RESPONDENT DATED 11.02.2009. EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS DATED 21.12.2013 OF THE HON'BLE KERALA STATE HUMAN RIGHTS COMMISSION. EXHIBIT P5 TRUE COPY OF JUDGMENT DATED 23.03.2017 IN W.P.(C) NO.25985 OF 2014. EXHIBIT P6 TRUE COPY OF JUDGMENT DATED 23.03.2017 IN W.P.(C) NO.4817 OF 2013. EXHIBIT P7 TRUE COPY OF G.O.(MS)NO.47/2018/CAD DATED 07.12.2018 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P8 TRUE COPY OF ORDER NO.C1/07/19-CAD DATED 19.02.2019 ISSUED BY THE 1ST RESPONDENT. Exhibit P9 TRUE COPY OF GO(MS) NO.64/2013/F & PD DATED 25/10/2013. RESPONDENT'S EXHIBITS R1(A) TRUE COPY OF THE GO(MS) No.21/2/CAD dated 30.03.2012 R1(B) TRUE COPY OF THE G.O.(RT) No.249/2013/CAD DATED 14/04/2013