State of Kerala v. Chithra.R and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 28TH DAY OF MARCH 2018 / 7TH CHAITHRA, 1940 WA.No. 1586 of 2017 IN WPC. 27475/2014 -----------------------------------------------AGAINST THE JUDGMENT IN WP(C) 27475/2014 DATED 02-03-2017 APPELLANT(S)/1ST RESPONDENT IN WPC --------------------------------------------- STATE OF KERALA REPRESENTED BY WATER RESOURCES (WATER SUPPLY-B) DEPARTMENT, REPRESENTED BY ITS SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. BY GOVERNMENT PLEADER SMT.K.R.DEEPA RESPONDENT(S)/PETITIONER & RESPONDENTS 2 TO 4 IN THE WPC: --------------------------------------------------------------------------- ## 1. CHITHRA.R W/O. T.V.ARAVINDAKSHAN, BACTERIOLOGIST, QUALITY CONTROL DISTRICT LAB, KERALA WATER AUTHORITY, KOLLAM - 691 013. ## 2. THE KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN, THIRUVANANTHAPURAM - 695 033. ## 3. THE CHIEF ENGINEER (CR) - KERALA WATER AUTHORITY, THIRUVANANTHAPURAM - 695 033. ## 4. THE EXECUTIVE ENGINEER - QUALITY CONTROL DIVISION, THIRUVANANTHAPURAM - 695 033. R1 BY ADV. SRI.M.R.ANISON R2-4 BY SRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & MARY JOSEPH, JJ. ========================== W.A. No.1586 OF 2017 ==========================** Dated this the 28[th] day of March, 2018 ## **JUDGMENT** _Ravikumar, J._ The State has come up in appeal against judgment dated 2.3.2017 in W.P.(C).No.27475 of 2014 whereby and whereunder the learned Single Judge directed for consideration of regularisation of the service of the first respondent as Bacteriologist in Kerala Water Authority (KWA). The facts, in succinct, necessary for the disposal of this appeal are as hereunder:- The first respondent entered in the service of the KWA as L.D Typist and while working so, she was appointed as Bacteriologist provisionally against one of the nine posts sanctioned by the Government as per Ext.P1 order, with effect from 02.06.2006. Four more posts in the said category were subsequently sanctioned by the Government. Despite the creation of that much number of posts of **W.A.1586/2017** 2 Bacteriologist, no rules were framed and needless to say that no steps were either taken to regularise the appointment of the first respondent or to effect regular appointment in the said post. Ext.P1 is dated 25.8.1995. Subsequent to the creation of the said posts, the KWA prepared Ext.P2 draft rules in the year 1990 and forwarded the same for approval of the State Government/appellant. Nothing had been done for more than two decades. Thereafter, amendment was proposed to the draft rules in the year 2013 in and vide Ext.P7. The fact is that despite Ext.P2 draft rules and the proposed amendment vide Ext.P7, rules were not approved and finalised for effecting appointment to the post of Bacteriologist. Taking into account the importance of the said post in the matter of its functioning and the purpose for which it was constituted, the KWA thought it fit to effect appointment against the sanctioned said posts. In tune with Ext.P2, KWA had issued Ext.P3 circular dated 25.11.2005 inviting application for appointment by transfer of Bacteriologist from qualified inservice candidates. In tune with Ext.P2 draft rules which prescribed a **W.A.1586/2017** 3 continuous service of two years in the KWA and possession of a degree in the Microbiology as qualifications for appointment to the said post, the first respondent who possessed such qualifications responded to the said notification. It is not in dispute that it was only after subjecting to a selection process that the first respondent was appointed as Bacteriologist. True that her appointment was on provisional basis. It is to be noted that the first respondent was then having more than two years continuous service in KWA and she was possessing M.Sc Degree in Micro Biology. While so, the KWA recommended for her regularisation as Bacteriologist as per Ext.P11 dated 6.12.2013. A perusal of Ext.P11 would reveal that it is stated therein that applications were called for before effecting appointment of the first respondent as Bacteriologist and she possessed the aforementioned qualifications. It is also stated that the proposal for regularisation of the appointment of the first respondent was placed before the Board of the KWA and it resolved to submit a proposal before the Government for its consideration. The recommendation for **W.A.1586/2017** 4 regularisation of the service of the first respondent was rejected as per Ext.P12 dated 25.7.2014. Pursuant to Ext.P12, the first respondent was ordered to be reverted to the post of L.D Typist. Consequently, the KWA had issued an order reverting her to the original post of L.D Typist. It was in such circumstances that the first respondent approached this Court by filing the aforementioned writ petition. As noticed hereinbefore, the writ petition was allowed and consequent orders were issued by the learned Single Judge. 2. We have heard the learned Government Pleader for the appellant, the learned counsel appearing for the first respondent and also the learned standing counsel for respondents 2 to 4. 3. The fact that as far back in the year 1995, the post of Bacteriologist was sanctioned in KWA is not in dispute. In fact, nine posts were sanctioned as per Ext.P1 order. The Government viz., the appellant had filed a counter affidavit in the writ petition. It would reveal that the reason for rejection of the request for regularisation of the service of the first respondent mentioned in Ext.P12 was reiterated **W.A.1586/2017** 5 in the counter affidavit. The facts expatiated earlier would reveal that even after creation of the post of Bacteriologist in the year 1995, for more than a decade even after the receipt of draft rules, no action was taken by the Government/the appellant either for approving or for rejecting the draft rules. In such circumstances and also taking into account the pivotal role to be played by the Bacteriologist in the matter of service being rendered by the KWA, the authority thought it fit to fill up the vacancies in the said post. It is in the said circumstances that it happened to issue Ext.P3 circular and as mentioned hereinbefore, pursuant to the selection process conducted, the first respondent came to be appointed. Subsequent to the appointment, the first respondent though rendered her service for years together in the post of Bacteriologist, she was not being given the usual benefits; even the benefits of pay revision. It is also to be noted that she was not even granted annual increments. May be at her instance, in the circumstances, the KWA thought it fit to take up the matter of regularisation before the Government under Ext.P11. **W.A.1586/2017** 6 Evidently, vide Ext.P11, the KWA recommended for regularisation of the service of the first respondent taking into account the fact that her appointment was pursuant to a circular issued in tune with Ext.P2 draft rules and at the time of appointment, she was possessing the qualifications prescribed thereunder and further that she was thus appointed after being subjected to a process of selection. Ext.P12 is the order whereby the said request was rejected by the Government. In Ext.P12, the reason for rejection of the request for regularisation has been assigned as follows:-Though by transfer appointment was given to the first respondent from the post of L.D.Typist as Bacteriologist, it was done without any prevailing special rules or Executive Order for the post and therefore it is not in order. That apart, it is stated therein that no justifiable administrative exigency emerged/prevailed in 2005-2006 to resort to such action. As noticed hereinbefore, the very same reasoning reflected in the counter affidavit filed by the Government in the writ petition. Evidently, all those facts were taken into consideration by the learned Single Judge **W.A.1586/2017** 7 while passing the impugned judgment. 4. The recital of the facts as above would reveal that nine posts of Bacteriologist were sanctioned in the KWA as per Ext.P1 order dated 25.8.1995 by the appellant. It is relevant to refer to Ext.P1 in this contextual situation. In Ext.P1, it is stated thus:- Sanction is accorded for the creation of the following new posts and procurement of new vehicle for the establishment of two Research and Development Divisions one at Aluva and other at Calicut under Kerala Water Authority for the strengthening and the quality Monitoring activities of Water Supply Scheme. (emphasis added) 5. Thus, it is very much obvious that the posts of Bacteriologist, Chemist, Lab Assistant etc. were sanctioned in and vide Ext.P1 order by the appellant for the purpose of strengthening the quality monitoring activities of Water Supply Scheme. Even though those posts were created with such a purpose and even after receipt of Ext.P2 rules, no action whatsoever was taken by the appellant in finalising the draft rules so as to enable the KWA to effect regular **W.A.1586/2017** 8 appointment against such pivotal posts. In such circumstances, taking into account the purpose for which the post was created, as is discernible from Ext.P1, by the Government, KWA thought it fit to effect appointment. We are at a loss to understand how in such circumstances, in Ext.P12, the Government cited absence of administrative exigency as a reason that too, after creating the post of Bacteriologist for strengthening the quality monitoring activities of Water Supply Scheme. We have no hesitation to hold that in the light of Ext.P1, the appellant cannot be heard to contend that the post of Bacteriologist is not at all required for strengthening the quality management activities of the water supply scheme. Being an agency in the State entrusted with the task of water supply, if the KWA thought it to fill up that post, we have no hesitation to hold that the KWA was constrained to fill up such posts because of administrative exigency. In fact, there was a public purpose to be served. These aspects were not at all looked into by the Government while passing Ext.P12 order. True that a perusal of Ext.P12 would reveal that what **W.A.1586/2017** 9 was actually considered was entitlement of the first respondent for getting regularisation. To negate the claim for regularisation, what has been stated is that though she was appointed by transfer from the post of L.D Typist as Bacteriologist, it was done without any prevailing special rules or executive order for the post. 6. The question is whether the said observation, rather, the reason assigned for rejection of regularisation can be sustained. The learned Government Pleader submitted that in the light of the decision in **Vimal Kumari v. State of Haryana and others** [ **1998 (4) SCC 114],** the water authority was not justified in acting upon draft rules for effecting appointment of the first respondent, the writ petitioner. In that view of the matter, it is further submitted that the learned Single Judge had not bestowed consideration of such aspects. In **Vimal Kumari** 's case, the draft rules in question were prepared in the year 1983. From the recital in paragraphs 7 and 8 of the said decision, it is evident that those draft rules were lying in nascent stage since then and in the meanwhile, many promotions including that of the first **W.A.1586/2017** 10 respondent were made based on seniority. Certainly, such promotions were effected in the absence of any rule under Article 309 of the Constitution. Paragraph 8 of the said decision reads thus:- “In the absence of any decision of the State Government that so long as the Draft Rules were not notified, the service conditions of the appellant or the respondent and their other colleagues would be regulated by the “Draft Rules” prepared in 1983, it was not open either to the Government or to any other authority, nor was it open to the High Court, while disposing of the writ petition, to invoke any of the provisions of those Rules particularly as the Government has not come out with any explanation why the Rules, though prepared in 1983, have not been notified for the long period of more than a decade. The delay, or rather inaction is startling. Taking into account the fact that the draft rules were prepared in the year 1983 and Government had not come out with any explanation why the Rules, though prepared in 1983, had not been notified for the long period of more than a decade, the Apex Court held that the delay rather inaction was startling. We are to borrow the same expression. The draft rules were sent for approval in the year 1990. A proposal for **W.A.1586/2017** 11 its amendment was also sent in the year 2013. Despite the passage of time, no action whatsoever was taken by the Government to frame rules for filling up the posts which even according to them was required for strengthening the quality management activities of water supply scheme. The delay, rather inaction, is startling. It is to be noted that taking into account the circumstances mentioned in paragraph 8 of the decision referred (supra), the Apex Court held that interference with the promotions granted to the employees by the High Court was incorrect and consequently, the Apex Court allowed those persons to continue in their respective posts and also ordered to pay them all consequential benefits. It is to be noted that after giving stamp of approval to such promotions, the Apex Court found that in the absence of rules, they have adopted seniority as the basis for effecting such appointments. Reverting back to the case on hand, it is evident that even after Ext.P1, the KWA after forwarding Ext.P1 waited for years together for effecting appointment in the post of Bacteriologist. It is only thereafter that in tune with Ext.P2, it issued a **W.A.1586/2017** 12 circular. It is to be noted that two years continuous service in KWA and a Degree in Micro Biology were prescribed as essential qualifications for appointment to the said post. In such circumstances, it cannot be said that the appointment was effected without looking into the requirements to identify the person suitable to mann the post. The first respondent was having more than two years service in KWA and also she was then possessing Masters Degree in Microbiology. In the writ petition, it is specifically stated that though she has started discharging the duties and functions attached to the post of Bacteriologist in the year 2006, she was constrained to work with basic salary. Increments, benefits of pay revision etc. were not granted. Having suffered such situation for years together, she approached the KWA seeking for regularisation and evidently, that constrained the KWA to take up the matter before the Government. We have already adverted to the reasoning given by the appellant for rejecting the request for regularisation. We have also found that the observation of the appellant that there was absolutely no justifiable **W.A.1586/2017** 13 administrative exigency was not true to facts and could not be sustained. That apart, in the light of the decision in **Vimal Kumari** 's case, we are of the view that the action on the part of the second respondent in conducting a process of selection, rather, effecting appointment by transfer to find suitable person to mann the pivotal post of Bacteriologist cannot be said to be an illegal action. In other words, it cannot be said that the appointment of the first respondent was an outcome of an illegal action. Those important aspects were virtually taken into account by the learned Single Judge. The learned Single Judge in the impugned judgment found that even under draft rules, the method of appointment is by transfer. It is also found that in Ext.P7 rules which is heavily relied on by the appellant, one of the methods of appointment is by direct recruitment from in-service personnel through KPSC. Taking into account the fact that the appointment of the first respondent cannot be said to be a backdoor entry and she was subjected to a process of selection in which her entitlement and eligibility were verified, the learned Single Judge **W.A.1586/2017** 14 found that the action in rejecting the claim for regularisation under Ext.P12 warrants interference. It is the outcome of such consideration that resulted in setting aside of Ext.P12 order. We do not find any reason to interfere with the impugned judgment in the said circumstances. The upshot of the discussions is that there is no merit in the appeal and it is liable to fail. Accordingly, it is dismissed. Consideration of request for regularisation recommended by the second respondent shall be done by the Government expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **MARY JOSEPH** **(JUDGE)** **spc/** # **W.A.1586/2017** 15 # **W.A.1586/2017** 16