Vinod Viswan v State of Kerala and Others

1 WPC 13364/2020 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` THURSDAY, THE 18[TH] DAY OF JULY 2024 / 27TH ASHADHA, 1946 ``` ``` WP(C) NO. 13364 OF 2020 ``` ## **`PETITIONER/S:`** ``` VINOD VISWAN, VISMAYA, ADIMALI, IDUKKI-685 561 ``` ``` BY ADVS. P.NANDAKUMAR, SRI.S.ANEESH, SMT.AMRUTHA SANJEEV ``` ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF LABOUR AND SKILLS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001`** - **`2 KERALA HEAD LOAD WORKERS WELFARE BOARD, S.R.M .ROAD, ERNAKULAM,KOCHI-682 018, REPRESENTED BY THE CHIEF EXECUTIVE`** - **`3 THE CHAIRMAN, KERALA HEAD LOAD WORKERS WELFARE BOARD, ADIMALI, IDUKKI DISTRICT-685 561`** ``` BY SRI.S.KRISHNA MOORTHY, SC, KHWWB K.S.ARUN KUMAR S. P. ARAVINDAKSHAN PILLAY N.SANTHA(S-176) ``` - **`V.VARGHESE(K/514/1996) PETER JOSE CHRISTO(K/1216/2004) S.A.ANAND(K/1216/2006) K.N.REMYA(K/712/2010)`** - **`L.ANNAPOORNA(K/952/2013) VISHNU V.K.(K/001396/2018)`** ## **`OTHER PRESENT:`** ## **`SRI.RIYAL DEVASSY, GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 6.07.2020, THE COURT ON 18.7.2024 DELIVERED THE FOLLOWING: ``` 2 WPC 13364/2020 ## **JUDGMENT** (Dated 18[th] day of July 2024) The petitioner was appointed as Lower Division Clerk (LDC) in the office of the 2[nd] respondent Board. In November 2000, he was transferred to the Adimaly office of the Board. When the petitioner was appointed as LDC, there were no rules regarding appointments. All the appointments were made temporarily until the selection was made through the Kerala Public Service Commission (KPSC) in 2006. Without any notice, Respondent Nos.2 and 3 terminated the petitioner with effect from 22.9.2011 and another temporary employee was appointed. Challenging the termination, the petitioner filed W.P.(C) No.28350 of 2011, but this court did not interfere and reserving liberty to the petitioner to approach the competent authority seeking a regularisation, if any, the Writ Petition was dismissed. Therefore, the 3 WPC 13364/2020 petitioner filed a detailed representation seeking regularisation of service and the representation was rejected by the 2nd respondent Board by Ext.P3, stating that all vacancies are to be filled up through KPSC. At the same time, the 2nd respondent issued an order regularising a similarly situated person on the direction of the 1st respondent. Therefore, the petitioner approached this court a second time by filing W.P.(C) No.39685 of 2014 challenging Ext.P3 and to regularise the service of the petitioner in the post of LDC. This court set aside Ext.P3 and directed the Government to consider the petitioner's request within 3 weeks. Thereafter, by Ext.P7, the 1st respondent rejected the petitioner's request. It is challenging Ext.P7 that the petitioner has approached this court and for a further direction to regularise the petitioner's service as LDC as done in Ext.P4. 4 WPC 13364/2020 2. A counter affidavit is filed by the 1st respondent contending that the petitioner’s service was terminated on 22.9.2011 and the request of the petitioner for regularisation before the 2nd respondent was rejected due to the reason that the vacancies of LDC are to be filed up through PSC and the same has already been reported. As far as Sri.Pradeep Raj (who was regularised by the 2nd respondent) is concerned; he worked as peon-cum-messenger on daily wages for more than 10 days, and as a special case on humanitarian consideration, his service was regularised. In compliance with the direction of the judgment passed in W.P.(C) No.39685 of 2014, the petitioner was heard in person on 26.8.2109. It was found that the petitioner and Sri.Pradeep Raj worked in the office as a daily wages employee as an LDC and Office Attendant, respectively. The 2nd respondent, considering the report of the District Collector, 5 WPC 13364/2020 Kottayam and in view of the pathetic situation of the family as a special case, invoked the powers of the Government and granted regularisation to Sri Pradeep Raj. Since 2006, LDC's recruitment method in the 2nd respondent Board has been by direct recruitment through PSC, and all the vacancies have been reported to the PSC. Regularisation of daily wage employees is a violation of the judgment reported in **State of Karnataka v. Uma Devi [(2006) 4 SCC 1]** , and therefore, the petitioner’s request was rejected. 3. The petitioner’s service was terminated with effect from 22.9.2011. Though he challenged the same before this court, this court did not interfere with the termination, but he was granted liberty to approach the Board seeking regularisation. The petitioner moved the Government by pointing out that a similar person who was also working on 6 WPC 13364/2020 daily wages in the post of office attendant had been regularized. The Government considered the issue and rejected the claim for regularisation, holding that the regularisation of Sri.Pradeep Raj was a special case invoking the powers of the Government, which was done based on a report from the District Collector. The Government has discretion to invoke its powers to grant regularisation on a case-to-case basis. The Government thought it fit to grant regularisation to Pradeep based on a report from the District Collector to the post of Office Attendant. The petitioner was working as an LDC, and the powers were not exercised in the petitioner's case. This Court can exercise any orders passed by the Government invoking its powers under Article 226 of the Constitution of India if it is perverse, illegal or improper. 4. The petitioner claims regularisation based on orders regularising one Sri.Pradeep Raj. Admittedly, the petitioner, 7 WPC 13364/2020 as well as said Pradeep, are working in two different posts. Sri. Pradep was an Office Attendant, whereas the petitioner worked as an LDC. To support the case of Sri. Pradeep, there was also a recommendation from the District Collector, Kottayam. In such a situation, it cannot be said that the petitioner is similarly situated as Sri.Pradeep Raj. Therefore, there is nothing illegal in Ext.P7 order. Consequently, the Writ Petition fails, and it is dismissed. ## Sd/- **BASANT BALAJI, JUDGE** dl/ 8 WPC 13364/2020 ``` APPENDIX OF WP(C) 13364/2020 ``` ## **`PETITIONER EXHIBITS`** - **`EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 19.03.2015 IN W.P(C) NO.28350 OF 2011`** - **`EXHIBIT P2 TRUE COPY OF PETITION DATED 22.06.2015 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT`** - **`EXHIBIT P3 TRUE COPY OF ORDER DATED 24.07.2015 ISSUED BY THE 2ND RESPONDENT`** - **`EXHIBIT P4 TRUE COPY OF ORDER DATED 29.07.2015 ISSUED BY THE 2ND RESPONDENT`** - **`EXHIBIT P5 TRUE COPY OF GO(MS) NO.96/2015/LABOUR DATED 27.07.2015 ISSUED BY THE GOVERNEMNT`** - **`EXHIBIT P6 TRUE COPY OF JUDGMENT DATED 03.06.2019 IN WPC NO.39685 OF 2015`** - **`EXHIBIT P7 TRUE COPY OF GO(RT) NO.1462/2019 LBR DATED 28.11.2019 ISSUED BY THE 1ST RESPONDENT`**