The Administrator, Union Territory of Lakshadweep, Kavaratti v. Dr. Hussain Ouge and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 30TH DAY OF MAY 2019 / 9TH JYAISHTA, 1941** ## **WP(C).No. 26731 of 2008** **AGAINST THE ORDER DATED 16.06.2008 IN OA 208/2006 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER:** **THE ADMINISTRATOR, UNION TERRITORY OF LAKSHADWEEP, KAVARATTI. BY ADV. SRI.S.RADHAKRISHNAN,SC, LAKSHADWEEP ADMN SRI. S.MANU, CGC** ## **RESPONDENTS:** |**1**|**DR.HUSSAIN OUGE**| |---|---| ||**VETERINARY ASSISTANT SURGEON,**| ||**DEPARTMENT OF ANIMAL HUSBANDRY,**| ||**RESIDING AT BODUATHRI VILLAGE P.O.,**| ||**MINICOY, LAKSHADWEEP.**| |**2**|**DR.P.P.ATTAKOYA,**| ||**VETERINARY ASSISTANT SURGEON,**| ||**DEPARTMENT OF ANIMAL HUSBANDRY,**| ||**RESIDING AT PUDHIYAPURA, KADMAT, LAKSHADWEEP.**| |**3**|**DR.A.A.MOHAMMED,**| ||**VETERINARY ASSISTANT SURGEON,**| ||**DEPARTMENT OF ANIMAL HUSBANDRY,**| ||**RESIDING AT AOUGOTHIATHIRIGE, MINICOY, LAKSHADWEEP.**| _W.P.(C) No.26731/2008_ 2 - **4 UNION OF INDIA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF ANIMAL HUSBANDRY AND DAIRYING, MINISTRY OF AGRICULTURE, NEW DELHI.** - **5* SMT.FATHIMA KUNNISAGE, W/O LATE DR.A.A.MOHAMMED, ATHIRIGE KUDEHI VILLAGE, MINICOY-682559.** - **6* AZEEM-UL-SHAN AGED 25 YEARS, S/O LATE DR.A.A.MOHAMMED, ATHIRIGE KUDEHI VILLAGE, MINICOY-682559.** - **7* ASFAQ SAUBAN** - **AGED 17 YEARS, S/O LATE DR.A.A.MOHAMMED, REPRESENTED BY HIS GUARDIAN, MOTHER FATHIMA KUNNISAGE, ATHIRIGE KUDEHI VILLAGE, MINICOY-682559.** - **8* AFROZ SAUBAN** **AGED 5 YEARS, S/O LATE DR.A.A.MOHAMMED, REPRESENTED BY HIS GUARDIAN, MOTHER FATHIMA KUNNISAGE, ATHIRIGE KUDEHI VILLAGE, MINICOY-682559.** ***ARE IMPLEADED AS ADDL.RESPONDENTS 5 TO 8 VIDE ORDER DATED 03.07.2017 IN I.A.NO.13856/12 BY ADVS. SRI.P.VIJAYAKUMAR, ASG OF INDIA - R4 SRI.M.R.HARIRAJ – R1 & R2 SRI.P.A.KUMARAN SMT.VINEETHA B. SRI.SURAJ.S** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.05.2019, THE COURT ON 30.05.2019 DELIVERED THE FOLLOWING:** _W.P.(C) No.26731/2008_ 3 ## **JUDGMENT** ## Ashok Menon, J. The Administrator, Union Territory of Lakshadweep, Kavaratti is before us aggrieved by Ext.P1 order dated 16.06.2008, passed by the Central Administrative Tribunal, Ernakulam Bench (for brevity “CAT”) directing regularisation of appointment of respondents 1 to 3, who were appointed as Assistant Veterinary Surgeons on ad-hoc basis in 1986 and later converted into contract appointment in 1988, with effect from the date of initial appointment with all consequential benefits. 2. The 3[rd] respondent died pending this Writ Petition and his legal heirs have been impleaded as additional respondents 5 to 8. 3. The writ petitioner points out that the impugned order is clearly against the decision of the Apex Court in _**Secretary, State of Karnataka & others v.**_ ## _**Umadevi, (2006) 4 SCC 1**_ and subsequent decisions. 4. The request made by respondents 1 to 3 to quash the orders passed by the 4[th] respondent to regularise _W.P.(C) No.26731/2008_ 4 their service was rejected for the reason that the post of Veterinary Assistant Surgeon is a Group B Gazetted post and as per the RR framed for filling up of these posts, consultation with the UPSC through the Nodal Ministry, ie., the Ministry of Agriculture, is essential. 5. It is further pointed out that the party respondents had applied for the posts advertised by the UPSC several times and had also appeared for interviews, but failed to get selected. Since the post remained vacant, they were appointed on ad-hoc basis and some of them have even retired after attaining the age of superannuation. 6. We heard the Standing Counsel appearing for the writ petitioner as also the Counsel appearing for the party respondents. 7. It is noted that the party respondents had approached the CAT several times with the same relief, ie., for declaration of their services be regularised with effect from the date of their first appointment. In one of the applications filed as O.A.K.No.475/1988, _W.P.(C) No.26731/2008_ 5 it was observed that the applicant has no legal right to insist that he is to be continued in the post on ad-hoc basis despite the advise of the UPSC. Some applications were disposed of with a direction to allow the applicant to continue in service till candidates selected by the UPSC are available. O.A.Nos.1334/1994 and 1338/1994 filed by respondents 1 and 3 herein were disposed of by the CAT vide common order dated 12.06.1995 stating thus: _“.... By these pronouncements, the claims of applicants had been negatived. Undaunted by this they came again with O.A.252 and 279/92. Reading the earlier orders, a Bench of this Tribunal allowed applicants to continue in service, obviously till regular hands are available. To our mind, the declaration of law in the applications hereinbefore noticed, operate as res judicata and the applicants can no longer reagitate the question of regularisation of services.”_ 8. The dismissal of the aforesaid applications filed by respondents 1 and 3 would further stand as embargo in seeking the relief again. The applications filed by them with a similar prayer, however stands allowed vide the impugned order by the Tribunal. _W.P.(C) No.26731/2008_ 6 9. Apart from the bar of _res judicata,_ there is also a catena of decisions of the Apex Court pointing out that a temporary/ad-hoc employee has no right to continue beyond the term of his appointment and cannot warrant regularisation howsoever long it may be. The Tribunal has placed reliance on the decision _**U.P.State**_ ## _**Electricity Board v. Pooran Chandra Pandey (Civil**_ _**Appeal No.3765/2001)**_ to justify its finding. The extracted portion of the said judgment indicates that the issue involved in that case was discrimination between employees who were similarly placed, in consideration of regularisation. The question involved in the case in hand is not identical. The analogy drawn in the claim put forth by one Dr.Cheriakoya for regularisation, also does not deem to be appropriate to us. 10. The Tribunal was therefore, was not justified in passing Ext.P1 order granting regularisation to the party respondents herein and the order needs to be interfered with. We do so. _W.P.(C) No.26731/2008_ 7 In the result, the Writ Petition is allowed and Ext.P1 order dated 16.06.2008 in O.A.No.208/2006 is hereby quashed. However, we make it clear that any monetary benefit granted to the respondents 1 to 3 during their ad-hoc service shall not be reclaimed or ordered to be reimbursed from them. No costs. ## **Sd/-** ## **V.CHITAMBARESH** ## **JUDGE** ## **Sd/-** **ASHOK MENON** _dkr_ **JUDGE** _W.P.(C) No.26731/2008_ 8 ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 COPY OF THE ORDER PASSED BY THE CAT IN O.A.NO.208 OF 2006 DATED 16.06.2008.** **EXHIBIT P2 COPY OF THE O.A. FILED BY RESPONDENTS 1 TO 3 EXHIBIT P3 COPY OF THE REPLY STATEMENT FILED BY THE PETITIONER.**