WA Nos. 2439/2019, 2441/2019, 2442/2019 v. Kerala Electrical and Allied Engineering Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 04TH DAY OF DECEMBER 2019 / 13TH AGRAHAYANA, 1941** **WA.No.2439 OF 2019** **AGAINST THE JUDGMENT IN WP(C) 30626/2019(C) DATED 25.11.2019 OF HIGH COURT OF KERALA** ## **APPELLANT/S:** **1 BHARATHI P.C., W/O.SATHYAN, UNSKILLED WORKER, KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED, MAMALA, ERNAKULAM- 682305, RESIDING AT PUNCHAVAYAL HOUSE, NENMENI P.O., S.BATHERY, WAYANAD- 673592. 2 FRANK JOSEPH, UNSKILLED WORKER, KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED, MAMALA, ERNAKULAM- 682305, RESIDING AT MALATTU NAGAR-34, KAVANADU P.O., KOLLAM- 691003. 3 SREERAMAN O., UNSKILLED WORKER, KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED, MAMALA, ERNAKULAM- 682305, RESIDING AT ODAVAYAL HOUSE, KALATHUVAYAL POST, AMBALAVAYAL VIA, WAYANAD- 673592.** **BY ADVS. SRI.KALEESWARAM RAJ SRI.VARUN C.VIJAY KUM.A.ARUNA SMT.MAITREYI SACHIDANANDA HEGDE** ## **RESPONDENT/S:** **1 KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED, REPRESENTED BY THE MANAGING DIRECTOR, KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED, 7TH FLOOR, KSHB OFFICE COMPLEX,** **WA.2439/2019, WA.2441/2019, WA.2442/2019** 2 ## **PANAMPILLY NAGAR, ERNAKULAM- 682036.** **2 MANAGING DIRECTOR, KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED, 7TH FLOOR, KSHB OFFICE COMPLEX, PANAMPILLY NAGAR, ERNAKULAM- 682036.** **3 GENERAL MANAGER ( P AND I), KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED, 7TH FLOOR, KSHB OFFICE COMPLEX, PANAMPILLY NAGAR, ERNAKULAM- 682036.** **4 KITCO LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, FEMITH.S, P.B.NO.4407, PUTHIYA ROAD, NH BYEPASS, VENNALA, KOCHI- 682028.** ## **SRI.M.K.THANKAPPAN, SC,KEL** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04.12.2019, ALONG WITH WA.2441/2019, WA.2442/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WA.2439/2019, WA.2441/2019, WA.2442/2019** 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 04TH DAY OF DECEMBER 2019 / 13TH AGRAHAYANA, 1941** ## **WA.No.2441 OF 2019** **AGAINST THE JUDGMENT IN WP(C) 24844/2019(E) DATED 25.11.2019 OF HIGH COURT OF KERALA** ## **APPELLANT/S:** **PUSHPA C.M.** **W/O. BIJU ANADHAKRISHNAN, UNSKILED WORKERS, KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED, KUNDARA, KOLLAM DISTRICT, RESIDING AT BHAGYASREE (H), NADUVATHOOR, KOYILANDY, KOZHIKODE-673 620.** **BY ADVS. SRI.KALEESWARAM RAJ SRI.VARUN C.VIJAY KUM.A.ARUNA** ## **RESPONDENT/S:** **1 KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED REPRESENTED BY THE MANAGING DIRECTOR, KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED, 7TH FLOOR, KSHB OFFICE COMPLEX, PANAMPILLY NAGAR, ERNAKULAM-682 036.** **2 MANAGING DIRECTOR KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED, 7TH FLOOR, KSHB OFFICE COMPLEX, PANAMPILLY NAGAR, ERNAKULAM-682 036.** - **3 GENERAL MANAGER (P AND I)** **WA.2439/2019, WA.2441/2019, WA.2442/2019** 4 **KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED, 7TH FLOOR, KSHB OFFICE COMPLEX, PANAMPILLY NAGAR, ERNAKULAM-682 036.** **4 KITCO LIMITED REPRESENTED BY ITS MANAGING DIRECTOR, FEMITH S. P.B.NO.4407, PUTHIYA ROAD, NH BYEPASS, VENNALA, KOCHI--682 028.** **SRI.M.K.THANKAPPAN, SC, KEL** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04.12.2019, ALONG WITH WA.2439/2019, WA.2442/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WA.2439/2019, WA.2441/2019, WA.2442/2019** 5 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 04TH DAY OF DECEMBER 2019 / 13TH AGRAHAYANA, 1941** ## **WA.No.2442 OF 2019** **AGAINST THE JUDGMENT IN WP(C) 17916/2019(L) DATED 25.11.2019 OF HIGH COURT OF KERALA** ## **APPELLANT/S:** **1 SHYJU K.A., S/O AYYAPPANKUTTY,UNSKILLED WORKER, KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED,MAMALA, ERNAKULAM-682305 RESIDING AT KAPPUMKUZHIYIL HOUSE,THALAPPUZHA VIA,VALAT.P.O, WAYANAD-670644.** **2 SUJIKUMAR.T, S/O.THOMAS,UNSKILLED WORKER, KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED,KUNDARA,KOLLAM-691501. RESIDING AT SAJI BHAVAN,PRACKOTTUKUZUHY,PANNIYOD.P.O, THIRUVANANTHAPURAM-695575.** - **3 AJESH KUMAR.P.S,** **S/O.SREEDHARAN.P.R,UNSKILLED WORKER, KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED, MAMALA, ERNAKULAM-682305, RESIDING AT PADAKOODIKKAL HOUSE, MELUKAVU.P.O, KOLANI,KOTTAYAM-686652.** **4 ABDU SUKOOR.K.K, S/O.KUNNAHAMED,UNSKILLED WORKER, KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED,EADARIKOOD,MALAPPURAM, RESIDING AT KOZHIKODAN HOUSE,P.O, PUTHUPARAMB, EADARIKOOD VIA,MALAPPURAM-676501.** **WA.2439/2019, WA.2441/2019, WA.2442/2019** 6 **5 MANEESH PILLAI, S/O CHANDRASHEKMARAN PILLAI,UNSKILLED WORKER, KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED,KUNDARA,KOLLAM691501,RESIDING AT VYANAKATHU HOUSE, S.W.THAZHAVA.P.O, KARUNAGAPPALLY, KOLLAM-690523.** - **6 JAYAPRAKASH.V.P, S/O.DHARAVAN,UNSKILLED WORKER, KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED,RESIDING AT VATTAPARAMBIL HOUSE, P.O.KAIPPURAM, NADUVATTOM.VIA, PALAKKAD-679308.** - **7 PRASANTH.P.S, UNSKILLED WORKER, KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED, MAMALA,ERNAKULAM-682305. RESIDING AT PATHRAKADAVIL,THURUTHIPPURAM, MOOTHAKUNNAM..P.O,PIN-683516.** - **8 SINJOMON K.J., S/O.K.T.JOSE, UNSKILLED WORKER, KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED,MAMALA,ERNAKULAM-682305, RESIDING AT KANAVALA HOUSE,AVINISSERY.P.O,OLLUR, THIRSSUR-680306.** **9 SUBEESH.K.S, AGED 35 YEARS S/O.SUDHAKARAN,UNSKILLED WORKER, KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED,MAMALA,ERNAKULAM-682305. RESIDING AT KATTOOKARAN HOUSE,KUZHUPILLY, AYYAMPILLY.P.O,ERNAKULAM-682501.** **10 RAMESHLAL.A, S/O.APPU C.,UNSKILLED WORKER, KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED,KUNDARA,KOLLAM-691501 RESIDING AT VALIYA VILA PUTHEN VEEDU,KURUMKLLITTY,PARASSALA.P.O, THIRUVANANTHAPURAM-695502.** **11 ANEESH.K.K, S/O.KRISHNANKUTTY,UNSKILLED WORKER, KERALA** **WA.2439/2019, WA.2441/2019, WA.2442/2019** 7 **ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED,MAMALA,ERNAKULAM-682305, RESIDING AT KOOTHAKUDY HOUSE,VENGOLA.P.O, PERUMANI,PERUBAVOOR,ERNAKULAM-683556.** **12 SANDHYA.T.S, W/O.SANTHOSH.T.K,UNSKILLED WORKER, KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED,MAMALA,ERNAKULAM-682305 RESIDING AT KOONANNANICKAL HOUSE,KUMARAMANGALAM,THODUPUZHA, IDUKKI-685585. BY ADVS. SRI.KALEESWARAM RAJ KUM.A.ARUNA SMT.MAITREYI SACHIDANANDA HEGDE** ## **RESPONDENT/S:** - **1 KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED, REPRESENTED BY THE MANAGING DIRECTOR,KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED, 7TH FLOOR,KSHB OFFICE COMPLEX,PANAMPILLY NAGAR,ERNAKULAM-682036.** - **2 MANAGING DIRECTOR, KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED,7TH FLOOR,KSHB OFFICE COMPLEX,PANAMPILLY NAGAR,ERNAKULAM-682036.** - **3 GENERAL MANAGER(P AND I), KERALA ELECTRICAL AND ALLIED ENGINEERING COMPANY LIMITED,7TH FLOOR,KSHB OFFICE COMPLEX,PANAMPILLY NAGAR,ERNAKULAM-682036.** - **4 KITCO LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, FEMITH.S,P.B.NO.4407,PUTHIYA ROAD,NH BYEPASS, VENNALA,KOCHI-682028.** ## **SRI.M.K.THANKAPPAN, SC,KEL** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04.12.2019, ALONG WITH WA.2439/2019, WA.2441/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WA.2439/2019, WA.2441/2019, WA.2442/2019** 8 ## **JUDGMENT** ## **K.Vinod Chandran,J.** **The appellants are persons in the rank list who are engaged casually on directions issued by this Court as per the judgment in Ext.P2.** **2. We have to notice the background facts as submitted by the learned Standing Counsel for the respondent to better understand the claim now raised by the petitioners. The respondent Company is a public sector undertaking under the State Government. The respondent Company had proposed regular appointments of unskilled workers. A selection was proceeded with through the 4[th] respondent. However, after the selection was over, the respondent Company, which was already tottering financially, decided not to** **WA.2439/2019, WA.2441/2019, WA.2442/2019** 9 **proceed with the regular selections.** **3. At this juncture, some persons, who applied for the selection, filed W.P.(C) No.16363 of 2017, in which there was an order directing publication of the select list. In fact, even at the time of hearing, the respondent had submitted before Court that there would be no purpose in finalizing the rank list as several of the respondent's units are closed down or at the verge of closure and the Company had suffered a loss of 17.26 crores for the year 2015-16 and Rs.11.81 crores for the year 2016-17. It was also admitted that as and when necessary, the respondents were engaging persons on daily wages. The Court felt that since already the proceedings had been taken for preparation of a rank list and that due selection was also carried out, it is only proper that the** **WA.2439/2019, WA.2441/2019, WA.2442/2019** 10 **Company publish the rank list. It was made very clear that the publication of the rank list will not give rise to any right for the petitioners for appointment in the Company unless and until there is requirement of personnel.** **4. Subsequently, the respondent Company was making provisional engagement of unskilled workers sponsored by the Employment Exchanges and from outside. At which juncture, again persons in the published select list, approached this Court with another writ petition numbered as W.P. (C)No.27091 of 2017, the decision in which is produced as Ext.P2. By Ext.P2, the learned Single Judge directed as follows:** **3. The respondents have pointed out the financial stringency faced by them. However in case the respondents require any unskilled workers on** **WA.2439/2019, WA.2441/2019, WA.2442/2019** 11 **temporary basis, the respondents shall engage the persons, who are included in the rank list, on provisional basis as in the case of Employment Exchange hands. I have already disposed of another W.P.(C) No.31589/2018 on 05.11.2018. Therefore the directions therein shall apply to the petitioners in this case also.** **5. The appellants herein were engaged for 179 days in accordance with the directions in Ext.P2. When they were sought to be terminated after expiry of the term, again they approached this Court, in which writ petition there was a stay of termination and they were continued till the disposal of the writ petition by the impugned judgment. The impugned judgment noticed the fact that even at the earlier instance, the direction was only to appoint provisional employees, if required by the respondents from the select list published by the respondents. The** **WA.2439/2019, WA.2441/2019, WA.2442/2019** 12 **appellants herein are persons, who were originally appointed for 179 days and when sought to be terminated, again continued on the basis of the interim orders in the writ petition. They seek further continuance in exclusion to the others in the select list.** **6. We have to notice that the first judgment, which directed publication of the rank list itself noticed the fact that the publication of the rank list does not confer any right on the appellants to seek employment. The later decision in Ext.P2 & P3 only extended the equitable relief of engagement from the rank list, even in works of a temporary or casual nature. We have to pertinently notice that the direction is also** **to engage persons from the rank list, “** _**on provisional basis as in the case of ” Employment Exchange hands (sic)**_ **.** **WA.2439/2019, WA.2441/2019, WA.2442/2019** 13 **7. The learned counsel for the appellants placed before us the decision of the Hon'ble Supreme Court reported in State of** _**Haryana and Others**_ **v.** _**Piara Singh and Others [1992 (4) SCC 118]**_ **. We notice from the above judgment that the Court was considering the case of temporary employees continued for long. There was no declaration as such and it was merely observed that all efforts should be taken to displace temporary workers only with regular employments. In the present case, what assumes significance is that the respondent Company does not intend to make regular appointments at all, unless the financial situation improves.** **8.** _**Piara Singh**_ **was a case in which, in the absence of a service selection board there were a number of adhoc appointments made without reference to the Public Service** **WA.2439/2019, WA.2441/2019, WA.2442/2019** 14 **Commission or the Employment Exchanges, which were later regulsarised by the Government itself. Piara Singh and others who approached the Court were persons who were not regularised for not satisfying one or other criteria fixed by the Government for regularisation. Besides the adhoc employees certain work charged employees,daily wagers and casual labourers also approached the Court claiming regularisation and equal pay for equal work. The conditions imposed for regularisation; viz: (i) of having completed a requisite period on a particular date, (ii) of the candidate being sourced from the Employment Exchange and (iii) of the posts being not within the purview of the Selection Board constituted later, were held to be bad by the High Court. The High Court while cautioning the Government from making adhoc** **WA.2439/2019, WA.2441/2019, WA.2442/2019** 15 **appointments beyond a period of six months also directed the regularisation of those continued for more than one year.** **9. The Hon'ble Supreme Court referred to two decisions in which regularisaton was directed; ie:** _**Dharwad District P.W.D. Literature Daily Wage Employees Association v. State of Karnataka [AIR 1990 SC 883] and Jacob v. Kerala Water Authority [AIR 1990 SC 2228].**_ **In the first case there were adhoc appointments continued for 10 to 15 years and in the second there were four different category of employees due to the constitution of a separate authority and the employees being taken over from the earlier department. In the second case, the Rule regulating recruitment also permitted engagement of workers, in emergency, without following the rules, who were to be employed only for** **WA.2439/2019, WA.2441/2019, WA.2442/2019** 16 **limited time and liable to be replaced by regular employees. The Rule also provided for regularisation if they were continued for two years as on a specific date. Noticing the peculiar facts in the decisions cited, the judgment directing regularisation of Piara Singh and others were set aside on the following reasoning:** **25. As would be evident from the observations made and directions given in the above two cases, the court must, while giving such directions, act with due care and caution. It must first ascertain the relevant facts, and must be cognizant of the several situations and eventualities that may arise on account of such directions. A practical and pragmatic view has to be taken, inasmuch as every such direction not only tells upon the public exchequer but also has the effect of increasing the cadre strength of a particular service, class or category. Now, take the directions given in the judgment under appeal. Apart from the fact that the High Court was not** **WA.2439/2019, WA.2441/2019, WA.2442/2019** 17 **right — as we shall presently demonstrate in holding that the several conditions imposed by the two Governments in their respective orders relating to regularisation are arbitrary not valid and justified — the High Court acted rather hastily in directing wholesome regularisation of all such persons who have put in one year’s service, and that too unconditionally. We may venture to point out the several problems that will arise if such directions become the norm: (** _**a**_ **) Take a case where certain vacancies are existing or expected and steps are taken for regular recruitment either through Public Service Commission or other such body, as the case may be. A large number of persons apply. Inevitably there is bound to be some delay in finalising the selections and making the appointments. Very often the process of selection is stayed or has to be re-done for one or the other reason. Meanwhile the exigencies of administration may require appointment of temporary hands. It may happen that these temporary hands are continued for more than one year because the regular selection has not yet been finalised. Now according to the** **WA.2439/2019, WA.2441/2019, WA.2442/2019** 18 **impugned direction the temporary hands completing one year’s service will have to be regularised in those posts which means frustrating the — regular selection. There would be no post left for regularly selected persons even if they are selected. Such cases have indeed come to this Court from these very two States.** **(** _**b**_ **) In some situations, the permanent incumbent of a post may be absent for more than a year. Examples of this are not wanting. He may go on deputation, he may go on Faculty Improvement Programme (F.I.P.), or he may be suspended pending enquiry into charges against him and so on. There may be any number of such situations. If a person is appointed temporarily in his place and after one year he is made permanent where will the permanent incumbent be placed on his return? Two persons cannot hold the same post on a regular or permanent basis.** **(** _**c**_ **) It may also happen that for a particular post a qualified person is not available at a given point of time. Pending another attempt at selection later on an unqualified person is appointed temporarily. He may continue** **WA.2439/2019, WA.2441/2019, WA.2442/2019** 19 **for more than one year. If he is to be regularised, it would not only mean foreclosing appointment of a regular qualified person, it would also mean appointment of an unqualified person.** **(** _**d**_ **) Such directions have also the effect of disregarding and violating the rule relating to reservation in favour of backward class of citizens made under Article 16(4). What cannot be done directly cannot be allowed to be done in such indirect manner.** **(** _**e**_ **) Many appointments may have been made irregularly — as in this case — in the sense that the candidates were neither sponsored by the Employment Exchange nor were they appointed after issuing a proper advertisement calling for applications. In short, it may be a backdoor entry. A direction to regularise such appointments would only result in encouragement to such unhealthy practices.** **26. These are but a few problems that may arise, if such directions become the norm. There may be many such and other problems that may arise. All this only emphasises the need for a fuller consideration and due circumspection** **WA.2439/2019, WA.2441/2019, WA.2442/2019** 20 ## **while giving such directions.** **10. The learned judges hence recognised that there could arise many situations were there is a need for adhoc appointments; which cannot necessarily be followed by orders of wholesome regularisation. The situation that arises here is a case in point; of financial stringency of the employer cautioning the employer from making regular appointments, for reason of closing down of its several units but however ensuring that employees are available for the little work it has; which if not harmoniously balanced will result in the establishment spiraling into further financial doldrums, eventually leading to total shut down.** **11. In such circumstances, there cannot be any continuance of provisional hands beyond the 179 days period, since that would** **WA.2439/2019, WA.2441/2019, WA.2442/2019** 21 **confer on them rights, which were never intended to be conferred on them by their provisional employment. We also notice that the attempt of the Company now is to displace the appellants herein and appoint other persons from the very same select list. This is the correct procedure as intended by the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959, wherein, it was intended that when provisional hands are to be appointed by any Governmental organization, it should be done in such a manner as to eradicate unemployment to the maximum and give such benefits to the maximum number of unemployed persons. Minimum employment to the maximum people in a transparent manner sourcing it from a totally independent governmental agency was the avowed objective. This agency is constituted** **WA.2439/2019, WA.2441/2019, WA.2442/2019** 22 **to merely register the unemployed for the purpose of furnishing a list of eligible , qualified hands; sourced from amongst those registered, to any intending employer. There can be no right claimed by an employment exchange hand for continuance beyond the specific period for which his or her name has been sourced. This is so because then it would defeat the very statutory purpose of spreading the casual employment opportunities to the vast majority of unemployed so as to ensure subsistence wages for a certain period. We reiterate that this was the intention behind the directions issued earlier by the very same learned Single Judge who rejected the claim of the petitioners in the impugned judgment : to engage persons from the rank list, “** _**on provisional basis as**_ _**in the case of Employment Exchange**_ **WA.2439/2019, WA.2441/2019, WA.2442/2019** 23 ## _**hands”(sic)**_ **.** **In such circumstances, we do not find any reason to interfere with the impugned judgment and we dismiss the appeal** _**in limine**_ **.** **Sd/K.VINOD CHANDRAN JUDGE** **Sd/V.G.ARUN JUDGE** SB/04/12/2019