Yousaf V. and others v. Kerala Co-operative Milk Marketing Federation Ltd. and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY, THE 2ND DAY OF MARCH 2016/12TH PHALGUNA, 1937 WP(C).No. 576 of 2010 (V) ------------------------------------ PETITIONERS :- ------------------------- 1. YOUSAF V., (S/o MUHAMMED KUTTY), VALAPPIL HOUSE, KACHERIPARAMBU.P.O., ALANNALOUR VIA,PALAKKAD, WORKING AS TECHNICIAN(ELECTRICAL), KERALA CO-OPERATIVE MILK MARKETING FEDERATION LTD., CATTLE FEED PLANT, MALAMPUZHA. 2. SABU.N.K.(S/O.ANTONY), NALUKNDATHIL, THYCATTUSSERY.P.O.,CHERTHALA, WORKING AS BOILER OPERATOR, KERALA CO-OPERATIVE MILK MARKETING FEDERATION LTD., \ CATTLE FEED PLANT, MALAMPUZHA. 3. K.GIRISH, (S/O.V.KRISHNAN KUTTY), KRIHSNANUNNI NIVAS, NSS COLLEGE P.O., PALANTHONY, NENMARA, PALAKKAD, WORKING AS TECHNICIAN, (MECHANICAL), KERALA CO-OPERATIVE MILK MARKETING FEDERATION LTD., CATTLE FEED PLANT, MALAMPUZHA. 4. JYOTHI.K.S., (S/O. SANKARAN), MULAVANTHARAYIL, ERUVA EAST.PO., KAYAMKULAM., WORKING AS BOILER OPERATOR, KERALA CO-OPERATIVE, MILK MARKETING FEDERATION LTD., CATTLE FEED PLANT, MALAMPUZHA. 5. SUNIL.U., (S/O.P.K.UNNI) 8/186 AISWARYA, AMBAT LINE, CHITTUR.P.O., PALAKKAD, WORKING AS TECHNICIAN(MECHANICAL), KERALA CO-OP., MILK MARKETING FEDERATION LTD., CATTLE FEED PLANT, MALAMPUZHA. 6. DILEEP.C.,(S/O.CHENTHAMARA.P.K.), THAZHEMURALI, INDUSTRIAL ESTATE.P.O., PALAKKAD, WORKING AS TECHNICIAN (ELECTRICAL), KERALA CO-OP., MILK MARKETING FEDERATION LTD., CATTLE FEED PLANT, MALAMPUZHA. WP(C).No. 576 of 2010 (V) ------------------------------------ 7. SHIBULAL.M., (S/O. NARAYANAN.M.), MANNARAKKAL HOUSE, VILAYIL, MALAPPURAM DISTRICT., WORKING AS FITTER TECHNICIAN, KERALA CO-OPERATIVE, MILK MARKETING FEDERATION LTD., CATTLE FEED PLANT, MALAMPUZHA. 8. SUNIMON.G., (S/O.GOPALAKRISHAN), CHEMPAZHANTHIYIL, PALLANA.P.O., THRIKKUNNAPUZHA, ALAPPUZHA, WORKING AS FITTER TECHNICIAN, KERALA, CO-OPERATIVE MILK MARKETING FEDERATION LTD.,, CATTLE FEED PLANT, MALAMPUZHA. 9. VENU.P.,(S/O. PURUSHAN.V.K.), THEKKEVELIYIL, KALAVOOR.P.O., ALAPPUZHA, WORKING, AS BOILER OPERATOR, KERALA CO-OPERATIVE MILK, MARKETING FEDERATION LTD., CATTLE FEED PLANT,, MALAMPUZHA. BY ADV. SRI.B.BALA PRASANNAN RESPONDENTS : - ---------------------------- 1. THE KERALA CO-OPERATIVE MILK MARKETING FEDERATION LTD., REPRESENTED BY THE MANAGING, DIRECTOR, MILAMBHAVAN, PATTAM PALACE.P.O., THIRUVANANTHAPURAM. 2. SENIOR MANAGER, - KERALA CO-OPERATIVE MILK MARKETING FEDERATION LTD., CATTLE FEED PLANT, MALAMPUZHA, PALAKKAD-678651. 3. THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 4. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY THE SECRETARY, K.P.S.C. PATTOM,, TRIVANDRUM. R1 BY ADV. SRI.K.ANAND (A.201) R1 BY ADV. SMT.LATHA KRISHNAN BY GOVERNMENT PLEADER SRI. G. GOPAKUMAR BY SRI.B.S.KRISHNAN(SR.), SC, MILMA BY SRI. P.C. SASIDHARAN, SC,KPSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-03-2016, ALONG WITH WPC. 9004/2010, WPC. 25033/2010, WPC. 5289/2012. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 576 of 2010 (V) ------------------------------------ ## **APPENDIX** ## PETITIONERS' EXHIBITS : EXHIBIT P1 : TRUE COPY OF PROCEEDINGS DATED 7.2.1991 ISSUED BY MILMA. - EXHIBIT P1(a) : TRUE COPY OF STAFF PATTERN OF THE MAINTENANCE WING (DIARY AND CATTLE FEED PLANT. - EXHIBIT P2 : TRUE COPY OF APPOINTMENT ORDER DATED 10.1.2008 ISSUED TO THE 2[nd] PETITIONER. - EXHIBIT P2(a) : TRUE COPY OF CERTIFICATE DATED 15.12.2009 ISSUED BY MILMA. - EXHIBIT P2(b) : TRUE COPY OF APPLICATION DATED 14.12.2009 SUBMITTED BY THE 2[nd] PETITIONER. - EXHIBIT P3 : TRUE COPY OF THE LETTER DATED 17.12.2009 ISSUED BY THE MANAGING DIRECTOR OF MILMA. - EXHIBIT P4 : TRUE COPY OF APPOINTMENT ORDER DATED 21.12.2005 ISSUED TO THE 1[st] PETITIONER. - EXHIBIT P4(a) : TRUE COPY OF APPOINTMENT ORDER DATED 10.1.2008 ISSUED TO THE 3[rd] PETITIONER. - EXHIBIT P4(b) : TRUE COPY OF APPOINTMENT ORDER DATED 27.12.2005 ISSUED TO THE 4[th] PETITIONER. - EXHIBIT P4(c) : TRUE COPY OF APPOINTMENT ORDER DATED 15.5.2006 ISSUED TO THE 5[th] PETITIONER. - EXHIBIT P4(d) : TRUE COPY OF APPOINTMENT ORDER DATED 2.9.2006 ISSUED TO THE 6[th] PETITIONER. - EXHIBIT P4(e) : TRUE COPY OF APPOINTMENT ORDER DATED 1310.2006 ISSUED TO THE 7[th] PETITIONER. - EXHIBIT P4(f) : TRUE COPY OF APPOINTMENT ORDER DATED 13.10.2006 ISSUED TO THE 8[th] PETITIONER. - EXHIBIT P4(g) : TRUE COPY OF APPOINTMENT ORDER DATED 21.11.2006 ISSUED TO THE 9[th] PETITIONER. EXHIBIT P5 : TRUE COPY OF STAFF PATTERN ISSUED BY THE MILMA. - EXHIBIT P6 : TRUE COPY OF REPRESENTATION DATED 15.10.2009 SUBMITTED BY THE SECRETARY OF THE MILMA WORKERS UNION (AITUC), WP(C).No. 576 of 2010 (V) ------------------------------------ EXHIBIT P7 : TRUE COPY OF THE JUDGMENT DATED 4.12.2003 IN O.P. No. 11711 OF 2002 OF THIS HONOURABLE COURT. - EXHIBIT P8 : TRUE COPY OF THE NOTIFICATION No. GO(P) 19/2011/AD DATED 14.1.2011 ISSUED BY GOVERNMENT OF KERALA. - EXHIBIT P9 : TRUE COPY OF THE NOTIFICATION PUBLISHED IN THE EMPLOYMENT NEWS OF MATHRUBHUMI DATED 9.2.13. EXHIBIT P10 : TRUE COPY OF NEWS ITEM PUBLISHED IN THE MATHRUBHUMI EMPLOYMENT NEWS DATED 6.4.2013. ## RESPONDENTS' EXHIBITS :- NIL. // TRUE COPY // P.A. TO JUDGE DMR/- **C.R.** ## **DAMA SESHADRI NAIDU, J.** --------------------------------------- ## **W.P.(c) Nos. 576 of 2010, 9004 of 2010, 25033 of 2010 & 5289 of 2012** ---------------------------------------- Dated this the 02[nd] day of March, 2016 ## JUDGMENT The petitioners in all the four writ petitions are similarly situated, having a common grievance as regards the security of their service in the Kerala Co-operative Milk Marketing Federation ('the Federation'). This Court, therefore, decides to dispose of all the writ petitions through a common judgment. ## W.P.(C) No. 25033 of 2010 2. Originally, 9 petitioners filed the writ petition; pending the writ petition, petitioners 5 and 6 have left the Organisation. Now, all the remaining seven petitioners are working as technicians. ## W.P.(C) No. 9004 of 2010 3. Out of four petitioners, pending the writ petition, petitioners 1 and 4 left. The remaining two petitioners are working as technicians. ## W.P.(C) No. 576 of 2010 4. Out of nine petitioners, petitioners 1, 6 and 9 left the W.P.(c) Nos. 576, 9004 & 25033/2010 2 & 5289/2012 service pending the writ petition. All the remaining six petitioners are working as technicians. 5. It is pertinent to observe that the petitioners in these three writ petitions possessed the qualification required to hold the post of technician: ITI Certificate with a basic qualification of SSLC and three years' experience. W.P.(C) No. 5289 of 2012 6. Both the petitioners joined the respondent Federation as Junior Assistants and are continuing as such. 7. As seen from the record, in or around 2007, all the petitioners were appointed temporarily for a period of one year on a consolidated pay. The orders of appointment also made it clear that the appointments would not confer on the petitioners any preferential claim in the federation. Earlier, the federation sought to replace the petitioners with another set of temporary employees on the premise that the petitioners initial tenure had come to an end. All of them approached this Court, which, through different interim orders, allowed them to continue in service. 8. The learned counsel for the petitioners have submitted that in 2007 and 2008, when the petitioners were appointed, W.P.(c) Nos. 576, 9004 & 25033/2010 3 & 5289/2012 the method of recruitment through the Kerala Public Service Commission was not invoked. According to them, the rules were framed and the recruitment in the federation through the Public Service Commission commenced only in 2011. 9. Until 2011, the mode of recruitment, contend the learned counsel for the petitioners, was through the sponsorship by the Employment Exchange. And the competent authority to appoint the staff was the Board of the Federation. 10. The learned counsel, in elaboration of their submissions, have submitted that the federation appointed the petitioners in identified vacancies after following the due procedure. No procedural infraction, much less statutory violation, had been committed in the petitioners’ appointment. 11. Drawing my attention to _State of Karnataka v. Umadevi[1]_ a Constitution Bench decision of the Apex Court, the learned counsel stress that the petitioners' appointment could not be termed illegal. According to them, it is not even irregular. In elaboration, the learned counsel have contended that until 2011, the recruitment being only through the process of sponsorship by the Employment Exchange, the petitioners’ 1 JT 2006 (4) SC 420 W.P.(c) Nos. 576, 9004 & 25033/2010 4 & 5289/2012 ## appointment is unexceptionable. 12. The learned counsel would further contend that the Courts have held through a profusion of precedents that replacement of one set of temporary employees with another set is impermissible. Further, in the light of Rules framed by the Government prospectively from 2011, the appointments made much earlier could not be disturbed, according to the learned counsel for the petitioners. 13. The learned Standing Counsel for the respondent federation, with equal vehemence, has submitted that the Government issued G.O. (P) No. 41/98/Co-op. dated 09.03.1998, making it mandatory that all appointments in the respondent federation should be through the PSC. He has further drawn my attention to Section 80(3A) of the Kerala Co-operative Societies Act, 1969, to hammer home that the said provision read with Schedule I appended thereto clarifies that no other mode of recruitment than through PSC is permissible. 14. The learned Standing Counsel has also drawn my attention to Exhibit P8 Rules framed in 2011 by the Government empowering the PSC to recruit employees for W.P.(c) Nos. 576, 9004 & 25033/2010 5 & 5289/2012 various Co-operative Societies in the respondent federation. In elaboration, the learned counsel would contend that the federation adopted the process of temporary appointments by way of sponsorship from the Employment Exchange in the interim, only in anticipation of the Rules to be framed by the Government entrusting the recruitment to the PSC. The learned Standing Counsel stresses that there was no occasion for the petitioners to entertain any hope that their position would be made permanent, for the appointment orders were specific that the tenure was one year. 15. Finally, referring to the judicial dictum in _Umadevi_ (supra), the learned Standing Counsel would contend that the petitioners, seeking regularization at least as a one-time measure, ought to have been covered by the exceptions provide in the said decision. He has, in elaboration, submitted that those employees ought to have continued for a minimum period of ten years with no judicial intervention. In the present instance, the petitioners were appointed in 2008, and immediately thereafter their services were sought to be terminated. Their services could have been terminated but for the interim direction of this Court in 2010. W.P.(c) Nos. 576, 9004 & 25033/2010 6 & 5289/2012 16. The learned Standing Counsel for the Public Service Commission, on his part, has submitted that as and when the federation makes the request, it undertakes the process of recruitment strictly in statutory terms. 17. Heard the learned counsel for the petitioners, the learned Standing Counsel for the respondent federation and the learned Standing Counsel for the Public Service Commission, as well as the learned Government Pleader, apart from perusing the record. _—_ 18. Hard cases make bad law this Court reminds itself of the _Speluncean dilemma_ , a hypothesis by Lon L. Fuller[2] . 19. By the time the petitioners were appointed, the PSC was not in picture. Though the Government issued G.O. (P) No. 41/98/Co-op. dated 09.03.1998 and amended Section 80 on 05.08.1995, till 2011 it did not frame the Rules enabling the PSC to recruit staff for the respondent federation. Nor had the PSC recruited any employees for the federation in any category or cadre until 2011, when it recruited the first batch of employees. > 2 The Case of the Speluncean Explorers is an article by legal philosopher Lon L. Fuller. (Published in Harvard Law Review, 1949) W.P.(c) Nos. 576, 9004 & 25033/2010 7 & 5289/2012 20. As has been rightly contended by Sri. K.M. Unnithan, one of the learned counsel for the petitioners, the petitioners appointment was in identified, sanctioned vacancies and also through due process. The federation, rightly, sought sponsorship from the Employment Exchange, which in terms of Section 4 of the Employment Exchanges (compulsory notification of vacancies) Act, 1959, and the Rules made thereunder, sponsored certain candidates who included the petitioners as well. 21. Indisputably, the petitioners' appointment orders plainly stated that the term was one year. The orders did not hold out any hope, as has been contended by the learned Standing Counsel, that their services would be either extended or regularised. The fact, nevertheless, remains that the petitioners services were not terminated strictly tenurially; it appears, periodically—at least initially—their terms were extended. 22. As seen from the record, only when the federation sought to replace the petitioners with another set of temporary employees, said to have been sponsored by the Employment Exchange, the petitioners rushed to this Court. The Court, W.P.(c) Nos. 576, 9004 & 25033/2010 8 & 5289/2012 through interim directions, protected their continuation. 23. The issue must be viewed in twin perspective: (1) that as per the appointment order, the petitioners service was tenureal, i.e. temporary, and did not hold out any promise of extension, much less permanency; (2) that the petitioners appointment was neither irregular nor illegal, for the appointment through PSC, then, was unavailable, due to the absence of recruitment rules. 24. At any rate, since the Government issued the G.O. in 1998 and Section 80 stood amended by 1995, the federation, perhaps, in anticipation of the Rules to be framed and the recruitment to be effected through PSC sought appointments by way of sponsorship by Employment Exchange only on a tenureal basis. The action of the respondent federation, therefore, cannot be found fault with. 25. I, however, hasten to add that, having possessed the qualification and having been sponsored by the Employment Exchange, the petitioners secured their employment through a legitimate process. They continued initially on the voluntary extension by the federation, and later under the protective cover of the judicial orders. W.P.(c) Nos. 576, 9004 & 25033/2010 9 & 5289/2012 26. In _Umadevi_ (supra) a learned constitution bench of the Honourable Supreme Court has discussed threadbare the ubiquitous issue of temporary appointments and the subsequent, mostly inevitable, regularizations under one pretext or another. Their Lordships in this definitive pronouncement have decried the _adhoc_ approach of the employers in having recruitments through backdoor methods. 27. Very eleborately _Umadevi_ laid down the principles concerning the recruitment and regularisation. However, conscious of the ramifications of the judgment on countless number of employees who may have been continuing temporarily for decades, _Umadevi_ has observed in paragraph 44 of the judgment thus: 44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) . . . of duly qualified persons in duly sanctioned vacant posts might have been made _and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals._ The question of regularization of the services of such employees may have to he considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the W.P.(c) Nos. 576, 9004 & 25033/2010 10 & 5289/2012 State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, _who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed._ . . (italics supplied) 28. Viewed from the above perspective, I am constrained to observe that though the petitioners were not appointed by any illegal process, their tenure was fixed for one year. They did not complete ten years to be qualified as per the exception carved out in _Umadevi._ At the same time, I shall observe that until 2011 there was nothing contradictory, either in the statute or recruitment regulations, to interdict the petitioners’ appointments. Now, they have completed close to a decade service albeit under a judicial directive. 29. It cannot be said that the petitioners lack the qualification. At this juncture, taking a strictly technical view as regards their continuation may inflict extreme agony on the petitioners, most of whom have crossed the employable age. W.P.(c) Nos. 576, 9004 & 25033/2010 11 & 5289/2012 However, compassion in judicial dispensation cannot, at all times, be a noble virtue unless it conforms to the rule of law. Temper justice with compassion, we must; tamper with justice in the name of compassion, we shall not. 30. Efficacious as the public law remedy under Article 226 of Constitution is, the Constitutional Courts have, nevertheless, acknowledged the limitations concerning, for example, the service matters where the employer enjoys unbridled discretion, which cannot be interfered with so long as it has not fallen foul of any statutory or constitutional mandate. 31. Under these circumstances, this Court declines to hold defenitively that the petitioners should be regularized; however, it relegates the issue to the Government, which, as a matter of policy, may take a decision as regards the petitioners' regularisation. 32. It is hoped that the Government will take into account all attendant circumstances, including the statutory compulsions and the misery that may be wrought on the petitioners if permanent employment is denied to them. It is, however, clarified that until the Government takes a decision W.P.(c) Nos. 576, 9004 & 25033/2010 12 & 5289/2012 after hearing all parties concerned and communicates the same, the petitioners shall continue in their present position. 33. The above arrangement does not, however, mean that the Court has shown any proclivity for the petitioners’ continuation, much less a judicial imprimatur in any manner. The decision making lies entirely in the discretion of the Government. With the above observations, the Court disposes of the writ petitions. No order on costs. ## **DAMA SESHADRI NAIDU JUDGE** rv/DMR/-