WP(C). Nos. 33285/2018 (I) & 39409/2018 (A) - Ashokan K.K., Pavithran T.V.; Bharathan N.K., Ravi N.K., Sarasa K.K., Haridasan C. v. Koyilandy Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** ## **MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943** ## **WP(C).No.33285 OF 2018(I)** ## **PETITIONERS:** |**1**||**ASHOKAN K.K., AGED 57 YEARS,**| |---|---|---| |||**S/O KUNHIRAMAN, SANITATION WORKER,**| |||**KOYILANDY MUNICIPALITY, KOZHIKODE DISTRICT.**| |**2**||**PAVITHRAN T.V, AGED 59 YEARS,**| |||**S/O. BHARATHAN, SANITATION WORKER,**| |||**KOYILANDY MUNICIPALITY, KOZHIKODE DISTRICT.**| |||**BY ADV. SRI.R.K.MURALIDHARAN**| |**RESPONDENTS**<br>**:**||| |**1**||**THE KOYILANDY MUNICIPALITY,**| |||**REPRESENTED BY ITS SECRETARY,**| |||**POST KOYILANDY,**| |||**KOZHIKODE DISTRICT-673620.**| |**2**||**THE SECRETARY.,**| |||**KOYILANDY MUNICIPALITY,**| |||**POST KOYILANDY,**| |||**KOZHIKODE DISTRICT-673620.**| |||**BY ADV. SRI.M.SASINDRAN, SC**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.03.2021, ALONG WITH WP(C).39409/2018(A), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C)Nos.33285 & 39409/2018** **-2-** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943** **WP(C).No.39409 OF 2018(A)** |**PETITIONERS**<br>**:**|**PETITIONERS**<br>**:**| |---|---| |**1**|**BHARATHAN N.K, AGED 55 YEARS,**| ||**S/O.KELAPPAN, SANITATION WORKER,**| ||**KOYILANDY MUNICIPALITY, KOZHIKODE DISTRICT.**| |**2**|**RAVI N.K., AGED 52 YEARS,**| ||**S/O.CHATHU, SANITATION WORKER,**| ||**KOYILANDY MUNICIPALITY, KOZHIKODE DISTRICT.**| |**3**|**SARASA K.K., AGED 54 YEARS,**| ||**SANITATION WORKER, KOYILANDY MUNICIPALITY,**| ||**KOZHIKODE DISTRICT.**| |**4**|**HARIDASAN C., AGED 57 YEARS,**| ||**SANITATION WORKER, KOYILANDY MUNICIPALITY,**| ||**KOZHIKODE DISTRICT.**| ||**BY ADV. SRI.R.K.MURALIDHARAN**| |**RESPONDENTS**<br>**:**|| |**1**|**THE KOYILANDY MUNICIPALITY,**| ||**REPRESENTED BY ITS SECRETARY,**| ||**POST KOYILANDY,**| ||**KOZHIKODE DISTRICT-673620.**| |**2**|**THE SECRETARY,**| ||**KOYILANDY MUNICIPALITY,**| ||**POST KOYILANDY,**| ||**KOZHIKODE DISTRICT-673620.**| ||**BY ADV. SRI.M.SASINDRAN, SC**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.03.2021, ALONG WITH WP(C).33285/2018(I), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C)Nos.33285 & 39409/2018** **-3-** ## **JUDGMENT** ## **[ WP(C).33285/2018, WP(C).39409/2018 ] Dated this the 29th day of March 2021** The petitioners, in these two cases - which have been heard together and are being disposed of through this judgment on account of the analogous nature of the facts and circumstances urged and the reliefs sought for - state that they entered the services of the Koyilandy Municipality as contingent workers in the year 1998 or thereafter. 2. According to them, while they were so continuing, the Government created 10 posts in the Municipality for regularization of contingent employees; and that against three such vacancies, certain persons were appointed as early as on 28.03.2001. The petitioners point out to Ext.P2 order in both cases in substantiation and say that solely because the Municipality had not prepared a proper Seniority List, appointments thereafter was **WP(C)Nos.33285 & 39409/2018** **-4-** delayed, thus constraining them to have approached this court by filing O.P.No.18556 of 2001, which was disposed of through Ext.P3 judgment in both cases, directing the Municipality to finalise the Seniority List and take an apt decision thereon. 3. The petitioners allege that, it is, thereafter, through an order dated 10.03.2003 - which has been produced as Ext.P4 in both cases – that they were regularised in service; and they thus assert that they were entitled to be granted seniority in the regularised service with effect from the year 2001, when the other three persons were granted the said benefit. 4. The petitioners say that, however, when they approached the Municipality with their afore request, it had been rejected through Ext.P6, merely saying that they were regularised in service only with effect from 06.03.2003 and therefore, that no retrospective regularization, ## **WP(C)Nos.33285 & 39409/2018** **-5-** even notionally, can be granted. 5. The petitioners, therefore, pray that Ext.P6 in both cases, be set aside and the Municipality be directed to reconsider the matter taking note of the fact that they were, in fact, regularised in service against the vacancies were arose in 2001; also adverting to the fact that three other similarly placed persons had already been appointed in that year against three vacancies. 6. The petitioners rely on judgment of the Hon’ble Supreme Court in **Union of India v. Tarsem Sing** [2009 (1) KLT 101 SC], to contend that merely because there has been some delay in them approaching this Court, their legitimate claims may not be disregarded because it is a continuing wrong. The petitioners thus pray that the reliefs sought for in these writ petitions be granted. 7. In response to the afore submissions of ## **WP(C)Nos.33285 & 39409/2018** **-6-** the petitioners, the learned Standing Counsel for the Municipality – Sri.M.Sasindran, submitted that the petitioners’ claim for reckoning of their seniority from 28.03.2001 is untenable, since they were admittedly appointed to the newly created posts only in the year 2003. He submitted that the fact that the petitioners have not challenged their appointment order, namely Ext.P4 in both these cases, would stand against them; and therefore, that they cannot now seek seniority from the year 2001, even though they were admittedly appointed only in the year 2003. The learned Standing counsel thus prayed that this writ petition be dismissed. 8. When I evaluate the afore submissions and go through the materials available on record, it is clear that the petitioners’ case is edificed on the fact that they were continuing as contingent workers from the year 1998 or thereafter. They say ## **WP(C)Nos.33285 & 39409/2018** **-7-** that in the year 2001, along with other Municipalities, the Koyilandy Municipality was granted 10 more posts, and that against three of them, similarly placed persons were appointed - as is evident from Ext.P2 order - in both cases - as early as on 28.03.2001. 9. The petitioners assert that they were also, therefore, entitled to be regularised to the remaining seven vacancies on 28.03.2001; but that, solely because the Seniority List had not been properly finalized by the Municipality, their appointment was delayed. They, therefore, earlier approached this Court to obtain judgment in O.P.No.18556 of 2001, subsequent to which, the Seniority List was prepared and they offered appointment, but only in the year 2003. It is thus that they contend that though they were actually regularised only in the year 2003, they are entitled to be given the said benefit, at least ## **WP(C)Nos.33285 & 39409/2018** **-8-** notionally, with effect from 2001. 10. When I evaluate Ext.P6, it is luculent that the Municipality has not considered the contentions of the petitioners in its proper perspective, since they have only said that they will be entitled to seniority only with effect from 06.03.2003, when Ext.P4 order had been issued. They have, however, omitted to note that the petitioners' specific case is that even though they were regularized only with effect from 06.03.2003, they are entitled to be given said benefit, at least notionally, with effect from 28.03.2001, being the date on which three other identically placed persons were granted the said benefit. 11. This is pertinent because, the petitioners rely on the fact that the posts were created for regularisation in the year 2001, and they contend that their regularisation of appointment was ## **WP(C)Nos.33285 & 39409/2018** **-9-** delayed only because the Seniority List had not been properly settled by the Municipality. 12.I am, therefore, of the firm view that the entire matter will require to be reconsidered by the Municipality, particularly on the claim of the petitioners for regularisation, at least on notional basis, with effect from 28.03.2001. In the afore circumstances, I allow this writ petition and set aside Ext.P6 in both cases; with a consequential direction to the Secretary of the Municipality to reconsider the matter and decide on the claim of the petitioners for reckoning of their seniority with effect from 28.03.2001, adverting to their afore contentions, and after affording them an opportunity of being heard - either physically or through video conferencing - thus culminating in an appropriate order thereon, as expeditiously as is possible, but not later than three months from the date of receipt of a **WP(C)Nos.33285 & 39409/2018** **-10-** copy of this judgment. I make it clear that when the afore exercise is completed, the secretary of the Municipality will specifically take into account the petitioners’ plea that their appointment was not a fresh one but only regularisation in the post that were created by the Government through Ext.P2 and therefore, that they are entitled to their seniority be reckoned from the date on which three others were granted the benefit in the year 2001. This writ petition is thus disposed of. **Sd/DEVAN RAMACHANDRAN JUDGE** **akv** **WP(C)Nos.33285 & 39409/2018** **-11-** ## **APPENDIX OF WP(C) 33285/2018** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE GO(MS) NO.55/2001/LSGD DATED 07.3.2001.** **EXHIBIT P2** **A TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 28.3.2001.** **EXHIBIT P3** **A TRUE COPY OF THE JUDGMENT IN OP NO.18556/2001 DATED 20.3.2002.** **EXHIBIT P4** **A TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 10.3.2003.** **EXHIBIT P5** **A TRUE COPY OF THE REPRESENTATION SUBMITTED BY 1ST RESPONDENT.** **EXHIBIT P6 A TRUE COPY OF THE REPLY GIVEN BY THE 2ND RESPONDENT DATED 25.11.2017.** **RESPONDENT'S/S EXHIBITS : NIL.** //TRUE COPY// P.A. TO JUDGE **WP(C)Nos.33285 & 39409/2018** **-12-** ## **APPENDIX OF WP(C) 39409/2018** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE GO(MS)NO.55/2001/LSGD DATED 7.3.2001.** **EXHIBIT P2** **A TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 28.3.2001.** **EXHIBIT P3** **A TRUE COPY OF THE JUDGMENT IN OP NO.18556/2001 DATED 20.3.2002.** **EXHIBIT P4** **A TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 10.3.2003.** **EXHIBIT P5** **A TRUE COPY OF THE REPRESENTATION SUBMITTED BY PETITIONERS TO THE 2ND RESPONDENT DATED 16.8.2017.** **EXHIBIT P6 A TRUE COPY OF THE REPLY GIVEN BY THE 2ND RESPONDENT DATED 25.11.2017.** **RESPONDENT'S/S EXHIBITS : NIL.** //TRUE COPY// P.A. TO JUDGE