WP(C).Nos.20648/2016 and 25777/2016 (Kerala High Court) – Siji Paily & Suja K.K. vs State of Kerala & KSBCDC; Binoy K. Varkey vs KSBCDC Ltd. & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942** ## **WP(C).No.20648 OF 2016** ## **PETITIONERS:** **1 SIJI PAILY ACCOUNTANT, KERALA STATE BACKWARD CLASSES DEVELOPMENT CORPORATION, DISTRICT OFFICE, IDUKKI-685602.** **2 SUJA K.K. JUNIOR ASSISTANT, KERALA STATE BACKWARD CLASSES DEVELOPMENT CORPORATION, DISTRICT OFFICE, IDUKKI685602.** **BY ADVS. DR.K.P.SATHEESAN (SR.) SRI.ELIAS KURIAN SRI.P.MOHANDAS (ERNAKULAM) SRI.K.SUDHINKUMAR SMT.SHYNI GEORGE SRI.S.VIBHEESHANAN** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, BACKWARD COMMUNITIES DEVELOPMENT DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE CHAIRMAN MANAGING DIRECTOR** **KERALA STATE BACKWARD CLASSES DEVELOPMENT CORPORATION LTD., TC 27/588, SENTINAL, 3RD FLOOR, PATTOOR, VANCHIYOOR P.O., THIRUVANANTHAPURAM-695035.** ## **R1-2 BY SRI.M.SASINDRAN, SC, KSBCDC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.01.2021, ALONG WITH WP(C).25777/2016(V), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.20648 & 25777/2016 2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942** ## **WP(C).No.25777 OF 2016(V)** ## **PETITIONER:** ## **BINOY K.VARKEY** **S/O. K.V VARKEY, AGED 39 YEARS, 'CLERK' KERALA STATE BACKWARD CLASSES DEVELOPMENT CORPORATION LIMITED, DISTRICT OFFICE, IDUKKI, RESIDING AT 'KATTAKKAYAM HOUSE', ALPPARA P.O., IDUKKI DISTRICT-685 606.** **BY ADVS.** **SRI.R.KRISHNAKUMAR (CHERTHALA) SMT.TINY THOMAS** ## **RESPONDENTS:** **1 KERALA STATE BACKWARD CLASSES DEVELOPMENT CORPORATION LIMITED,** **REP. BY ITS MANAGING DIRECTOR, REGD. OFFICE, T.C 27/588(7) & (8), 'SENTINEL', 2ND FLOO, PATTOOR, VANCHIYOOR P.O., THIRUVANANTHAPURAM-695 035.** **2 THE MANAGING DIRECTOR KERALA BACKWARD CLASSES DEVELOPMENT CORPORATION LIMITED, REGD.OFFICE, T.C. 27/588 (7) & (8) 'SENTINEL' 2ND FLOOR, PATTOOR, VANCHIYOOR P.O., THIRUVANANTHAPURAM-695 035.** - **3 THE MANAGER** **KERALA WATER BACKWARD CLASSES DEVELOPMENT CORPORATION LIMITED, DISTRICT OFFICE, IDUKKI, PIN-685 601.** **R1 BY SRI.JAYAPRADEEP. V, SC, KSBCDC R1 BY SRI.M.SASINDRAN, SC, KSBCDC** **SRI. M.SAINDRAN -SC,SRI. SUNIL KUMAR KURIAKOSE -GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.01.2021, ALONG WITH WP(C).20648/2016(E), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.20648 & 25777/2016 3** ## **JUDGMENT** I am considering the afore two writ petitions together on account of similarity in the factual circumstances pleaded and also because the reliefs sought for are identical. 2. The petitioners in W.P(C)No.20648 of 2016 claim to have been appointed as Accountant and Junior Assistant respectively in the services of the Kerala State Backward Classes Development Corporation Ltd. (hereinafter referred to as 'Corporation' for short) in the year 2001 and they assert that they are entitled to be regularized in the services of the said Corporation, as per the directions of the Hon'ble Supreme Court in _**Umadevi v. State of Karnataka**_ **[2006 (4) SCC 1].** They assert that even though five other persons were so regularized, which is evident through Ext.P3 proceedings, they have not been given the said benefit and that consequently, the 2[nd] petitioner has been thrown out of service, while the 1[st] petitioner continues ## **WP(C).No.20648 & 25777/2016 4** only on daily wages. They, therefore, pray that the Corporation be directed to consider their regularization within a time frame to be fixed by this Court. 3. The petitioner in W.P(C)No.25777 of 2016 also makes similar prayer as afore, but admitting that he was appointed as a Clerk in the year 2011. He asserts that he was appointed based on an interview conducted by the competent Authority of the Corporation and therefore, that he is also entitled to be considered for regularization in terms of ## _**Umadevi (Supra).**_ 4. However, in response to the afore submissions made on behalf of the petitioners by their learned counsel - Shri.Sudhinkumar K. and Shri.R.Krishnakumar respectively, the learned Standing Counsel for the Corporation, Shri.M.Sasindran, submitted that a counter affidavit has been filed on record, wherein it has been averred that the Corporation cannot regularize anyone hence forth because the ## **WP(C).No.20648 & 25777/2016 5** vacancies can be filled up only by the Public Service Commission, as per the extant orders of the Government of Kerala and the terms of the Special Rules applicable to the Corporation. He submitted that, in any event of the matter, the vacancies in question were not sanctioned at the time when the petitioners were appointed, which is clear from the fact that they were admittedly engaged only on daily wages and therefore, that they cannot get the benefit of _**Umadevi (Supra),**_ particularly because the other five persons they are referring to were appointed as early as in the year 1995 and were given the said benefit for the reasons that are specifically stated in Ext.P3. 5. The learned Standing Counsel, therefore, prayed that these writ petitions be dismissed, adding that except the 1[st] petitioner in W.P(C)No.20648 of 2016 the other petitioners were disengaged as early as in the year 2015. **WP(C).No.20648 & 25777/2016 6** 6. On hearing Shri.M.Sasindran as afore, the learned counsel for the petitioners submitted that since the 1[st] petitioner in W.P(C)No.20648 of 2016 is already continuing in the services of the Corporation and there is an interim order that he shall not be disturbed solely for the appointment of another person on daily or contract basis, the said position may be maintained and the Corporation be directed to reconsider the petitioners' claim for regularization in terms of _**Umadevi (Supra),**_ also taking note of Ext.P3 in W.P(C)No.20648 of 2016, asserting that their clients are also similarly situated with the persons therein. 7. I have considered the afore submissions and have also gone through the materials available on record. 8. It is indubitable that since the vacancies in the Corporation can no longer be filled up by them on account of the rigour of the Special Rules and the applicable ## **WP(C).No.20648 & 25777/2016 7** Government Orders – they being now capable of being filled up only through the aegis of the Public Service Commission - it will not be possible for this Court to direct that the petitioners be so appointed. 9. The only other contention that can weigh with me is as to whether the petitioners are eligible for being regularized in service, taking note of Ext.P3 order in W.P(C)No.20648 of 2016. 10. When I go through the said order, it is clear that the five persons mentioned therein have been regularized on the basis of the directions in _**Umadevi (Supra)**_ and also because they had crossed their upper age limit for obtaining any regular appointment, leading to them being incapacitated from securing another employment. It is in such singular circumstances that the Government accorded sanction to regularize the services of the persons mentioned therein and the resultant question is whether the petitioners would also ## **WP(C).No.20648 & 25777/2016 8** be eligible to obtain the same benefits, particularly because the Hon'ble Supreme Court has made it clear in _**Umadevi (Supra)**_ that regularization cannot be seem to be another mode of recruitment or appointment. 11. In the case at hand, the petitioners in W.P(C)No.20648 of 2016 claim that they were appointed in the year 2001; while the petitioner in W.P(C)No.25777 of 2016 concede that he was appointed only in the year 2011. Obviously, therefore, the latter would not get the benefit of _**Umadevi (Supra)**_ even as on date, since he has not completed 10 years of service. 12. As regards the petitioners in W.P(C)No.20648 of 2016 are concerned, the counter affidavit filed on behalf of the Corporation shows that the 1[st] petitioner was engaged on daily wage basis from March 2002 to 2007 and thereafter from September 2011 and that he is still continuing; while as regards the 2[nd] petitioner, it is stated that she was ## **WP(C).No.20648 & 25777/2016 9** engaged from November 2001 to September 2007 and from October 2001 to October 2014 and that she is no longer continuing in such engagement. 13. It is, therefore, needless to say, that as regards the 2[nd] petitioner is concerned, the ratio of _**Umadevi (Supra)**_ would not apply and it will not be possible for me to direct the Corporation to consider her regularisation on such basis. 14.Therefore, all that remains is the question as to whether the 1[st] petitioner in W.P(C)No.20648 of 2016 can be directed to be considered for regularization, because it is conceded that he is still in service. 15. That said, this aspect has not been adverted to or considered in the latest order of the Corporation which is impugned herein, namely Ext.P5, wherein all that is stated is that regularization of the five employees earlier cannot be taken as a precedent and that only persons who have served more than 10 ## **WP(C).No.20648 & 25777/2016 10** years in a sanctioned post can be considered for such benefit. Of course, the Corporation maintains that the vacancy to which the 1[st] petitioner has been engaged is not a sanctioned post, but it is not explained as to how this post has then been reported to the Public Service Commission for being filled up by them. 16. These areas are still unclear and I am, therefore, of the certain view that the Corporation must reconsider the case of the 1[st] petitioner in W.P(C)No.20648 of 2016. Resultantly, I dismiss W.P(C)No.25777 of 2016 and allow W.P(C)No.20648 of 2016, however, only to the extent of directing the respondents to reconsider whether the 1[st] petitioner therein can be granted the benefit of regularization going by _**Umadevi (Supra);**_ which exercise shall be completed by them _de hors_ Ext.P5 and after affording him an opportunity of being heard – either physically or through video conferencing – thus ## **WP(C).No.20648 & 25777/2016 11** culminating in an appropriate order thereon, as expeditiously as is possible. It goes without saying, that until such time as either the afore exercise is completed or until a fresh hand is advised by the Public Service Commission, the 1[st] petitioner in W.P(C)No.20648 of 2016 will be allowed to work and he shall not be terminated solely for the purpose of another person on daily wages or contract basis being appointed in his place. After I dictated this judgment, Shri.R.Krishnakumar, learned counsel for the petitioner in W.P(C)No.25777 of 2016, prayed that if there are vacancies in the Corporation, his client may be directed to be engaged on daily or contract basis at least until such time as candidates advised by the Public Service Commission join duty. However, Shri.M.Sasindran submitted that there are no vacancies available in the Corporation as of now and that all the vacancies have already been reported to the **WP(C).No.20648 & 25777/2016 12** PSC. I, therefore, cannot accede to this request either. **Sd/-** **DEVAN RAMACHANDRAN** **JUDGE** **MC/16.1.2021** **WP(C).No.20648 & 25777/2016 13** ## **APPENDIX OF WP(C) 20648/2016** ## **PETITIONER'S/S EXHIBITS:** |**EXT. P1**|**TRUE COPY OF THE PERIOD OF EMPLOYMENT AND**| |---|---| ||**WAGES RECEIVED BY THE APPLICANT FROM THE**| ||**YEAR 2001-2002 TO 2015-2016.**| |**EXT. P2**|**TRUE COPY OF THE REPRESENTATION FILED BY**| ||**THE FIRST APPLICANT BEFORE THE FIRST**| ||**RESPONDENT DATED 8-2-2016.**| |**EXT. P3**|**TRUE COPY OF THE ORDER G.O.(MS)NO.**| ||**85/2012/BCDD DATED 22-06-2012.**| |**EXT. P4**|**TRUE COPY OF THE ORDER DATED 12-02-2016 IN**| ||**O.A.NO. 348/2016.**| |**EXT. P5**|**TRUE COPY OF THE ORDER G.O.(RT)NO.**| ||**34/2016/BCDD DATED 25-05-2016.**| |**EXT. P6**|**TRUE COPY OF THE JUDGMENT DATED 5.9.2016 IN**| ||**CONT. CASE(C)NO.1425/2016**| |**EXT. P7**|**TRUE COPY OF THE ORDER ISSUED BY THE 2ND**| ||**RESPONDENT DATED 8.9.2016**| |**EXT. P8**|**TRUE COPY OF THE ORDER ISSUED BY THE 2ND**| ||**RESPONDENT DATED 28.9.2016**| |**MC**|| ||**(TRUE COPY) PA TO JUDGE**| **WP(C).No.20648 & 25777/2016 14** ## **APPENDIX OF WP(C) 25777/2016** ## **PETITIONER'S/S EXHIBITS:** **EXT. P1 A TRUE COPY OF THE RELEVANT EXTRACT OF THE LIST OF EMPLOYEES WORKING IN VARIOUS DISTRICT OFFICES OF THE 1ST RESPONDENT. EXT. P2 A TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT DATED 19.05.2016. EXT. P3 A TRUE COPY OF THE LIST FURNISHED BY THE 3RD RESPONDENT WITH LIST OF EMPLOYEES DATED 27.05.2016. EXT. P4 A TRUE COPY OF THE ORDER G.O.(M.S) NO. 22/2014/BCDD DATED 05.09.2014. ISSUED BY THE GOVERNMENT OF KERALA. EXT. P5 A TRUE COPY OF THE ORDER NO. E1/4809/ADMN/2000 DATED 17.04.2001 ISSUED BY THE 1ST RESPONDENT. EXT. P6 A TRUE COPY OF THE ORDER NO. 1863/E1/2012/KSBCDC DATED 28.06.2012. ISSUED BY THE 1ST RESPONDENT. EXT. P7 A TRUE COPY OF ONE OF THE LAST THE COMMUNICATION ISSUED FROM THE OFFICE OF THE HON'BLE CHIEF MINISTER OF KERALA. EXT .P8 A TRUE COPY OF THE JUDGMENT DATED 3.09.2012. IN W.P.C. NO. 29529/2012 OF THIS HON'BLE COURT. EXT. P9 A TRUE COPY OF THE G.O.(RT)NO.125/2001/BCDD DT. 14.3.2001 ISSUED BY THE GOVERNMENT EXT. P10 A TRUE COPY OF THE LETTER OF THE 2ND REPONDENT TO THE MANAGERS OF THE 1ST RESPONDENT DATED 26.5.2016 EXT. P11 A TRUE COPY OF THE RECEIPT EVIDENCING FORWARDING OF REPRESENTATION OF THE PETITIONER DT. 14/07/2014 EXT. P12 A TRUE COPY OF THE REPRESENTATION DT. 21.11.2016 TO THE 2ND RESPONDENT.** **WP(C).No.20648 & 25777/2016 15**