V. Vasu v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **MONDAY, THE 16TH AUGUST 2010 / 25TH SRAVANA 1932** ## **WP(C).No. 8538 of 2005(N)** **-------------------------** ## **PETITIONER(S):** **---------------** **V.VASU, DRIVER, DISTRICT RURAL DEVELOPMENT AGENCY, PALAKKAD.** **BY ADV. SRI.N.SUGATHAN SMT.R.SEEMA** ## **RESPONDENT(S):** **---------------** **1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, RURAL DEVELOPMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** ## **2. THE COMMISSIONER FOR RURAL DEVELOPMENT,** **L.M.S. COMPOUND, THIRUVANANTHAPURAM.** **3. THE PROJECT OFFICER, DISTRICT RURAL DEVELOPMENT AGENCY, PALAKKAD.** **ADDL. R4. THE PALAKKAD DISTRICT PANCHAYATH REP. BY ITS SECRETARY, PALAKKAD** **ADDL. R5. THE PROJECT DIRECTOR, POVERTY ALLEVIATION UNIT, PALAKKAD** **ADDL. R4 AND R5 IMPLEADED AS PER ORDER IN I.A.NO.10628/2006 DATED 30.7.2006** **GOVERNMENT PLEADER MR.P.NANDAKUMAR FOR R1 TO R3** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 8538 of 2005 :2:** ## **A P P E N D I X** ## **PETITIONER'S EXHIBIT :** **1. EXT.P1: Copy of Resolution passed in Generala Body meeting of the Agency held on 22.7.1995** **2. EXT.P2: Copy of letter dated 26.8.1995 of the 3[rd] respondent 3. EXT.P3: Copy of the Proceedings No.A3 2556/82 dated 4.12.1982 of Chairman & District Collector, DRDA, Kottayam** **4. EXT.P4: Copy of Judgment dated 26.6.1998 in O.P.No.8415/1993 5. EXT.P5: Copy of Order No.A1.3806/85/DRDA dated 15.5.2004 of the Chairman & Dist.Collector, DRDA, Kottayam** **6. EXT.P6: Copy of Order No.A1.2964/84 dated 25.2.2005 of DRDA, Kottayam 7. EXT.P7: Copy of Order No.A1.430/86/PDA dated 30.5.1986 of Palakkad Development Authority** **8. EXT.P8: Copy of GO (MS) NO.31/98/RDD dated 29.9.1998 9. EXT.P9: Copy of GO (MS) NO.33/99/RDD dated 18.9.1999 10. EXT.P10: Copy of judgment dated 25.3.2003 in O.P.No.3024/1996 11. EXT.P11: Copy of representation dated 11.4.2003 submitted before the 1[st] respondent** **12. EXT.P12: Copy of GO (Rt.) No.1763/2005/LSGD dated 5.3.2005 13. EXT.P13: Copy of letter No.1759/EA4/2005/LSGD dated 11.1.2006 14. EXT.P14: Copy of GO (Ms.) No.70/2006/LSGD dated 1.3.2006 15. EXT.P15: Copy of letter No.2089/EA4/2006/LSGD dated 28.4.2006 16. EXT.P16: Copy of GO (Ms.) No.100/2006/LSGD dated 16.5.2006 17. EXT.P17: Copy of Letter No.2089/EA4/2006/LSGD dated 27.5.2006** **18. EXT.P18: Copy of letter No.C.758/05 dated 7.6.2006 19. EXT.P19: Copy of Minutes of the Governing Body of DRDA Kollam held on 28.11.1992 WP(C).No. 8538 of 2005 :3:** |**20.**|**EXT.P20:**|**Copy of Judgment dated 17.7.2008 in W.P (C).No.25307/2004**| |---|---|---| |**21.**|**EXT.P21:**|**Copy of GO (Ms.) No.296/2008/LSGD dated 7.11.2008**| |**22.**|**EXT.P22:**|**Copy of GO (Ms.) No.1621/2009/LSGD dated 22.6.2009**| |**23.**|**EXT.P23:**|**Copy of Order No.E2-3088/08 dated 23.10.2009 of the Project**| |||**Director, PAU Jilla Panchayath, Kollam**| |**24.**|**EXT.P24:**|**Copy of G.O (Ms.) No.169/2007/LSGD dated 29.6.2009**| |**25.**|**EXT.P25:**|**Copy of Letter No.F.5320/91 dated 26.8.2000 of the Project Director,**| |||**DRDA, Palakkad to R1**| ## **RESPONDENTS EXHIBIT :** NIL //True Copy// P.A to Judge ## **ANTONY DOMINIC, J. ~~~~~~~~~~~~~~~ W.P.(C) No.8538 of 2005** **~~~~~~~~~~~~~~~~~ Dated this the 16[th] day of August 2010** ## **J U D G M E N T** Petitioner was appointed as Driver under the 3[rd] respondent on daily wages. While continuing as such, during 1994, apprehending termination, petitioner approaches this Court and filed O.P.No.13112/1994. That original petition was disposed of directing consideration of his representation seeking regularization of his service. The representation was considered and was rejected by the Government as per order dated 28.10.1994. 2. In spite of the above petitioner continued as Driver under the 3[rd] respondent. Mean while, on 22.7.1995 the Governing Body of the DRDA passed Ext.P1 resolution recommending to the Government to regularize the service of the petitioner. W.P.(C) No.8538 of 2005 -: 2 :- 3. Accordingly the 3[rd] respondent requested the 2[nd] respondent to take up the matter with the Government as per Ext.P2 letter dated 16.8.1995. While the claim of the petitioner for regularization was pending consideration of the respondents, DRDA, Kottayam passed Ext.P3 resolution, recommending regularization of one Mr.Suresh, who was a Driver engaged by it on daily wages. That recommendation was rejected by the Government, whereupon the employee filed O.P.No.8415/1993 before this Court. That O.P. was disposed of by Ext.P4 judgment, stating that the Appointing Authority is the Chairman of the DRDA and the Government have no power to interfere with the appointments made by the DRDA. Proceeding further and taking note of Ext.P3 resolution, this Court directed the DRDA, Kottayam to give effect to its resolution. Ext.P4 judgment was challenged by the Government by filing W.A.No.2471/1998, which was dismissed and the judgment was confirmed by the Apex Court. In view of the above Ext.P5 order was issued W.P.(C) No.8538 of 2005 -: 3 :- regularizing the service of Mr.Suresh mentioned in Ext.P3 resolution with effect from 1.12.1982. 4. Petitioner has also produced Ext.P6, which evidences that another person was regularized by the DRDA and Ext.P8, another order regularizing provisional employees of the 3[rd] respondent. 5. In the mean while, O.P.No.3024/1996 filed by the petitioner for regularization of his service was disposed of by Ext.P10 judgment. In that judgment, this Court directed that if the petitioner makes a representation, the same will be considered in the light of Exts.P1, P2 and P5 therein. Accordingly, the petitioner submitted Ext.P11 representation seeking regularization which was rejected by Ext.P12 order dated 5.3.2005. It is challenging Ext.P12, the writ petition is filed. 6. Two reasons are stated in Ext.P12 to reject the claim of the petitioner for regularization of his services. First reason stated is that as per the rules and regulations, W.P.(C) No.8538 of 2005 -: 4 :- vacancies of staff in the DRDA are to be filled up either by deputation or from Employment Exchange and that DRDA has no power to appoint any person on regular basis or to regularize the services of a person who has been appointed on daily wages. The second reason stated is that the Government had issued instructions as per G.O.(P) No.39/2002/P&ARD dated 26.8.2002 directing that the service of the provisional employees continuing in services will not be regularized. 7. Since the claim of the petitioner is rejected on the basis of the above two grounds, if the aforesaid reasons are found to be incorrect, necessarily the petitioner is entitled to regularization in his services. 8. First reason is regarding the power of the DRDA to make appointments. According to the Government, DRDA has no power to make appointment and appointments could have been made only by deputation or through Employment Exchange. This finding in Ext.P12 is directly ## W.P.(C) No.8538 of 2005 -: 5 :- in conflict with the findings of this Court, in Ext.P4 judgment in O.P.No.8415 of 1993, paragraph 3, it has been held thus :- “It is admitted in the counter-affidavit that the D.R.D.A. is an autonomous body registered under the T.C. Literary and Scientific Charitable Act, 1955. The District Collector is the Chairman of the Agency. Ext.P2 minutes of the D.R.D.A. shows that the Chairman is the appointing authority for all the sanctioned posts in the Agency. He also is the disciplinary authority in respect of the above officers. Therefore, it was illegal on the part of the 1[st] respondent to interfere with the action of the 2[nd] respondent in appointing the petitioner. Being an autonomous body, the Chairman is perfectly competent to appoint the petitioner. The Government have no power to interfere in the appointments made by the 2[nd] respondent. Therefore, I quash Ext.P4. The O.P. is allowed as indicated above.” In the light of the above finding which has become final, the stand taken by the Government that DRDA has no power to make appointments is incorrect and unsustainable. 9. The other reason stated in Ext.P12 is that in view of the G.O.(P)No.39/2002/P&ARD dated 26.8.2002 there W.P.(C) No.8538 of 2005 -: 6 :- cannot be regularization of any provisional hands. Petitioner has produced Exts.P13, P14 and P16 dated 11.1.2006, 1.3.2006 and 16.5.2006 respectively, by which Government themselves have, after the issuance of the G.O. dated 26.8.2002, ordered regularization of employees of DRDA itself. Again along with additional reply affidavit, petitioner has produced Ext.P21, an order of regularization issued by the Government in pursuance to the directions in Ext.P20 judgment directing to give effect of Ext.P19 resolution of the DRDA. Ext.P23 order shows that Ext.P21 order has been given retrospective effect from 8.9.1988. Ext.P24 is another order dated 29.6.2007 which also shows that the Government have ordered regularization of drivers in the DRDA. Thus, after the issuance of Government Order dated 26.8.2002, Government itself have ordered regularization of several persons who are similarly situated. 10. The learned Government Pleader contended that if regularization is ordered, the petitioner being a daily W.P.(C) No.8538 of 2005 -: 7 :- wages employee, such direction will be against the principles laid down by the Apex Court in **Secretary, State of Karnataka v. Umadevi** [2006(4) SCC 1]. Answering this contention, the learned counsel for the petitioner has brought to my notice the judgment in W.A.No.2061 of 2004, where relief has been granted to similarly situated persons distinguishing the aforesaid judgment of the Apex Court. Having regard to the similarity of the facts dealt within the above judgment and the facts arising in this case, I see no reason to take a different view. Thus the issuance of the Government Order dated 26.8.2002 also could not have stood in the way of regularization of the services of the petitioner. 11. Therefore the two reasons on the basis of which the claim for regularization of the petitioner's service has been rejected by Ext.P12 cannot be upheld and hence, Ext.P12 deserves to be set aside. 12. Having regard to the fact that by Ext.P9 order W.P.(C) No.8538 of 2005 -: 8 :- dated 18.9.1999 the DRDA has been merged in the District Panchayath, 1[st] respondent is directed to pass orders to regularizing the service of the petitioner as Driver under the 4[th] respondent. Orders of regularization shall be with effect from 22.7.1995, when Ext.P1 resolution has passed by the Governing Body of the DRDA recommending to the Government to regularize the service of the petitioner. Such orders shall be passed as expeditiously as possible, at any rate, within three months from the date of production of a copy of this judgment. Writ petition is disposed of as above. ## **ANTONY DOMINIC, JUDGE.** Jvt