High Court of KeralaDivision Bench2022-06-27Dismissed

WA Nos. 745 of 2022 and 747 of 2022, High Court of Kerala at Ernakulam

Case / Petition Number:W.A. Nos. 745/2022 and 747/2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.K. Jayasankaran Nambiar
Mohammed Nias C.P. Monday
Judgment Date: 2022-06-27
Court Decision / Holding: The Appeals are dismissed; the writ petitions are dismissed. The High Court agrees with the Single Judge and holds that daily wage engagements without sanctioned posts or a selection process do not confer a right to continuance or regularization, and that the government’s reasoning (as reflected in Ext. P3) is sound. The court notes that parity cannot be claimed with other streams that were recruited differently, and follows the Umadevi principle and the earlier Kerala judgments (including Kannan P.A.) to refuse any humanitarian or legal exception to permit continued service.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Ammini
Arifa Beevi
Leelamani
Radha
Radhamani S.
Sudharma Thankappan
Syamala Kumari

Respondents

State of Kerala represented by Secretary to Government, Health and Family Welfare Department, Secretariat, Trivandrum
Superintendent, Medical College Hospital, Gandhinagar P.O., Kottayam

Legal Representation & Advocates

Counsels for Petitioners

• Abraham Vakkanal (Sr.)
• Paul Abraham Vakkanal
• Vineetha Susan Thomas
• Rohith C.

Counsels for Respondents

• Sri. Bijoy Chandran, Senior Government Pleader

Case Synopsis & Summary

These writ appeals challenge government orders that fixed an upper age limit of 60 for daily wage cleaning staff at Kottayam Medical College Hospital, resulting in their termination as they reached 60. The petitioners allege discrimination since daily wage employees from other streams—Hospital Development Society, Hospital Management Committee, Hospital Development Committee, and RSBY-funded projects—retire at 65 or later, though they perform the same work and often draw similar wages. They claim 34 years (some over 20–30 years) of service, including during the COVID-19 pandemic, and contend there is no justifiable reason for treating them differently from their similarly situated counterparts. They rely on Ext. P12, a 2017 directive directing termination of those turning 60, and Ext. P2/Ext. P3 orders, arguing the government’s reasons are opaque and non-meritorious (Ext. P3 is said to be a speaking order). They also cite Kerala Brahmana Sabha v. Vamana Prabhu & Others to challenge the impugned orders, and urge entitlement to continuance, regularization, or at least parity with other daily wagers. The government counters that daily wage engagements were temporary, not sanctioned posts, and not subject to selection; Umadevi principles apply, denying a right to continuance. The learned Single Judge dismissed the petitions, and the appellate court upheld that decision, finding no legal basis to interfere and recognizing that the other streams are not similarly situated.

Provisions of Law Cited

Section 25 (f) of the Industrial Disputes Act

Legal Doctrines & Maxims

Umadevi doctrine (State of Karnataka v. Umadevi)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that they have served for decades (some 20–34 years) as daily wage cleaners; they performed the same work as others in the hospital system who retire at 65 or beyond; hence, fixing their upper age limit at 60 while others are allowed up to 70 is discriminatory and arbitrary. They argue equal treatment with other streams (HDS, HMC, HDC, RSBY projects) is required, and that termination could amount to retrenchment under the Industrial Disputes Act. They rely on Ext. P12 (2017 directive), Ext. P2 (order terminating 20 employees at 60), and Ext. P3 (speaking order) to claim a right to continuance or at least parity. They invoke the Kerala Brahmana Sabha decision to challenge ill-reasoned orders. They also urge humanitarian considerations for continuance given long service and essential role during COVID-19.

Contentions of Respondents

The respondents maintain that daily wage engagements were to tide over temporary shortages and not on sanctioned posts; there was no competitive selection and no right to continuance or regularization. They argue that those engaged under HDS, HMC, HDC, or RSBY are not similarly situated because they were appointed in sanctioned posts after due processes, unlike the petitioners. They rely on the Umadevi doctrine (State of Karnataka v. Umadevi) to deny a right to regularization or continued service for daily wagers and emphasize that Ext. P3 contains reasons for termination; the Court should not substitute its own assessment for the government’s considered decision. They also cite Kannan P.A. & Others, which supports rejecting continuance in similar circumstances.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Kerala Brahmana Sabha v. Vamana Prabhu & Others	2019 (3) KLT 438	Mentioned Only	Cited by petitioners for challenge but not adopted; court relies on its own reasoning and Ext. P3.
State of Karnataka v. Umadevi and Others	(2006) 4 SCC 1	Positive	Principle followed to deny continuance/regularisation for daily wage workers.
Kannan P.A. & Others v. State of Kerala and Others	W.P.C. No. 640 of 2022	Positive	Court states it has taken a similar view and is bound by it; rejects continuance.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** ## **&** ## **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. MONDAY, THE 27TH DAY OF JUNE 2022 / 6TH ASHADHA, 1944 WA NO. 745 OF 2022** **AGAINST THE JUDGMENT IN WP(C) 29015/2021 OF HIGH COURT OF** ## **KERALA** ## **APPELLANT/PETITIONER:** AMMINI, AGED 60 YEARS W/O. K.S. GEORGE, VELOOR ENPATHIL HOUSE, ARPOOKARA WEST P.O, KOTTAYAM 686 008. BY ADVS. ABRAHAM VAKKANAL (SR.) PAUL ABRAHAM VAKKANAL VINEETHA SUSAN THOMAS ROHITH C. ## **RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, TRIVANDRUM 695 001. 2 SUPERINTENDENT, MEDICAL COLLEGE HOSPITAL, GANDHINAGAR P.O, KOTTAYAM 686 008. BY SR.GOVERNEMNT PLEADER SRI.BIJOY CHANDRAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22.06.2022 ALONG WITH W.A. NO. 747 OF 2022, THE COURT ON 27.06.2022 DELIVERED THE FOLLOWING: W.A. Nos. 747 and 745/2022, **- 2 -** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. MONDAY, THE 27TH DAY OF JUNE 2022 / 6TH ASHADHA, 1944 WA NO. 747 OF 2022 AGAINST THE JUDGMENT IN WP(C) 9615/2021 OF HIGH COURT OF** **KERALA** ## **APPELLANTS/PETITIONERS:** 1 ARIFA BEEVI VAZHAKALAYIL HOUSE, PERUMBAIKADU.P. O., KOTTAYAM- 686016 2 LEELAMANI, PRASANTH NIVAS, LAKATTOOR P. O., KOTTAYAM- 686502 3 RADHA, PARAMPIL HOUSE, KUMARAKOM NORTH P.O., KOTTAYAM- 686563 4 RADHAMANI S., THAZHATHEKUTTU HOUSE, KUMARANALLOOR P.O. KOTTAYAM-686016 5 SUDHARMA THANKAPPAN, KURIYATTEL HOUSE, KAIPUZHA P. O., KOTTAYAM-686602 6 SYAMALA KUMARI, THAZHATHEKUTTU HOUSE, **- 3 -** W.A. Nos. 747 and 745/2022, KUMARANALLOOR P. O. KOTTAYAM-686016. BY ADVS. ABRAHAM VAKKANAL (SR.) PAUL ABRAHAM VAKKANAL VINEETHA SUSAN THOMAS ROHITH C. ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, TRIVANDRUM- 695001 2 SUPERINTENDENT, MEDICAL COLLEGE HOSPITAL, GANDHINAGAR P.O. , KOTTAYAM- 686008 BY SR.GOVERNEMNT PLEADER SRI.BIJOY CHANDRAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22.06.2022, THE COURT ON 27.06.2022 DELIVERED THE FOLLOWING: W.A. Nos. 747 and 745/2022, **- 4 -** ## **J U D G M E N T** ## Mohammed Nias.C.P. These Writ Appeals are filed by the writ petitioners being aggrieved by the dismissal of their writ petitions that sought to quash the Government Orders which fixed the upper age limit of 60 years on the basis of which their services were discontinued. The petitioners are daily wage cleaning staff members appointed by the Superintendent of Kottayam Medical College and they contended that they were doing the same job for the past 34 years. The petitioners alleged that there was discrimination in fixing the upper age limit of 60 for them alone while the daily wage employees recruited through the other four sources namely, Daily wages employees engaged by Hospital Development Society (HDS), Daily wages employees engaged by Hospital Management Committee (HMC), Daily wages employees engaged by Hospital Development Committee (HDC) and Daily wages employees employed under projects funded by Rashtria Swasthya Bima Yojana 100 projects,(RSBY) would retire only at the age of 65. Thus, it is the contention of the appellant/ Writ petitioners that all these persons recruited from different sources were doing the same job and earning the **- 5 -** ## W.A. Nos. 747 and 745/2022, same income though they came from different sources, and thus fixing an upper age limit for the petitioners alone is discriminatory. 2. The petitioners submit that the Additional Chief Secretary to Government had issued a letter, Ext. P12 dated 28-11-2017 to the Superintendent of Medical College Hospital, Kottayam directing that from among the 104 employees working on daily wage basis, the services of those who turn 60 years as on 31-10-2017 should be terminated and a fresh proposal was to be submitted with respect to others. The 2[nd] respondent passed orders on 12-12-2017 (Ext. P2) terminating the services of 20 employees who had completed 60 years of age. Apprehending similar treatment, the petitioners in W.P.C. 26876/2020 filed a Writ Petition in which a direction was issued to the Government to consider their representation (Ext. P2) which was considered by the Government and rejected by Ext. P3 order. It is Ext. P3 which was challenged in the writ petitions. ## 3. Petitioners also relied on the judgment in **Kerala Brahmana** ## **Sabha v. Vamana Prabhu & Others [2019 (3) KLT 438]** to support their contention that there were no reason forthcoming in the impugned orders and thus they are bad. They also alleged discrimination as according to them, the other workers engaged through different sources **- 6 -** ## W.A. Nos. 747 and 745/2022, were allowed to work even up to the age of 70. Petitioners also claimed that in the event of their termination being upheld, there may be a direction to pay compensation to them under Section 25 (f) Industrial Disputes Act, as the termination amounted to retrenchment. The Government, on the other hand, contended that the petitioners have no legal right to seek continuance as they were engaged on daily wages by the 2[nd] respondent when there was a shortage of cleaning staff and such engagement was not to any sanctioned post or after conducting any selection process. These aspects were considered by the Government while passing Ext.P3 order which is a speaking order. Government also contended that the petitioners cannot seek parity with the service conditions of the other part-time contingent employees in the Government or the contractual employees appointed by the Hospital Development Society, as those employees were engaged in the sanctioned posts after a due selection process and thus they were not similarly situated. 4. The learned Single Judge who considered the matter found that the petitioners were appointed on daily wages without undergoing any selection procedure and such engagements will not confer them any right for continuance or for regularization in service going by the principles laid down by the Supreme Court in **State of Karnataka v. Umadevi and Other** **[(2006) 4 SCC 1)]** and the decisions that followed **Umadevi.** The ## W.A. Nos. 747 and 745/2022, argument that Ext. P12 order is a not a reasoned order cannot stand in view of Ext. P3 order of the Government passed pursuant to the direction issued by this Court. Thus, accepting the stand of the Government and without prejudice to the right of the petitioner to approach the appropriate forum for raising their claims, if any under the Industrial Disputes Act, the Writ Petitions were dismissed. 5. In the appeals before us, the learned Senior counsel Mr. Abraham Vakkanal submitted that the petitioners had been working for more than 20 years and some of them even for 30 years and they had rendered valuable service during the period of covid pandemic. It is the submission that there is a requirement for the job and that similarly placed daily wage workers coming from different streams had an upper age limit of up to 70 years as opposed to 60 years being implemented on the petitioners. The learned Senior Counsel vehemently argued in the alternative that even if the petitioners had no legal right as such, on humanitarian considerations, they should be allowed to continue up to the same age of similarly situated daily wage workers. 6. The learned senior counsel also argued that one set of daily wagers cannot be replaced by another set of daily wages. It was also the submission of the learned senior counsel that considering the age of the **- 8 -** W.A. Nos. 747 and 745/2022, petitioners and there being no chance of getting any other employment, a lenient view may be taken directing continuance of their service. 7. Having heard the learned senior counsel for the petitioners the learned government Pleader and perusing the records, we do not find any reason to interfere with the judgment of the learned Single Judge dismissing the writ petitions. As rightly found by the learned Single Judge, the petitioners were not appointed to any sanctioned post or on the basis of any selection procedure, the continuance of daily wages will not confer on them any right either for continuance or for regularisation in service going by the principles in **Umadevi** (supra) and the subsequent decisions. We also notice that Ext. P3, the order passed by the Government pursuant to the direction issued by this of this Court contained reasons and the argument that Ext. P12 does not contain a reason cannot be accepted in view of the well reasoned order , Ext. P3. The stand of the Government that the petitioners were appointed on daily wages to tide over the shortage of cleaning staff and that they cannot be equated with the contingent employees in government service or the contractual employees appointed by the Hospital Development Society following the selection procedure has to be accepted. In such circumstances, we cannot accede to the request of the learned senior counsel for the appellants that on humanitarian grounds, the petitioners should be allowed to continue. We are afraid that, we can only ## W.A. Nos. 747 and 745/2022, render justice in accordance with law and not in violation of it. We have also taken a similar view in Kannan P.A. & Others v. State of Kerala and Other (W.P.C. No. 640 of 2022) by our judgment dated 15[th] June, 2022, wherein we have considered the rights and status of similarly placed daily wagers while rejecting the request for continuance and regularization and we are bound by the same. We make it clear that the dismissal of these appeals will not stand in the way of the appellants pursuing their remedies, if any, under the Industrial Disputes Act, if they are so advised. In the result, these appeals fail and it is accordingly, dismissed. Sd/- ## **A.K.JAYASANKARAN NAMBIAR JUDGE** Sd/- **MOHAMMED NIAS C.P JUDGE** _ani/_ **- 10 -** W.A. Nos. 747 and 745/2022, ## **APPENDIX OF WA 745/2022** PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE G.O(RT) NO. 2466/2018/H&FWD DT. 2.8.2018.