Sudheesh Kumar P.S & Others v. Cochin University of Science and Technology

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL MONDAY, THE 27[TH] DAY OF SEPTEMBER 2021 / 5TH ASWINA, 1943** ## **WP(C) NO. 17180 OF 2021** ## **PETITIONERS:** |1|SUDHEESH KUMAR P.S| |---|---| ||AGED 35 YEARS| ||S/O.SADI P.K., PUTHEN KATTUNIKARTH, AROOR P.O.,| ||ALAPPUZHA-688423.| |2|ARUN C.KARTHIK,| ||S/O.C.P.KARTHIKEYAN, CHAKATHARTH (H), KADAMANGALAM,| ||N.PARAUR, ERNAKULAM.| |3|RAJANI N.P.,| ||W/O.T.K.PUZHPANGADAN, THEKKINKATTIL (H),| ||CHIRAKKAKOM, VARAPUZHA P.O., ERNAKULAM-683517.| |4|VIJESH K.B.,| ||S/O.BALAKRISHNAN, KARUVELIL (H), MURAVANTHURUTH,| ||VADAKKEKARA P.O., ERNAKULAM-683522.| |5|MANJU K.S.,| ||W/O.REJI K.V., KANAMPURAM (H), MALAYATTOOR P.O.,| ||ELLITHODE, ERNAKULAM-683587.| |6|KALESH KUMAR V.K.,| ||S/O.RAJAPPAN V.N., VELAMKULATHIL (H), MANNANAM P.O.,| ||KOTTAYAM-686561.| |7|JINESH B.K.,| ||S/O.B.C.KUTTAPPAN, BUNGLAVUPARAMBIL (H),| ||PALAYAMPARAMBU P.O., VYNTHALA, THRISSUR-680741.| |8|ANEESH K.G,| ||S/O.GIRIKUMAR, THEKKUYMTHALA MADOM,| ||VELIYATHUNAD P.O., W.VELIYATHUNAD, ALUVA-683511.| |9|GANESAN K.,| ||S/O.CHARTHAVE, WEST VENGOLA P.O., ONAMKULAM,| ||PANGIMALA, ERNAKULAM-683556.| |10|SAJI K.J.,| ||S/O.K.A.JOSEPH, KATTITHARA HOUSE, THYKULAM,| ||VYTTILA P.O., ERNAKULAM-682019.| **WP(C) NO. 17180 OF 2021 & conn. cases** **2** 11 ANILMON, S/O.MOHAMMED YOUSUF, KAVIYAM PARAMBU, VALIYA MARAM WARD, ALAPPUZHA-688001. 12 BIJU SREEDHARAN, S/O.SREEDHARAN, ATTASSERY (H), P.O.KUTTUR, PAMBOOR, THRISSUR-680013. 13 BEENA M.P., W/O.JOJI, KOTTAKKAL (H), MELOOR P.O., CHALAKUDY VIA, THRISSUR-680311. BY ADVS. KALEESWARAM RAJ VARUN C.VIJAY ## **RESPONDENTS:** 1 COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY REPRESENTED BY ITS REGISTRAR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, SOUTH KALAMASSERY, KOCHI-682022. 2 VICE CHANCELLOR COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, SOUTH KALAMASSERRY, KOCHI-682022. 3 REGISTRAR COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, SOUTH KALAMASSERRY, KOCHI-682022. BY ADV S.P.ARAVINDAKSHAN PILLAY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.09.2021, ALONG WITH WP(C)Nos.17247/2021, 18249/2021 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **3** **WP(C) NO. 17180 OF 2021 & conn. cases** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **MONDAY, THE 27[TH] DAY OF SEPTEMBER 2021 / 5TH ASWINA, 1943** ## **WP(C) NO. 17247 OF 2021** ## **PETITIONERS:** 1 SHOBIKA M.M AGED 40 YEARS MURIYATHARA HOUSE, CHAKKARAPPADAM P. O., PERNJANAM, THRISSUR - 680686. 2 JENCY GEORGE AGED 45 YEARS KALAPPURAKKAL HOUSE, ELOOR EAST, UDYOGMANDAL P. O., ERNAKULAM - 683501. 3 DILSHA CHANDRAN AGED 39 YEARS VADAKKEPANATTIL, KANJIRAMATTOM P. O., ERNAKULAM. 4 SURESH P. M. AGED 40 YEARS VAZHAYILVALAPPUMEETHEL HOUSE, IRINGATH P. O., MEPPAYUR, KOZHIKODE - 673523. BY ADVS. JOHN K.GEORGE K.S.ARUN KUMAR RAJEE P MATHEWS AMRUTHA K P ## **RESPONDENTS:** 1 COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY REPRESENTED BY ITS REGISTRAR, SOUTH KALAMASSERY, KOCHI - 682022. ## **WP(C) NO. 17180 OF 2021 & conn. cases** **4** 2 VICE CHANCELLOR COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, SOUTH KALAMASSERY, KOCHI - 682022. 3 REGISTRAR COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, SOUTH KALAMASSERY, KOCHI – 682022. 4 CHAIRMAN, KERALA PUBLIC SERVICE COMMISSION PATTOM, THIRUVANANTHAPURAM - 695 004. BY ADV S.P.ARAVINDAKSHAN PILLAY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.09.2021, ALONG WITH WP(C).17180/2021, 18249/2021 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **5** ## **WP(C) NO. 17180 OF 2021 & conn. cases** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **MONDAY, THE 27[TH] DAY OF SEPTEMBER 2021 / 5TH ASWINA, 1943** ## **WP(C) NO. 18249 OF 2021** ## **PETITIONERS:** 1 SUJA M.S AGED 45 YEARS W/O.UNNIKRISHNAN K.K., KARIYEZHATHU HOUSE, KUZHUPILLY, EDAVANAKKAD P.O., ERNAKULAM-682802. 2 SAJEEV.C, AGED 32 YEARS S/O.CHAAMIYAAR, CHELAKKADKUNNU HOUSE, THIROOR P.O., PALAKKAD-678544. BY ADVS. KALEESWARAM RAJ VARUN C.VIJAY THULASI K. RAJ MAITREYI SACHIDANANDA HEGDE ## **RESPONDENTS:** 1 COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY REPRESENTED BY ITS REGISTRAR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, SOUTH KALAMASSERY, KOCHI-682022. 2 VICE CHANCELLOR COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, SOUTH KALAMASSERY, KOCHI-682022. 3 REGISTRAR COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, SOUTH KALAMASSERY, KOCHI-682022. BY ADV S.P.ARAVINDAKSHAN PILLAY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.09.2021, ALONG WITH WP(C)Nos.17247/2021, 17180/2021 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 17180 OF 2021 & conn. cases** **6** ## **JUDGMENT** [WP(C) Nos.17180/2021, 17247/2021,18249/2021] This order shall dispose of three writ petitions wherein the common impugned order dated 16.08.2021 has been assailed. The facts in brief are that the petitioners are working as sweeper cum cleaner on temporary basis. They secured ranks in the rank list published in the year 2018 which was based upon the written test conducted on 14.08.2010 and interview held after 10 years in 2018, however, were not appointed on regular basis. Receiving threat of disengagement, approached this Court seeking permanency in the job without prejudice to the right of regularisation. This Court directed the respondents to receive the representation and take a call. Respondents, vide impugned order dated 16.08.2021 attempted to comply with the order of this Court by observing that the temporary employees can be permitted to continue for a period of 240 days and after which their daily wage engagement shall be terminated. It is contended that the aforementioned order is against the judgment of various courts including that of Supreme Court in _**Hargurpratap Singh V. State of Punjab and others**_ [2007 (13) SCC 292]. **WP(C) NO. 17180 OF 2021 & conn. cases** **7** Petitioners cannot be replaced to other temporary hands but respondents would not be debarred from placing them in case of appointment of regular incumbents. 2. Counter affidavit on behalf of the respondents has been filed justifying the reasons assigned in the impugned order on the premise that the engagement was only on daily basis as per the University order dated 7.05.2015. There are about 59 temporary posts of sweeper cum cleaner. All the petitioners were engaged in temporary posts and can continue only for a maximum period of 240 days. The impugned order has been passed on the basis of previous order of the University dated 07.05.2015 wherein it was made clear that daily workers can only work for 240 days. The engagement of the petitioner was in terms of the conditions prescribed in the contents of the letter dated 07.05.2015 and therefore, they cannot turn around and stake the claim. No vacancies are available in the regular/permanent post of sweeper cum cleaner in the University at the time of expiry of the rank list. Since the term of engagement has expired after completion of 240 days petitioners cannot be permitted to continue, but in view of the interim order **WP(C) NO. 17180 OF 2021 & conn. cases** **8** passed by this Court are continuing. 3. I have heard the learned counsel for the parties and appraised the paper book. 4. It would be appropriate to extract the relevant portion of the impugned order as well as order dated 07.05.2015 relied upon by the respondents while passing the impugned order. The same read as under: ## **Order dated 16.8.2021** “4. The Vice Chancellor has on 12.8.2021 issued orders in the Note File as extracted below: “The Judgment dated 30.06.2021 of the Hon'ble High Court in W.P.(C)No.12971 of 2021 has been perused As directed the third respondent Registrar has heard the Advocate representing the petitioners and representative of the petitioners on 27.07.2021. The matter has been referred to me being the appointing authority under Section 12(a) of CUSAT Act 1986. I have gone through Exhibit P5 representation, the contentions raised on behalf of the petitioners at the hearing on 27.07.2021 and the Hon'ble Division Bench Judgment dated 16.03.2021 in W.A.222 of 2021 (Biju C.V. Vs. Jashna K.J. and others). In the Judgment dated 16.03.2021 in Biju C.V. Vs. Jashna K.J, and others, the Hon'ble Division Bench directed the University to accommodate the appellant in the vacancy that would arise on 21.04.2021 or thereafter in the temporary post of University Assistant, either on daily wage basis or on **WP(C) NO. 17180 OF 2021 & conn. cases** **9** contract basis. The Hon'ble Court has also reiterated that the terms and conditions of his appointment would be as applicable to daily wage appointments contract appointments and the appellant will not be entitled to claim any right based on the selection process conducted by the PSC or his ranking in the list that subsequently expired. This benefit has been bestowed by the Hon'ble Court on the appellant alone. The Hon'ble Court has also directed the University to give due preference to candidates empaneled in the current rank list for filling up temporary post. In this case the petitioners figuring in the then Ranked List of Sweeper cum Cleaners have been engaged on daily wage basis as per University Order No.Ad.A5.ASST DW 2012 dated 07.05.2015 and as per this order the daily wage engagements in no case shall exceed 240 days. The Ranked List has also expired. Therefore considering the direction in Biju CV. vs. Jashna K.J. and others that the terms applicable to daily wage appointments contract appointments would be applicable, all the petitioners can only be permitted to continue for a period of 240 days as per the above University Order after which their daily wage engagement shall be terminated. If based on the Judgment in WP (C) 12971 on 2021, the period of 240 days of any of the petitioners have been completed their engagement be stopped forthwith and the wages for the additional days worked based on the Judgment be paid to them. University Order conveying the decision be issued with a copy to all the petitioners." ## **Order dated 7.5.2015** “Orders were issued vide U.O read as (4) above, modifying **WP(C) NO. 17180 OF 2021 & conn. cases** **10** the norms for daily wage engagements communicated vide UO read as (2) above to the extent that instead a break of 2 months, only a break of one working day is required after 179 continuous days and not more than 240 days in a year. While considering the interpretation of term of engagement of daily Wage staff in the University, sanction is now accorded by the Vice-Chancellor modifying the related clauses in the U Os read as (2) and (4) above as detailed below: 1.A person can be engaged on daily wage basis for a period of 179 days (including holidays) at a stretch and such person can be re-engaged (if work is found satisfactory) for 60 more days (including holidays) with a break of atleast one working day between the two engagements. 2.Such daily wage engagement shall be made in such a manner that, in no case, the engagement of the same person shall exceed 240 days (including holidays) with 2 Calendar months. Orders are therefore issued accordingly. The University Order read as (4) above stands modified to this extent.” 5. The reasoning assigned in the impugned orders _prima facie_ is against the dictum laid down in the judgment cited supra where it is held that the management cannot indulge into malpractice by replacing the contractual/temporary employees with another set of contractual employees. Paragraph 3 of the **WP(C) NO. 17180 OF 2021 & conn. cases** **11** ## judgment reads as under: “3. We have carefully looked into the judgment of the High Court and other pleadings that have been put forth before this Court. It is clear that though the appellants may not be entitled to regular appointment as such it cannot be said that they will not be entitled to the minimum of the pay scale nor that they should not be continued till regular incumbents are appointed. The course adopted by the High Court is to displace one ad hoc arrangement by another ad hoc arrangement which is not at all appropriate for these persons who have gained experience which will be more beneficial and useful to the colleges concerned rather than to appoint persons afresh on ad hoc basis. Therefore, we set aside the orders made by the High Court to the extent the same deny the claim of the appellants of minimum pay scale and continuation in service till regular incumbents are appointed. We direct that they shall be continued in service till regular appointments are made on minimum of the pay scale. The appeals shall stand allowed in part accordingly.” 6. It is a matter of record that the petitioners in view of the interim order passed by this Court are continuing in service. They cannot be permitted to be replaced keeping in view the exigency of services by another set of contractual/temporary employees. In other words, respondents cannot be permitted engagement of another set of temporary employees or contractual employees on cessation of 240 days. **12** ## **WP(C) NO. 17180 OF 2021 & conn. cases** Accordingly, the order impugned is quashed. These writ petitions are allowed. Petitioners will continue to discharge their duties till the respondents undertake their exercise in filling up the posts manned by the petitioners on daily wages or contractual basis with a set of regular employees by following the principle of last come and first go. Sd/- **AMIT RAWAL JUDGE** nak ## **WP(C) NO. 17180 OF 2021 & conn. cases** **13** ## **APPENDIX OF WP(C) 17247/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE RANK LIST NO.RECT. /1109/2009(1) DATED 28.12.2018 PUBLISHED BY RESPONDENT UNIVERSITY. Exhibit P2 TRUE COPY OF THE JUDGMENT DATED 30.06.2021 IN W.P.(C) NO.12971/2021 OF THIS HON'BLE COURT. Exhibit P3 A TRUE COPY OF THE ORDER DATED 16.08.2021 OF THE 3RD RESPONDENT. Exhibit P4 TRUE COPY OF THE UNIVERSITY ORDER NO.AD.A5.ASST DW 2012 DATED 07.05.2015. ## **WP(C) NO. 17180 OF 2021 & conn. cases** ## **14** ## **APPENDIX OF WP(C) 17180/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE RANKED LIST DATED 28.12.2018 FOR THE POST OF SWEEPER CUM CLEANER PUBLISHED BY THE RESPONDENT UNIVERSITY. Exhibit P2 TRUE COPY OF THE MEMO BEARING NO.AD.A4/174/2018 DATED 24.12.2020 OF THE FOURTH PETITIONER. Exhibit P3 TRUE COPY OF THE JUDGMENT IN WP(C)NO.12971/2021 DATED 30.06.2021. Exhibit P4 TRUE COPY OF ORDER NO.LA1/W.P(C) 12971/2021 DATED 16.08.2021. Exhibit P5 TRUE COPY OF THE JUDGMENT IN BIJU C.V VS.JASHNA K.J AND OTHERS 2021 (2) KHC 550. Exhibit P6 TRUE COPY OF THE INTERIM ORDER DATED 01.11.2017 IN WRIT APPEAL NO.1417/2017. RESPONDENTS EXHIBIT EXHIBIT R3(A) TRUE COPY OF THE UNIVERSITY ORDER NO.AD.A5.ASST/DW 2012 DATED 07.05.2015 ## **WP(C) NO. 17180 OF 2021 & conn. cases** ## **15** ## **APPENDIX OF WP(C) 18249/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE RANKED LIST DATED 28.12.2018 FOR THE POST OF SWEEPER CUM CLEANER PUBLISHED BY THE RESPONDENT UNIVERSITY. Exhibit P2 TRUE COPY OF THE MEMO BEARING NO.AD.A4/174/2018 DATED 24.12.2020 OF THE 1ST PETITIONER WITH TRANSLATION. Exhibit P3 TRUE COPY OF THE JUDGMENT IN WP(C)NO.12971/2021 DATED 30.06.2021. Exhibit P4 TRUE COPY OF ORDER NO.LA1/W.P(C) 1297/2021 DATED 16.08.2021. Exhibit P5 TRUE COPY OF THE JUDGMENT IN BIJU C.V VS.JASHNA K.J AND OTHERS 2021(2)KHC 550. Exhibit P6 TRUE COPY OF THE INTERIM ORDER DATED 01.11.2017 IN WRIT APPEAL NO.1417/2017. Exhibit P7 TRUE COPY OF THE INTERIM ORDER DATED 31.08.2021 IN W.P(C)NO.17180/2021. RESPONDENTS EXHIBIT EXHIBIT R3(A) TRUE COPY OF THE UNIVERSITY ORDER NO.AD.A5.ASST/DW 2012 DATED 07.05.2015