IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE SMT. JUSTICE [ENTITY] MONDAY,THE 20TH DAY OF NOVEMBER 2017/29TH KARTHIKA, 1939 WP(C).No. 22854 of 2017 (F) PETITIONER(S): 1. REMIA MATHEW, OFFICE ASSISTANT, THE VEGETABLE & FRUIT PROMOTION COUNCIL, KERALAM, IDUKKI. 2. KRISHNANUNNI P.S. OFFICE ASSISTANT, THE VEGETABLE & FRUIT PROMOTION COUNCIL, KERALAM, KBK HQ, KAKKANAD. 3. RADHAKRISHNAN B. OFFICE ASSISTANT, THE VEGETABLE & FRUIT PROMOTION COUNCIL, KERALAM, ALAPPUZHA. 4. RAJEEV R., OFFICE ASSISTANT, THE VEGETABLE & FRUIT PROMOTION COUNCIL, KERALAM, PALAKKAD. 5. JAYAN P.B., OFFICE ASSISTANT, THE VEGETABLE & FRUIT PROMOTION COUNCIL, KERALAM, KOLLAM. 6. AJITHKUMAR V., OFFICE ASSISTANT, THE VEGETABLE & FRUIT PROMOTION COUNCIL, KERALAM, KOLLAM. 7. [ENTITY]. MANAGEMENT ASSISTANT, THE VEGETABLE & FRUIT PROMOTION COUNCIL, KERALAM, PALAKKAD. 8. BINOY GEORGE OFFICE ASSISTANT, THE VEGETABLE & FRUIT PROMOTION COUNCIL, KERALAM, PALAKKAD. 9. BINDU S. OFFICE ASSISTANT, THE VEGETABLE & FRUIT PROMOTION COUNCIL, KERALAM, PATHANAMTHITTA. WP(C).No. 22854 of 2017 (F) 10. JOYCY C.J. OFFICE ASSISTANT, THE VEGETABLE & FRUIT PROMOTION COUNCIL, KERALAM, PALAKKAD. 11. REJITHA., OFFICE ASSISTANT, THE VEGETABLE & FRUIT PROMOTION COUNCIL, KERALAM, KANNUR. BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SMT.ASHA BABU SMT.R.S.ASWINI SANKAR SRI.T.H.ARAVIND RESPONDENT(S): 1. THE VEGETABLE AND FRUIT PROMOTION COUNCIL REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, MYTHRI BHAVAN, NEAR DOORDHARSHAN KENDRA, KAKKANAD, KOCHI-682037. 2. THE CHIEF EXECUTIVE OFFICER VEGETABLE & FRUIT PROMOTION COUNCIL, KERALAM, MYTHRI BHAVAN, NEAR DOORDHARSHAN KENDRA, KAKKANAD, KOCHI-682037. 3. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF AGRICULTURE, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695001. R1 & R2 BY SRI.RENJITH THAMPAN (SENIOR ADVOCATE) SRI. MAJNU KOMATH, SC, R3 BY GOVERNMENT PLEADER SRI. B. UNNIKRISHNA KAIMAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-11-2017, THE COURT ON 20-11-2017 DELIVERED THE FOLLOWING: sdr/- WP(C).No. 22854 of 2017 (F) APPENDIX PETITIONER(S)' EXHIBITS EXHIBIT P1 TRUE COPY OF ORDER DT.23-5-2014 ISSUED TO THE PETITIONERS BY THE DIRECTOR OF R1 COUNCIL. EXHIBIT P2 TRUE COPY OF ORDER DT.13-7-2015 ISSUED TO THE PETITIONERS BY R2. EXHIBIT P3 TRUE COPY OF ORDER DT.22-11-20[SECTION] ISSUED TO THE 1ST PETITIONER BY R2. EXHIBIT P4 TRUE COPY OF ORDER DT.06-10-20[SECTION] ISSUED TO THE 1ST PETITIONER. EXHIBIT P5 TRUE COPY OF JUDGMENT DT.19-09-2015 IN [CASE NUMBER]. EXHIBIT P6 TRUE COPY OF JUDGMENT DT.[SECTION]-02-2017 IN WP(C)NO.32780 OF 20[SECTION]. EXHIBIT P7 TRUE COPY OF SHOW CAUSE NOTICE DT.17-04-2017 ISSUED TO THE 1ST PETITIONER. EXHIBIT P8 TRUE COPY OF EXPLANATION DT.01-05-2017 SUBMITTED BY THE 1ST PETITIONER. EXHIBIT P9 TRUE COPY OF ORDER DT.30-06-2017 ISSUED TO THE 1ST PETITIONER. EXHIBIT P9(A) TRUE COPY OF ORDER DT.30-06-2017 ISSUED TO THE 3RD PETITIONER. EXHIBIT P9(B) TRUE COPY OF ORDER DT.30-06-2017 ISSUED TO THE 7TH PETITIONER. RESPONDENT(S)' EXHIBITS EXT.R1-A TRUE COPY OF THE PROCEEDINGS OF THE [ACT]M DATED 26.03.2008 EXT.R1-B TRUE COPY OF THE JUDGMENT IN [CASE NUMBER] DATED 03.03.2009 WP(C).No. 22854 of 2017 (F) EXT.R1-C TRUE COPY OF THE PROCEEDINGS OF THE [ACT]M DATED 05.03.2009 EXT. R1-D TRUE COPY OF THE INTERIM ORDER IN [CASE NUMBER] DATED 11.03.2009 EXT.R1-E TRUE COPY OF THE CHAPTER-IV OF THE STAFF REGULATION OF VEGETABLE & FRUIT PROMOTION EXT.R1-F TRUE COPY OF THE OFFICE ORDER NO. [CASE NUMBER]HR/OFF.ORDER/2013 DATED 11.09.2013 ISSUED BY THE [ACT]. EXT.R1-G TRUE COPY OF THE MINUTES OF THE 64TH BOARD METING OF VEGETABLE & FRUIT PROMOTION COUNCIL KERALMA DATED 22.01.2014 EXT.R1-H TRUE COPY OF THE JOB PROFILE OF MANAGEMENT ASSISTANT IN VEGETABLE & FRUIT PROMOTION COUNCIL KERALAM EXT.R1-I TRUE COPY OF THE JOB PROFILE OF OFFICE ASSISTANT IN VEGETABLE & FRUIT PROMOTION COUNCIL KERALAM EXT.R1-J TRUE COPY OF THE APPOINTMENT ORDER NO. [CASE NUMBER]/HR/[CASE NUMBER] APPOINTING SRI. [ENTITY] DATED 23.05.2014 ISSUED BY THE DIRECTOR (A&F) OF VEGETABLE & FRUIT PROMOTION COUNCIL KERALAM EXT.R1-K TRUE COPY OF THE APPOINTMENT ORDER NO. [CASE NUMBER]/HR/[CASE NUMBER] APPOINTING SMT. BINDU ANIL DATED 23.05.2014 ISSUED BY THE DIRECTOR (A&F) OF VEGETABLE & FRUIT PROMOTION COUNCIL KERALAM EXT.R1-L TRUE COPY OF THE MINUTES OF THE 71ST BOARD MEETING OF THE VEGETABLE & FRUIT PROMOTION COUNCIL KERALA HELD ON 02.07.2015 /TRUE COPY/ PA TO JUDGE sdr/- [ENTITY], J. [CASE NUMBER] Dated this the 20th day of November, 2017 JUDGMENT
All the petitioners have been working as Office Assistants in the 1st respondent- the Vegetable and Fruit Promotion Council Keralam (`Council' for short). They have filed this writ petition challenging the termination of their services as per Exts.P9 to P9(b) and similar orders.
2. The petitioners were initially engaged in the Council on daily wages. While working so, their services were sought to be terminated in the year 2008 and they had approached this Court in a series of writ petitions challenging those orders. But those writ petitions were dismissed by a common judgment Ext.R3B. The petitioners challenged that judgment in [CASE NUMBER]. During the pendency of those writ Appeals, petitioners were appointed as per orders similar to Ext.P1 issued on 23.05.2014 on contract basis. Though the appointment was initially for a period of one year on contract basis, it was likely to be extended to two years from 1.1.2014, subject to the review of their performance. While they were continuing so, their services were regularised w.e.f 1.1.2015, as per Ext.P2 order issued on 13.07.2015, in the post of Management Assistants and Office Assistants in the scale of pay of Rs.9190-15780 and Rs.8730- 13540 respectively. As per judgment dated 18.09.2015, the Writ Appeals filed by them were closed recording the submission of the learned Standing Counsel for the Council that the petitioners were regularised. Thereafter, their probation was declared on completion of one year service as per Ext.P3 and similar orders. While continuing so, the respondents issued Ext.P4 order on 6.10.20[SECTION], abruptly terminating their services, on the basis of a decision taken in the 76th Director Board Meeting of the 1st respondent held on 26.09.20[SECTION]. Immediately, thereupon they filed W.P(c).No.32780 of 20[SECTION] before this Court and while continuing on the strength of interim orders, the respondents filed a counter affidavit admitting the illegality in terminating their services and seeking permission to withdraw the orders of termination with liberty to initiate appropriate steps as per rules against their illegal appointments. The writ petition was disposed of as per judgment dated [SECTION].02.21017, in the light of the statement contained in paragraph 13 of the counter affidavit, granting liberty to the respondents to initiate appropriate legal steps against the illegal appointment and regularisation of the petitioners.
3. Thereafter show cause notices like Ext.P7 were issued to the petitioners, pointing out the following irregularities found by the Board in the appointment of the petitioners:
"(i) A.s per [SECTION] of the [ACT], the method of appointment to the Council shall be made from among applications invited through open advertisement, or by promotion or by deputation from other departments. He was appointed! in the Council on contract basis without complying with any of the method of recruitment as mentioned in the Staff Regulations.
(ii) Staff Regulation stipulates that the guidelines of communal reservation as prescribed by Kerala State and Subordinate Service Rules (KS&SSR) should be followed. But in the appointments to the post of Office Assistant, including that of Shri [ENTITY], the guidelines of communal reservation was not followed.
(iii) The qualification prescribed for the post of Office Assistant in the Staff Regulation is SSLC plus TWO WHEELER DRIVING LICENCE. But he did not possess this qualification When he was appointed in the Council
(iv) His appointment is further vitiated by way of appointing him with retrospective effect when he was appointed on contract basis. When he was regularised in the service also he was appointed on retrospective effect"
The petitioners submitted explanations like Ext.P8 asserting that their appointments were made in accordance with law and their appointments cannot be cancelled or their services terminated except under disciplinary grounds and without getting permission from this Court. Ext.P9 series of orders were issued thereafter. The 1st respondent found that the appointments of the petitioners were not made in accordance with the procedure prescribed in the staff regulations. It was found that the initial engagement of the petitioners on contract basis as well as the subsequent regularisation were made without notifying the vacancies and denying opportunity for employment to similarly situated candidates; without observing communal reservation, they do not have the prescribed qualification for the post; it was found that when the appointment itself was a nullity nothing illegal in reviewing an illegal executive order issued contrary to the recruitment rules.
4. The respondents have filed counter affidavit stating the following. The services of the petitioners and 12 others were terminated as per Ext.R1-A order on 26.03.2008, as their appointments were found illegal. They challenged the termination of their services, filing [CASE NUMBER] and continued on the basis of the interim orders. Thereafter, those writ petitions were dismissed as per Ext.R1-B common judgment dated 3.3.2009 and they were relieved from the 1st respondent as per Ext.R1-C order on 5.3.2009. Challenging Ext.R1- B judgment, they had filed [CASE NUMBER]. Ext.R1-D interim order was passed in those writ appeals directing that the appellants shall be continued, if any personnel is required by the 1st respondent and that in case the respondent Council takes steps for regular recruitment as per the Regulations, the appellants shall also be permitted to participate in the process, subject to their qualification. During the pendency of the Writ Appeals the Council conducted a regular process of selection affording opportunity to the petitioners and others whose termination of services were upheld in Ext.R1-B judgment. Some of the petitioners, whose services were terminated, were given opportunity to participate in the said selection conducted in accordance with [SECTION] of [SECTION] Staff Regulations, which was in force at the relevant time, i.e, from 5.1.2011, after conducting written test and interview inviting applications notifying the vacancies with due publicity. One of the appellants got appointment on the basis of the said selection. The method of appointment provided as per Staff Regulations is by direct recruitment, promotion and by deputation. Direct recruitment has to be made after inviting applications through open advertisement observing communal reservation. [ENTITY] on 11.09.2013, the then Chief Executive Officer of the 1st respondent Council issued Ext.R1-F office order on 11.09.2013, for engaging the appellants in the Writ Appeals on daily wages saying that additional manpower was necessary for implementation of additional schemes of Government and the petitioners were engaged on daily wages from 11.09.2013 onwards @ Rs.300/-. Thereafter, the then Chief Executive Officer of the 1st respondent presented a proposal for regularisation of the 12 petitioners and another one who were engaged on daily wages before the 64th Board Meeting of the Council held on 22.01.2014, including it under any other items in the agenda. On wrong presentation of the proposal that the services of petitioners were terminated after their regularisation in 2006, for shortage in the service on contract basis, the Council was misled on account of which it was decided in Ext.R1- G Minutes to appoint them on contract basis, contrary to [SECTION] Staff Regulations. Based on the said decision, appointment orders were issued to the petitioners on 23.05.2014 appointing them with retrospective effect in violation of recruitment rules and in connivance with the petitioners and then officers. The 7th petitioner who is appointed as Management Assistant does not have the required qualification of Diploma in Commercial Practice/Higher Secondary or equivalent and certificate in Data Entry Operator Course, as provided in Ext.R1-H. The other petitioners who are appointed as Office Assistants do not have the two wheeler driving license as against the requisite qualification of SSLC with two wheeler license, as evident from Ext.R1-I. The matter of regularisation of the petitioners was placed in the 71st Board meeting held on 2.07.2015, when the Board took the following decision : "treating their previous service period as regular service it is decided to regularise them in service with effect from 1.1.2015". Various complaints were received against these illegal appointments and on examination of the same, the present Council directed the present Chief Executive Officer to examine the matter and to terminate those appointed illegally. Orders of termination were issued on being convinced of the illegality, after issuing show cause notice and considering their reply.
5. The contention of the petitioners is that once the appointment is regularized, the respondents do not have any authority to cancel their appointment and their services cannot be terminated except after resorting to disciplinary action. It is their further case that the 1st respondent does not have any authority to review the decision of the Board and as long as there is no provision conferring the power of review, the impugned orders are null and void.
6. I heard Sri. [ENTITY], the learned Senior Counsel for the petitioners, Sri. [ENTITY], the learned Additional Advocate General for the 3rd respondent and Sri.[ENTITY], the learned Standing Counsel for respondents 1 and 2.
7. From the order Ext.P9 as well as Ext.R1-B judgment dismissing the writ petitions filed by the petitioners challenging the orders of their termination, it is seen that the intial appointment of the petitioners on daily wages, and their regular appointment thereafter were found to be illegal in Ext.R1-B common judgment dt.3.3.2009 in [CASE NUMBER]. This Court had found that the Chief Executive Officer is the appointing authority and the orders of termination were upheld seeing that appointments were faulty and the decision to regularise was taken contrary to the decision of the committee to take appropriate decision after evaluating the proposal. The special committee proposed that all staff with one year experience can be regularized subject to the performance to be decided on the basis of the scrutiny. In the 25th meeting of the Board of Directors held on 25.01.2006, the agenda item was "to regularize a contract staff who completed one year service and in the case of casual/daily wage employees to form a screening committee to evaluate them. Suitable candidates may be appointed on contract basis initially". This Court found that the only decision was to regularize all contract staff who have completed one year service and to form a screening committee to evaluate them. But even prior to the Board meeting, an interview was held on 24.1.2006 based on which appointment orders were issued and the orders of appointment did not refer to any resolution of the Board to appoint them. In Ext.R1-B judgment it was found that the initial engagement of the petitioners on daily wages and their provisional appointment thereafter were made without notifying vacancies by inviting applications which resulted in denial of opportunity to other qualified candidates. It was also found that the principles of reservation were not followed while making the appointment. Some of the petitioners were found not even qualified for appointment to the post. Therefore, the orders of termination were upheld in the light of the judgments of the Apex Court in [PRECEDENT] and Secretary, State of Karnataka & Ors. v. [ENTITY] (3) & Ors.[(2006) 4 SCC 1], where the Apex Court reiterated the requirement of the authorities to follow the constitutional scheme for appointment and frowned upon the absorption or regularization of temporary, casual or daily wage employees dehors the constitution. The judgments of the Apex Court in [PRECEDENT] as well as [PRECEDENT] were also followed. Noticing that there was not even a concrete decision of the 1st respondent to regularize the petitoners who were daily wage employees, the appointments of the petitoners were held illegal, following the judgments of this Court in [PRECEDENT]. [[PRECEDENT] and [ENTITY][PRECEDENT]. [[PRECEDENT]], also.
8. It is seen that the petitioners were permitted to participate in the regular process of selection, as directed in the interim order Ext.R1-D dated 11.3.2009 in the writ appeals filed by the petitioners. But they did not come out succesful, while certain others were appointed based on such selection. It is thereafter that the respondents decided to engage them on daily wages against additional schemes as per Ext.R1-F office order dated 11.09.2013. The Ext.R1-G minutes of the 64th meeting of the Council would show that the decision under other items in the agenda to appoint the petitioners on contract basis and thereafter to regularise them was taken based on a proposal which contained factually incorrect statements, in an attempt to validate the appointments which were already declared illegal and contrary to the regulations. The proposal, is placed in such a way that the petitioners who were engaged on daily wages and on contract basis got their appointments regularised in 2006, after observing all the formalities and their services happened to be terminated only on account of deficiency of service on contract basis, without disclosing the factual circumstances. It was stated that the petitioners had requested to regularise them granting them weightage to the service rendered by them prior to their previous service. Ext.R1-B judgment upholding the termination of their service or the pendency of the writ appeal were suppressed and a decision was taken on 22.01.2014 to appoint them on contract basis from 01.01.2014, based on such a proposal, repeating illegality. The appointment of the petitioners as per Ext.P1 and similar orders, apparently without undertaking any process of selection known to law and without allowing others to offer their candidature to those 12 vacancies, is illegal.
9. From the order of appointment Ext.P1 also, it can be seen that the appointment was made reckoning the previous service rendered by the petitioners. Such an order was issued when the previous service was found to be rendered on the basis of illegal appointment. Therefore, the very basis of the decision to appoint them as well as their appointments reckoning the orders and service which were nullified by this Court is also a nullity. Similar is the effect of the decision of the 71st meeting of the Board held on 2.7.2015, as seen from Ext.R1-L minutes, to regularise the petitioners w.e.f 1.4.2015 reckoning their entire service rendered in the Council as regular service. Such regularisation cannot nullify the findings in Ext.R1-B judgment of this Court .
10. The 1st respondent as well as the officers along with the petitioners have played fraud on public by such action. By way of such clandestine proceedings, the respondents and the petitioners avoided a decision in the writ appeals on merits and got it closed on 18.09.2015, recording the regularisation granted to the petitoners. However the judgment in Ext.R1-B is not varied. It is under such circumstances that the probation of the petitioners was declared as per Ext.P3 order.
11. When such acts of fraud are brought to the notice of the Council, as evident from the proceedings which culminated in Ext.R1-B judgment and the minutes Ext.R1-G leading to Ext.P1 order and Ext.R1-L minutes, the Council has every authority to rectify its action and to set right the illegalities in tune with the judgment of this Court in Ext.R1-B judgment. The order Ext.P9 series after issuing the show cause notice Ext.P7 and after considering the replies submitted by the petitioners do not therefore suffer from any illegality. The appointments of the petitioners were again made contrary to the Staff regulations without notifying the vacancies and without conducting any process of selection; that too without even verifying whether the petitioners are having the prescribed qualifications. The petitoners do not have any reply against the illegalities in the process of selection and their appointment made contrary to the staff regulations; without inviting applications by notification with publicity; without following communal reservation, the finding that they do not have the qualification, etc. The contention of the petitioners in their reply Ext.P8 to the show cause notice was that once their services were regularized on the basis of the decision taken by the Council and their probation was declared, their services cannot be terminated except by resorting to disciplinary action and the action of the Council in reviewing its earlier decision was without authority and that no executive order can be reviewed in the absence of a specific provision. It is also their contention that the orders of termination are vitiated by extraneous considerations on account of change in the ruling party. But the very decision to appoint them and thereafter to regularise them is a clear case of fraud, which itself is a nullity. Employment in the Council is the property of the public which cannot be appropriated at the whims and fancies of either the Council or the officers in it and any appointment under the Council has to be made consistent with [SECTION] and [SECTION] of the [ACT] and in accordance with the staff regulations. The proposal placed for Ext.R1-G decision reveals the fraud committed on the public, on those who aspire for appointment in accordance with the staff regulations, in total disregard of the judgment of this Court.
12. The learned Senior Counsel Sri [ENTITY], relying on the judgment of the Division Bench of this Court in V.[ENTITY] v. Commissioner[2007 (3) KHC 328], argued that there is no inherent power of review with any authority unless it is specifically conferred by the statute and therefore the decision to terminate the services of the petitioners was without jurisdiction. In [ENTITY]'s case (supra), this Court was considering the question of removal of the petitioners therein from the Board of Trustees. The Commissioner of HR&CE had appointed them as non hereditary trustees of TTK Devaswom. Thereafter the Commissioner disqualified them and removed them from the Board of trustees. This Court, after considering the provisions contained in the [ACT], held that the provisions conferring the power of superintendence and control on the Commissioner do not enable the Commissioner to review an order passed by the Commissioner under [SECTION] of the Act. In that case the Commissioner found that the appointments of non hereditary trustees were contrary to the guidelines issued. This Court found that the rights had already been crystalised on the parties and in the absence of a specific provision the Commissioner cannot review its own decision. The judgments of the Apex Court in [PRECEDENT] and [PRECEDENT] were also relied on in the said judgment in which it was held that in the absence of a specific conferment of power to review, the action of the Vice Chancellor was without jurisdiction. But I find that the circumstances arising in this case are entirely different, where appointments which were already found to be nullity are attempted to be validated by conscious acts of suppression and the very basis for the decision which is alleged to have been reviewed itself, arising out of fraud is a nullity, for which the question of power of review does not come into consideration. The judgment in Sadanandan v. State of Kerala [20[SECTION] (5) KHC 377 (D.B)] does not have any application in this case, where the initial appointment of the petitioner therein was through employement exchange.
13. The contentions of the learned Additional Advocate General Sri [ENTITY] and the learned Standing Counsel Sri [ENTITY] are that the very appointment of petitioners was illegal, in total violation of the provisions contained in the staff regulations and therefore the appointing authority had every power to correct its mistakes. The judgments of the Apex Court in [PRECEDENT] as well as the judgment of this Court in [ENTITY] K. v. State of Kerala [2008 1 KHC 191] were relied on. In the judgment of the Apex Court in Punjab Water Supply & Sewerage Board (supra) the question which arose for consideration was the power under [SECTION] of the [ACT]. The respondents in that case were engaged on contract basis in 2 schemes for maintenance of water supply and sewerage lines and for maintenance of tube wells in 2 different municipal corporations. Termination of their services was challenged and regularization was sought. The regularization was claimed on the basis of certain orders issued by the Government. The Apex Court found that the statutory bodies are bound to apply rules on recruitment laid down under statutory rules and are bound to implement the constitutional scheme of equality and they cannot refuse to forfeit such constitutional duty and the State cannot issue any direction inconsistent with the constitutional principles. It was further held that the circular in which there was a direction for regularization was not a statutory instrument and it was not even issued under [SECTION]. The Apex Court referred to the findings of the High Court that there was no publication of notification inviting applications for filling up the post and that the names of the appellants were recommended by the members of the legislative council and legislative assembly for appointment and there was no material to indicate that the rules of recruitment were followed. The Apex Court found that the judgment in [PRECEDENT], was not followed by the High Court even when it was held therein that no personnel illegally appointed or appointed without following the procedure prescribed under law is entitled to claim that he should be continued in service. The Apex Court held that any policy decision adopted by the State in exercise of its jurisdiction under [SECTION] would be illegal and without jurisdiction, once the terms and conditions of service are governed by statutory rules and no regularization is permissible if appointments are made in contravention of the statutory rules and appointments cannot be made on political consideration in violation of the Government direction for reduction of establishment expenditure or prohibition of filling up of vacant posts or creating new posts. The Apex Court has already held in [ENTITY]'s case (supra) that regularization of those appointed temporarily or on casual basis without following the rules is illegal. The illegality in the appointment of the petitioners was already found by this Court. All further proceedings leading to Exts.P1 to P3, in disregard of Ext.R1-B judgment of this Court, cannot have any effect of wiping out the findings in the judgment.
14. This Court in the judgment in [ENTITY] v. State of Kerala [2008 (1) KHC 191] considered the question of termination of services of the employees engaged on casual basis in Kerala Transport Development Finance Corporation and it was held that if the order for regularization of services of the persons who were originally engaged on daily wage basis is against non sanctioned posts or without following the procedure prescribed for recruitment, it would be a negation of [SECTION] and [SECTION] and if at all an order of regularization of service of such persons is issued that would be a void and no right would flow in favour of a beneficiary of such action, in the light of the judgment of the Apex Court in [ENTITY]'s case (supra). As long as the employer does not act in conformity with [SECTION] and [SECTION], the very decision of regularization is invalid.
15. The respondents have raised the contention that some of the petitioners do not have the qualification for appointment. The method of appointment and the qualification for appointment in the Council are prescribed under the Staff Regulation of the Council which is produced as [SECTION]. As per this, the recruitment to service of the Council shall be made (a) by direct recruitment, (b) by promotion and (c) by deputation. Direct recruitment shall be made after inviting application through open advertisement or by appointment through PSC. Recruitment to the post shall be made after open advertisement, observing communal reservation as prescribed by KS&SSR. The qualification prescribed for Management Assistant is Diploma in Commercial Practice/Higher Secondary or equivalent and certificate in data entry course with at least 3 years of relevant experience. The respondents have stated that the 7th petitioner, who was appointed as Management Assistant, does not have the required educational qualification. It is also stated that the other petitioners also do not have the requisite qualification for appointment as Office Assistant. The qualification prescribed for appointment as Office Assistant is SSLC plus two wheeler driving licence and none of the petitioners who were appointed as Office Assistant on contract basis do have the said qualification and therefore their appointments are illegal.
[SECTION]. The contention of the petitioners that once they are regularised they cannot be touched even if the very appointment is illegal, cannot be accepted as long as the petitioners do not have a case either that their appointments or their regularisation were in accordance with law. The petitioners do not even say that they were or are having the prescribed qualification. Moreover, it is evident from the minutes Ext.R1-G of the meeting held on 22.1.2014 that the proposal for appointment as well as regularisation of the petitioners was placed with totally incorrect statements. When the petitioners' services were already terminated and those terminations were upheld by this Court seeing that the very appointment was made contrary to the rules, a proposal saying that the petitioners had to be disengaged only for want of sufficient length of sevice on contract appointment at a time when the judgment Ext.R1-B was in force, is totally unfair. Such a decision on the question of regularisation after the committee was misled placing factually incorrect statements itself is null and void. The orders of appointment made thereafter appointing them on contract basis with retrospective effect from January, 2014 based on the decision of the Board on 22.1.2014 and the regularisation of their services, treating the service rendered by them on the basis of the appointments which were cancelled and the appointments which were found null and void by this Court, are also illegal.
17. In the above circumstances, the judgment of this Court in [ENTITY]'s case (supra) will not apply in the light of the Constitution Bench judgment in [ENTITY]'s case (supra) as well as this Court's judgment in [ENTITY]'s case (supra) when the original appointment itself was made in total violation of the provisions contained in the statute and the constitutional provisions enshrined under [SECTION] and [SECTION].
Therefore, the action of the respondents in Exts.P9 to P9(b) or in similar other orders cannot be said to be illegal. No employee can get a privilege on the basis of a wrong decision or order. The petitioners do not deserve any relief under [SECTION] of the [ACT]. Hence the writ petitions are dismissed.
([ENTITY], JUDGE) rtr/