High Court of KeralaDivision BenchWrit Appeal dismissed.

Writ Appeal No. 486 of 2016 in WP(C) No. 29562 of 2011

Case / Petition Number:WA No. 486 of 2016; WP(C) No. 29562/2011

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Ashok Bhushan, Chief Justice
  • A.M. Shaffique, J.
Judgment Date
2016-03-15
Court Decision / Holding
Writ Appeal dismissed; the learned Single Judge’s dismissal is upheld and no regularisation is granted to the appellant.
Final Disposition
Writ Appeal dismissed.

Parties to the Case

Appellants / Petitioners

  • P.R. Padmakumari

Respondents

  • The Managing Director, Kerala Water Authority
  • The Executive Engineer, Kerala Water Authority
  • The District Employment Officer, District Employment Exchange, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri. Elvin Peter P.J.
  • • Sri. T.G. Sunil (Pranavam)
  • • Sri. K.R. Ganesh

Counsels for Respondents

  • • Sri. George Mathew, Senior Counsel, Kerala Water Authority
  • • Sri. Girija Gopal, Spl. Government Pleader

Case Synopsis & Summary

This writ appeal challenges a 19 January 2016 order of the learned Single Judge that dismissed a writ petition seeking regularisation of a part-time sweeper employed by the Kerala Water Authority (KWA) at Aluva under a 179-day contract. The appellant, sponsored by the Employment Exchange, contends that Ext.P1 fixed a 179-day post but that, by virtue of Annexure A1 (G.O. dated 25 November 2005), her service should be regularised as a Part Time Contingent Sweeper where the area of sweeping justifies a post. The writ petition sought quashing Ext.P10 (02 November 2011) termination and a direction to permit continued service as long as the post exists. The learned Single Judge held that the appointment was temporary and for a fixed term, and that regularisation cannot be read into the 179-day post; accordingly the petition was dismissed. On appeal, the Division Bench examined whether Annexure A1 or prior court judgments would allow regularisation. It held Annexure A1 relates to regularising existing casual sweepers, not to converting a temporary appointment into a regular post; it discussed Sub Inspector of Police v. S. Girija and D. Surendran, distinguishing those authorities where applicable. Citing Umadevi (3), the court reiterated the need for a sanctioned post and due process, concluding that the appellant has no right to regularisation. The writ appeal is therefore dismissed.

Provisions of Law Cited

G.O. dated 25.11.2005 (Annexure A1) prescribing regularisation of Part Time Contingent SweepersSecretary, State of Karnataka & others v. Umadevi (3) and others, (2006) 4 SCC 1Kerala Water Authority v. D. Surendran and others, 2006 (4) KLT 983Sub Inspector of Police, Kuthiyathode and others v. S. Girija, 2010 (2) KLT 428

Legal Doctrines & Maxims

  • Umadevi (3) principle: temporary appointments cannot be regularised without following proper procedure and a sanctioned post
  • Regularisation is tied to a formal scheme and existing posts; Annexure A1 addresses only existing casual sweepers, not generic 179-day appointments.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant argues that she was selected via the Employment Exchange for a 179-day post and that Annexure A1 (G.O. dated 25.11.2005) creates a scheme for regularising Part Time Contingent Sweepers, which should apply to her case. She contends that the 1st respondent permitted continuation beyond 179 days and thus a de facto regularisation was intended; Annexure A1 is supported by prior Division Bench and Full Bench decisions; the right to regularisation arises from the employment process and the government order.

Contentions of Respondents

The respondents contend that the appointment was strictly temporary for 179 days and did not create a regular sanctioned post. Annexure A1 covers regularisation of existing casual sweepers, not conversion of temporary posts; Umadevi (3) requires due process and a sanctioned post for regularisation. The 179-day contract cannot be regularised through this scheme; Ext.P10 terminating the post is valid; the court should not create a right to regularisation where none exists under established recruitment rules.

Cited Precedents (3)

Case NameCitationTreatmentExplanation
Sub Inspector of Police, Kuthiyathode and others v. S. Girija2010 (2) KLT 428DistinguishedCited to discuss Annexure A1; this case dealt with regularisation under Annexure A1 in different circumstances, which the present judgment distinguishes as not applicable to the 179-day appointment.
Kerala Water Authority and another v. D. Surendran and another2006 (4) KLT 983DistinguishedConsidered in light of different facts (physically challenged claim) and not controlling for the appellant’s case.
Secretary, State of Karnataka & others v. Umadevi (3) and others(2006) 4 SCC 1PositivePrinciple that temporary appointments cannot be regularised without a sanctioned post and due process; used to deny regularisation in this case.

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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 THE CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE TUESDAY, THE 15TH DAY OF MARCH 2016/25TH PHALGUNA, 1937 WA.No. 486 of 2016 IN WP(C).29562/2011 ------------------------------------------AGAINST THE JUDGMENT IN WP(C) 29562/2011 DATED 19-01-2016 .................... APPELLANT/PETITIONER : ------------------------------ P.R.PADMAKUMARI, PATTANATHUKATTIL HOUSE, KOOTTUKAD, VADAKKUMPURAM(P.O.) CHENNAMANGALAM, ERNAKULAM DISTRICT. BY ADVS.SRI.ELVIN PETER P.J. SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH RESPONDENTS/RESPONDENTS : -------------------------------------- 1. THE MANAGING DIRECTOR, KERALA WATER AUTHORITY, JALABHAVAN THIRUVANANTHAPURAM-695033. 2. THE EXECUTIVE ENGINEER, KERAL WATER AUTHORITY OFFICE OF THE EXECUTIVE ENGINEER, P.H.DIVISION ALUVA-683001. 3. THE DISTRICT EMPLOYMENT OFFICER, DISTRICT EMPLOYMENT EXCHANGE, ERNAKULAM COCHIN-682033. R1 & R2 BY SRI.GEORGE MATHEW, SC, KERALA WATER AUTHORITY R3 BY SPL.GOVERNMENT PLEADER, SMT. GIRIJA GOPAL THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA.No. 486 of 2016 IN WP(C).29562/2011 ------------------------------------------------- ## APPENDIX APPELLANT'S EXHIBITS : ANNEXURE A1 : TRUE COPY OF G.O. DATED 25.11.2005. RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ PA TO JUDGE ## **ASHOK BHUSHAN, C.J. & A.M. SHAFFIQUE, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. No. 486 OF 2016 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15[th] day of March, 2016 ## **JUDGMENT** ## **Shaffique, J.** This appeal is filed against the judgment dated 19.01.2016 in W.P.(C) No. 29562 of 2011 by which the learned Single Judge has rejected the claim of the petitioner seeking for regularisation. The writ petition was filed by the appellant seeking for quashing Ext.P10 order dated 02.11.2011 issued by the 2[nd] respondent, the Executive Engineer, Kerala Water Authority and for a direction to the 2[nd] respondent to allow the petitioner to continue in service as Part Time Sweeper as long as the post is in existence. 2. The short facts described in the writ petition would disclose that the petitioner claims to have been sponsored by the Employment Exchange and the interview committee found that the petitioner is the most eligible candidate among others and was selected for appointment for a period of 179 days in the office of Executive Engineer, P.H. Division, Aluva. Ext.P1 is her appointment order dated W.A. No. 486 of 2016 -:2:- 08.02.2011 by which she was appointed as 'Part Time Sweeper for a period of 179 days'. It is stated that she joined duty on 14.02.2011 and since then she has been working as Part Time Sweeper. When the respondents initiated steps for termination of her service on completion of 179 days, she submitted a representation seeking regularisation of her service by submitting Ext.P2. The same was forwarded to the 1[st] respondent, Managing Director of Kerala Water Authority and she was permitted to continue beyond 179 days. However, no orders were passed with regard to her claim for regularisation and ultimately by Ext.P10 dated 02.11.2011 a decision was taken to terminate her service with effect from the said date. The petitioner submits that since she was appointed through Employment Exchange after following the selection process, she has every right to continue in service. 3. The learned Single Judge after elaborately considering the factual and legal aspects involved in the matter formed an opinion that in so far as the appointment is made only on a temporary post and that too for a period of 179 days and W.A. No. 486 of 2016 ## -:3:- since a regular appointment is attempted to be made to the permanent post in which the petitioner cannot be appointed, dismissed the writ petition. 4. While impugning the aforesaid judgment, learned counsel for the appellant placed reliance on Annexure A1 Government Order dated 25.11.2005 by which the Government has framed a scheme for regularising the Part Time Sweepers engaged in cleaning of Government Offices. Reference is made to paragraph 8 of the said order which indicates that for regularisation of existing casual sweepers where the sweeping area exceeds 100 sq.mtrs., the creation of posts of Part Time contingent employees depending on the sweeping area has to be made. 5. It is argued that this Government Order has been approved by this Court in a Division Bench judgment reported in **Sub Inspector of Police, Kuthiyathode and others v. S.Girija** [2010 (2) KLT 428]. Learned counsel for the appellant has also placed reliance on a Full Bench judgment of this Court in W.A. No. 486 of 2016 -:4:- **Kerala Water Authority and another v. D.Surendran and another** [2006(4) KLT 983] to contend that there are several instances where Part Time Contingent employees were regularised on the basis of the directions issued by this Court. 6. The main contention urged by the appellant is with regard to the right to get regularisation in the services of Kerala Water Authority. Apparently the appellant had been appointed through Employment Exchange by notifying that she is appointed as Part Time Sweeper for a period of 179 days. Ext.P1 appointment order would clearly indicate that the appointment is purely for 179 days. Under such circumstances such employee cannot claim regularisation in service unless such claims are also included in any scheme formed by the Government. Annexure A1 Government Order produced by the appellant does deal with appointments made subsequent to that order as it deals only with regularisation of appointments of “existing casual sweepers”, wherein necessary modalities have been made for granting regularisation of Part Time Contingent Sweepers as well. Under W.A. No. 486 of 2016 -:5:- such circumstances Annexure A1 Government Order will not help the appellant. 7. In **Girija** 's case (supra) this Court has considered the case of regularisation made in terms of Annexure A1. As far as the judgment in **D.Surendran** (supra) is concerned, the same was considered in the light of claim made by physically challenged person and appellant has no such case. 8. That apart, in the judgment reported in **Secretary,** **State of Karnataka & others v. Umadevi (3) and others** [(2006) 4 SCC 1], it may not be possible to regularise an employee appointed on temporary basis and that too without following the established procedure of making appointment in a regular sanctioned post. Under such circumstances, when application has been invited by Employment Exchange for appointment to a temporary post for 179 days, that selection by itself will not give any right to claim regularisation. We do not think that the learned Single Judge has committed any error in dismissing the writ petition. W.A. No. 486 of 2016 -:6:- We do not find any ground to interfere with the impugned judgment. Accordingly, the Writ Appeal is dismissed. Sd/- **Ashok Bhushan, Chief Justice.** Sd/- **A.M. Shaffique, Judge.** ttb/16/03