Sreeja.T.A. and others v. State of Kerala and Kerala Shops & Commercial Establishments Workers Welfare Fund Board

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN THURSDAY, THE 20TH DAY OF DECEMBER 2012/29TH AGRAHAYANA 1934 WP(C).No. 31500 of 2011 (J) --------------------------- PETITIONERS: - ------------- 1. SREEJA.T.A,LOWER DIVISION CLERK-CUMCOMPUTER OPERATOR KERALA SHOPS AND COMMERCIAL ESTABLISHMENTS WORKERS WELFARE FUND BOARD DISTRICT OFFICE,IDUKKI,NOW ON WORKING ARRANGEMENT AT THE OFFICE OF THE CHIEF EXECUTIVE OFFICER AT THIRUVANANTHAPURAM 2. SHEENA.K.K,LOWER DIVISION CLERK-CUMCOMPUTER OPERATOR,KERALA SHOPS & COMMERCIAL ESTABLISHMENTS WORKERS WELFARE FUND BOARD DISTRICT OFFICE,ERNAKULAM. 3. VINOD KUMAR.K,LOWER DIVISION CLERK-CUMCOMPUTER OPERATOR,KERALA SHOPS & COMMERCIAL ESTABLISHMENTS WORKERS WELFARE FUND BOARD DISTRICT OFFICE,KASARAGOD,NOW ON WORKING ARRANGEMENT AT THE OFFICE THE DISTRICT EXECUTIVE OFFICER AT KANNUR 4. SHIBU.M,LOWER DIVISION CLERK-CUMCOMPUTER OPERATOR,KERALA SHOPS & COMMERCIAL ESTABLISHMENTS WORKERS WELFARE FUND BOARD DISTRICT OFFICE,THRISSUR. 5. REENA.R.L,LOWER DIVISION CLERK-CUMCOMPUTER OPERATOR,KERALA SHOPS & COMMERCIAL ESTABLISHMENTS WORKERS WELFARE FUND BOARD DISTRICT OFFICE,PATHANAMTHITTA,NOW ON WORKING ARRANGEMENT AT THE OFFICE OF THE CHIEF EXECUTIVE OFFICER AT 6. GEETHAKUMARI.C.N,LOWER DIVISION CLERKCUM-COMPUTER OPERATOR,KERALA SHOPS & COMMERCIAL ESTABLISHMENTS WORKERS WELFARE FUND BOARD DISTRICT OFFICE,KOTTAYAM,NOW ON WORKING ARRANGEMENT AT THE OFFICE THE DISTRICT EXECUTIVE OFFICER 7. CHITHRAKUMARI.S,LOWER DIVISION CLERK-CUM - -COMPUTER OPERATOR,KERALA SHOPS & COMMERCIAL ESTABLISHMENTS WORKERS WELFARE FUND BOARD DISTRICT OFFICE,KANNUR. 8. RENUKA.V.R,LOWER DIVISION CLERK-CUMCOMPUTER OPERATOR,KERALA SHOPS & COMMERCIAL ESTABLISHMENTS WORKERS WELFARE FUND BOARD DISTRICT OFFICE,ERNAKULAM. 9. BINOY.S,LOWER DIVISION CLERK-CUMCOMPUTER OPERATOR,KERALA SHOPS & COMMERCIAL ESTABLISHMENTS WORKERS WELFARE FUND BOARD DISTRICT OFFICE,KOTTAYAM. 10. SHEENA.K,LOWER DIVISION CLERK-CUMC0MPUTER OPERATOR,KERALA SHOPS & COMMERCIAL ESTABLISHMENTS WORKERS WELFARE FUND BOARD DISTRICT OFFICE,ALAPPUZHA. 11. AMMU.R,LOWER DIVISION CLERK-CUMC0MPUTER OPERATOR,KERALA SHOPS & COMMERCIAL ESTABLISHMENTS WORKERS WELFARE FUND BOARD DISTRICT OFFICE, ALAPPUZHA. 12. BINDU JAYARAJAN,LOWER DIVISION CLERK-CUM -C0MPUTER OPERATOR,KERALA SHOPS & COMMERCIAL ESTABLISHMENTS WORKERS WELFARE FUND BOARD DISTRICT OFFICE, ALAPPUZHA. 13. AJAYAN.N,LOWER DIVISION CLERK-CUMC0MPUTER OPERATOR,KERALA SHOPS & COMMERCIAL ESTABLISHMENTS WORKERS WELFARE FUND BOARD DISTRICT OFFICE,MALAPPURAM. 14. SURESHKUMAR.S,PEON,KERALA SHOPS & COMMERCIAL ESTABLISHMENTS WORKERS WELFARE FUND BOARD, DISTRICT OFFICE,THIRUVANANTHAPURAM. 15. ANNIE.M.A,PEON,KERALA SHOPS & COMMERCIAL ESTABLISHMENTS WORKERS WELFARE FUND BOARD DISTRICT OFFICE,ERNAKULAM. 16. PREMA.P,PEON,KERALA SHOPS & COMMERCIAL ESTABLISHMENTS WORKERS WELFARE FUND BOARD DISTRICT OFFICE,KANNUR. 17. SHEEBA.K.K,PEON,KERALA SHOPS & COMMERCIAL ESTABLISHMENTS WORKERS WELFARE FUND BOARD, DISTRICT OFFICE, KOZHIKODE. 18. ASMA BEEVI.V.A,PEON,KERALA SHOPS & COMMERCIAL ESTABLISHMENTS WORKERS WELFARE FUND BOARD, DISTRICT OFFICE, THODUPUZHA IDUKKI NOW ON WORKING ARRANGEMENT AT THE OFFICE THE EXECUTIVE OFFICER AT ERNAKULAM. 19. SREELATHA.R,PEON,KERALA SHOPS & COMMERCIAL ESTABLISHMENTS WORKERS WELFARE FUND BOARD, DISTRICT OFFICE,KOLLAM. 20. P.P.BIJU,PEON,KERALA SHOPS & COMMERCIAL ESTABLISHMENTS WORKERS WELFARE FUND BOARD DISTRICT OFFICE,ALAPPUZHA. 21. SHAHAMOL.P.S,PEON,KERALA SHOPS & COMMERCIAL ESTABLISHMENTS WORKERS WELFARE FUND BOARD,DISTRICT OFFICE,MALAPPURAM. 22. ABDUL HAMEED.P,PEON,KERALA SHOPS & COMMERCIAL ESTABLISHMENTS WORKERS WELFARE FUND BOARD,DISTRICT OFFICE,MALAPPURAM. 23. SOUMYA.C.R,PEON,KERALA SHOPS & COMMERCIAL ESTABLISHMENTS WORKERS WELFARE FUND BOARD,DISTRICT OFFICE,THRISSUR. 24. VITTY.R,PART-TIME-SWEEPER,KERALA SHOPS & COMMERCIAL ESTABLISHMENTS WORKERS WELFARE FUND BOARD,DISTRICT OFFICE,THIRUVANANTHAPURAM. 25. RAJESH JAYARAM.J.A,DRIVER,KERALA SHOPS & COMMERCIAL ESTABLISHMENTS WORKERS WELFARE FUND BOARD,DISTRICT OFFICE,THIRUVANANTHAPURAM. BY ADVS.SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.T.R.SADEESAN SRI.T.S.SHYAM PRASANTH RESPONDENTS: -------------- 1. STATE OF KERALA,REPRESENTED BY SECRETARY TO GOVERNMENT,LABOUR AND REHABILITATION DEPARTMENT GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM PIN-695001. 2. KERALA SHOPS & COMMERCIAL ESTABLISHMENTS WORKERS WELFARE FUND BOARD,CHERUNNIYOOR TOWERS IST FLOOR,VANCHIYOOR.P.O,THIRUVANANTHAPURAM PIN-695035,REPRESENTED BY CHIEF EXECUTIVE, OFFICER. R,R2 BY ADV. SRI.ASHIK K.MOHAMMED ALI R,R1 BY ADV. GOVERNMENT PLEADER R BY SRI.RENIL ANTO KANDAMKULATHY,SC,KSACEWW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 9-3-2012 THE COURT ON 20-12-2012, DELIVERED THE FOLLOWING: ## APPENDIX IN WPC 31500/2011 ## PETITIONERS EXHIBITS EXT.P1: COPY OF THE REQUEST LETTER DATED 17.2.2011 ISSUED BY THE 2ND RESPONDENT TO THE IST RESPONDENT. EXT.P2: COPY OF GO(MS)42/2011 DATED 1.3.2011 ISSUED BY THE GOVERNMENT. EXT.P3: COPY OF THE CONSEQUENTIAL ORDER DATED 1.3.2011 ISSUED BY THE 2ND RESPONDENT IN RESPECT OF THE PETITIONERS. EXT.P4: COPY OF THE CONSEQUENTIAL ORDER DATED 1.3.2011 ISSUED BY THE 2ND RESPONDENT IN RESPECT OF THE PETITIONERS. EXT.P5: COPY OF GO(MS)172/2011/LBR DATED 11.11.2011 ISSUED BY THE IST RESPONDENT. EXT.P6: COPY OF THE STAY ORDER BY THIS HON'BLE COURT IN WP(C) 27284/11.DT:14.10.2011. EXT.P7: COPY OF THE ORDER STATED TO HAVE BEEN ISSUED BY THE 2ND RESPONDENT ON 24.11.2011, VIDE NO:E/524/2011 EXT.P8: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC 5113/2007 DT.13.7.2007 EXT.P9: COPY OF THE ORDER OF THIS HON'BLE COURT IN WPC 27420/07 DT.24.11.2009 RESPONDENTS' EXHIBITS: EXT.R2C: TRUE COPY OF THE ORDER NO: G.O.(RT)1819/2011/LBR DT.9.12.2011 OF THE GOVERNMENT JJ /TRUE COPY/ P.S.TO JUDGE **K. SURENDRA MOHAN, J. -----------------------------------------------------------W.P(C) NO: 31500 OF 2011 ----------------------------------------------------------Dated this the 20[th] December, 2012.** ## **JUDGMENT** The petitioners herein have filed this writ petition challenging Ext.P5 proceedings of the first respondent by which their appointments have been cancelled. The petitioners are employees of the second respondent, the Kerala Shops and Commercial Establishments Workers Welfare Fund Board. As per Ext.P2 the petitioners were regularised in the service of the second respondent. However, by Ext.P5 the said order has been cancelled. 2. According to the petitioners, the second respondent Board was formed in the year 2007. The work of the second respondent is carried on mainly utilising methods of Information Technology in the matter of registration of members, payment of contribution and disbursement of benefits. The second respondent Board is fully computerised. Therefore, upon formation in the year 2007, employees were recruited, giving preference to specialized knowledge in Information Technology. According to them, they were appointed after following a due process of selection, after considering and taking into account the qualifications and WPC 31500/2011 2 experience required for each post. However, their remuneration was fixed on daily wage basis since sanction had not been obtained for creation of the posts. Subsequently, sanction was obtained and it was decided to absorb the petitioners into the posts that were sanctioned. Thus, on 16-2-2011 the second respondent resolved to regularise the petitioners. Thereafter, based on the resolution of the Board, a request was made on 17-2-2011 to the first respondent for regularising the services of the petitioners. The said request, Ext.P1 contains a list of the persons working in the various posts, the dates of commencement of their service as well as their educational qualifications. Ext.P1 was considered by the Government and G.O(MS) 42/2011 dated 1-3-2011 was issued regularising the services of 26 employees including the petitioners. The said Government Order is Ext.P2. Thereafter, consequential orders were issued by the second respondent regularising the services of the petitioners in the scales of pay sanctioned to each post by the Government. Exts.P3 and P4 are such consequential orders. On the strength of Exts.P2 to P4 the petitioners have been working as regular employees of the second respondent. 3. While so, the general elections resulted in a change of Government in the State, during May 2011. Thereafter, as per an WPC 31500/2011 3 order dated 27-7-2011, the Chief Executive Officer who had issued Exts.P3 and P4 orders was terminated from service and another person was appointed in his place, on deputation. In the above circumstances, Ext.P5 order has also been issued on 11-11-2011 cancelling Ext.P2 order of regularisation of the services of the petitioners. According to the petitioners, Ext.P5 order relates to ratification of the termination of services of the former Chief Executive Officer of the Board and under cover of the said proceedings, Ext.P2 has also been cancelled. The petitioners also contend that Ext.P5 has been issued without issuing any notice to or hearing the petitioners and therefore the said order is unsustainable and liable to be set aside. Petitioners further contend that Ext.P5 has been issued on political considerations and is therefore liable to be set aside. Therefore, they seek the issue of appropriate directions quashing Ext.P5. 4. This writ petition was admitted on 25-11-2011 and an interim order of stay of Ext.P5 was granted by this Court. However, along with the counter affidavit of the second respondent, Ext.R2(a) order dated 24-11-2011 was produced. As per the said order, the services of the petitioners had been terminated. Therefore, the writ petition has been amended by the petitioners and the said order WPC 31500/2011 4 produced as Ext.P7 in the writ petition is also under challenge. Additional grounds attacking Ext.P7 order have also been incorporated in the writ petition by amendment. 5. In the counter affidavit filed by the second respondent, it is contended that the petitioners had been terminated from service pursuant to Ext.P7 order. According to the second respondent, the petitioners who were aware of their termination had filed this writ petition suppressing the said fact and had obtained the interim order. Since the interim order was passed after the issue of Ext.P7 and the termination of the petitioners, the same was not implemented. 6. In the meantime, the petitioners filed contempt of court case No:1308/2011 seeking action against the second respondent for disobeying the interim order of this Court. According to them though Ext.P7 is dated 24-11-2011, the same was not communicated. Therefore, even assuming that the said order was passed before this Court issued the interim order, the same had not taken effect for the reason that it was not communicated to the petitioners. Since the interim order was in operation, it was incumbent upon the second respondent to have complied with the interim order, instead of terminating the petitioners' services. WPC 31500/2011 5 However, the contempt case was not pursued, since the second respondent permitted the petitioners to continue in service, in compliance with the interim order of this Court. The said order continues to be in force till date. 7. According to Shri. Jaju Babu, Advocate who appears for the petitioners, his clients are not seeking regularisation in service, as erroneously understood by the second respondent. The petitioners are all regular employees of the second respondent Board, having been regularised in service pursuant to Ext.P2 G.O. Therefore, they are entitled to claim all the service benefits as well as the protection available to similar regular employees under law. For the above reason, any action to terminate their services could have been initiated only in compliance with the procedure stipulated by the relevant rules. According to the counsel, fairness demanded that a notice was first issued to the petitioners and their objections considered, before Ext.P5 was passed. The said procedure not having been adopted, the termination of the petitioners is violative of the principles of Natural Justice, it is contended. The counsel also points out that the petitioners had not sought for their regularisation. A decision to regularise them was taken by the second respondent Board. The first respondent WPC 31500/2011 6 gave its concurrence to the said proposal. It was only thereafter that Ext.P2 G.O was passed. The petitioners are all persons who have been appointed to the respective posts occupied by each of them, after a due process of selection, considering their experience and qualifications. Therefore, no serious objection could be taken against their appointments, by any authority. They were appointed as employees on daily wages only for the reason that their posts had not been sanctioned by the Government at that time. They had been working continuously from 2007 onwards, without giving cause for complaints from any superior officer or the general public. It was considering all the above facts and circumstances that the second respondent Board decided to regularise their services. However, they had been unceremoniously terminated by Ext.P5. The only reason for their termination, according to the petitioners is the change in the political colour of the ruling party in the State. It is therefore contended that Ext.P5 is arbitrary and liable to be set aside. 8. Adv.Ashik. K.Mohamed Ali who appears for the second respondent points out that Ext.P1 resolution was passed on 16-2-2011. Immediately thereafter, on 1-3-2011 Ext.P2 order has been issued by the first respondent. On the same day itself, the WPC 31500/2011 7 second respondent has issued Ext.P3 order implementing Ext.P2. According to the counsel, a reference to the dates clearly shows that the said proceedings were all issued in undue haste. The proceedings were all issued with the object of escaping from the effect of the model code of conduct prescribed by the State Election Commission. It is clear from the above that regularisation of the petitioners was not made on the basis of any objective criteria but was motivated by political considerations. The State Election Commission has taken note of the said proceedings of the previous government. Therefore, such tainted decisions were subjected to a review. Thereupon, it was found that regularisation was effected without any cabinet decision or concurrence of the Finance Department. The Public Service Commission was also not consulted. For the above reasons, the first respondent took a decision to cancel Ext.P2 order of regularisation. It was in the above circumstances that Ext.P5 order was issued cancelling the regularisation of the petitioners. 9. It is the further contention of the counsel that no acceptable process of selection was adopted in making the appointments of the petitioners. It is pointed out that incompetent persons were appointed, according to the whims and WPC 31500/2011 8 fancies of the persons then in power. Thereafter, they were regularised without any justification on the eve of the general elections. It was for the said reason that Ext.P2 was cancelled. According to the counsel, Ext.P5 does not suffer from any infirmity affecting its validity. In view of the interim order granted by this Court the petitioners, who have no right to continue in service are being retained and paid their salaries and other benefits. Therefore, it is contended that the petitioners are deriving unmerited benefits by virtue of the interim order of this Court. For the above reasons, it is contended that this writ petition is liable to be dismissed. 10. Adv. Viju Lal, senior Govt. Pleader who appears for the first respondent also advances more or less similar contentions as those of the counsel for the second respondent. According to the senior Govt. Pleader, the posts sanctioned for the second respondent Board are usually filled up on deputation basis from various government departments. The petitioners were appointed on daily wages only for facilitating the immediate functioning of the second respondent Board. Their appointments were not preceded by any process of selection, as alleged. Special rules prescribing the qualifications or conditions for appointment to the various WPC 31500/2011 9 posts have not been framed. The above being the position, no decision to absorb the petitioners into regular service could be taken by the second respondent as purported to be done by Ext.P1. Before the issue of Ext.P2, it was necessary to have consulted the Kerala Public Service Commission. Concurrence of the Finance Department was also necessary. However, without following any of the mandatory procedures, Ext.P2 was issued in undue haste. Since Ext.P2 was issued on the eve of the general elections, it also attracted the comment of State Election Commission. Therefore, all proceedings of the previous government that were so tainted were reconsidered by the present government and finding that Ext.P2 was vitiated, Ext.P5 order was issued cancelling the same. It is contended that Ext.P2 is violative of the Constitution Bench decision of the Hon'ble Supreme Court in **Secretary, State of Karnataka and others v. Umadevi (3) and others {2006 (4) SCC 1}** . Therefore, Ext.P2 was set aside by issuing Ext.P5. According to the learned special Govt. Pleader, Ext.P5 is perfectly justified in the facts and circumstances referred to above. 11. I have heard Adv.K.Jaju Babu who appears for the petitioners, Adv. Ashik.K.Mohammed Ali who appears for the second respondent and the senior Govt. Pleader Shri. Viju Lal at WPC 31500/2011 10 length. I have been taken through the records of the case, the exhibits produced as well as the affidavits and counter affidavits filed by the contesting parties. Various decisions have also been relied upon by the respective counsel. I have considered the rival contentions advanced before me, anxiously. 12. It is not in dispute that the petitioners were all working as employees on daily wages under the second respondent. According to the petitioners, they have been so working as employees on daily wages from 2007 onwards. But, no document or material evidencing the said fact has been produced. However, since the length of their service is not relevant in this case, it is not necessary for me to consider the said aspect. The petitioners are all working in different posts ranging from clerks to peons, part time sweepers and drivers. It is no doubt true that the second respondent Board has resolved as per Ext.P1 to regularise the services of the petitioners. However, the said decision is dated 16-2-2011. The model code of conduct in connection with the general elections to the Kerala Legislative Assembly came into force on 1-3-2011. Exts.P2, P3 and P4 are all dated 1-3-2011. There cannot be any doubt that a Government Order issued on 1-3-2011 would not, in the normal course of business of the WPC 31500/2011 11 Government, reach the second respondent on the same day itself. However, in the present case it appears that Ext.P2 had not only reached the second respondent but that the second respondent had also issued Exts.P3 and P4 consequential orders regularising the services of the petitioners on the same day itself. The sequence of events clearly smacks of undue haste. It is also clear that the said orders were all issued on the same day itself, with the object of escaping the sweep of the model code of conduct of the Kerala State Election Commission that came into force on 1-3-2011. It is also contended that Ext.P2 was issued without the authority of a cabinet decision sanctioning such regularisation. The learned senior Government Pleader points out that no concurrence of the Finance Department was obtained and that consultation with the Kerala Public Service Commission was also not done. My attention is drawn to Ext.R1(c) where the State Election Commission has noted the undue haste in regularising temporary employees, in certain cases, which according to the respondents relates to the orders issued in the present case also. 13. Adv.Ashik K.Mohamed Ali who appears for the second respondent has drawn my attention to Ext.R2(c) produced along with the additional counter affidavit filed by the second respondent. WPC 31500/2011 12 As per the said order, the first respondent has placed the District Executive Officer of the second respondent now working at Kottayam, under suspension. One of the allegations in Ext.R2(c) against the said Officer is that he had appointed his wife as a Peon on daily wages in the service of the second respondent. The said appointee Smt.Shahamol is the 21[st] petitioner in this writ petition. It is interesting to note that after the additional counter affidavit was filed on 14-12-2011 producing Ext.R2(c), as per a memo dated 7-2-2012 the 21[st] petitioner has withdrawn from this writ petition. 14. The counsel for the petitioners has contended that the petitioners were all appointed after a due process of selection. However, no details of such selection or documents evidencing any such process has been produced. The contention has been falsified at least with reference to the 21[st] petitioner who is the wife of the District Executive Officer suspended as per Ext.R2(c). As already noticed above, the undue haste with which Exts.P2 to P4 orders were issued clearly indicates that the attempt was to escape the net of the model code of conduct that came into force on 1-3-2011. There is also nothing on record to warrant a conclusion that the petitioners were appointed after a due process of selection, as alleged. In the above circumstances, it is held that the WPC 31500/2011 13 regularisation of the petitioners as per Ext.P2 was not proper. It is clear that Ext.P2 order of regularisation was issued in undue haste so as to escape the model code of conduct. 15. The next question to be considered is whether the petitioners should have been granted an opportunity of being heard before they were terminated as per Ext.P5. It has been held by the Hon'ble Supreme Court that where the appointment of a person is itself invalid, it is not necessary to afford an opportunity of being heard to the said person, before he is terminated. This is for the reason that the said petitioner not having been validly appointed does not become a government servant at all. Therefore, he is not entitled to the rights and privileges that are available to a government servant under the relevant service rules. The question had come up before the Apex Court in **R.Viswanatha Pillai v. State of Kerala {(2004) 2 SCC 105}** whether a person who had falsely represented that he was a member of a Scheduled Caste and got an appointment could claim the protection of Art.311 of the Constitution. A three Judge Bench repelled the contention in the following words, in paragraph 15 of the said judgment:- “When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste WPC 31500/2011 14 community, then the very basis of his appointment was taken away. His appointment was no appointment in the eye of the law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under Article 311 of the Constitution.” In the present case also, the order Ext.P2 by which the petitioners were appointed, having been issued on extraneous considerations in undue haste had to be cancelled. Accordingly, as per Ext.P5, the same has been cancelled. The said order Ext.P2 cannot be held to have conferred any right on the petitioners to claim continuity in service. The cancellation of the said order cannot therefore be considered to have infringed or violated any right, privilege or advantage of the petitioners, that is capable of legal recognition. Consequently, on the basis of the said order Ext.P2 the petitioners cannot claim that any right of theirs have been infringed or violated. The effect of cancelling Ext.P2 is only to set right an illegality. Therefore, the cancellation of the said order cannot be said to have visited the petitioners with any adverse civil consequences entitling them to a pre decisional hearing. For the WPC 31500/2011 15 above reasons, it is held that the omission to afford an opportunity of being heard to the petitioners does not vitiate Ext.P5 in any manner. 16. The counsel for the petitioners has placed reliance on the decision reported in **Shrawankumar Jha and others v. State of Bihar and others {1991 Supp(1) SCC 330}** to contend that the petitioners should have been heard before the issue of Exts.P5 and P7 orders. In the decision that is relied upon, 175 teachers were appointed as Assistant Teachers by the District Superintendent of Education, Dhanbad. The teachers contended that they had joined duty in the respective schools pursuant to their appointments. However, the said fact was disputed by the State. It was contended that the appointment order was cancelled for the reason that the District Superintendent of Education had no authority to make appointments. The Hon'ble Supreme Court held that the petitioners should have been heard before the order of termination was passed. However, it is to be noticed that when a three Judge Bench of the Hon'ble Supreme Court has laid down in the later decision referred to above that such a hearing is not necessary where a person has not been validly appointed, the later decision prevails and the said contention cannot be accepted. In Ext.P8 judgment, WPC 31500/2011 16 cancellation of regularisation in service granted by an earlier Government Order without hearing the affected persons has been held to be invalid. In the said case, the petitioners therein were regularised in the service of Kerala Transport Development Finance Corporation Limited by an earlier order. However, after a period of one year the same was cancelled by the same government on the ground that the principles of communal rotation had not been followed while ordering such regularisation. No other infirmity was either pointed out or alleged in respect of the earlier order that was cancelled. There were also no allegations of fraud, misrepresentation or any other vitiating factor. Therefore, this Court has held that the omission to afford an opportunity of being heard to the petitioners who had been validly appointed was fatal. The situation is different in the present case. The order Ext.P2 has been set aside for the reason that the same was politically motivated and was rushed through to escape the model code of conduct issued by the Election Commission. The Election Commission has also commented upon the said decision. Therefore, the said order was subjected to a fresh scrutiny and Ext.P5 was issued thereafter. Ext.P5 order has found that Ext.P2 was vitiated by a number of serious procedural violations. WPC 31500/2011 17 Therefore, on reconsideration of the order Ext.P2, the Government has decided to cancel the same. It has been found that the regularisation of the petitioners was not valid. 17. The Hon'ble Supreme Court has in **State of Karnataka v. Uma Devi (3) and others (supra)** considered the question of regularisation of temporary/daily rated employees in the service of the State and its instrumentalities. The Constitution Bench has held in paragraph 53 of the said judgment that duly qualified persons in duly sanctioned vacant posts who have continued to work for ten years or more, without the intervention of orders of Courts or Tribunals could be regularised as a one time measure. The above direction has been issued considering the fact that the appointment of such persons were only irregular and not illegal. However, the petitioners in this case cannot claim the benefit of the said decision for more reasons than one. In the first place, even according to the petitioners they have been working only from 2007 onwards, after the said decision was rendered. It has been further held in Uma Devi's case (supra) that there should not be any such temporary appointments or regularisation bypassing the constitutional scheme. The petitioners having been appointed after the said decision, therefore cannot claim regularisation in service. WPC 31500/2011 18 Secondly, there is nothing to show that the petitioners were selected for appointment after a regular process of selection. Thirdly, the petitioners were regularised in violation of the dictum of the Hon'ble Supreme Court in Uma Devi's case (supra) and without complying with the procedure for the issue of such orders like obtaining concurrence from the Finance Department, consultation with the Kerala Public Service Commission. Ext.P2 was also not supported by a cabinet decision. 18. In **Jeemon V.R and others v. State of Kerala {2012(1) KHC 397}** a learned single Judge of his Court had to consider a similar question where orders of regularisation issued to persons employed on daily wages were cancelled, as in the present case. It has been held that orders of regularisation issued in violation of the dictum laid down by the Hon'ble Supreme Court in Uma Devi's case (supra) are unsustainable. I am in respectful agreement with the said view. 19. A further contention has been urged by the counsel for the petitioners that though there was no move to terminate the services of the petitioners at any time, as per Ext.P7 order they have all been terminated. Consequently, their jobs as daily rated employees are also no longer available to them. Therefore, the WPC 31500/2011 19 petitioners seek the indulgence of this Court for issue of a direction retaining them as employees on daily wages. However, it is to be noted that the petitioners do not have any right to claim that the second respondent should continue to employ them as employees on daily wages. It is up to the second respondent to give employment to the petitioners if their services are still necessary. The petitioners are free to approach the second respondent for the said purpose. For the foregoing reasons, the petitioners are not entitled to any of the reliefs claimed in this writ petition. The writ petition fails and is accordingly dismissed. No costs. Sd/- jj /True copy/ K. SURENDRA MOHAN Judge P.S.to Judge WPC 31500/2011 20