Union Territory of Lakshadweep represented by the Administrator, Lakshadweep Administration, Kavaratti, Lakshadweep, and Director of Education, Lakshadweep Administration, Kavarattti, Lakshadweep; Joint Director Education, District Panchayat, Lakshadweep Administration v. M. HABEEBULLA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **TUESDAY, THE 15TH DAY OF SEPTEMBER 2020 / 24TH BHADRA, 1942** **OP (CAT).No.202 OF 2019** **AGAINST THE ORDER IN OA 639/2017 DATED 24-05-2019 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONERS:** **1 UNION TERRITORY OF LAKSHADWEEP REPRESENTED BY THE ADMINISTRATOR, SECRETARIAT, LAKSHADWEEP ADMINISTRATION, KAVARATTI, LAKSHADWEEP, 682555,** **2 THE DIRECTOR OF EDUCATION, LAKSHADWEEP ADMINISTRATION, KAVARATTI, LAKSHADWEEP - 682555. 3 THE JOINT DIRECTOR EDUCATION, DISTRICT PANCHAYAT, LAKSHADWEEP ADMINISTRATION, KAVARATTI, LAKSHADWEEP, 682555.** **BY ADV. SRI.MANU.S, SCGC, ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP** ## **RESPONDENT:** **M.HABEEBULLA, (DRIVER, JAWAHARLAL NEHRU GOVERNMENT SENIOR SECONDARY SCHOOL, KADMAT, LAKSHADWEEP ADMINISTRATION) AGED 55 YEARS, S/O POOKOYA KEELASURAMBI, RESIDING AT PUTHIYA MALIKA HOUSE, KADMAT ISLAND, LAKSHADWEEP 682 556.** **R1 BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 07-09-2020, THE COURT ON 15-09-2020 DELIVERED THE FOLLOWING:** OP(CAT) No.202/2019 -:2:- ## **J U D G M E N T** Dated this the 15[th ] day of September, 2020 ## _**Shaffique, J.**_ The Union Territory of Lakshadweep and its officers has filed this Original Petition challenging an order passed by the Central Administrative Tribunal, Ernakulam Bench in OA No.639/2017 by which direction had been issued to regularize the applicant/respondent herein in service as driver, the regularization to take effect from the date when the order is issued. The petitioners who were respondents before the Tribunal contended that the applicant was not entitled for regularization as he was employed as a NMR driver on casual basis by the Principal of a college and the post was not a sanctioned post. They also placed reliance on judgment of the Apex Court in _**Secretary, State of Karnataka and Others v. Umadevi**_ [(2006) 4 SCC 1]. The Tribunal however having relied on the judgments in _**Nihal Singh and Others v. State of Punjab and Others**_ [2013 KHC 4607] and _**Narendra Kumar Tiwari and Others v. State of Jharkhand**_ [(2018) 8 SCC 238] observed OP(CAT) No.202/2019 -:3:- that the circumstances in the original application is more or less the same as examined by the Apex Court in the cases referred above and held that the applicant was eligible for regularization in the post in which he was working in 1995. 2. Learned Senior Central Government Standing counsel Sri.S.Manu appearing on behalf of the petitioners would submit that the order passed by the Tribunal is contrary to the law laid down by the Constitution Bench of the Apex Court in _**Umadevi's case**_ (supra). The definite case of the petitioners/respondents was that the applicant/respondent was working as a driver on a casual basis. But his appointment was not in a sanctioned post. It is argued that the judgments relied upon by the Tribunal are distinguishable on facts. In _**Nihal Singh's case**_ (supra), the Apex Court was considering the fate of persons who were recruited as police officers invoking the power u/s 17 of the Police Act, 1861 (Punjab). It is pointed out that a distinction had been drawn by the Apex Court in view of the fact that the appointments were made for meeting an exigency and it was held that the initial appointment of the appellants cannot be categorized as irregular as it was made in accordance with the statutory procedure OP(CAT) No.202/2019 -:4:- contemplated under the Police Act. It is argued that the said case was decided on its own facts. It is also argued that in _**Narendra Kumar Tiwari's case**_ (supra), a claim for regularization was made by daily wage or contract workers in different posts on the ground that they had put in more than 10 years of service and were therefore entitled to be regularized on the basis of the judgment in _**Umadevi's case**_ (supra). The State took up a contention that the workers had not put in 10 years of service and therefore they could not be regularized. It was the contention of the employees that they were denied the benefit of Regularization Rules of 2015. It was observed that the State of Jharkhand continued with irregular appointments for almost a decade after _**Umadevi's case**_ (supra) and whenever required, the services of the irregularly appointed employees were terminated which is nothing but an exploitation of employees by not giving them the benefits of regularization. It was further observed that if a strict and literal interpretation of _**Umadevi's case**_ (supra) is taken into consideration, no irregularly appointed employee of the State of Jharkhand could be regularized since the State has come into existence only on 15[th] November, 2000 and OP(CAT) No.202/2019 -:5:- the cut off date was fixed as 10[th] April, 2006. It was therefore argued that the aforesaid judgment had also been rendered on the special facts of the case, when it is held that Regularization Rules must be given a pragmatic interpretation and those persons who had completed 10 years of service on the date of promulgation of the Rules ought to be given the benefit of service rendered by them. It is therefore argued that the said judgment cannot be taken as a reason to avoid the Constitution Bench judgment in _**Umadevi's case**_ (supra). 3. Learned counsel also placed reliance on a few other judgments. (i) In _**Union of India and Others v. Arulmozhi Iniarasu and others**_ [(2011) 7 SCC 397], Apex Court held that in the matter of applying precedents, the Court should not place reliance on decisions without discussing as to how the fact situation of the case before it fits in with the fact situation of the decision on which reliance is placed and disposal of cases by blindly placing reliance on a decision is not proper. After referring to a judgment in _**Nagendra Chandra and Others v. State of Jharkhand and Others**_ [(2008) 1 SCC 798], Apex Court OP(CAT) No.202/2019 -:6:- observed that such observations cannot be said to be an exposition of general principle of law and the observation which is general in nature made in exercise of jurisdiction under Art.142 of the Constitution of India cannot be treated as a binding precedent. (ii) In _**Nand Kumar v. State of Bihar and Others**_ (AIR 2015 SC 133), the Apex Court held that 'daily wagers' are not appointees in the strict sense of the term 'appointment' as they do not hold a post and after _**Umadevi's case**_ (supra), their position continued to be that of daily wagers. (iii) In _**Secretary to Government, Commercial Taxes and Registration Department, Secretariat and Others v.**_ _**A.Singamuthu**_ [(2017) 4 SCC 113], the Apex Court held that continuance in service for long period on part-time or temporary basis confers no right to seek regularization in service. Though the courts are swayed by the long period of service rendered by the employees, the said approach may not be always correct especially when the scheme of regularization is missing from the Rule book and regularization casts huge financial implications on public exchequer. OP(CAT) No.202/2019 -:7:- (iv) In _**State of Rajasthan and Others. v. Daya Lal and**_ _**Others**_ [(2011) 2 SCC 429], the Apex Court was considering _**Umadevi's case**_ (supra) and had laid down the following guidelines at paragraph 12 which reads as under:- “ _12. We may at the outset refer to the following well-settled principles relating to regularisation and parity in pay, relevant in the context of these appeals:_ (i) _The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised._ _(ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be “litigious employment”. Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two_ OP(CAT) No.202/2019 -:8:- _years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right._ _(iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates._ _(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees._ _(v) Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.”_ (v) In _**Satya Prakash and others v. State of Bihar**_ [(2010) 4 SCC 179], it is held that length of service does not confer any right for regularization as no public appointment is permissible _de hors_ recruitment rules. OP(CAT) No.202/2019 -:9:- (vi) In _**Official Liquidator v. Dayanand and Others**_ [(2008) 10 SCC 1], the Apex Court held that creation and abolition of posts, formation and structuring/restructuring of cadres prescribing the source and mode of recruitment and qualifications and criteria of selection etc., are matters which fall within the exclusive domain of the employer. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post or number of posts be created or filled by a particular mode of recruitment. 4. On the other hand, learned counsel appearing on behalf of the respondent would contend that the employee in question was working in the capacity as a driver since 1995. The Principal of the college as early as on 13/4/1998 had addressed a letter to the Director of Education to create the post of driver to the Government Jawaharlal Nehru College, Kadmat Island. But no action had been taken in the matter over a period of time. The applicant had been consistently requesting for creating a post in the said college. He has a substantially long unblemished experience as a driver in the said college and therefore, there is justification on the part of the Tribunal to have directed the OP(CAT) No.202/2019 -:10:- applicant to be regularized in service. It is also brought to our notice that in an earlier proceedings where certain cooks attached to the college had approached the Tribunal seeking regularization, by an order dated 22/6/2016 in OA No.23/2013, direction had been issued to consider the case of the applicants for regularization in the same manner as was done in 2007 for other casual labourers in the seniority list in the available vacancies as well as future vacancies. It is pointed out that pursuant to the said direction, those persons were given employment in the temporary post of cook as per office order dated 2/5/2017. Learned counsel also placed reliance on various judgments of the Apex Court and this Court and contended that the department had not considered the one-time exercise as contemplated in _**Umadevi's case**_ (supra). It is submitted that though there was no sanctioned post, there is failure on the part of the department in creating a post though there was necessity for such a post and the respondent was working in the said post for a considerably long period. Following are the judgments relied upon by the learned counsel for the respondent:- (i) _**State of Karnataka & Others v. M.L. Kesari &**_ OP(CAT) No.202/2019 -:11:- _**Others**_ [2010 KHC 4530 (SC)]. In this case, the Apex Court held that each department or instrumentality should undertake a one time exercise and prepare a list of all casual, daily-wage and ad hoc employees who have been working for more than ten years without the intervention of Courts and tribunals and subject them to a process verification. (ii) _**Nihal Singh's case**_ (supra). In this case, the Apex Court held that there is no justification for the State to take a defence after permitting the utilization of the services of a large number of people like the appellants for decades to say that there are no sanctioned posts to absorb the appellants. Sanctioned posts do not fall from heaven. State has to create them by a conscious choice on the basis of some rational assessment of the need. ## (iii) _**State of Jharkhand & Others Vs. Kamal Prasad &**_ _**Others**_ [2014 KHC 4296 (SC)]. This is a case in which the Apex Court had upheld the view of the High Court extending the benefit of _**Umadevi's case**_ (supra) to the employees. (iv) _**Amarkant Rai v. State of Bihar & Others**_ [2015 KHC 4385 (SC)]. In this case also, the Apex Court held that when OP(CAT) No.202/2019 -:12:- the employee falls within exception carved out in _**Umadevi's case**_ (supra), he is entitled to regularization. (v) _**Prem Ram Vs. Managing Director, Uttarakhand Pey Jal & Nirman Nigam, Dehradun & Others**_ **-** [2015 KHC 4385 (SC)]. (vi) _**Surendra Kumar & Others v. Greater Noida**_ **-** _**Industrial Development Authority & Others**_ [2015 KHC 4425 (SC)]. (vii) _**Jolly P.G. v. Union of India & Others**_ **-** [2016 (2) KHC 22 (DB)]. In this case, a Division Bench of this Court directed the respondent to consider the entitlement of the daily wage employee in terms of _**Umadevi's case**_ (supra). (viii) _**State of Jammu & Kashmir & Others v. District Bar Association, Bandipora**_ **-** [2016 KHC 6815 (SC)]. (ix) _**Narendra Kumar Tiwari's case**_ (supra). (x) _**Sheo Narain Nagar & Others v. State of Uttar Pradesh & Others**_ [2018 KHC 2468 (SC)]. 5. We have heard the learned counsel appearing on either side and have perused the records. 6. The main contention urged by the petitioners is that OP(CAT) No.202/2019 -:13:- there is no sanctioned post for considering the respondent for regularization. Even the respondent does not have a case that he is working against a sanctioned post. In paragraph 53 of _**Umadevi's case**_ (supra), it has been specifically stated that “ _in that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts, but not under cover of orders of courts or of Tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up in cases where temporary employees or daily wagers are being now employed_ ”. In the case on hand, no such direction as stated above could be issued to the petitioners to regularize the service of such irregularly appointed persons who have worked for ten years or more since the appointment of the respondent admittedly is not in a sanctioned post. As held by the Apex Court, the Court or Tribunal cannot direct a post to be created for the purpose of considering the claim of the respondent. It is for the respective Union/State to create or sanction a post taking into OP(CAT) No.202/2019 -:14:- account various other parameters including the financial obligation created by them. Therefore, the judgment in _**Umadevi's case**_ (supra) will not help the respondent in any manner to claim regularization. 7. The question is whether a different view could be taken in the case of the respondent based on factual considerations. In _**Jolly's case**_ (supra), which again was with reference to appointment of a driver, a Division Bench of this Court while disposing of the matter directed the respondents to consider whether he could be regularized in the said post based on paragraph 53 of _**Umadevi's case**_ (supra). That was a case in which the petitioner claimed that he was working in a sanctioned post, which fact was not denied by the respondents. Even otherwise, this Court had only directed the respondents to consider the case of the petitioner as there was no material to indicate that the respondents had considered the claims of such irregular appointments. The aforesaid judgment will not help the respondent in any manner. Learned counsel however submits that pursuant to the said direction, Jolly was given appointment. We are not expressing any such view in that matter. Ultimately a OP(CAT) No.202/2019 -:15:- person can be regularized only in a sanctioned post. If the post is not sanctioned, the question of regularization does not arise. Though several judgments of the Apex Court had been relied upon by the counsel for respondent, we do not think that we should elaborate on such judgments as a departure from _**Umadevi's case**_ (supra) is not possible. _**Nihal Singh's case**_ (supra) and _**Narendra Kumar Tiwari's case**_ (supra) have been decided on its own facts. That apart, the Apex Court do pass various orders involving Article 142 of the Constitution of India which cannot be termed as a binding precedent on this court. 8. Learned counsel for the respondent however submitted that though not a driver, on account of the long service the respondent was rendering, he may be accommodated in any other category of employment depending on his qualification. Apparently, it is for the department to consider whether the respondent's service could be regularized. 9. Having regard to the aforesaid factual and legal situation arising in the case, we are of the view that the Tribunal completely erred in directing the respondent/applicant to be regularized in service. We therefore set aside the order passed by OP(CAT) No.202/2019 -:16:- the Tribunal in OA No.639/2017. Having regard to the request made by the respondent for considering him to any other post, though not a driver, we are of the view that interest of justice will be met by issuing the following directions:- (i) That the petitioners shall consider the long service rendered by the respondent and ascertain whether he could be accommodated in any sanctioned post subject to his qualification for the said post. (ii) To enable consideration of the same, the respondent shall submit a representation to the petitioners which shall be considered in accordance with the procedure prescribed within a period of six months from the date of receipt of a copy of the representation. OP(CAT) is disposed of accordingly. **Sd/-** ## **A.M.SHAFFIQUE** **JUDGE Sd/-** **GOPINATH P.** Rp **JUDGE** OP(CAT) No.202/2019 -:17:- ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE OA ALONG WITH ANNEXURES,** **EXHIBIT P1 (A1)** **A TRUE COPY OF THE SSLC BOOK OF THE APPLICANT.** - **EXHIBIT P1 (A2) A TRUE COPY OF THE DRIVING LICENSE.** - **EXHIBIT P1 (A3) A TRUE COPY OF THE LETTER DATED 31.10.1995 ISSUED BY THE ADDITIONAL SUB DIVISIONAL OFFICER, KADMAT TO THE PRINCIPAL OF JAWAHARLAL NEHRU COLLEGE, KADMAT.** **EXHIBIT P1(A4)** - **A TRUE COPY OF THE LETTER DATED 11.1.1996 ISSUED BY THE PRINCIPAL OF THE JAWAHARLAL NEHRU COLLEGE, KADMAT TO THE 2ND RESPONDENT.** - **EXHIBIT P1 (A5) A TRUE COPY OF THE CERTIFICATE DATED 30.12.1995 ISSUED BY THE CAMP COMMANDANT.** - **EXHIBIT P1 (A6) A TRUE COPY OF THE CERTIFICATE DATED 12.01.1996 ISSUED BY THE PRINCIPAL OF THE GOVERNMENT JAWAHARLAL NEHRU COLLEGE, KADMAT ISLAND.** - **EXHIBIT P1 (A7)** - **A TRUE COPY OF THE LETTER DATED 13.04.1998 ISSUED BY THE PRINCIPAL OF THE GOVERNMENT JAWAHARLAL NEHRU COLLEGE, KADMAT, ISLAND TO THE 2ND RESPONDENT.** - **EXHIBIT P1 (A8) A TRUE COPY OF THE CERTIFICATE DATED 09.05.2000 ISSUED THE PRINCIPAL OF THE GOVERNMENT JAWAHARLAL NEHRU COLLEGE, KADMAT ISLAND.** OP(CAT) No.202/2019 ## -:18:- **EXHIBIT P1 (A9)** **TRUE COPY OF THE CERTIFICATE DATED 31.12.2007 ISSUED THE PRINCIPAL OF THE GOVERNMENT JAWAHARLAL NEHRU COLLEGE, KADMAT ISLAND.** **EXHIBIT P1 (A10) A TRUE COPY OF THE ORDER DATED 17.05.2015 ISSUED BY THE JOINT DIRECTOR (EDUCATION). EXHIBIT P1(A11) A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE APPLICANT BEFORE THE 1ST RESPONDENT.** **EXHIBIT P1 (A12) A TRUE COPY OF THE REPRESENTATION DATED 04.02.2008 BEFORE THE 2ND RESPONDENT BY THE APPLICANT. EXHIBIT P1 (A13) A TRUE COPY OF THE REPRESENTATION DATED 02.06.2011 BEFORE THE 2ND RESPONDENT BY THE APPLICANT.** **EXHIBIT P1 (A14) A TRUE COPY OF THE REPRESENTATION DATED 10.04.2015.** - **EXHIBIT P1(A15) A TRUE COPY OF THE REPRESENTATION DATED 05.06.2017 BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P1(A16) A TRUE COPY OF THE ORDER DATED 22.6.2016 IN OA NO. 180/23/2015.** **EXHIBIT P1 (A17) A TRUE COPY OF THE OFFICE ORDER 02.05.2017 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P1 (A18) A TRUE EXTRACT OF THE RECRUITMENT RULES FOR THE POST OF DRIVER. EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONER'S ALONG WITH ANNEXURES.** **EXHIBIT P2 R1(A) TRUE COPY OF THE CIRCULAR F. NO. 5/14/2012 DOP (PART (1) DATED 8.7.2013 ISSUED BY THE DIRECTOR OF PANCHAYAT.** OP(CAT) No.202/2019 -:19:- **EXHIBIT P2 R1(B) TRUE COPY OF THE CIRCULAR F.NO. 5/14/2012 DOP (PART 3) DATED 10.06.2013 ISSUED BY THE DIRECTOR OF PANCHAYAT. EXHIBIT P2 R1(C) TRUE COPY OF THE CIRCULAR F. NO.5/14/2012 DOP (PART) DATED 1.11.2013 ISSUED BY THE COLLECTOR CUM DEVELOPMENT COMMISSIONER AND SECRETARY (PANCHAYAT). EXHIBIT P2 R1(D) TRUE COPY OF THE CIRCULAR F.NO. 5/14/2012-DOP- VOL-1 DATED 8.7.2014. EXHIBIT P2 R1(E) TRUE COPY OF ORDER F. NO. 5/8/2014DOP/138 DATED 21.2.2015. EXHIBIT P3 TRUE COPY OF THE REJOINDER IN OA NO.639 OF 2017 EXHIBIT P4 TRUE COPY OF THE ORDER IN OA NO.639/2017 DATED 24.5.2019.**