The Information Kerala Mission & The Executive Director Information Kerala Mission v Murukadas R. Murukavilasom, Sajeevkumar J. Vayalikochumuduppil, Jimmishad G. S. Krishnalayam, Baiju A. Lilly Cottage, Ajith C. V. Thoppil Banglow, Manjuraj V., Dileep V. S. Aswathy, Radhika G. S. Aswathy Nivas, Bimla P. Bismitha Manzil, Rekha V. Vattekudath House, and State of Kerala represented by the Chief Secretary to Government

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **WEDNESDAY, THE 25TH DAY OF NOVEMBER 2020 / 4TH AGRAHAYANA, 1942** **WA.No.1125 OF 2020** **AGAINST THE JUDGMENT IN WP(C) 36595/2018(Y) OF HIGH COURT OF KERALA DATED 7/1/2020** ## **APPELLANTS/RESPONDENTS 2 AND 3 IN THE WRIT PETITION:** **1 THE INFORMATION KERALA MISSION, SWARAJ BHAVAN, NANTHANCODE, KOWDIAR P. O., THIRUVANANTHAPURAM - 695 003, REPRESENTED BY ITS EXECUTIVE DIRECTOR.** **2 THE EXECUTIVE DIRECTOR INFORMATION KERALA MISSION, SWARAJ BHAVAN, NANTHANCODE, KOWDIAR P. O., THIRUVANANTHAPURAM - 695 003.** **BY ADVS. SHRI.BIJU BALAKRISHNAN SMT.V.S.RAKHEE SMT.K.J.GISHA SMT.SAYUJYA SMT.SHARON SOLOMON** ## **RESPONDENTS/PETITIONERS & 1ST RESPONDENT IN THE WRIT** **PETITION:** **1 MURUKADAS R. MURUKAVILASOM, MAYILADUMKKUNNU, YEROOR P. O., KOLLAM - 691 312.** WA No.1125/2020 -:2:- - **2 SAJEEVKUMAR J. VAYALIKOCHUMUDUPPIL VEEDU, TC 36/42(2), KARALI ROAD, VALLAKKADAVU P. O., THIRUVANANTHAPURAM - 695 008.** - **3 JIMMISHAD G. S. KRISHNALAYAM, TC 79/1855, KARIKKAKOM, BEACH P. O., THIRUVANANTHAPURAM - 695 007.** - **4 BAIJU A. LILLY COTTAGE, KARALAI ROAD, VALLAKKADAVU P. O., THIRUVANANTHAPURAM - 695 008.** - **5 AJITH C. V. THOPPIL BANGLOW, TC 36/90, KARALAI ROAD, VALLAKKADAVU P. O., THIRUVANANTHAPURAM - 695 008.** **6 MANJURAJ V. TC 32/1725, AHC VALIYA VEEDU, ATTINKUZHY, KAZHAKUTTOM P. O., THIRUVANANTHAPURAM - 695 582.** **7 DILEEP V. S. ASWATHY, POONTHOPPILMELE BUNGLOW, VENPAKAL P.O., ARALUMOODU (VIA), THIRUVANANTHAPURAM - 695 123.** - **8 RADHIKA G. S. ASWATHY NIVAS, TC 14/1889(1), KVRA 117, MEDICAL COLLEGE P. O., THIRUVANANTHAPURAM - 695 011.** **9 BIMLA P. BISMITHA MANZIL, KOCHUKATTAKKAL, KOPPAM, VALICODE, NEDUMANGAD P. O., THIRUVANANTHAPURAM - 695541.** - **10 REKHA V. VATTEKUDATH HOUSE, THEJUS, MURIYADU P. O., KALLETTUMKKARA, THRISSUR - 680 683.** WA No.1125/2020 -:3:- **11 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **R1-10 BY ADV. SRI.K.P.SUJESH KUMAR R11 BY SRI. P.N.SANTHOSH-SR.G.P.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09-112020, THE COURT ON 25-11-2020 DELIVERED THE FOLLOWING:** WA No.1125/2020 -:4:- ## **J U D G M E N T** Dated this the 25[th ] day of November, 2020 ## _**Shaffique, J.**_ The Information Kerala Mission and its Executive Director have preferred this appeal challenging judgment dated 7/1/2020 in WP(C) No.36595/2018. The writ petition was filed by respondents 1 to 10 seeking for a direction to command the 2[nd] appellant herein to appoint them in the available vacancies existing in the appellant organisation in compliance with Ext.P4 order of the State of Kerala. By Ext.P4, the Government had directed filling up of 76 posts in the first appellant organization from among the candidates who were engaged on daily wages basis in various Municipalities to carry out the data entry works. The appellants herein objected to the above request. According to them, the petitioners were persons who were selected by them as temporary daily wages staff on the directions of the Government to carry out computerisation of Municipalities. The duty was data entry and master collection at the Municipalities. According to them, since the petitioners were recruited on behalf of the Municipalities and payment was made to them from the funds of WA No.1125/2020 -:5:- the Municipalities, they cannot be ordered to be regularized with the first appellant establishment. It is for the petitioners to approach the Municipalities for regularization, if any. It is further submitted that pursuant to judgment in WP(C) No.4437/2015, the 2[nd] appellant had rejected the request made by the petitioners to reengage them in service, against which they filed WP(C) No. 31809/2015 and the Government was directed to consider the representation. According to them, they have requested the Government to recall Ext.P4 order as per letter dated 19/11/2018 [Ext.R3(d)]. Reminder was sent on 26/11/2018 and at that stage, the writ petition was filed. 2. Learned Single Judge found that Government having issued Ext.P4 order, the 2[nd] appellant is bound to issue orders in obedience with the same and accordingly, the appellants were directed to implement Ext.P4. 3. Learned counsel for the appellants has placed reliance on the judgments of the Apex Court in _**State of Karnataka v. Umadevi**_ [(2006) 4 SCC 1], _**Union of India v. Vartak Labour Union**_ [(2011) 4 SCC 200] and _**Union of India and others v. All India Trade Union Congress and Others**_ [(2019) 5 SCC WA No.1125/2020 -:6:- 773]. The principal argument of the appellants is that all the persons covered by Ext.P4 were not their employees. They have selected them on a temporary basis and they were deputed to the Municipalities for carrying out certain data entry works. They were paid from the funds of the Municipality and at no point of time, there was any employer-employee relationship between the first appellant establishment and the petitioners. 4. Primarily we are of the view that the very principle of directing employment of part time employees is illegal especially in the light of the judgment of the Apex Court in _**Umadevi**_ (supra). If at all any person has been employed on a daily wage basis or on contractual basis, after the judgment in _**Umadevi**_ (supra), they cannot claim any regularization and no Court or Tribunal can direct such persons to be regularized. If the Government attempts to go ahead with such regularization, it would also amount to violation of the law laid down by the Constitution Bench in _**Umadevi**_ (supra). When persons who have not been selected on the basis of a due process of selection are regularized, it would amount to violation of Art.14 of the Constitution of India vis-a-vis persons who are qualified and unemployed are concerned. It is in the said circumstances that WA No.1125/2020 -:7:- the Apex Court had directed that such a procedure for regularization of casual labours is illegal and shall not be done in future. In fact, the Apex Court had only given a one time permission to the appropriate Government to prepare a list of employees who were employed on casual basis against sanctioned posts to be regularized. Once such a measure had been adopted, the Government is not under obligation or rather the Government cannot in future direct such regularization. Even in _**Vartak Labour Union**_ (supra), the Apex Court having relied upon the judgment in _**Umadevi**_ (supra), held that even employment as a casual labour for 20 to 30 years under the same employer by itself is not sufficient to sustain a claim for regularization. In _**All India Trade Union Congress**_ (supra) also, a similar view had been taken. 5. The writ petition has been filed to implement Ext.P4. A bare reading of Ext.P4 itself would show that none of the persons who were engaged for carrying out the data entry works in the Municipalities were under the employment of the first appellant organization. They were paid by the concerned Municipalities. There is nothing in Ext.P4 to indicate that they were selected by a due process of selection and their engagement was in respect of WA No.1125/2020 ## -:8:- sanctioned posts. This Court can direct implementation of an order only if it is found to be an order passed in accordance with law. Even an order of regularization to be implemented requires to be scrutinized in order to find out whether any legal right will flow from the said order. If the order itself is against a settled principle of law by a Constitution Bench of the Apex Court, the courts have to refrain from implementing such orders. Learned Single Judge therefore committed error in directing implementation of Ext.P4 as the said order itself is against the law laid down by the Apex Court. In the result, this appeal is allowed setting aside the judgment of the learned Single Judge and the writ petition stands dismissed. ## **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/GOPINATH P.** Rp True Copy **JUDGE** PS to Judge