W.A.No. 1711 of 2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE ASHOK BHUSHAN & THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE** ## **TUESDAY, THE 22ND DAY OF JULY 2014/31ST ASHADHA, 1936** ## **WA.No. 1711 of 2012 ()** ## **-------------------------------WP(C) 12963/2012 of THIS HONOURABLE COURT** **-----------** ## **APPELLANTS/3RD PARTY :** **-------------------------------------** **1. ANOOP G. MENON, S/O.V.N.GOVINDANKUTTY MENON, RESIDING AT GEETHA GOVINDAM, KAKKATTAPARAMBIL, EROOR SOUTH P.O., THRIPPUNITHURA-682306.** **2. THAMPI P.R., S/O.M.K.RAMAN, RESIDING AT PATTUPARAMBIL HOUSE, EROOR WEST, THRIPPUNITHURA-682306.** **BY ADVS.SRI.C.S.AJITH PRAKASH SRI.M.P.PRAKASH SRI.PAUL C THOMAS** ## **RESPONDENTS/WRIT PETITIONERS/RESPONDENTS IN W.P.(C):** **------------------------------------------------------------------------------------------** **1. K.K.HARIDAS SECURITY GUARD (DAILY WAGE) GOVERNMENT AYURVEDA MEDICAL COLLEGE HOSPITAL, THRIPUNITHURA, RESIDING AT KALAYIL PARAMBIL HOUSE KULAYETTIKKARA P.O., KANJIRAMATTOM, ERNAKULAM DISTRICT - 682315.** **2. C.R.SUNDARESAN, SECURITY GUARD(DAILY WAGE) GOVERNMENT AYURVEDA MEDICAL COLLEGE HOSPITAL, THRIPUNITHURA, RESIDING AT CHUNDENGA PARAMBIL HOUSE, POOPATHY, THRISSUR DISTRICT, 682301.** **3. N.REGHUTHAMANSECURITY GUARD (DAILY WAGE) GOVERNMENT AYURVEDA MEDICAL COLLEGE HOSPITAL, THRIPUNITHURA, RESIDING AT ANCHUTHAIKKAL HOUSE, CHOORAKKAD LANE, THEKKUMBHAGOM, THRIPUNITHURA P.O., ERNAKULAM DISTRICT, 682301.** **4. UTHAMAN V.K., SECURITY GUARD (DAILY WAGE) GOVERNMENT AYURVEDA MEDICAL COLLEGE HOSPITAL, THRIPUNITHURA, RESIDING AT VELLAKKATTU HOUSE NETTOOR P.O., ERNAKULAM DISTRICT, 682304.** ## **WA.No. 1711 of 2012 ()** **5. K.K.RAJANI, SWEEPER(DAILY WAGE) GOVERNMENT AYURVEDA MEDICAL COLLEGE HOSPITAL, THRIPUNITHURA, RESIDING AT KANNEMPALLIL HOUSE UDAYAMPEROOR, ERNAKULAM DISTRICT, 682307.** **6. RAMANI T.R., SWEEPER(DAILY WAGE) GOVERNMENT AYURVEDA MEDICAL COLLEGE HOSPITAL, THRIPUNITHURA, RESIDING AT MANAKKUMBEL HOUSE, UDAYAMPEROOR P.O., ERNAKULAM DISTRICT, 682307.** **7. MERCY MARTIN, SWEEPER(DAILY WAGE), GOVERNMENT AYURVEDA MEDICAL COLLEGE HOSPITAL, THRIPUNITHURA, RESIDING AT PADUPURACKAL HOUSE, PUTHIYAKAVU, THRIPUNITHURA, ERNAKULAM DISTRICT - 682301.** **8. LALITHA SUBRAMANIAM, SWEEPER(DAILY WAGE) GOVERNMENT AYURVEDA MEDICAL COLLEGE HOSPITAL, THRIPUNITHURA, RESIDING AT EDAMPADATHU HOUSE, THEKKUMBHAGOM, CHOORAKKADU, THRIPUNITHURA, ERNAKULAM DISTRICT, 682307.** **9. SHAILAJA UTHAMAN, SWEEPER(DAILY WAGE) GOVERNMENT AYURVEDA MEDICAL COLLEGE HOSPITAL, THRIPUNITHURA, RESIDING AT KALATHUCHIRA HOUSE, CHEMPU, KOTTAYAM DISTRICT, 686615.** **10. SANTHA THANKAPPAN, SWEEPER(DAILY WAGE) GOVERNMENT AYURVEDA MEDICAL COLLEGE HOSPITAL THRIPUNITHURA, RESIDING AT THEKKEPARAMBIL HOUSE ARAKKUNNAM, EDAKKATTUVAYAL P.O., ERNAKULAM DISTRICT - 682313.** **11. VASANTHI SASIDHARAN, SWEEPER(DAILY WAGE) GOVERNMENT AYURVEDA MEDICAL COLLEGE HOSPITAL, THRIPUNITHURA, RESIDING AT THRIKKATHIL HOUSE NAGAPPADY, CHOTTANIKKARA P.O., 682312.** **12. JAYALAKSHMI BALAN SWEEPER(DAILY WAGE) GOVERNMENT AYURVEDA MEDICAL COLLEGE HOSPITAL THRIPUNITHURA, RESIDING AT THALAKKOTTUPARAMBIL HOUSE THEKKUMBHAGOM, THRIPUNITHURA, ERNAKULAM DISTRICT 682301.** **13. A.C.SANISH, SWEEPER(DAILY WAGE) GOVERNMENT AYURVEDA MEDICAL COLLEGE HOSPITAL THRIPUNITHURA, RESIDING AT ULLELIPARAMBIL HOUSE THAIKKATTUKARA P.O., ALUVA, ERNAKULAM DISTRICT- 683106.** **14. V.J.ANIL KUMAR, SWEEPER(DAILY WAGE) GOVERNMENT AYURVEDA MEDICAL COLLEGE HOSPITAL THRIPUNITHURA, RESIDING AT VADAKKANCHERIYIL HOUSE UDAYAMPEROOR, ERNAKULAM DISTRICT, 682307.** ## **WA.No. 1711 of 2012 ()** **15. P.V.MAHILAMANI, SWEEPER(DAILY WAGE) GOVERNMENT AYURVEDA MEDICAL COLLEGE HOSPITAL THRIPUNITHURA, RESIDING AT CHERUKUTTIKKAL HOUSE MARADU P.O., THRIPUNITHURA, ERNAKULAM DISTRICT- 682304.** **16. T.M.JALAJA, SWEEPER(DAILY WAGE) GOVERNMENT AYURVEDA MEDICAL COLLEGE HOSPITAL THRIPUNITHURA, RESIDING AT KOTTATTU HOUSE, PERUMBALAM ERNAKULAM DISTRICT, 688570.** **17. PRASANNA RAMESAN, SWEEPER(DAILY WAGE) GOVERNMENT AYURVEDA MEDICAL COLLEGE HOSPITAL THRIPUNITHURA, RESIDING AT ATHIKKAPADAVU HOUSE KARIPPADAM P.O., KOTTAYAM DISTRICT-686605.** **18. K.P.SUNAJA, SWEEPER(DAILY WAGE) GOVERNMENT AYURVEDA MEDICAL COLLEGE HOSPITAL, THRIPUNITHURA, RESIDING AT PIRITHOTTIL HOUSE, THEKKUMBHAGOM, THRIPUNITHURA, ERNAKULAM DISTRICT- 682307.** **19. P.N.RAJU, SWEEPER(DAILY WAGE) GOVERNMENT AYURVEDA MEDICAL COLLEGE HOSPITAL, THRIPUNITHURA, RESIDING AT PULIMOOTTIL HOUSE, MULANTHURUTHI P.O., ERNAKULAM DISTRICT, 682314.** **20. ROSSY SIMON, SWEEPER(DAILY WAGE) GOVERNMENT AYURVEDA MEDICAL COLLEGE HOSPITAL, THRIPUNITHURA, RESIDING AT CHEMBISSERIL HOUSE, PUTHIYAKAVU, ERNAKULAM DISTRICT, 682307.** **21. IYSHA BEEVI K.S., SWEEPER(DAILY WAGE), GOVERNMENT AYURVEDA MEDICAL COLLEGE HOSPITAL, THRIPUNITHURA, RESIDING AT MUDAPPANAL HOUSE, MARITHAZHAM P.O., KANJIRAMATTOM ERNAKULAM DISTRICT-682315.** **22. HOSPITAL DEVELOPMENT SOCIETY, REPRESENTED BY ITS SECRETARY, GOVERNMENT AYURVEDA MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM, PIN 695001.** **23. THE CHAIRMAN, HOSPITAL DEVELOPMENT SOCIETY, GOVERNMENT AYURVEDA MEDICAL COLLEGE HOSPITAL TRIPUNITHURA, (DIRECTOR OF AYURVEDA MEDICAL EDUCATION AROGYABHAVAN, M.G.ROAD, THIRUVANANTHAPURAM-695001).** ## **24. THE PRINCIPAL** - **GOVERNMENT AYURVEDA MEDICAL COLLEGE HOSPITAL, TRIPUNITHURA, PIN 682301.** **25. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF MEDICAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM, PIN 695001.** ## **WA.No. 1711 of 2012 ()** **26. KERALA NON-GAZETTED OFFICERS' ASSOCIATION, REPRESENTED BY ITS GENERAL SECRETARY, BAKERY JUNCTION, THIRUVANANTHAPURAM-695001.** **R1 BY ADV. SRI.ASOK M.CHERIAN BY ADV. SRI.T.R.RENJITH BY ADV. SRI.S.KANNAN BY GOVERNMENT PLEADER SRI. RENNI STEPHEN CHAMAPARAMBIL** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** **WA.No. 1711 of 2012 ()** ## **APPENDIX** **PETITIONER'S ANNEXURES : ANNEXURE AL: COPY OF THE ORDER OF APPOINTMENT DT 5/6/2012 ANNEXURE AII: COPY OF THE ORDER OF APPOINTMENT DT 5/6/2012. RESPONDENT'S ANNEXURES : NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **BP** ## **ASHOK BHUSHAN, J & A.M.SHAFFIQUE, J. * * * * * * * * * * * * *** W.A.No.1711 of 2012 ---------------------------------------Dated this the 22[nd] day of July 2014 ## **J U D G M E N T** ## **Shaffique,J** This appeal is filed by a third party against the judgment of the learned Single Judge in W.P.C.No.12963/2012. Respondents 1 to 21 herein were the petitioners in the writ petition. The writ petition was filed seeking for a declaration that the petitioners are entitled to continue in service till they attain the age of superannuation. The petitioners were security guards and sweepers employed by the Hospital Development Society. The learned Single Judge, relied upon an earlier judgment of this Court in O.P.No.6310/1999 produced as Ext.P1, directed that the same benefit is to be given to the petitioners. The judgment in O.P.No.6310/1999 dated 12/06/2006 reads as under: W.A.No.1711/2012 2 _“The petitioners are employees engaged by the hospital development committee, the first respondent herein. This Court has already disposed of several writ petitions, raising identical claim against the concerned hospital development committees. This Court has ordered that petitioners in those cases may be retained in service subject to the existing conditions of employment till their age of superannuation, subject to the further stipulation that total expense for the salary of the persons employed, including the petitioners herein does not exceed 50% of the income of committee. The age of superannuation of ex-service security men will be 60 and that of the others will be 55. The petitioners, therein, were directed to give an undertaking to the effect that they will not claim regularization in service for retaining them as above. It is ordered that the aforementioned conditions subject to which this Court has already disposed of other writ petitions will govern the petitioners herein also. They shall be retained in service subject to those conditions. It is clarified that the disciplinary powers of the competent_ W.A.No.1711/2012 3 _authority are in no way affected by this judgment.”_ The said judgment had been followed in another case also in W.P.C.No.350/2006 dated 25/01/2007. 2. The main contention urged by the appellants is that after the judgment of the Supreme Court in **State of Karnataka v. Umadevi** _[(2006) 4 SCC 1]_ , Court cannot direct persons employed on daily wages to continue till the age of superannuation. The learned counsel referred to the following paragraphs in **Umadevi** ’s case (supra) which reads as under: _“_ _**48.** It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department_ W.A.No.1711/2012 4 _concerned on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment_ W.A.No.1711/2012 5 _with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled._ _**49.** It is contended that the State action in not regularising the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a_ W.A.No.1711/2012 6 _direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution._ _**50.** It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable_ W.A.No.1711/2012 7 _manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their own volition and with eyes open as to the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal_ W.A.No.1711/2012 8 ## _of equality._ _**51.** The argument that the right to life protected by Article 21 of the Constitution would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the backdoor. The obligation cast on the State under Article 39(a) of the Constitution is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognise that an appointment to a post in government_ W.A.No.1711/2012 9 _service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognised by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualising justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The directive principles of State policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution.”_ 3. Learned counsel appearing on behalf of respondents 1 to 21 would submit that the appellants are not affected by the directions issued and several similarly placed persons were given the benefit of continuing in service till the age of superannuation. That apart, it is submitted that the Committee, having decided to permit the petitioners to continue in service and they have given an W.A.No.1711/2012 10 undertaking that they will not ask for regularisation, there is no reason to challenge the impugned judgment. 4. Having heard the learned counsel for the appellants as well as the learned counsel appearing for respondents 1 to 21, we are of the view that after the pronouncement of the judgment in **Umadevi** ’s case (supra), this Court cannot direct any person, who is appointed other than by due process of law that is by way of inviting applications and appointment through Kerala Public Service Commission or Employment Exchange, as the case may be, to be regularised nor can this Court direct the daily wage employees to be retained in service till the age of superannuation. Under such circumstances, the impugned judgment is apparently against the decision of the Supreme Court in **Umadevi** ’s case (supra) and therefore, we are inclined to allow the appeal. In the result, i) The writ appeal is allowed. W.A.No.1711/2012 11 ii) The judgment of the learned Single Judge is set aside, dismissing the writ petition. (sd/-) **(ASHOK BHUSHAN, JUDGE)** (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr W.A.No.1711/2012 12 W.A.No.1711/2012 13