IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 37498 of 2008(L) 1. K.M.KALA, Petitioner Vs 1. THE FLAG OFFICER, Respondent 2. THE UNION OF INDIA, REPRESENTED BY 3. THE OFFICER-IN-CHARGE, For Petitioner :SRI.M.CHATHUKUTTY NAMBIAR For Respondent :SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR The Hon'ble MR. Justice [ENTITY] Dated :23/02/2010 O R D E R
[ENTITY],J.
W.P.(C) No.37498 of 2008 - L
Dated 23rd February, 2010 Judgment The petitioner, who is presently working as [ENTITY] in Command Stadium, Naval Base, Cochin, has filed this writ petition seeking regularisation in service.
2. The petitioner herein was engaged as [ENTITY] on a casual basis in Command Stadium, Naval Base, Cochin, with effect from 1.1.1995. In the year 1986, long before the Command Stadium was constructed, four persons were engaged on 2.2.1965, 1.7.1979, 14.9.1982 and 1.12.1992 respectively to work as Sports Malis in the play grounds under the control of Southern Naval Command, Cochin. They moved the Central Administrative Tribunal, Ernakulam Bench by filing [CASE NUMBER] claiming regularisation in service. The said application was rejected on the ground that it is not maintainable. That order was upheld by the Apex Court. Thereafter, they filed [CASE NUMBER] in this Court claiming regularisation in service. They contended that in view of their long and continuous service, they are entitled to be regularised in service. The respondents therein resisted their claim for regularisation inter alia on the ground that the sports grounds under the control of Southern Naval Command, Cochin are managed with non-public funds, that there are no sanctioned posts, that the petitioners were engaged to work purely on adhoc basis and therefore, they are not entitled to be absorbed in Government service. It was also contended that as [CASE NUMBER] has been rejected by the Central Administrative Tribunal, their claim for regularisation is barred by the principles of res judicata.
3. By Ext.P1 judgment delivered on 24.9.1994 [[ENTITY] & others v. [ENTITY], Commanding-in-Chief & others (1994 (2) KLJ 823], a learned single Judge of this Court allowed the said original petition. It was held that the dismissal of [CASE NUMBER] does not operate as res judicata for the reason that the said application was rejected on the ground that it was not maintainable and that their claim for regularisation was not rejected on the merits. The learned single Judge also held that the petitioners therein are entitled to be treated on par with Class 'D' employees and that the mere fact that their salary is being paid from non-public funds cannot be a ground to deny them regularisation as the sports grounds were established by the Central Government. The learned single Judge also held that as they have served for a long period of 12 to 29 years, they are entitled to regularisation. The respondents in [CASE NUMBER] carried the matter in appeal by filing [CASE NUMBER]. By Ext.P2 judgment delivered on 20.3.2002, a Division Bench of this Court dismissed that appeal. The Special Leave Petition filed therefrom by the respondents in [CASE NUMBER] was dismissed by the Apex Court. Thereupon, three among the petitioners in [CASE NUMBER] were regularised in service with effect from 2.6.2003.
4. The petitioner herein had, after Ext.P2 judgment was delivered by this Court, filed a representation dated 20.5.2003 before respondents 1 and 3 claiming regularisation in service. She thereafter filed [CASE NUMBER] in this Court claiming regularisation in service. By Ext.P5 judgment delivered on 14.3.2008, a learned single Judge of this Court disposed of the said writ petition with a direction to the first respondent herein, who was the first respondent in the said writ petition also, to take a decision on the representation dated 20.5.2003 filed by the petitioner (Ext.P6 in [CASE NUMBER]) and to take an appropriate decision thereon in the light of the benefits granted to similarly situated persons, within a period of three months from the date of production of a copy of the judgment. The first respondent thereupon considered the claim of the petitioner for regularisation in service and passed Ext.P7 order dated 11.6.2008 rejecting her claim for regularisation. The petitioner thereupon filed [CASE NUMBER] in this Court. The learned single Judge before whom the said case came up for hearing, passed Ext.P8 order posting the case before the Division Bench in terms of [SECTION] of the [ACT]. A Division Bench of this Court thereafter considered [CASE NUMBER] and passed Ext.P9 judgment holding that the remedy of the petitioner is to question the correctness of Ext.P7 order. This writ petition was thereupon filed on 17.12.2008 seeking the following reliefs:
(i) Issue a writ of certiorari or any other writ, order or direction calling for the records leading to Ext.P7 and quash the same;
(ii) Issue a writ of mandamus or any other writ, order or direction directing the respondent to regularise the service of the petitioner and grant all service benefits including the arrears of the salary from 1994 onwards."
5. The petitioner contends that she is similarly placed as the petitioners in [CASE NUMBER] in whose favour Exts.P1 and P2 judgments which were upheld by the Apex Court were delivered by this Court and that the reasons stated in Ext.P7 to deny her regularisation in service are not tenable. She also contends that the reliance placed by the first respondent on the decision of the Apex Court in Secretary, State of Karnataka and others v. [PRECEDENT] and others 2006) 4 SCC
1) is misconceived. The petitioner also relies on the decision of the Apex Court in [PRECEDENT] 2007) 11 SCC 92) to contend that as persons similarly situated have been regularised in service pursuant to Exts.P1 and P2 judgments of this Court, the principles laid down by the Apex Court in [PRECEDENT]'s case (supra) cannot be applied mechanically. The petitioner contends that Ext.P7 order passed by the first respondent rejecting her request for regularisation is arbitrary and discriminatory and violates [SECTION] of the [ACT].
6. A counter affidavit dated 29.5.2009 has been filed on behalf of the respondents. It is contended that the Command Stadium where the petitioner is presently engaged was constructed by the Southern Naval Command in the year 1975 utilising non-public funds, that no post has been created or sanctioned by the Government of India for the purpose of maintaining the Command Stadium, that the petitioner was engaged as [ENTITY] purely on a casual basis without following the formal procedure for selection as is followed in the appointment of Government employees and that her engagement was not against a sanctioned post. As regards the claim of the petitioners in [CASE NUMBER], that was allowed by Ext.P1 judgment and upheld by Ext.P2 judgment of the Division Bench of this Court, it is contended that their services were regularised as the Special Leave Petition filed from Exts.P1 and P2 judgments was dismissed by the Apex Court, that after the decision of the Apex Court in [PRECEDENT]'s case (supra), the situation has changed and that in view of the later decision of the [ACT] Bench of the Apex Court in [PRECEDENT]'s case (supra), services of casual workers who are engaged without conducting a proper selection process cannot be regularised. The respondents contend that in view of the decision of the Apex Court in [PRECEDENT]'s case (supra), the petitioner cannot claim that the same benefit as was given to those Sports Malis whose services were regularised pursuant to Exts.P1 and P2 judgments, should be extended to her.
7. When this writ petition came up for hearing on 23.6.2009, this Court directed the respondents to file an affidavit explaining what they mean by the statement in the counter affidavit that the Command Stadium was put up by using private funds and that the petitioner's remuneration is being paid from private funds. As directed by this Court, an affidavit dated 3.7.2009 has been filed on behalf of the respondents wherein they have explained what they meant by stating that the Command Stadium was put up by utilising private funds and that the petitioner is being paid out private funds. The respondents have in paragraphs 3, 4 and 5 of the affidavit dated 3.7.2009 stated as follows:
"3. It is respectfully submitted that the respondents handle two types of funds such as, 'public fund' and 'non-public fund'. The source of income towards public fund is the receipt of money from the Defence Estimates under Major Heads and various Minor Heads through Budgetary Allocation of Union of India, after passing the Annual Budget on financial year basis. Such Public Fund is utilised by Headquarters Southern Naval Command for making Pay and Allowances to the Government employees appointed in the Units and Establishments against sanctioned posts under Southern Naval Command and for various activities connected with the departments, besides training purposes of Naval and civilian personnel. This fund is accountable and auditable by the Defence Accounts Department. However, a number of institutions such as Sailors Institute, Cafetarias, Wet Canteens, Sailors Messes/Bars etc. are run with the help of Non Public Fund. The source of income towards these institutions is the sale proceeds and the profit therefrom. However, the income towards Welfare Funds held by the Ships and Units is the monthly subscription from the Naval Service personnel. The income generated by the profit making institutions and welfare funds besides the interest generated by investment of the funds are accounted in the Non-Public Funds and the same are controlled by the respective Units and Ships. These funds are audited by internal arrangement and the audit Board is appointed by the 1st respondent herein. In otherwise, no amount is received from the Government exchequer either as a grant or allocation towards these Non-Public Funds. Since the income generated by the Non-Public Funds is purely from private sources, the Non- Public Funds could be termed as Private Funds. The staff employed in these institutions are paid from the respective Non- Public Funds which is governed by the guidelines for Non-Public Funds issued by the Naval Headquarters from time to time. It is further humbly submitted that a share of profit is remitted from the Non-Public Funds to the Command Non-Public Fund which is controlled by the Headquarters, Southern Naval Command.
4. It is also humbly submitted that when there existed a need for a stadium for the Southern Naval Command, the same was built from the resources available under Non-Public Funds in Southern Naval Command. However, the control of the Stadium is entrusted to a department, but the Public Fund could not be utilised for the upkeep and maintenance of the Stadium. Therefore, a Non-Public Fund namely, 'Southern Naval Command Stadium Maintenance Fund' is being operated by the Officer-in- Charge, Command Stadium and the income to which is only the grant being received from th Command Non-Public Fund held by Headquarters Southern Naval Command and no income is being generated by the Southern Naval Command Stadium Maintenance Fund on its own. Accordingly, the petitioner herein who is engaged as a casual Safaiwala in Command Stadium is paid the remuneration from the said Stadium Maintenance Fund.
5. Since the petitioner is not appointed against a Government scheduled post as per rules, she cannot be paid from Public Fund and as such wages is being from Non-Public Fund which is controlled locally without any aid from the Government."
8. I have considered the submissions made at the Bar by Sri. [ENTITY], the learned counsel appearing for the petitioner and the learned Assistant Solicitor General of India appearing for the respondents. I have also gone through the pleadings and the materials on record. The learned counsel appearing for the petitioner contended relying on Exts.P1 and P2 judgments of this Court that as the petitioner is similarly placed as the four Sports Malis whose claim for reglularisation in service was accepted by this Court in Exts.P1 and P2 judgments, she is entitled to have her service regularised. The learned counsel appearing for the petitioner, relying on the decision of the Apex Court in [PRECEDENT] 2007) 11 SCC 92) contended that as four other employees who were working as Sports Malis in the play grounds under the control of Southern Naval Command, Cochin have been regularised pursuant to the directions issued by this Court in Ext.P1 judgment which has attained finality, the petitioner is also entitled to be regularised in service. The learned counsel appearing for the petitioner also relied on the decision of a learned single Judge of this Court in [PRECEDENT] and of the Apex Court in [PRECEDENT] to contend that as Ext.P1 judgment of this Court has attained finality and the petitioner is similarly placed as the petitioners therein, the respondents cannot take the stand that the benefit of the said decision cannot be extended to the petitioner. The learned counsel contended that the mere fact that the petitioner had not approached this Court along with four others whose claim was upheld by this Court in Ext.P1 judgment would not mean that the petitioner who is similarly placed should be treated differently. The learned counsel appearing for the petitioner also contended that as the services of other casual employees working in the Command Stadium have been regularised, the principles laid down by the Apex Court in [PRECEDENT]'s case (supra) cannot be applied mechanically and that the rejection of her claim for regularisation after a long period of service namely, from 1.1.1995 is arbitrary, discriminatory and unreasonable.
9. Per contra, the learned counsel appearing for the respondents contended that the petitioner who is not appointed against a sanctioned post and is being paid out of non-public funds and was not engaged after following the procedure prescribed for appointment to Government service cannot claim regularisation in service. The learned counsel appearing for the respondents contended that the Apex Court has in Official Liquidator v. Dayanand 2008) 10 SCC 1) held that the observations in [PRECEDENT] (supra) are obiter and that the same should neither be treated as binding by the High Courts, Tribunals and other judicial forums nor be relied on or made the basis for bypassing the principles laid down by the [ACT] Bench in [PRECEDENT]'s case (supra). The learned counsel appearing for the respondents also relied on the decisions of the Apex Court in Punjab Water Supply & Sewerage Board v. Ranjodh Singh and others 2007) 2 SCC 491) and Pinaki Chatterjee and others v. Union of India and others 2009) 5 SCC
193) to contend that a writ of mandamus directing regularisation of the petitioner in service cannot be issued as the petitioner has no legal right to claim regularisation since she was not appointed against a cadre post and her engagement was purely on a casual basis and also for the reason that she was not appointed after following the prescribed procedure.
10. A [ACT] Bench of the Apex Court has in [PRECEDENT]'s case (supra) held that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, it would not confer any right on the appointee. It was held that if the appointment is a contractual appointment, the appointment comes to an end at the end of the contract and that if the engagement was on daily wages or casual basis, the same would come to an end when it is discontinued. The Apex Court also held that merely because a temporary employee or a casual wage worker is continued for a long time beyond the term of his appointment, he will not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged in the relevant rules. It was held that the High Court acting under [SECTION] of the [ACT] should not ordinarily issue directions for absorption, regularisation or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme.
11. In [PRECEDENT] 2007) 11 SCC 92), a Bench of two Hon'ble Judges of the Apex Court held that [PRECEDENT]'s case (supra) cannot be applied mechanically and without adverting to the facts of the case as the little difference in facts can make [PRECEDENT]'s case (supra) inapplicable to the facts of that case. The Apex Court held that as others similarly placed had been given regularisation pursuant to the decision taken by the U.P.State Electricity Board on 28.11.1996 to regularise the workers working on daily wage basis before 4.5.1990 in existing posts, it would be aribtrary and discriminatory to deny the benefit of such regularisation to some others who were likewise working on daily wage basis before 4.5.1990. Later, a larger Bench of the Apex Court held in [PRECEDENT] that the observations in [PRECEDENT] (supra) are obiter and that the same should neither be treated as binding by the High Courts, nor should they be relied upon or made the basis for by passing the principles laid down by the [ACT] Bench of the Apex Court in [PRECEDENT]'s case (supra).
12. In Punjab Water Supply & Sewerage Board v. Ranjodh Singh and others 2007) 2 SCC 491), the Apex Court after a detailed analysis of the case law on the point held that the observation in paragraph 53 of [PRECEDENT]'s case (supra) that as a one-time measure, regularisation of employees can be made, was made, in relation to appointments which were only irregular in nature and not illegal appointments. It was held, relying on the decision of the Apex Court in National Fertilisers Ltd. v. Somvir Singh 2006) 5 SCC 493) that a mandamus to regularise an employee in service can be issued only if he or she has a legal right to continue in service. In Pinaki Chatterjee and others v. Union of India and others 2009) 5 SCC 193), the Apex Court held that persons appointed on a casual basis and not against any cadre post cannot claim regularisation in service especially when such appointment is not in compliance with [SECTION] and [SECTION] of the [ACT].
13. The respondents have categorically stated in the counter affidavit that the Command Stadium where the petitioner is engaged was constructed utilising non-public funds and that the expenses for payment of wages to her are also met from such non-public funds. The respondents have also stated that the post of [ENTITY] is not a sanctioned or cadre post and that the petitioner was engaged without following any formal procedure for selection as is followed for appointment in Government service. They have also explained the meaning of the term "non-public funds" in the affidavit dated 3.7.2009. It is stated that public funds are not being utilised for the upkeep and maintenance of the Command Stadium and for payment of wages to the petitioner. It is also stated that besides the Command Stadium, Sailors Institute, Sailors Mess etc. are also run with the help of non-public funds and that the source of income for the said institutions is the sale proceeds and the profits therefrom. It is further stated that these funds are audited by internal arrangement and that no amount is received from the Government exchequer either as grant or allocation towards expenditure incurred in connection with such institutions and that the staff employed in such institutions are also paid from non-public funds. The respondents have also stated that as the Command Stadium was built utilising non-public funds, though the control of the Stadium is with the Department, public funds cannot be utilised for its upkeep and maintenance and that the expenses for payment of wages to employees engaged in the Command Stadium are met from the "Southern Naval Command's Maintenance Fund", the income to which is the grant received from the non-public funds held by the Southern Naval Command. It is also stated that no income is generated by the Southern Naval Command Stadium Maintenance Fund on its own and that the petitioner is being paid remuneration from the Command Stadium Maintenance Fund.
14. The petitioner has not been able to show that with reference to any material that she was appointed as [ENTITY] after following the prescribed procedure wherein an equl opportunity was extended to others also to participate in the selection. The petitioner has not been able to show that she is being paid from public funds or that a post of [ENTITY] has been created in the Command Stadium. The fact that the petitioner was engaged only on a casual basis is not in dispute. She was not appointed against a sanctioned post is also evident. The four petitioners whose claim for regularisation was upheld by this Court were engaged with effect from 2.12.1965, 1.7.1979, 14.9.1982 and 1.12.1982. One among them, Sri.[ENTITY], expired on 4.11.1998 while [CASE NUMBER] filed from Ext.P1 judgment was pending in this Court. He was therefore not regularised in service. The other three petitioners were regularised in service with effect from 2.6.2003, long before the judgment of the [ACT] Bench of the Apex Court in [PRECEDENT]'s case (supra) was delivered. The petitioner was admittedly appointed as [ENTITY] on a casual basis only on 1.1.1995, that is, more than 29 years after the first petitioner in [CASE NUMBER] was engaged and two years after the fourth petitioner therein was engaged. The petitioner cannot therefore be said to be similarly placed as the petitioners in [CASE NUMBER]. She cannot also therefore be heard to contend relying on the decision of this Court in [PRECEDENT]) and of the Apex Court in [PRECEDENT] (supra) that the benefit of Ext.P1 judgment should be extended to her. After the decision of the Apex Court in [PRECEDENT]'s case (supra), the petitioner who was engaged only on a casual basis against a non-cadre post without following the prescribed procedure and without a public advertisement inviting applications cannot claim that she should be regularised in service merely for the reason that she is being engaged as a [ENTITY] since 1.1.1995. Further, in view of the decision of the Apex Court in Official Liquidator v. Dayanand 2008) 10 SCC 1), this Court cannot rely on the decision of the Apex Court in [PRECEDENT]'s case (supra) to hold that as the services of three persons working in the Command Stadium were regularised before the judgment of the Apex Court in [PRECEDENT]'s case (supra), the non-regularisation of the services of the petitioner will be arbitrary and unreasonable. In such circumstances, I hold that the petitioner who was not appointed against a sanctioned post in accordance with the prescribed procedure cannot claim regularisation in service.
15. The petitioner is presently aged 40 years. She has been working as [ENTITY] in Command Stadium, Naval Base, Cochin ever since 1.1.1995 on a casual basis. The need for the services of a [ENTITY] in the Command Stadium is not in dispute. The petitioner has been working for the past nearly 15 years. The respondents have no complaint about her conduct or the performance of her duties. In such circumstances, even while rejecting the petitioner's claim for regularisation, I am of the opinion that the respondents should continue to engage her as [ENTITY] in Command Stadium, Naval Base, Cochin, on a casual basis by paying her fair wages till a regular appointment is made.
I accordingly hold that there is no merit in the writ petition. The writ petition fails and is dismissed subject to the above observation. The parties shall bear their respective costs [ENTITY] Judge vaa