Sunny Sebastian v. Mahatma Gandhi University

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** ## **FRIDAY, THE 13TH DAY OF JULY 2012/22ND ASHADHA 1934** **WP(C).No. 9459 of 2007 (A) --------------------------** ## **PETITIONER(S):** **---------------------------** **SUNNY SEBASTIAN, (FORMER LAST GRADE SERVANT ON DAILY WAGES (CLR) MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS, KOTTAYAM) VAZHAKKALAPUTHENPURAYIL, VAYALA P.O., KOTTAYAM, PIN: 686 587.** **BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY SMT.MADHURI LATHA SMT.N.SANTHA SRI.PETER JOSE CHRISTO** ## **RESPONDENT(S):** **---------------------------** **1. MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS, KOTTAYAM,** **REPRESENTED BY ITS REGISTRAR.** **2. THE VICE CHANCELLOR, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM.** **BY SRI.O.V.RADHAKRISHNAN,SENIOR ADVOCATE ADVS. SRI.V.A.MUHAMMED, SC, M.G.UNIVERSITY SRI. T.A. SHAJI, SC, M.G.UNIVERSITY SMT.K.RADHAMANI AMMA SRI.ANTONY MUKKATH SRI.K.RAMACHANDRAN (THYKOODAM)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.9459/2007** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE CERTIFICATE DATED 14/8/2002 ISSUED BY THE MEDICAL BOARD.** - **P2 COPY OF THE EXTRACT OF THE MINUTES OF THE 5.17TH MEETING OF THE SYNDICATE HELD ON 19/11/2002** - **P3 COPY OF THE MEMO NO.AD A3/1/4148/97 DATED MEMO NO.AD A3/1/4148/97 DATED 25/11/2002 OF THE REGISTRAR, M.G.UNIVERSITY** - **P4 COPY OF THE ORDER NO.AD.AIII/1/4080/2002 DATED 26/5/2003 OF THE REGISTRAR, M.G.UNIVERSITY** - **P5 COPY OF THE OFFICE ORDER NO.AD.AIII/1-4080/2000 DATED 25/11/2004 OF THE REGISTRAR, M.G.UNIVERSITY.** - **P6 COPY OF THE OFFICE ORDER NO.AD.A3/1-4080/2000 DATED 2/12/2004 OF THE REGISTRAR, M.G.UNIVERSITY.** - **P7 COPY OF THE JUDGMENT IN WP(C)35386/04-K DATED 26/9/2006 OF THIS HON'BLE COURT.** - **P8 COPY OF THE REFERENCE NO.AD.AIII/4080/1/2000 DATED 20/11/2006** - **P9 COPY OF THE RELEVANT EXTRACT OF THE MINUTES OF THE MEETING OF THE SYNDICATE OF M.G.UNIVERSITY HELD ON 30/11/2006** - **P10 COPY OF THE U.O.NO.AD.AIII/1-4080/2000 DATED 1/12/2006 OF THE REGISTRAR** - **P11 COPY OF THE MINUTES OF THE MEETING OF THE SYNDICATE HELD ON 5/2/2007** - **P12 COPY OF THE U.O.NO.7095/3/07/SFI DATED 8/3/2007 OF THE REGISTRAR** - **P13 COPY OF THE ORDER NO.AD.AI-1-344/2005 DATED 13/11/2006 OF THE UNIVERSITY.** - **P14 COPY OF THE OFFICE ORDER NO.AD.A3/1-42/05 DATED 2/9/2006 OF THE UNIVERSITY** - **P15 COPY OF THE OFFICE ORDER NO.AD.A3/1-42/05 DATED 4/11/2006 OF THE UNIVERSITY** - **P16 COPY OF THE ORDER NO.AD.A3/1-42/05 DATED 4/11/2006 OF THE UNIVERSITY** - **P17 COPY OF THE OFFICE ORDER NO.AD.A III/I-73/2006 VOL.IV DATED 2/12/2006 OF THE UNIVERSITY.** **2/-** **sts** **-2-** ## **WP(C)NO.9459/2007** **P18 COPY OF THE OFFICE ORDER NO.AD.A3/1-42/05 DATED 8/12/2006 OF THE UNIVERSITY P19 COPY OF THE OFFICE ORDER NO.AD.A3/1-73/2006 VOL.II DATED 7/11/2006 OF THE UNIVERSITY.** ## **RESPONDENT'S EXHIBITS AND ANNEXURES:** **ANNEX 1 COPY OF THE DECISION REPORTED IN 2007(1) S.C.C. 408, DATED 16/11/2006.** **/TRUE COPY/** **P.A.TO.JUDGE** **sts** ## **S. SIRI JAGAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.9459 of 2007** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 13[th] day of July, 2012** ## **J U D G M E N T** The petitioner is an orthopedically handicapped person. By Ext.P2 Resolution of the Syndicate of the M.G. University, the petitioner was appointed on daily wages in Class IV category as a special case. By Ext.P5 dated 25.11.2004 the term of the appointment of the petitioner was extended for 179 days from 16.11.2004. Ext.P5 was cancelled by Ext.P6 on the ground that the University has stopped the practice of engaging casual labourers otherwise than through the Employment Exchange. Despite the same, other casual labourers were still being engaged otherwise than through employment exchange. The petitioner approached this Court by filing W.P.(C) No. 35386/2004, which was disposed of by Ext.P7 judgment directing the Syndicate to take appropriate decision as to whether or not the services of the petitioner were liable to W.P.(C)No.9459 of 2007 **-2-** be terminated. Pursuant to the judgment, the Syndicate resolved, by Ext.P9, to terminate service of the petitioner and by Ext.P10, his services were terminated. The petitioner has filed this writ petition seeking the following reliefs: - “i) call for the records leading to Exts.P9 and P10 and quash them by the issuance of a writ of certiorari or any other appropriate writ, order or direction. - ii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to reinstate the petitioner in service and permit him to continue in service on the strength of Ext.P2 till he attains the age of superannuation as if Exts. P9 and P10 were never issued.” 2. The petitioner contends that other similarly placed persons appointed like the petitioner have been allowed to continue in service as evident from Exts.P11 & P19. 3. A statement has been filed on behalf of the respondents wherein the stand taken by the University is that the petitioner has no right to be continued in service and he has been appointed only temporarily for 179 days. They would submit that in view of the decision of the W.P.(C)No.9459 of 2007 **-3-** Supreme Court in **Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors. [(2006) 4 SCC 1]** , the temporary employees are not entitled to either regularisation or continuance in service till regular hands join duty. 4. I have considered the rival contentions in detail. 5. A learned Judge of this Court has considered this writ petition for interim orders and on 31.7.2007 the following interim order was passed: “Heard learned counsel for the petitioner and Sri. O.V. Radhakrishnan, learned senior counsel for the University. 2. Petitioner impugns Ext.P10 of the University dated December 1, 2006 in this writ petition by which his service as casual labourer was terminated with immediate effect. I do not propose to go into the merit or demerit of the above order at this stage though arguments have been advanced by both sides rather extensively. 3. Learned senior counsel submits that about 50 similarly placed casual labourers had been re-engaged by the University in the light of the observations made by this court while disposing of a batch of writ petition filed by them. This court had observed that the heart burn of those employees would have to be considered by the University with some compassion. He further submits that the University had reengaged 20 such casual labourers with effect from February 12, 2007 for three months. Later, another batch of 30 labourers were ordered to be re-engaged by order dated May 25, 2007. Petitioner's case was not considered since there was no such observation. 4. It is the case of the petitioner that the first batch of 20 labourers are even now being allowed to continue in service, though the initial term of three months had already expired. It is contended by the learned counsel that petitioner W.P.(C)No.9459 of 2007 **-4-** has been singled out for a hostile discriminatory treatment. It is the specific case of the petitioner that this hostile attitude has been adopted by the University only for the reason that he had been fighting for his right. He is a disabled person and he had been working in the University for more than four years and that too on the strength of a decision taken by the Syndicate. However, petitioner was terminated from service with effect from December 1, 2006 consequent on Ext.P10 order. 5. Learned senior counsel submits that in spite of the fact that the Syndicate had resolved to terminate the service of the petitioner as reflected in Ext.P10 order, the Syndicate will consider the matter again in its meeting which is slated to be held on August 21, 2007 in the light of the averments made by the petitioner in the writ petition and an appropriate decision will be taken. He further submits that in the meanwhile the University is prepared to re-engage the petitioner as in the case other casual labourers, if such a direction is issued by this court. 6. Having regard to the peculiar facts and circumstances of the case, particularly the fact that petitioner is a physically disabled person who had worked in the University for more than four years, I am satisfied that petitioner is entitled to be re-engaged provisionally subject to further orders. Ordered accordingly. Appropriate orders in this regard shall be issued by the University forthwith. Handover the copy to both sides.” As is clear from that interim order, at that time there was a promise by the University to consider the petitioner's case again. I am of opinion that the University should do the same now to give a quietus to the issue as to whether or not the petitioner can be continued in service if other similarly placed persons are continued in service as claimed by the W.P.(C)No.9459 of 2007 **-5-** petitioner. Accordingly, I dispose of this writ petition with the following directions: The 1[st] respondent shall place the issue regarding continuance of the petitioner before the Syndicate in its next meeting and the Syndicate shall take a final decision in the matter taking into account all the facts and circumstances of the case pointed out by the petitioner on the question as to whether the petitioner can be continued in service if 20 other casual labourers are allowed to continue in service as stated by the petitioner. Till the Syndicate takes a decision, the petitioner shall be allowed to continue as per the interim order dated 31.7.2007. Further steps in the matter shall be only in accordance with the decision of the Syndicate. Sd/S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/