State of Kerala represented by the Principal Secretary to Government, Higher Education Department, Government Secretariat, Thiruvananthapuram; The Director of Collegiate Education; The Senior Administrative Officer, Office of the Director of Collegiate Education; The Warden, Government College Hostel for Men, Palayam, Thiruvananthapuram vs. Manjulamani K.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **TUESDAY, THE 22ND DAY OF DECEMBER 2020 / 1ST POUSHA, 1942** **OP(KAT).No.307 OF 2020** **AGAINST THE ORDER IN OA 1122/2017 DATED 20-12-2019 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS IN OA:** **1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.** - **2 THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN-695033.** - **3 THE SENIOR ADMINISTRATIVE OFFICER, OFFICE OF THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN-695033.** - **4 THE WARDEN, GOVERNMENT COLLEGE HOSTEL FOR MEN, PALAYAM, THIRUVANANTHAPURAM, PIN-695033.** **BY SR.GOVERNMENT PLEADER SRI.T.RAJASEKHARAN NAIR** ## **RESPONDENT/APPLICANT IN THE OA:** **MANJULAMANI K. AGED 42 YEARS W/O. MANI, RESIDING AT SANTHOSH BHAVAN, KUNDARAKUZHY, PANAVOOR P.O., THIRUVANANTHAPURAM, PIN-695568.** **R1 BY ADV. SRI.T.P.DEYANANTHAN R1 BY ADV. SRI.S.KRISHNALAL** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 01-12-2020, THE COURT ON 22-12-2020 DELIVERED THE FOLLOWING:** OP(KAT) No.307/2020 -:2:- ## **J U D G M E N T** Dated this the 22[nd ] day of December, 2020 ## _**Shaffique, J.**_ The State and its officers are before us challenging an order passed by the Kerala Administrative Tribunal in OA No.1122/2017 by which it was declared that the applicant was appointed after complying with all the formalities of a regular appointment and there was no justification in restricting her appointment for 179 days. It was held that the discharge of the applicant from service on 31/8/2012 was not in accordance with law and the Warden, Government College Hostel for Men, Palayam, Thiruvananthapuram was directed to reinstate the applicant as Sweeper. 2. The short facts of the case would disclose that, by an order dated 3/3/2012, the Warden, Government College Hostel for Men, had appointed the applicant as a sweeper on provisional basis for a period of 179 days. According to the applicant, she was selected after conducting a selection process from among OP(KAT) No.307/2020 -:3:- the candidates sponsored by the District Employment Officer. After the 179 days, she was discharged from service. After about four years, she filed the above OA _inter alia_ contending that she was appointed on regular basis in terms with the Special Rules applicable to recruitment and appointment of part-time contingent employees and therefore, she should not have been terminated from service and her appointment should not have been restricted to 179 days. Though she submitted a representation to the District Collector, nothing was done in the matter and therefore she approached the Tribunal. The State objected to her claim inter alia contending that the appointment was provisional invoking Rule 9(a)(i) of Part I of KS&SSR and therefore she cannot claim to have been regularly appointed. 3. The Tribunal however having considered the respective contentions came to a finding that the applicant was appointed through employment exchange and in the absence of eligible hands in the seniority list maintained by the District Collector and when the appointment is made by a competent authority against a sanctioned post, she ought to have been appointed on regular basis and accordingly the aforesaid directions were issued. OP(KAT) No.307/2020 -:4:- 4. The learned Senior Government Pleader appearing on behalf of the State _inter alia_ contended that when a person is appointed purely on provisional basis and that too for a period of 179 days and she was relieved from service, after a substantially long period, she cannot seek for regularization of service. It is pointed out that representation of the applicant was rejected and the OA came to be filed with a delay of 4½ years. It is pointed out that last grade servants like sweepers are being appointed by way of direct recruitment through employment exchange only in the absence of suitable hands to be filled up by promotion of part-time contingent employees in the Health Services Department or advice by the District Collector from the list of part-time contingent employees. It is pointed out that merely for the reason that applicant was appointed through employment exchange, no right can be conferred on her for regularization. It is pointed out that the order passed by the Tribunal is contrary to the law laid down by the Apex Court in _**Secretary, State of Karnataka and Others v. Umadevi**_ [(2006) 4 SCC 1]. 5. On the other hand, learned counsel appearing for the applicant/respondent herein supported the view taken by the OP(KAT) No.307/2020 -:5:- Tribunal. It is pointed out that the applicant, who is a physically disabled person, was sponsored through District Employment Officer as sponsored from Special Employment Exchange for physically challenged. It is pointed out that provisional appointment under Rule 9(a)(i) of KS & SSR does not apply to such contingent posts. It is pointed out that the applicant is coming within the 50% category of open quota for contingent posts reserved for appointment under Category 4(b)(ii) of Rule 5 of the Last Grade Service Special Rules applying the procedure for direct recruitment. The appointment is made by the Head of the Institution by exercising their power as appointing authority under Note of sub clause (c) of Rule 4 of the Last Grade Service Special Rules, 1966. According to the respondent, the Head of Offices are empowered to make the appointment and as far as Government College hostel for men is concerned, the Warden of the hostel is the Head of the institution. Learned counsel also placed reliance on the judgment of this Court in _**State of Kerala v. Sunitha Beevi**_ (2019 (1) KLT Online 3049). Relevant paragraphs of 12 and 14 to 16 reads as under:- _“12. True that the very case of the petitioners herein is_ OP(KAT) No.307/2020 -:6:- _that the very appointment of the respondents/applicants could not be treated as regular as they were appointed purely on temporary basis invoking the power under Rule 9(a) (i) of Part II KS & SSR. There can be no dispute with respect to the fact that in all the orders of appointment issued to the respondents Rule 9(a) (i) of Part II KS & SSR has been quoted. It is also true that as per the orders of appointment the period of their appointment was also confined to 179 days from the date of joining the post on the strength of orders issued to them. As noticed hereinbefore, the question is whether those factors by themselves could decide the real nature of the appointment of the respondents. We have already taken note of the fact that direct recruitment through Employment Exchange is also one of the regular methods of appointment and of course, it is permissible to be invoked only in the absence of candidates in item (i) of category 4(b) of Rule 5(a) of the Special Rules. Going by the decisions of this Court in Sreekala's case (supra) and Girija's case (supra) the decisive factor is whether the requisition was circulated among all the exchanges in the Revenue District concerned. True that the question who has issued the order of appointment is also relevant in that context.xxxxxx”_ _“14. Thus it can be seen that the requisition was not made to any local Employment Exchange and in fact, it was made to the District Employment Officer necessarily to circulate it among all the Exchanges within the Kozhikode Revenue District.xxxxx”_ _“15. xxxxxx In_ _**Sreekala's** case (supra) virtually the Division Bench of this Court held that even though the_ OP(KAT) No.307/2020 -:7:- _appointment to a post in the last grade service through Employment Exchange is one of the methods of appointment there could still be provisional appointment to that post through Employment Exchange.”_ _“16.xxxxx A conjoint reading of paragraphs 3 to 5 would reveal that following the decision in_ _**Sreekala's** case (supra) this Court took the view that virtually, twin factors would and should decide the question whether an appointment to a post in the Last Grade Service where the regular method of appointment is also through employment exchange, could be treated as regular despite it being described in the order of appointment only as temporary. Firstly, the requisition should have been circulated to all the Employment Exchanges in the Revenue District concerned. In other words, if the requisition was made only to the local Employment Exchange and candidates were sponsored without circulating the same to all the Employment Exchanges in the District concerned, appointment can only be temporary. Who issued the appointment order is the other determinative factor for deciding the nature of appointment.”_ 6. Yet another judgment relied upon is _**State of Uttar**_ ## _**Pradesh and Others v. Arvind Kumar Srivastava and**_ _**Others**_ [(2015) 1 SCC 347]. Paragraph 22 is relevant, which reads as under:- OP(KAT) No.307/2020 -:8:- _**“22.** The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under._ _**22.1.** The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently._ _**22.2.** However, this principle is subject to wellrecognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim._ OP(KAT) No.307/2020 -:9:- _**22.3.** However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India [K.C. Sharma v. Union of India, (1997) 6 SCC 721 : 1998 SCC (L&S) 226] ). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.”_ 7. A Full Bench judgment in _**Kerala Water Authority v.**_ _**Surendran**_ [2006 (4) KLT 983(FB)] is relied upon, which considered the scope and effect of Rule 9(a)(i) of Part I KS & SSR. Relevant portion of paragraph 7 and paragraphs 8, 9 and 10 reads thus: _“7.xxxx_ _Further, under the standing instructions issued by the Government from time to time, the appointing authorities_ OP(KAT) No.307/2020 ## -:10:- _move the Employment Exchanges, only to fill up the vacancies in the sanctioned posts and that too when no P.S.C. hand is available. If the service of an employee is required for a short period and there is no sanctioned post, then appointments are made on daily wage basis, from open market, by the appointing authority without any reference to Employment Exchange or other legitimate channels for appointment. The fact that the appointment was made through the Employment Exchange itself, shows that the appointment was made to a vacancy in a sanctioned post. Further, resort to R.9 is permissible only when there is undue_ _delay in filling a vacancy in accordance with the General/Special Rules. A vacancy which has to be filled up in accordance with the General/Special Rules, will only be against a sanctioned post._ _8. The portions of R.9(a)(i) of K.S. & S.S.R., which are relevant for this case are quoted below:_ _xxxxxxxx_ _9. Going by the materials in this case, the irresistible inference to be drawn is that the writ petitioner was appointed in a vacancy that arose in a sanctioned post. The appointment was under R.9 (a)(i), on being sponsored by the Employment Exchange. So, he is entitled to get the benefit of Ext.P4.xxxx_ _10. In Sasikala's case, the Division Bench on the facts of the case, found that the appointment was not under R.9(a)(i). Obviously, such a person is not entitled to get the benefit of regularisation in service. So, there is no conflict between the said decision and our decision in this case. In Sasikumar's case also, the Division Bench found that the appellant therein was admittedly, not appointed under R.9(a)(i) of K.S. & S.S.R_ OP(KAT) No.307/2020 ## -:11:- _through the Employment Exchange and therefore, he is not entitled to get the benefit of regularisation in service. Thus, there is no conflict between that decision and the view we have taken in this case. The persons who are engaged from open market directly, without any reference to the Employment Exchange and employed on daily wage basis, cannot claim that they are provisional appointees under R.9(a)(i) of K.S. & S.S.R and seek consequential benefits. In this case, the appointment was made through the Employment Exchange, to the vacancy in a sanctioned post, under R.9(a)(i) of K.S. & S.S.R. The fact that the appointing authority wrongly decided to pay him wages at a lesser rate, cannot be a ground to deny him the benefits flowing from such appointment.”_ 8. Learned Government Pleader placed reliance on a judgment of the Apex Court in _**Union of India v. Durairaj**_ [2011 (1) KLT Suppl.63 (SC)]. This judgment is cited to contend that the claim of the applicant had become stale as she had approached the Court belatedly. Granting of relief on the basis of such belated application would lead to serious administrative complications and it will also upset the settled position regarding seniority and promotions which had been granted to others over a period of time. It is pointed out that the judgments relied upon by the counsel for applicant has to be understood in the facts and circumstances of the above case. OP(KAT) No.307/2020 -:12:- 9. Whether the applicant was appointed on a regular basis or provisionally will depend upon the facts of each case. The appointment order itself is not conclusive. Only in cases where candidates from all employment exchanges in the district are sponsored and the appointment order had been issued by the Head of the department in a sanctioned post, there could be a regular appointment. 10. Having regard to the law laid down, there cannot be any doubt that as per the Special Rules, if an appointment is made through employment exchange, it does not necessarily mean that it was a regular appointment. If appointments are made on a temporary basis without a due selection procedure, no candidate can get the benefit of regular appointment. That apart, the appointment should be made by the Head of the Department and to a sanctioned post. In the case on hand, Warden of the College Hostel has issued the order of appointment. Annexure A5 is the notice issued by the Warden of the hostel. Reference itself states that the notice of interview is for appointment to a temporary post of sweeper. Annexure A6 dated 3/3/2012 is the order of appointment. The appointment is to a temporary post for OP(KAT) No.307/2020 -:13:- a period of 179 days or until a regular person is appointed, whichever is earlier. Though a representation was submitted for extension of her period of employment, the same has been rejected by the office of the Director of Collegiate Education as per Annexure A9 dated 13/8/2012. The original application was filed before the Tribunal only on 3/2/2017 after more than 4½ years. One of the contentions urged by the State is that the applicant was not appointed by direct recruitment by the appointing authority who is the Senior Administrative Officer of Directorate of Collegiate Education nor was she promoted as full time sweeper following the Special Rules. Therefore, the provisional appointment of the applicant given by the warden cannot be treated as regular appointment. Yet another contention urged was that there had been delay in approaching the Tribunal. 11. Learned counsel for the respondent had placed reliance on Annexures A11 and A12 to indicate that a warden of the hostel was entitled to make regular appointment. Annexure A11 is the Government Order dated 25/11/1959 by which the Government had clarified that Gazetted Heads of Offices are empowered to make appointment to contingent posts. By yet OP(KAT) No.307/2020 -:14:- another Government Order dated 5/6/1973 of the Higher Education (F) Department, Wardens of Government Hostels was permitted to sanction temporary advance of Provident Fund to non gazetted employees up to a maximum of `350/-. Apparently these Government Orders will not enable the respondent to contend that a Warden of a Men's Hostel is the Head of the Department entitled to make a regular appointment. The hostel comes under the Collegiate Education Department and Head of the Department even according to the Government is the Senior Administrative Officer. The Tribunal did not consider these aspects of the matter. Even going by the judgments cited, the appointment has to be made by a competent authority, Head of the Department. The hostel comes under the Higher Education Department and Warden cannot have such administrative powers to make appointments and if at all he has any powers, power can be exercised only to appoint a person on temporary basis. 12. That apart, there is absolutely no material to indicate that the appointment was made after complying with the regular procedure for selection in accordance with the rules in force. Under such circumstances, there is justification on the part of the OP(KAT) No.307/2020 -:15:- petitioners to contend that the directions issued by the Tribunal cannot be sustained. That apart, as per the Administrate Tribunal Act, limitation period of one year is specified for taking up the matter before the Tribunal. Representation of the applicant had been rejected on 13/8/2012 and thereafter the OA is filed only after more than 4 years. After 179 days, she was already relieved and therefore, any challenge ought to have been made only within the time specified under the Statute. The Tribunal has not condoned the delay. For that reason also, the Tribunal's order cannot be sustained. In the result, this OP is allowed. We set aside the order passed in OA No.1122/2017 and the OA stands dismissed. **Sd/-** ## **A.M.SHAFFIQUE** **JUDGE Sd/-** **GOPINATH P.** Rp **JUDGE** OP(KAT) No.307/2020 ## -:16:- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE O.A.NO.1122/2017 ALONG WITH ANNEXURES BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL.** - **ANNEXURE A1 TRUE COPY OF THE RELEVANT PAGE OF SSLC BOOK.** - **ANNEXURE A2 TRUE COPY OF THE PRE-DEGREE CERTIFICATE. ANNEXURE A3 TRUE COPY OF THE IDENTITY CARD OF THE DISABLED.** - **ANNEXURE A4 TRUE COPY OF THE EMPLOYMENT EXCHANGE REGN. CARD.** - **ANNEXURE A5 TRUE COPY OF CALL FOR THE INTERVIEW DATED 18.2.2012.** - **ANNEXURE A6 TRUE COPY OF THE APPOINTMENT ORDER DATED 3.3.2012.** - **ANNEXURE A7 TRUE COPY OF EXPERIENCE CERTIFICATE AND TERMINATION.** - **ANNEXURE A8 TRUE COPY OF FORWARDING LETTER OF COLLECTOR TO THE EMPLOYMENT OFFICER.** - **ANNEXURE A9 TRUE COPY OF REPLY RECEIVED FROM R3. ANNEXURE A10 TRUE COPY OF G.O.(MS) NO.1499/58/PD DATED 11.12.1958.** - **EXHIBIT P2 TRUE COPY OF THE OBJECTION FILED BY THE 2ND PETITIONER DATED 16.5.2017 AGAINST CONDONATION OF DELAY OF 1615 DAYS OCCURRED IN FILING EXHIBIT P1 O.A.** **EXHIBIT P3 TRUE COPY OF THE REJOINDER FILED BY THE RESPONDENT DATED 3.6.2017.** OP(KAT) No.307/2020 -:17:- - **EXHIBIT P4** **TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE SECOND RESPONDENT.** **EXHIBIT P5** **TRUE COPY OF THE REJOINDER FILED BY THE RESPONDENT.** ## **EXHIBIT P6** - **TRUE COPY OF THE M.A.NO.2339/2018 IN O.A.1122/2017 ALONG WITH ANNEXURES DATED 23.10.2018 FILED BY THE RESPONDENT.** - **ANNEXURE A11 TRUE COPY OF G.O.(P) NO.621/59/FIN DATED 25.11.1959.** - **ANNEXURE A12** - **TRUE COPIES OF THE G.O. (MS)NO.83/73/EDN. DATED 5.6.1973 G.O. (MS) NO.27/74/H.EDN. DATED 6.2.74 FROM HIGHER EDUCATION (F) DEPARTMENT.** - **EXHIBIT P7** - **TRUE COPY OF THE M.A.NO.332/2019 IN O.A.1122/2017 ALONG WITH ANNEXURE DATED 29.1.2019 FILED BY THE RESPONDENT.** ## **ANNEXURE A13** - **TRUE COPY OF THE O.A.(KAT) NO.46/2017 DATED 8.10.2018.** **EXHIBIT P8 CERTIFIED COPY OF THE ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL DATED 20.12.2019.** - **RESPONDENT'S EXHIBITS** - **EXHIBIT R(A)** **TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN SLP(CIVIL) DIARY NO(S) 15928/2019 DATED 3.7.2019.** - **EXHIBIT R(B)** - **TRUE COPY OF THE ORDER DATED 14.9.2020 IN M.A.NO.806/2020 IN O.A.NO.1122/2017** **EXHIBIT R(C)** **TRUE COPY OF THE LETTER DATED 14.9.2020 ISSUED BY THE HON'BLE TRIBUNAL, COMMUNICATED.** True Copy **Rp PS to Judge**