Santosh Kumar S V v State of Kerala & ors

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN` ``` THURSDAY, THE 3[RD] DAY OF AUGUST 2023 / 12TH SRAVANA, 1945 ``` ## `WP(C) NO. 24580 OF 2019` ## `PETITIONERS:` ``` 1SANTHOSH KUMAR S V LIFT OPERATOR, KERALA STATE HOUSING BOARD, SANTHI NAGAR, THIRUVANANTHAPURAM-695001. 2S.PRAMOD, LIFT OPERATOR, KERALA STATE HOUSING BOARD, SANTHI NAGAR, THIRUVANANTHAPURAM-695001. 3ABRAHAM ULAHANAN, LIFT OPERATOR, KERALA STATE HOUSING BOARD,REVENUE TOWER, KOTHAMANGALAM, ERNAKULAM-686691. BY ADVS. KALEESWARAM RAJ A.ARUNA RIYA RAYMOL IYPE MAITREYI SACHIDANANDA HEGDE ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, HOUSING DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2KERALA STATE HOUSING BOARD, REPRESENTED BY ITS CHAIRMAN, SANTHI NAGAR, THIRUVANANTHAPURAM-695001. 3HOUSING COMMISSIONER TO THE GOVERNMENT OF KERALA, KERALA STATE HOUSING BOARD, SANTHI NAGAR, THIRUVANANTHAPURAM-695001. BY ADVS. SRI.MANOJ RAMASWAMY, SC, KERALA STATE HOUSING BOARD T.K.SAJEEV SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 24580 OF 2019 ``` ``` 2 ``` ## `JUDGMENT` ``` The petitioners impugn Ext.P11 order of the Government, whereby, their request for being regularised in the services of the Kerala State Housing Board (KSHB) has been rejected on the ground that they were neither appointed by the latter, nor paid salary by them; and that acceding to any such request would create a bad precedent in future. ``` ``` 2.Smt.K.Thulasi Raj – learned counsel for ``` ``` the petitioners, submitted that her clients were initially appointed on contract by the “KSHB”, as evident from Ext.P1 and that they have worked ``` ``` as Lift Operators for more than a decade. She submitted that, however, when they requested for regularization, it was turned down; thus constraining them to approach the Government, ``` ``` WP(C) NO. 24580 OF 2019 ``` ``` 3 ``` ``` who has now issued the impugned Ext.P11 order, saying that they had not completed 10 years of service on the date on which the Hon’ble Supreme Court delivered judgment in State of Karnataka v. Umadevi [(2006) 4 SCC 1]; and further because ``` ``` the post in which they are engaged against were not sanctioned and that their salary was being paid by the “Residents Association” of the buildings in question. She then pointed out that Government then takes the stand that if her clients’ request is considered, it will set a precedent for others to make such claims in ``` ``` future. She argued that the afore reasons are untenable; and thus that Ext.P11 is illegal and unconstitutional. ``` ``` 3.In response, the learned Government ``` ``` Pleader – Smt.K.G.Sarojini, submitted that the petitioners’ claim is incapable of being acceded ``` ``` WP(C) NO. 24580 OF 2019 ``` ``` 4 ``` ``` to for the reasons already recorded above. She, ``` ``` therefore, prayed that this writ petition be dismissed. ``` ``` 4.The learned Standing Counsel for the ``` ``` “KSHB”, submitted that his client cannot appoint any one without posts being created and ``` ``` sanctioned by the Government; and therefore, ``` ``` that he has no further comments to make on the validity of Ext.P11. He, however, added that the wages of the petitioners are being paid by the “Residents Association” of the tenants of the ``` ``` buildings in which they are engaged in. ``` ``` 5.I must say upfront that I cannot find ``` ``` favour with the submissions of the petitioners, that Ext.P11 is vitiated. This is because, ``` ``` Government had put mind to their claims, to find that the posts against which they were engaged were not ones created by them or part of the ``` ``` WP(C) NO. 24580 OF 2019 ``` ``` 5 ``` ``` cadre approved to the “KSHB”. ``` ``` 6.Pertinently, the “KSHB” takes the stand that it is the Residents Association of the tenants - to whom various portions of the buildings in which the petitioners are engaged in - who are their pay masters; and therefore, that the claim for regularization against them is not tenable. ``` ``` 7.Interestingly, the afore submissions or the factual statements in Ext.P11 are not ``` ``` controverted by the petitioners; but who, assert that they were initially appointed by the ``` ``` “KSHB”, as is evident from Ext.P1. A close look through Ext.P1 would, however, indicate to the contrary because, it merely says that certain ``` ``` quotations for engagement of personnel on contract had been approved by the Executive Engineer; and this was in the year 1998, when ``` ``` WP(C) NO. 24580 OF 2019 ``` ``` 6 ``` ``` the buildings in question were constructed and were being let out. ``` ``` 8.In the afore circumstances, it is ``` ``` apodictic that the petitioners’ request for ``` ``` regularisation is not tenable; and hence that ``` ``` Government cannot be found fault with in having issued Ext.P11. ``` ``` 9.That being said, Smt.K.Thulasi Raj ``` ``` submits that, subsequent to Ext.P11, her clients ``` ``` have preferred various representations - namely Exts.P13 to P16 - seeking that sufficient number ``` ``` of vacancies be created in the buildings in ``` ``` question, since operation of lifts is an ``` ``` unexpendable activity. She prayed that, ``` ``` therefore, notwithstanding Ext.P11, Government ``` ``` may be directed to consider the said ``` ``` representations. ``` **==> picture [401 x 11] intentionally omitted <==** ``` WP(C) NO. 24580 OF 2019 ``` ``` 7 ``` ``` afore request of the petitioners either because, Exts.P13 to P16 representations appear to be more or less in terms of their earlier request, which has been concluded through Ext.P11. Hence, should they now seek the creation of posts and consequent regularisation as per law, they must approach the competent Authority of the Government afresh, through a request for such purpose. ``` ``` Resultantly, I dispose of this writ petition confirming Ext.P11; however, leaving full liberty to the petitioners to approach theGovernmentthroughapposite ``` ``` requests/representation for creation of posts ``` ``` and such other; and if this is done within a period of one month from the date of receipt of a copy of this judgment, same shall be considered as per law, as expeditiously as is ``` ``` WP(C) NO. 24580 OF 2019 ``` ``` 8 ``` ``` possible, but not later than four months from the date on which such representations are ``` ``` received. ``` ``` I, however, clarify that this Court has ``` ``` not spoken about the entitlement of the petitioners to seek creation of posts, or to seek such other corollary reliefs; and that they are all left open and to be decided by the Government appositely during the afore exercise. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ``` JUDGE ``` ``` SAS ``` ``` WP(C) NO. 24580 OF 2019 ``` ``` 9 ``` ## `APPENDIX OF WP(C) 24580/2019` ``` PETITIONER EXHIBITS: ``` |`EXHIBIT P1`|`TRUE COPY OF THE ORDER NO.E3/OB/12/90 DATED`| |---|---| ||`17.11.1998.`| |`EXHIBIT P2`|`TRUE COPY OF THE ORDER NO.B3/OB/12/90 DATED`| ||`12.08.1999.`| |`EXHIBIT P3`|`TRUE COPY OF THE APPOINTMENT LETTER OF THE 1ST`| ||`PETITIONER.`| |`EXHIBIT P4`|`TRUE COPY OF THE APPOINTMENT LETTER OF THE 2ND`| ||`PETITIONER.`| |`EXHIBIT P5`|`TRUE COPY OF THE AGREEMENT DATED 6.02.2002.`| |`EXHIBIT P6`|`TRUE COPY OF THE REPLY DATED 29.05.2017 ISSUED`| ||`BY THE 1ST RESPONDENT.`| |`EXHIBIT P7`|`TRUE COPY OF THE JUDGMENT DATED 3.01.2017 IN`| ||`W.P.(C) NO.11279/2009.`| |`EXHIBIT P8`|`TRUE COPY OF G.O.(M.S.)NO.21/2017/HSG DATED`| ||`9.11.2017.`| |`EXHIBIT P9`|`TRUE COPY OF THE JUDGMENT DATED 11.06.2018 IN`| ||`W.P.(C) NO.16107/2018.`| |`EXHIBIT P10`|`TRUE COPY OF THE JUDGMENT DATED 11.06.2018 IN`| ||`W.P.(C)NO.16096/2018.`| |`EXHIBIT P11`|`TRUE COPY OF G.O.(MS)NO.5/2019/HOUSING DATED`| ||`7.06.2019.`| |`EXHIBIT P12`|`TRUE COPY OF THE ORDER DATED 28.11.2017`| ||`REFIXING THE SALARY TO THE POST OF LIFT`| ||`OPERATORS WORKING UNDER CONTRACT BASIS.`| |`EXHIBIT P13`|`TRUE COPY OF THE REPRESENTATION DATED`| ||`10/2/2021 SUBMITTED BY THE 1ST PETITIONER`| ||`BEFORE THE 1ST RESPONDENT`| |`EXHIBIT P14`|`TRUE COPY OF THE REPRESENTATION DATED`| ||`10/2/2021 SUBMITTED BY THE 2ND PETITIONER`| ||`BEFORE TEH 1ST RESPONDENT`| |`EXHIBIT P15`|`TRUE COPY OF THE REPRESENTATION DATED`| ||`10/2/2021 SUBMITTED BUY THE 3RD PETITIONER`| ||`BEFORE THE 1ST RESPONDENT`|