Vijayamma v. State of Kerala and another

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 23[RD] DAY OF MAY 2022 / 2ND JYAISHTA, 1944** ## **WP(C) NO. 2653 OF 2022** ## **PETITIONER/S:** VIJAYAMMA AGED 60 YEARS W/O. HARIKUTTAN NAIR, KAROTTU PONGAVANA HOUSE, ARPOOKARA EAST P.O, KOTTAYAM 686 008 BY ADV MATHEW PHILIP EDAPPALLIL ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, TRIVANDUM 695 001 2 SUPERINTENDENT MEDICAL COLLEGE HOSPITAL, GANDHINAGAR P.O, KOTTAYAM 686 008 ## **OTHER PRESENT:** GP VENUGOPAL V. **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) NO. 2653 OF 2022 -2- ## **JUDGMENT** ## **Dated this the 23[rd] day of May, 2022** The petitioner was engaged on daily wages for doing cleaning works at the Kottayam Medical College Hospital. Though engaged on daily wages, the petitioner continued in service for a period of 24 years. Till 2017, menial workers like the petitioner were allowed to continue as long as they could. While so, the Additional Chief Secretary to Government had issued Ext.P5 communication to the Superintendent, Medical College Hospital, Kottayam directing to terminate the daily wage workers who had crossed 60 years as on 31.10.2017 and to submit a fresh proposal with respect to the others. This resulted in Ext.P6 order dated 12.12.2017, terminating 20 employees from among the 104 daily waged WP(C) NO. 2653 OF 2022 -3- employees in the hospital. Apprehending similar treatment on attaining 60 years, petitioner along with some of their colleagues filed W.P(C) No. 19231/2021. By Ext.P2 judgment, this Court directed the petitioners to file individual representations before the Department of Health and Family Welfare and directed the authority to pass appropriate orders after giving reasonable opportunity to the representative of the petitioners. Accordingly, the Government considered the representations and passed Ext.P3 order. In the meanwhile, the petitioner was served with Ext.P10 termination letter issued by the second respondent dated 31.12.2021 informing that her service stands terminated with effect from the afternoon of 31.12.2021. Hence, this writ petition, seeking to quash Exts.P3 and P10 and to direct respondents 1 and 2 to permit the petitioner to continue in service. WP(C) NO. 2653 OF 2022 -4- 2. Learned Counsel for the petitioner submitted that Ext.P5 letter, directing the second respondent to terminate the daily waged employees above 60 years as on 31.10.2017 is bad for non-application of mind and absence of reasons. Reliance is placed the decision in ## _**Kerala Brahmana Sabha v Vamana Prabhu and others**_ _**[ 2019 (3) KLT 438]**_ , wherein a Division Bench of this Court, after referring to a series of earlier decisions, reiterated the requirement of stating reasons while passing administrative and quasi judicial orders. Ext.P3 is assailed on the ground that the reasons mentioned in the order are patently wrong. The reason that continuance of daily waged employees beyond sixty years will not be conducive to their health, is assailed on the strength of Ext.P6 Government Order, allowing the part time contingent employees in its service to continue up to the age 70 years WP(C) NO. 2653 OF 2022 -5- and Ext.P13, by which employees engaged by the Hospital Development Society are allowed to continue up to 65 years. The challenge against the reason that, records pertaining to the service rendered by the petitioner are not available is based on the fact that payments to the daily waged employees are being affected directly from the District Treasury, as evidenced by Ext.P4 document. The finding in Ext.P3 that the petitioner was not appointed against sanctioned posts is contended to be baseless, since contingent appointments are never made to sanctioned posts. In support of this proposition the decision of the Apex Court in _**State of U.P v Ajay Kumar [(1997) 4 SCC 88]**_ is cited. Finally, it is contended that, if at all the termination is upheld, there should be a direction to pay compensation to the petitioner under Section 25 (f) of the Industrial Disputes Act (‘the Act’ for WP(C) NO. 2653 OF 2022 -6- short), as the termination amounts to retrenchment. 3. Learned Government Pleader submitted that the petitioner has no legal right to seek continuance as she was engaged on daily wages by the second respondent when there was shortage of cleaning staff. Such engagement was not to any sanctioned post or after conducting a selection process. These aspects were considered by the Government while passing Ext.P3 order, as discernible from paragraphs 4 and 5, which reads as under; _“4) As per letter read as 11[th] paper above, the Superintendent, Government Medical College Hospital, Kottayam has reported that the petitioners are engaged on daily wage basis in Kottayam Medical College Hospital for sanitation works. Even under routine conditions, it is not safe to engage people for cleaning works in hospitals beyond the age of 60 years. There are isolation wards_ WP(C) NO. 2653 OF 2022 -7- _in the hospital. Healthy and energetic youths are available for cleaning works. The Superintendent has also reported that the petitioners are not engaged by the Hospital Development Society (HDS) or projects under Rashtriya Swasthya Bima Yojana (RSBY) and they are continuing with the interim direction of Hon'ble High Court in WP(C) No.20289/2010 dated 30/06/2010. The Writ Petition is still under consideration of Hon'ble High Court. 20 such similarly placed daily wage employees, were already removed during 2017 as they completed 60 years of age, and they were not given re-employment._ _5) Government have examined the representations read as 3rd to 10th paper above in the light of the report from Superintendent, Government Medical College Hospital, Kottayam and the submission made by the petitioners during the hearing. As per Government Order read as first paper above (which is the Exhibit.P3 in writ petition (Civil) No.19231/2021) Government restricted the upper age of a person engaged on contract basis under Hospital Development_ WP(C) NO. 2653 OF 2022 -8- _Society/Hospital Management Committee/H Development Committee and under project funded by Rashtriya Swasthya Bima Yojana (RSBY). as 65 years. However, these petitioners were engaged directly by the Superintendent of the Government Medical College Hospital. Kottayam on daily wage basis for cleaning purposes. The petitioners are not engaged under Hospital Development Society or RSBY scheme. Hence the petitioners are not eligible for the benefit of the said Govt. Order.”_ 4. It is submitted that the daily waged employees disengaged pursuant to Exts.P5 and P6 did not raise any objection and the petitioner also did not challenge Ext.P5 for more than 3 years. Hence, the challenge against Ext.P5 is belated stage cannot be entertained. It is contended that the petitioner cannot seek parity with the part time contingent employees in Government service or contractual employees appointed by the Hospital Development Society, WP(C) NO. 2653 OF 2022 -9- since those employees were appointed to sanctioned posts, after a due process of selection. 5. Indisputably, the petitioner was appointed on daily wages, without undergoing any selection procedure whatsoever. Of course, pursuant to their appointment, the petitioner continued on daily wages for long years. But, such continuance will not confer any right on the petitioner. The contention of the learned Government Pleader that, having been appointed on daily wages by the second respondent, to tide over the shortage of cleaning staff, that too without undergoing any selection process, the petitioner's service cannot be equated with that of the contingent employees in Government service or the contractual employees appointed by the Hospital Development Society is also well founded. Moreover, the issue stands conclusively decided WP(C) NO. 2653 OF 2022 -10- in _**State of Karntaka v. Umadevi and others**_ _**[(2006) 4 SCC 1]**_ . The challenge against Ext.P5 is rejected since no relief in that regard is sought in the writ petition. Even otherwise, the challenge is highly belated. The alternative contention that the petitioner is a workman and therefore entitled for the benefit under Section 25 (f) of the Act has to be agitated before the proper forum. For the aforementioned reasons the writ petition is dismissed without prejudice to the petitioner's right to approach the appropriate forum for raising their claims, if any, under the Industrial Disputes Act. Sd/- **V.G ARUN JUDGE** scl/23.5 WP(C) NO. 2653 OF 2022 -11- WP(C) NO. 2653 OF 2022 -12- ## **APPENDIX OF WP(C) 2653/2022** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|PHOTOCOPY OF IDENTITY CARD OF PETITIONER| |Exhibit P2|TRUE COPY OF JUDGMENT IN WPC 19231/2021| ||BEFORE HON'BLE HIGH COURT OF KERALA DT 16-| ||09-2021| |Exhibit P3|TRUE COPY OF G.O RT 13/2022 H AND FW DATED| ||2-1-2022 OF HEALTH AND FAMILY WELFARE| ||DEPARTMENT| |Exhibit P4|TRUE OF STATEMENT OF ACCOUNTS OF SB| ||ACCOUNT OF PETITIONER WITH SBI FROM 1-1-| ||2021 TO 31-12-21| |Exhibit P5|TRUE COPY OF GOVERNMENT LETTER NO.| ||K3/118/2017 H AND FWD DATED 28-11-2017| |Exhibit P6|PROCEEDINGS A9(A3)/2112/2017/MCHG DATED| ||12-12-2017 TERMINATION ORDER| |Exhibit P7|REPRESENTATION DATED 28-12-2021 OF THE| ||PETITIONER PRAYING NOT TO TERMINATE HER| ||BEFORE A DECISION IS TAKEN IN ACCORDANCE| ||WITH P2 JUDGMENT| |Exhibit P8|TRUE COPY OF LETTER E6/2112/2017/MCHG| ||DATED 29-12-2021 OF THE 2ND RESPONDENT| |Exhibit P9|TRUE COPY OF REPRESENTATION DATED 31-12-| ||2021 OF THE PETITIONER PRAYING NOT TO| ||TERMINATE HER| |Exhibit P10|TRUE COPY OF THE TERMINATION ORDER NO.| ||E6/2112/2017/MCHG OF THE 2ND RESPONDENT| |Exhibit P11|REPRESENTATION DATED 14-1-2022 OF THE| ||PETITIONER TO THE 1ST RESPONDENT PRAYING| ||REVIEW OF DECISION| |Exhibit P12|TRUE COPY OF G.O(P) 831/80/(253)/ FIN DT| ||3-11-80 OF FINANCE (PRC) DEPARTMENT FIXING| ||70 YEARS AS RETIREMENT AGE OF PART TIME| ||CONTIGENET EMPLOYEES| |Exhibit P13|TRUE COPY OF G.O RT 2466/2018/H AND FW| ||DATED 2-8-2018 FIXING 65 YEARS AS| ||RETIREMENT AGE OF EMPLOYEES APPOINTED BY| ||HOSPITAL DEVELOPMENT COMMITTEE|