State of Kerala and Director Urban Affairs Department v Abdul Aziz, P.V. Mohanan, Ambika Mohan, Muthulakshmi Raju, Mini Vijayan, Omana Mukundan, K.K. Babu, Elsy Sebastian, C.V. Sree Devi, M.D. Moly, Prasad T.R. and Kalamassery Municipality

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **&** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY ,THE 30TH DAY OF AUGUST 2018 / 8TH BHADRA, 1940** **WA.No. 1635 of 2018** **AGAINST THE JUDGMENT IN WPC 3180/2017 of HIGH COURT OF KERALA DATED 05-12-2017** ## **APPELLANTS/RESPONDENTS 1 TO 2 IN W.P.(C):** **1 STATE OF KERALA REP. BY ITS SECRETARY, LOCAL SELF GOVERNMENT, GOVERNMENT OF KERALA,THIRUVANANTHAPURAM - 695 001.** **2 THE DIRECTOR URBAN AFFAIRS DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 695 033.** **BY ADVS. SR.GOVERNMENT PLEADER SRI.P.N.SANTHOSH.** ## **RESPONDENTS/PETITIONERS/3RD RESPONDENT IN W.P.(C):** - **1 ABDUL AZIZ,(SUBSTITUTE WORKER), S/O. ALI, PALLIKKAL, KALAMASSERY MEDICAL COLLEGE (VIA), KANGARAPADY.** - **2 P.V. MOHANAN, (SUBSTITUTE WORKER), S/O. VAREED, POTTACHALIL HOUSE, CUSAT P.O., KALAMASSERY.** - **3 AMBIKA MOHAN, (SUBSTITUTE WORKER), W/O.MOHANAN, KAYIPURATH HOUSE, NEAR AQUINAS COLLEGE, EDAKOCHI.** - **4 MUTHULAKSHMI RAJU (SUBSTITUTE WORKER), W/O. RAJU, PALLIPARAMBU, THAIKKATTUKARA P.O, VIDAKUZHA, KALAMASSERY.** - **5 MINI VIJAYAN, (SUBSTITUTE WORKER), W/O. VIJAYAN, ILLATHUPARAMBU, PALLIANKARA, H.M.T COLONY P.O, KALAMASSERY.** WA.No. 1635 of 2018 2 - **6 OMANA MUKUNDAN, (SUBSTITUTE WORKER), W/O. MUKUNDAN, KARPPILLY MOOLA, UNIVERSITY P.O, KALAMASSERY.** - **7 K.K. BABU, (SUBSTITUTE WORKER), S/O. KUTTAPPAN, KOCHIKKARAN PRAMBIL, ELOOR NORTH, UDYOGAMANDAL P.O, ALUVA.** - **8 ELSY SEBASTIAN, (SUBSTITUTE WORKER), W/O. SEBASTIAN, KADEPARAMBU TOG PASS ROAD, KALAMASSERY.** - **9 C.V. SREEDEVI, (SUBSTITUTE WORKER), W/O. VENU, MADATHUKERI, POOKKATTUPADY, EDATHALA P.O.** - **10 M.D. MOLY, (SUBSTITUTE WORKER), W/O. SUNNY, PALLIPARAMBIL HOUSE, 12/1149, PANAYAPPILLY, COCHIN -2.** - **11 PRASAD T.R., (SUBSTITUTE WORKER), S/O. RAGHAVAN, THOZHOUTHINKAL HOUSE, EDAPPILLY P.O.** - **12 KALAMASSERY MUNICIPALITY CHANGAMPUZHA NAGAR P.O.,ERNAKULAM, PIN - 682033, REPRESENTED BY ITS SECRETARY.** - **BY ADVS. SRI.K.S.MADHUSOODANAN SRI.M.K.ABOOBACKER.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30.08.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **JUDGMENT** ## **Ramachandra Menon, J.** Correctness and sustainability of the final verdict passed by the learned single Judge in W.P.(C) No.3180/2017 is under challenge in this appeal filed by the State and the Director of Urban Affairs Department. Since the appeal is stated as belated WA.No. 1635 of 2018 3 by 193 days, the same is sought to be condoned by filing C.M.Application No.880/2018. 2. When the matter came up for consideration before this Court, we required the learned Government Pleader to address the Court with regard to the merits involved, to consider whether the delay should be condoned and accordingly, the matter was heard elaborately, apart from the aspect of delay. 3. The factual matrix revealed from the proceeding is that the writ petitioners, along with several other persons, were engaged as substitute workers on daily wages so as to meet the immediate needs in the Kalamassery Municipality, as the available labour force of 17 persons was not adequate enough to meet the requirements. They were continuing for several years, having been engaged in the year 1996. In such circumstance, a claim for regularisation was mooted by the workers, which ultimately came to be referred for adjudication by the appropriate Government, that is the State of Kerala. The dispute referred was whether the 26 casual employees, with more than 3 years of continuous service as cleaning and sanitation workers can be denied regularisation by the Kalamassery Municipality. The case came to be registered as I.D.No.33/1999 before the Industrial WA.No. 1635 of 2018 4 Tribunal, Alappuzha. Nobody was examined on the part of the Municipality, nor did the Municipality adduce any documentary evidence. A workman was examined as WW1 and documents were produced as W1 and W2 from their side. Based on the materials on record, Ext.P1 Award was passed by the Tribunal on 25.08.2003, the operative portion of which is as given below: “It is not in controversy that the services of these workmen are also needed essentially for the well keeping of sanitation and other cleaning works which are the main functions of the local authority like the management Municipality. It is true, as per the existing set up and as per the law governing the Municipality, sanctioning of any permanent post is not within the domain of the Municipality. Therefore merely on the ground of need and requirement, no regularisation can be ordered unless there are sufficient sanctioned post. Therefore it is up to the Municipality to approach the Government explaining their need and requirement in the matter of appointment of sufficient number of regular sanitation and cleaning workers to carry out smoothly and uninterruptedly the essential works. By totally ignoring the constrains of the management Municipality, this Tribunal cannot direct them to give permanency to the workmen awaiting later Government sanction. Therefore the only relief which can be given in the facts and circumstances is that whenever any Governmental sanction is obtained by the Municipality for the appointment of additional cleaning and sanitation workers, first preference shall be given to the workmen concerned depending upon their seniority position and age. Only after the exhausting list of temporary employees, the management Municipality will have the liberty to approach the local Employment Exchange for resorting to other mode of recruitment process. Such a direction is given because of the fact that there shall not be any question of any pick and choose on any extraneous WA.No. 1635 of 2018 5 consideration because, these workers are in employment for the last several years, and their suitability is already proved.” There is no dispute to the fact that the said Award has become final. 4. Since no further steps were pursued with regard to the claim, the workers were compelled to approach this Court at different points of time by filing different writ petitions, which ended up in Exts.P2 and P3 judgments. Pursuant to the directions given by a learned Judge of this Court, to have the matter considered, the Municipality considered the matter and passed a resolution to seek permission of the Government for appointing the workers as substitute workers, vide Ext.P4 dated 16.02.2010. This was considered and clearance was given by the Director as per Ext.P5 dated 28.06.2010. In the said circumstance, a seniority list of the workers was prepared by the Municipality as revealed in Ext.P6 dated 18.01.2011. Thereafter, a resolution was taken by the Municipality to cause regularisation of the workers by virtue of their continuance in service for more than two decades and also with reference to the advanced age of the workers. It was accordingly, that Ext.P7 was forwarded to the Government. The matter was still left in the cold storage, which made the workers WA.No. 1635 of 2018 6 to approach this Court by filing W.P.(C) No.3180/2017. 5. During pendency of the matter, an interim order was passed in the writ petition on 08.03.2017, directing the Municipality to forward the resolution to the Government, simultaneously directing the Government to take a decision on the resolution within two months. In turn, the matter was considered by the Government who passed Ext.P10 order dated 29.06.2017 rejecting the claim, placing reliance on the contents of G.O.(MS)No.14/82/LBR dated 22/04/1982, holing that the initial recruitment of the workers was not in tune with the contents of the said Government Order, having not been sponsored by the Employment Exchange and hence that the regularisation was not liable to be granted. This made the writ petitioners to cause the writ petition to be amended, which was finally heard and decided by the learned single Judge in favour of the workers/writ petitioners. Hence, the appeal. 6. The learned Government Pleader submits that there is no dispute with regard to the existence of the above Government Order of 1982, which clearly prescribed the mode of recruitment and that only in respect of persons who came to be appointed through the Employment Exchange, was the benefit of WA.No. 1635 of 2018 7 regularisation to be given in the manner as specified therein. In so far as the said Government Order was not under challenge and since there is no case that the initial recruitment was in terms of the said Government Order, the verdict passed by the learned single Judge is not liable to be sustained and requires to be interdicted, submits the learned Government Pleader. 7. The analysis made by the learned single Judge clearly reveals that the contention now put forth by the Government was taken note of with reference to the 1982 Government Order, copy of which has been produced along with the appeal as Annexure-1. The said Government Order refers to the manner in which the existing employees were to be dealt with and as to the further course of action with regard to the next stage of appointment, if at all any requirement was there for the Municipality to engage such people (virtually to the effect that such engagement shall be effected through Employment Exchange). The sequence of events with reference to the Award passed by the Tribunal in I.D.No.33/99 (Ext.P1) was also specifically adverted to. The issue referred by the Government and considered by the Tribunal was with reference to the claim for regularisation. As per Ext.P1 Award, it was clearly held that, it was for the Municipality to get WA.No. 1635 of 2018 8 necessary sanction from the Government for effecting appointment and once the sanction was given, then the next course to be followed was to give appointment to the 26 workers mentioned therein, before proceeding further steps going for Employment Exchange hands. There is no dispute, that the said Award has become final and binding. In so far as the Award stands, there cannot be any deviation from the procedure to be followed, based on Ext.P1. This alone has been ordered to be ensured as directed by the learned single Judge; which is clearly discernible from 'paragraph 8' of the judgment; which is reproduced below for convenience or reference: “8. Ext.P1 is an award passed by the Industrial Tribunal, Alapuzha in ID No.33 of 1999, in respect of 26 casual employees with more than three years continuous service. The issue referred for adjudication was in respect of their claim for regularization in the Kalamassery Municipality as cleaning and sanitation workers. The 26 casual employees referred to therein include the petitioners. In view of the directions contained in the award the Government cannot say that petitioner's cannot be either regularized or that they do not have any right as long as they did not come through Employment Exchange. The direction in Ext.P1 award was to resort to appointment through Employment Exchange only after exhausting the list of petitionersthe workmen referred to in that case. More over, it is seen that their engagement was made with the approval of the Director of Urban Affairs, as can be seen from Ext.P5 order. Ext.P6 list was published including their name in it in tune with the directions issued by the Government and the approval of the Director of Urban Affairs. As the petitioners have been working in the WA.No. 1635 of 2018 9 Municipality since 1996 and even according to the Municipality those persons were not sufficient to meet the requirements then, it is only proper that the Government sanctioned necessary posts for making the appointment of the petitioners permanent as directed in Ext.P1 award.” 8. It was in the said circumstance, that Ext.P10 was set aside, directing the Government to pass fresh orders sanctioning the requisite number of posts so as to enable the Municipality to regularise the petitioners in the post of sanitation workers in the contingent wing, within two months from the date of receipt of a copy of the judgment. It was also directed that the Municipality shall issue orders within a further period of one month and to grant all consequential benefits to the writ petitioners. 9. After hearing the learned Senior Government Pleader at length, this Court finds that the circumstances under which the directions have been given by the learned single Judge, also holding that G.O.(MS) No.14/82/LBR dated 22.04.1982 and the dictum in **State of Karnataka v. Umadevi and others** [2006 (4) SCC 1] are not applicable to the case in hand, does not warrant any interference. If there was any case for the Government that the Municipality had not complied with the requirements of '1982 Government Order', it was for the Government to have taken appropriate action against the Municipality at the appropriate WA.No. 1635 of 2018 10 time; which could be pursued even now, if it is sustainable in accordance with law. 10. In the said circumstance, we dismiss the writ appeal on merits, along with petition to condone the delay in filing the appeal. In view of the fact that the time stipulated by the learned single Judge is already over, considering the submission made by the learned Government Pleader, we find it appropriate to grant a further period of 'three months' to finalise the proceedings in conformity with the directions given in the judgment passed by the learned Judge. ## **Sd/- P.R.RAMACHANDRA MENON JUDGE** stu ## **Sd/- DEVAN RAMACHANDRAN JUDGE**