W.P.(C). Nos. 1893/2020 & 1629/2020, High Court of Kerala, Ernakulam

W.P.(C).Nos.1893 & 1629/2020 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942** ## **WP(C).No.1629 OF 2020(R)** ## **PETITIONERS:** **1 ABDUNNASER P.P. AGED 47 YEARS S/O. PACKER HAJI, POOKATTUPURAYIL, KODUVALLY, KOZHIKODE-673 572, WORKING AS A COURT MANAGER, PRINCIPAL DISTRICT AND SESSIONS COURT, MANJERY, KACHERIPPADI, MALAPPURAM-676 121.** **2 MANOJ G. AGED 53 YEARS S/O. LATE GOPALAKRISHNA PANICKER, KALIYILZHIKATHU, NEAR KRISHNAN KOVIL, THOLICODE (PO), KOLLAM-691 333, WORKING AS COURT MANAGER, PRINCIPAL DISTRICT AND SESSIONS COURT, COURT ROAD, KOZHIKODE-693 032.** - **3 NIKHIL M.SARATH AGED 34 YEARS** **S/O. SARA CHANDRAN, MANIMANDIRAM, MELARANOOR, KARMANA, THIRUVANANTHAPURAM-695 002, WORKING AS COURT MANAGER, PRINCIPAL DISTRICT SESSIONS COURT, AYYANTHOLE P.O., THRISSUR-679 576.** **4 MANOJ K AGED 42 YEARS S/O. K.KESAVAN POTTY, MUTTATHUVADAKKEDAM, MARUTHOORKULANGARA SOUTH, ALUMKADAVU (PO), KARUNAGAPPALLY, KOLLAM-690 573, WORKING AS COURT MANAGER, PRINCIPAL DISTRICT AND SESSIONS COURT, VANCHIYOOR (PO), THIRUVANANTHAPURAM-695 035.** **BY ADVS. SRI.V.T.MADHAVANUNNI SRI.M.VIVEK RABINDRANATH** 2 W.P.(C).Nos.1893 & 1629/2020 ## **RESPONDENTS:-** - **1 STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT HOME (C) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE REGISTRAR (SUBORDINATE JUDICIARY) HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.** **R1 BY SPL.GOVERNMENT PLEADER N.MANOJ KUMAR R2 BY ADV. SRI. SANTHOSH MATHEW SHRI.B.G.HARINDRANATH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-12-2020, ALONG WITH WP(C).1893/2020(R), THE COURT ON 291-2021 DELIVERED THE FOLLOWING:** W.P.(C).Nos.1893 & 1629/2020 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 29TH DAY OF JANUARY 2021 / 26TH AGRAHAYANA, 1942 WP(C).No.1893 OF 2020(R)** ## **PETITIONERS:** |**1**|**KALA B.S.**| |---|---| ||**AGED 46 YEARS**| ||**COURT MANAGER, DISTRICT COURT, ERNAKULAM.**| |**2**|**ANSARI K,**| ||**COURT MANAGER, DISTRICT COURT, PATHANAMTHITTA.**| |**3**|**S. SERGI DAS,**| ||**COURT MANAGER, DISTRICT COURT, KOLLAM.**| |**4**|**K. HARIKUMAR NAMBOOTHIRI,**| ||**COURT MANAGER, DISTRICT COURT, KOTTAYAM.**| ||**BY ADVS.**| ||**SRI.K.JAJU BABU (SR.)**| ||**SRI.BRIJESH MOHAN**| ||**KUM.NEETU VINOD**| ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT OF KERALA, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT OF KERALA AND SECRETARY TO GOVERNMENT. FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001** W.P.(C).Nos.1893 & 1629/2020 4 - **3 THE HIGH COURT OF KERALA, REPRESENTED BY THE REGISTRAR (SUBORDINATE JUDICIARY), ERNAKULAM, COCHIN-682 031** - **R1 BY SPL.GOVERNMENT PLEADER N.MANOJ KUMAR R3 BY ADV. SRI.SANTHOSH MATHEW** - **R3 BY ADV. SHRI.B.G.HARINDRANATH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-12-2020, ALONG WITH WP(C).1629/2020(R), THE COURT ON 291-2021 DELIVERED THE FOLLOWING:** W.P.(C).Nos.1893 & 1629/2020 5 ## **ANU SIVARAMAN, J.** ## **= = = = = = = = = = = = = = =** ## **W.P.(C).Nos.1629/2020 & 1893/2020 = = = = = = = = = = = = = = = = Dated this the 29[th] day of January, 2021** ## **JUDGMENT** - 1.The petitioners in these writ petitions, totalling eight in number, seek regularization of their services as Court Managers in District and Sessions Courts on the strength of the order issued by the Apex Court on 2/8/2018 in the All India Judges Association Case. 2. Heard learned Senior Counsel for the petitioners, learned Government Pleader as well as the learned counsel appearing for the 2[nd] respondent. The parties and documents are being referred to in this judgment as in W.P.(C).No.1893 of 2020, unless otherwise specifically mentioned. 3. It is submitted that the 13[th] Finance Commission constituted under Article 280 of the Constitution of India recommended creation of posts of Court Managers in District and Sessions Court as well as in the High Courts. By Exhibit P1 order dated W.P.(C).Nos.1893 & 1629/2020 6 28.11.2011, the Government sanctioned the creation of 16 posts in the State of Kerala (14 in every Judicial District and 2 in the High Court) The posts were contemplated to be in the scale of pay of Sheristadar, District Court. After the expiry of the award period of the 13[th] Finance Commission, the Government of India took the stand that the financial commitment with regard to the posts would have to be borne by the State. 4. By Exhibit P2 notification dated 17.2.2014, the High Court invited applications for appointment of Court Managers in 14 districts. The petitioners participated in the selection and were included in Exhibit P3 ranked list. 12 persons were appointed from the list in the scale of pay of Sheristhadar, District Court by Exhibit P4 dated 25.08.2014. The petitioners are eight of the Court Managers, who are still in service. The term of appointment of the Court Managers was extended from time to time. Due appraisal was conducted by the District Judges on the recommendation of the Finance Commission and the District Judges recommended the W.P.(C).Nos.1893 & 1629/2020 7 continuance of the post. On the basis of the decisions of the High Court, the posts were continued. The pay was also revised by Exhibit P14 proceedings of the Government. Thereafter, the High Court requested the continuance of the posts of Court Managers in the District Courts and sought a clarification whether the remaining five posts are to be filled up. On 4.7.2017, the appointment of the Court Manager in Palakkad was terminated and Government accorded sanction for continuance of the 8 posts held by the petitioners in these writ petitions. ## 5.While so, on 2.8.2018 Exhibit P6 order was issued by the Apex court. The directions were as follows:- “Professionally qualified Court Managers, preferably with an MBA degree, must also be appointed to render assistance in performing the court administration. The said post of Court Managers must be created in each judicial district for assisting Principal District and Sessions Judges. Such Court Managers would enable the District Judges to devote more time to their core work, that is, judicial functions. This, in turn, would enhance the efficiency of the District Judicial System. These Court Managers would also help in identifying the weaknesses in the court management systems and recommending workable steps under the supervision of their respective judges for rectifying the same. **The services of any person already working** W.P.(C).Nos.1893 & 1629/2020 8 **as a Court Manager in any district should be regularised by the State Government as we are of the considered view that their assistance is needed for proper administrative set up in a Court.** ”(emphasis supplied) 6. A representation was submitted by the 1[st] petitioner before the High Court seeking regularisation in implementation of Exhibit P6. The High Court also forwarded a proposal for sanctioning the permanent posts and for regularisation of Court Managers working in the district courts on the basis of Exhibit P6. On 10.4.2019 by Exhibit P9, the Government accorded sanction for continuance of 8 posts temporarily. However, no orders were passed on the request for regularisation. Further proposals were submitted by the High Court for amending the Kerala Judicial Ministerial Service Rules to include the post of Court Managers in the district court. However, by Exhibit P11 dated 3.2.2020 the Government ordered that regularization of existing incumbents cannot be allowed in view of the judgment **in State of Karnataka and others v. Umadevi and others** [2006 KHC 50]. The Government further sanctioned 14 posts in consolidated pay of Rs.42,500/- and directed the filling up of W.P.(C).Nos.1893 & 1629/2020 9 the posts. When Ext. P11 was subjected to challenge on the ground that it was vitiated by total want of application of mind, the Government passed Exhibit P12 order dated 7.2.2020 cancelling Exhibit P11. Thereafter, the Government issued orders on 13.5.2020 permitting the continuance of 8 post for a period of one year on contract basis to the consolidated pay of Rs.42,500 by Exhibit P13. The said orders are also under challenge in W.P.(C).No.1893/2020 by way of amendment carried out. 7.The learned Senior Counsel appearing for the petitioners submits that the action of the Government in issuing orders in the nature of Exhibits P11 and P13, in the light of Exhibit P6 directions issued by the Apex court is an affront to the orders and authority of the Apex Court and is liable to be set aside. It is submitted that the practice in the Government of passing orders mechanically at the lowest levels of governance without any understanding of the legal implications, is only to be deprecated. Relying on the file notes produced along with the reply affidavit, the learned Senior counsel would contend that ## W.P.(C).Nos.1893 & 1629/2020 10 the rejection of the request of the petitioners for regularization, which was specifically on the basis of a direction by the Apex court, which could not have been flouted by the State Government, virtually amounts to contempt of the orders and authority of the Apex court as well as a specific recommendation of the High Court and is therefore per se, illegal and invalid. 8. The learned Senior Counsel appearing for the petitioners in W.P.(C).No.1893/2020 places reliance on the decisions of the Apex Court in **Director of Settlements A.P. v. M.R.Apparao and another** [2003 KHC 226] **M.Gurumoorthy v. Accountant-General, Assam and Nagaland and others** [(1971) 2 SCC 137], **Nihal Singh and others v. State of Punjab and others** [(2013)14 SCC 65], **Sagar Sharma and another v. Phoenix Arc Pvt.Ltd and another** [2019 KHC 6989] and in **M/s.Shenoy and Co. Bangalore and others v. Commercial Tax Officer, Circle II, Bangalore and others** [1985 KHC 607]. W.P.(C).Nos.1893 & 1629/2020 11 9. A counter affidavit has been placed on record by the first respondent. The factual aspects of the matter are not disputed in the counter affidavit. The fact that the Apex Court in Exhibit P6 have directed the regularisation of the persons working as Court Managers in the district court is also not disputed. It is also not disputed that the High Court had recommended the regularization specifically in the light of Exhibit P6. However, at paragraphs 5 and 6 of the counter affidavit, it is stated as follows. “5. In this regard, it is most humbly submitted that, the posts of District Managers in which the petitioners are working are not permanent and regular recruitment process of prescribed procedure were not followed while appointing the petitioners to the said posts. Thus it tends to defeat the very Constitutional Scheme of public employment and is against the interest of the State as well as qualified persons who are eligible to be considered for appointment to the said posts. 6. It is also submitted that these posts are created purely on temporary basis co-terminus with the 13[th] Finance Commission award period. Regularization of employees or officers appointed on contract basis will be against dictum laid down by the Hon’ble Supreme Court in State of Karnataka and Others Vs, Umadevi and Others (2006 KHC 50). “ W.P.(C).Nos.1893 & 1629/2020 12 ## 10.Further paragraph 12 of the counter affidavit is also extracted here under:- “12. It is submitted that while considering the above Writ Petition, this Hon'ble Court on 17.03.2020 ordered that petitioners shall be allowed to continue. Accordingly, vide G.O(Rt) No. 1138/2020/Home dated 13.05.2020, Government have accorded sanction for continuance of eight posts of Court Managers working in the Principal District Courts of Thiruvananthapuram, Kollam, Pathanamthitta, Kottayam, Ernakulam, Thrissur, Manjeri and Kozhikode, for a further period of one year, on contract basis, with a consolidated pay of Rs.42,500/per month.” ## 11. The High Court has also placed a counter affidavit on record Paragraph 13 therein reads as follows:- “13. It is submitted that the Hon'ble Supreme Court in paragraph 12 of the order in Interlocutory Application No. 279 of 2010 in Writ Petition (Civil) No. 1022 of 1989 had categorically stated that the services of the person already working as Court Manager should be regularised by the State Government. The Hon'ble Supreme Court is of the view that considering the fact that the assistance is needed for proper administration of the Court, their services ought to be regularised. It is submitted that the Government order now passed is contrary to the directions contained in the judgment cited supra. What is contemplated is regularisation and not contract appointment. The Order passed is in ignorance of the order of the Hon'ble Supreme Court.” W.P.(C).Nos.1893 & 1629/2020 13 12.I have considered the contentions advanced on all sides. It is the specific case of the petitioners that they had been appointed as Court Managers pursuant to a selection conducted by this Court. The Apex court had in Exhibit P6 order specifically directed the regularisation of those persons presently working as Court Managers in the District Courts. Their performance had also been subjected to appraisal by the respective District Judges. In the above factual situation, the action of the 1[st] respondent in having passed orders in the nature of Exhibits P11 and P13 is completely unsustainable and suffers from vice of absolute want of application of mind. The note files produced along with the reply affidavit, which were obtained under the Right to Information of Act would clearly show that the Head of the department, that is, the Law Secretary had specifically pointed out that the regularization is recommended by the High Court on the basis of directions of the Apex Court. 13.In the above view of the matter, I have no hesitation in holding that the petitioners are eligible for regularisation on W.P.(C).Nos.1893 & 1629/2020 14 the basis of Exhibit P6 directions issued by the Apex Court on the same terms and conditions that existed on the date of Ext.P6 order of the Apex Court. It is so ordered. The petitioners shall be regularised in service and placed in the scale of pay as provided in Exhibit P1 order. 14.Further, before parting with the case, in view of the arguments raised by the learned senior counsel appearing for the petitioners as well the learned counsel appearing for the High Court, I am of the opinion that it is only proper that in specific cases of directions issued by the Apex Court and recommendations forwarded by the High Court in pursuance thereto, the files shall be immediately placed before the Law Secretary and opinion rendered thereon before they are put up through the sections for comments. The existence of Rules of Conduct framed under Article 166(3) of the Constitution of India should not be cited as a reason for the issuance of orders in the nature of Exts.P11 and P13, which amount to an affront to the provisions of Article 141 of the Constitution of India. The necessary instruction shall be issued by the competent W.P.(C).Nos.1893 & 1629/2020 15 respondent within a period of one month from the date of receipt of a copy of the judgment. Writ petitions are ordered accordingly. **Anu Sivaraman, Judge** sj ## **APPENDIX OF WP(C) 1629/2020** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE G.O(MS)NO.265/2011/HOME DATED 28.11.2011 OF THE RESPONDENT NO.1. EXHIBIT P2 A TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT DATED 2.8.2018 IN INTERLOCUTORY APPLICATION NO.279 OF 2011 IN WRIT PETITION (CIVIL) NO.1022 OF 1989. EXHIBIT P3 A TRUE COPY OF THE LETTER NO.D8-70219/2010 DATED 7.11.2018 SEND BY THE HON'BLE HIGH COURT OF KERALA TO RESPONDENT NO.1. EXHIBIT P4 A TRUE COPY OF THE OFFICIAL MEMORANDUM O.M.NO.B1(C)-73312/2018 DATED 7.2.2019 SENT BY THE REGISTRAR TO THE PETITIONERS. EXHIBIT P5 A TRUE COPY OF THE G.O. (RT)NO.1074/2019/HOME DATED 10.4.2019 ISSUED BY THE RESPONDENT NO.1.** |RESPONDENT'S EXHIBITS|| |---|---| |**EXHIBIT R2(A)**|**A TRUE COPY OF THE G.O.(MS)NO.84/2013/HOME**<br>**DATED 30.3.2013**| W.P.(C).Nos.1893 & 1629/2020 17 ## **APPENDIX OF WP(C) 1893/2020** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF G.O(MS) NO. 265/2011/HOME DATED 28.11.2011 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P2 TRUE COPY OF NOTIFICATION NO. REC 4- 5502/2014 DATED 17.2.2014 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF THE RANKED LIST DATED 1.7.2014 PUBLISHED BY THE 3RD RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF ORDER NO. B1-66563/2014 DATED 25.8.2014 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF LETTER NO. D8-70219/2010 DATED 23.1.2016 ISSUED BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 2.8.2018 OF THE HON'BLE SUPREME COURT IN ALL INDIA JUDGES ASSOCIATION CASE 2010 (14) SCC 705.** - **EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 10.10.2018 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE LETTER NO. D870219/2010 DATED 7.11.2018 ISSUED BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT.** **EXHIBIT P9 TRUE COPY OF G.O(RT) NO. 1074/2019/HOME DATED 10.4.2019 ISSUED BY THE 1ST RESPONDENT.** W.P.(C).Nos.1893 & 1629/2020 18 **EXHIBIT P10 COPY OF THE LETTER NO.D8-70219/2010 DATED 25/01/2020 ISSUED BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT.** - **EXHIBIT P11 COPY OF GO(MS) NO.42/2020/HOME DATED 03/02/2020.** - **EXHIBIT P12 TRUE COPY OF THE GOVERNMENT ORDER NO.427/2020/HOME DATED 7.2.2020, ALONG WITH TYPED COPY.** - **EXHIBIT P13 TRUE COPY OF G.O.(RT) NO.1138/2020/HOME DATED 13.5.2020.** - **EXHIBIT P14 TRUE COPY OF THE GOVERNMENT LETTER NO.21057/C2/15/HOME DATED 1.6.2015 ALONG WITH TYPED COPY.** - **EXHIBIT P15 TRUE COPY OF ORDER NO.B1-7039/2014 DATED 3.3.2020 FIXING THE BASIC PAY OF THE 2ND PETITIONER.** - **EXHIBIT P16 TRUE COPY OF THE JUDGMENT DATED 8.10.2018 OF THE HON'BLE HIGH COURT OF RAJASTHAN.** **EXHIBIT P17 TRUE COPY OF THE ORDERS OF THE ASSAM HIGH COURT AND DISTRICT NOTIFICATION NO.JDJ/123/2017-ESTT-JUDI/48 DATED 15.10.2018.** - **EXHIBIT P18 COPY OF THE GOVERNMENT FILES OBTAINED BY THE PETITIONERS UNDER THE RIGHT TO INFORMATION ACT VIDE COVERING LETTER NO.C2/201/2020/HOME DATED 22.10.2020** - **RESPONDENT'S EXHIBITS:** **EXHIBIT R3(A) TRUE COPY OF THE GO (MS) NO.84/2013/HOME DATED 30.03.2013.** TRUE COPY PS TO JUDGE