V.P. George v. Union of India & Others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 23RD DAY OF MARCH 2017/2ND CHAITHRA, 1939 OP (CAT).No. 98 of 2015 (Z) ---------------------------- ## AGAINST THE ORDER IN OA 234/2013 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 10.4.2015 PETITIONER/APPLICANT IN THE OA: --------------------------------------------------- V.P. GEORGE, S/O.SRI.V.G.PAUL, CASUAL LABOURER, WORKING AS DRIVER, PORT HEALTH ORGANISATION, KOCHI, RESIDING AT VAKAPPADATH HOUSE, KALLENCHERY, KUMBLANGI P.O., KOCHI-682007. BY ADVS.SRI.B.UNNIKRISHNA KAIMAL SRI.V.MADHUSUDHANAN SRI.T.ISSAC ## RESPONDENTS/RESPONDENTS IN THE OA: -------------------------------------------------------------- 1. UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF HEALTH AND FAMILY WELFARE, NEW DELHI-110001. 2. DIRECTOR GENERAL OF HEALTH SERVICES PH (IH)SECTION, NIRMAN BHAVAN, NEW DELHI-110001. 3. PORT HEALTH OFFICER, GOVERNMENT OF INDIA, PORT HEALTH ORGANISATION, KOCHI-682009. ## R1-R3 BY ADV. SRI.P.K.RAMKUMAR THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 23-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 98 of 2015 (Z) --------------------------------------- ## **APPENDIX** ## PETITIONER'S EXHIBITS ------------------------------------- EXT.P1 : TRUE COPY OF THE OA 234/13 FILED BY THE PETITIONER BEFORE THE CAT, ERNAKULAM BENCH DT.12-3-2013 TOGETHER WITH ITS ENCLOSURES. EXT.P2 : TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS BEFORE THE CAT ERNAKULAM IN OA 234/13 ON DECEMBER 2013. EXT.P3 : TRUE COPY OF THE REJOINDER DT.31-12-2013 FILED BY THE PETITIONER BEFORE THE CAT, ERNAKULAM IN OA 234/15. EXT.P4 : TRUE COPY OF THE ADDL.REPLY STATEMENT DT.31-3-2014 FILED BY THE RESPONDENTS BEFORE THE CAT, ERNAKULAM IN OA 234/15. EXT.P5 : TRUE COPY OF THE MISCELLANEOUS APPLICATION FILED BY THE PETITIONER BEFORE THE CAT, ERNAKULAM IN OA 234/13 ALONG WITH ANNEXURE A6. EXT.P6 : TRUE COPY OF THE INTERIM ORDER DT.4-7-2014 OF THE CAT, ERNAKULAM BENCH IN MA 661/14 IN OA 234/13. EXT.P7 : TRUE COPY OF THE MA 1135/14 FILED BY THE PETITIONER BEFORE THE CAT, ERNAKULAM IN OA 234/13 ALONG WITH ANNEXURE A7. EXT.P8 : TRUE COPY OF THE ORDER DT.10-4-2015 OF THE CAT ERNAKULAM BENCH IN OA 234/13. ## **RESPONDENTS' EXHIBITS: NIL** TRUE COPY P.S. TO JUDGE dsn ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. -------------------------------------------------O.P.(CAT)No.98 OF 2015** **-------------------------------------------------DATED THIS THE 23[rd] DAY OF MARCH, 2017** ## **JUDGMENT** ## **C.T. RAVIKUMAR, J.** This Original Petition is filed against the order dated 10.4.2015 passed by the Central Administrative Tribunal, Ernakulam Bench in O.A.No.234/2013. The petitioner was the applicant therein. The petitioner moved the said Original Application seeking for a direction to the respondents to consider him for regularisation as Driver/Skilled Labrourer/ Field Worker in the office of the 3[rd] respondent. 2. The further relief sought for was for a direction to the respondents to grant him 1/30[th] of the minimum basic pay and allowances due to a driver as daily wage with all consequential benefits including arrears of pay and allowances with interest at 12% per annum. He filed the said Original Application mainly with the following averments:- The petitioner was initially engaged as a driver under the 3[rd] respondent as per Annexure A1 for 89 days with effect from 2.9.1996. The same was followed by Annexure A2 order dated O.P.(CAT)No.98 OF 2015 2 1.12.1999. Evidently, as per the same, he was engaged for another 89 days with effect from 1.12.1999. It was averred by the petitioner that he was continuing as daily waged driver and was being paid only a consolidated amount of 340/- per day without₹ any paid holidays. It is also stated therein that as per Annexure A4, he was recommended for permanent absorption as a Peon. As per Annexure A5 communication, the 3[rd] respondent recommended for absorption of the petitioner against the post of Field Worker. Despite such recommendations, the petitioner has to continue as driver, only on daily waged basis and evidently that constrained him to file the above mentioned Original Application. 3. The respondents herein resisted the claims and contentions stating that there is no sanctioned post of driver in the Office of the 3[rd] respondent and that apart, the method of appointment to the post of Field Worker is by direct recruitment. Taking into account the rival contentions, the Tribunal evidently considered the tenability of those contentions and claim for regularisation based on the decision of the Apex Court in **State of Karnataka v. Umadevi (AIR 2006 (SC) 1806)** and **State of Karnataka v. M.N.Kesari and others (AIR 2010 SC 2587)** . Based on such consideration, the Tribunal found that as on the date O.P.(CAT)No.98 OF 2015 3 of decision in Umadevi's case, that is, on 10.4.2006, the petitioner was not having 10 years' service. In such circumstances, the petitioner was found, not entitled to get the reliefs sought for. Even while declining to grant relief of regularisation in service in the light of Umadevi's case (supra) and Kesari's case (supra), the Tribunal disposed of the Original Application with certain other observations. It is dissatisfied with and aggrieved by the said order, that the captioned Original Petition has been filed, evidently, only to the extent the request for regularisation was declined by the Tribunal. 4. We heard the learned counsel for the petitioner and also the learned Standing Counsel. 5. The grievance of the petitioner against Ext.P8 is only with respect to the rejection of his claim for regularisation, and hence, the scope of consideration of this Original Petition is limited to the question whether the Tribunal was justified in rejecting the said claim. 6. We have already adverted to the service particulars of the petitioner. Indisputably, the petitioner had not completed 10 years' service as on the date of decision of Umadevi's case, that is on 10.4.2006. There cannot be any doubt with respect to the O.P.(CAT)No.98 OF 2015 4 position that going by Umadevi's case (supra), even regularisation of persons who had worked for 10 years without any interim order from Tribunal or Court, could have been granted only as a one time measure. That apart, it was held by the Apex Court that even such regularisation can be effected only if there is sanctioned post and provided further that the initial engagement of the person concerned was after following the regular method of appointment. In this case, there is absolute absence of any averment to the effect that the petitioner was appointed against a sanctioned post, that too after following the prescribed method of appointment as relates any particular post. This is evident from Annexure A3. Going by Annexure A3, a request was made, that too, to sanction a regular post of driver/Field Worker so as to accommodate the petitioner. The learned counsel appearing for the petitioner submits that in the light of the recommendations made as per Annexures A4 and A5, the respondents should not have declined to regularise the petitioner in service. We are afraid, the said contention cannot be upheld, when the Hon'ble Apex Court in unambiguous terms held that regularisation in service could be effected only under the circumstances specifically mentioned in Umadevi's case (supra). O.P.(CAT)No.98 OF 2015 5 There cannot be any question of issuing any direction for consideration of regularisation of a person who is not at all entitled to seek for such regularisation based on the decision in Umadevi's case (supra). Though a feable attempt was made by the petitioner to canvass the position that since he was initially engaged on 2.9.1996, as on 10.4.2006, he was only short of 5 months to complete 10 years' service. This contention also cannot be sustained going by the very averments of the petitioner. Going by Annexure A1, he was engaged on 2.9.1996 for a period of 89 days. It is his precise contention that engagement under Annexure A1 was followed only by engagement under Annexure A2 dated 1.12.1999. Thus, it is obvious that there was no continuous engagement after 2.9.1996. The initial engagement on 2.9.1996 for 89 days was followed only by an engagement as per Annexure A2 dated 1.12.1999. Thus, it is evident that the petitioner was not having the required service to seek for regularisation in terms of Umadevi's case. That apart, there was no sanctioned post and there is nothing on record indicating that his engagement was made after following the prescribed method of appointment. When in the light of the undisputed and indisputable facts and in the light of the decision of the Hon'ble Apex Court in Umadevi's case O.P.(CAT)No.98 OF 2015 6 (supra), it cannot be said that the Tribunal went wrong in rejecting the claim of the petitioner for regularisation, how can it be said that the Tribunal has committed an illegality. According to us, the decision of the Tribunal in Ext.P8 declining to accept the prayer of the petitioner for regularisation is in conformity with the dictum laid down by the Apex Court in Umadevi's case (supra). If that be so, there is absolutely no reason to interfere with Ext.P8 order in exercise of the judicial review under Article 226/227 of the Constitution of India. This Original Petition is, therefore, liable to fail and accordingly it is dismissed. Sd/- **C.T. RAVIKUMAR, JUDGE** dsn Sd/- **ANIL K. NARENDRAN, JUDGE** True copy P.S. to Judge