IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 WP(C).No. 12540 of 2008(P) --------------------------------------- PETITIONER(S): ------------------------- TENSIM BEEGAM O.A, LD CLERK, KERALA STATE WAKF BOARD, ERNAKULAM, KOCHI-682 017.(BAITH- AL BANGARA, ASOKAPURAM P.O., NAD ROAD, ALUVA-683101. BY ADVS.MR.B.RAGUNATHAN MR.V.V.MATHEW MR.R.SRINATH RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. KERALA STATE WAKF BOARD, REPRESENTED BY CHIEF EXECUTIVE OFFICER (SECRETARY), KERALA STATE WAKF BOARD, VIP ROAD, KALOOR, ERNAKULAM, KOCHI-682 017. 3. CHAIRMAN, KERALA STATE WAKF BOARD, VIP ROAD, KALOOR, ERNAKULAM, KOCHI-682 017. ADDL. R4 IS IMPLEADED. 4. MOOSA PANOLI, S/O. BEERAN HAJI, KODAMBATTIL (H) KADUNGALLOOR, P.O. PULIYACODE, PIN. 673 641. ADDL. R4 IS IMPLEADED AS PER ORDER IN IA. NO.6186/09 DT. 2.6.09. R2 & R3 ADVS. MR. P.A.ABDUL JABBAR, SC, WAKF BOARD MR .M.M.SAIDU MUHAMMED,SC,WAKF BOARD ADDL. R4 MR.ELVIN PETER P.J. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.12540/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER DTD. 28.4.04 OF THE 2ND RESPONDENT. P2:- COPY OF THE JUDGMENT DTD. 11.9.06 IN WPC. NO.30379/05. P3:- COPY OF THE ORDER DTD. 12.12.06 OF THE 2ND RESPONDENT. P4:- COPY OF THE REPRESENTATION DTD. 7.8.07. P5:- COPY OF THE JUDGMENT DTD. 25.9.07 IN WPC. 28260/07. P6:- COPY OF THE NOTICE DTD. 30.11.07. P7:- COPY OF THE ORDER DTD. 13.12.07 OF THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS R2(a):- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DTD. 11.12.08 IN WPC. NO.5749/08. R4(a):- COPY OF THE APPLICATION DTD. 23.7.07 SUBMITTED BY THE PETITIONER HEREIN BEFORE THE KERALA STATE WAKF BOARD. R4(b):- COPY OF THE JUDGMENT DTD. 11.12.08 IN WPC. 5749/08 OF THIS HONOURABLE COURT. TRUE COPY P.A. TO JUDGE tss P.N.RAVINDRAN, J. ----------------------------- W.P(C) No.12540 of 2008-P ------------------------------ Dated this the 17th day of June, 2009. J U D G M E N T Heard Sri.B.Raghunathan, the learned counsel appearing for the petitioner, Sri. M.Saidu Muhammed, the learned standing counsel appearing for the Kerala State Wakf Board and Sri.Elvin Peter, the learned counsel appearing for the fourth respondent. 2. Ext.P7 order passed by the Kerala Wakf Board on 13.12.2007 rejecting the petitioner’s claim for regularization in service is under challenge in this writ petition. The petitioner was appointed as Clerk on a temporary basis initially for a period of 179 days as per Ext.P1 order dated 28.4.2004. Her initial appointment was on a consolidated salary of Rs.3,000/- per month. Later, on the expiry of the period of 179 days, the petitioner was reengaged on the same terms and conditions. This situation continued for a period of nearly two years and thereafter the petitioner was engaged on daily wage basis. 3. While matters stood thus, the Kerala State Wakf Board issued a notification dated 4.8.2005 inviting applications from eligible persons for appointment by direct recruitment to the post of Lower Division Clerk. The number of vacancies notified was three. As per the regulations the qualification prescribed for the post of Lower Division Clerk is Degree of W.P(C) No.12540 of 2008-P 2 a recognized University. In the notification, the Wakf Board also stipulated that candidates who possesses PGDCA or equivalent qualification approved by the Government alone need apply. The petitioner who possesses both the qualifications applied. She was not selected though other applicants including one Sri.P.Mohammed Elias who did not possesses PGDCA or equivalent qualification recognized by the Government were selected. The petitioner did not challenge their appointment before this Court. Later the Board issued a notification dated 24.6.2007 inviting applications for appointment to various posts including the post of Lower Division Clerk. The petitioner applied. She thereafter submitted Ext.P4 representation dated 7.8.2007 seeking regularization in service, wherein she had also pointed out that the appointment of Lower Division Clerk made pursuant to notification dated 4.8.2005 was illegal. She thereafter filed W.P.(C) No.28260 of 2007 in this Court seeking regularization in service. By Ext.P5 judgment delivered on 25.9.2007 this Court directed the Wakf Board to consider the request made by the petitioner in Ext.P4 (copy of which was produced as Ext.P9 in W.P.(C) No.28260 of 2007) and take a decision thereon after affording her a reasonable opportunity of being heard. 3. Pursuant to the directions issued by this Court in Ext.P5 judgment, the sub committee constituted by the Kerala State Wakf Board W.P(C) No.12540 of 2008-P 3 directed the petitioner to appear for a personal hearing on 7.12.2007. The sub committee thereafter submitted a report before the Board. The Board that met on 13.12.2007 accepted the report and rejected the petitioner’s claim for regularization in service. Ext.P7 order dated 13.12.2007 was thereupon issued and communicated to the petitioner. Ext.P7 is under challenge in this writ petition wherein the petitioner seeks the following reliefs: i) "issue a writ of certiorari or other appropriate writ, direction or order calling for the records leading to Ext.P7 and quash the same. ii) Issue a writ of mandamus or other appropriate writ, direction or order to the second respondent to regularize the petitioner in the post of L.D Clerk in the service of the second respondent, Wakf Board w.e.f. 29.4.2004 with all attendant benefits.” 4. Sri.B.Raghunathan, the learned counsel appearing for the petitioner contends that in Ext.P4 representation the petitioner had not only claimed regularization in service but had also questioned the validity of the appointments made to the post of Lower Division Clerk pursuant to the notification dated 4.8.2005. He submits that though this Court had directed the Board to consider Ext.P4 representation (Ext.P9 in W.P.(C) No.28260 of 2007) and take a decision thereon, the Board did not advert to this aspect of the matter and therefore Ext.P7 is liable to be set aside. Per contra, the learned standing counsel appearing for the Wakf Board contends that Ext.P5 judgment has been complied with by W.P(C) No.12540 of 2008-P 4 the Board and that on a reading of the judgment it is evident that this Court had only directed the Board to consider whether the petitioner can be regularized in service. 5. I have considered the submissions made at the Bar by the learned counsel appearing on either side. The petitioner was initially appointed on 28.4.2004 for a period of 179 days. The Kerala State Wakf Board Regulations, hereinafter referred to as the "Regulations" for short came in force on 8.7.2003 long before the petitioner was appointed on contract basis. As per Regulation 11 thereof, appointments to various categories of posts in the Kerala State Wakf Board can be made only after the vacancies are notified in two Malayalam news papers. It is also stipulated that the selection shall be based on written test and interview conducted by a sub committee constituted by the Board. The petitioner does not dispute the fact that the procedure prescribed in Regulation 11 was not followed when she was initially appointed on 28.4.2004. Since the petitioner was not appointed after following the prescribed procedure, her appointment can only be treated as one made in deviation of procedure prescribed in the Regulations. The said appointment which was initially on contract basis for a period of 179 days cannot in my opinion confer on her any right to be regularized in service. Therefore the petitioner’s request was rightly rejected by the Board. A similar view W.P(C) No.12540 of 2008-P 5 has been taken by me in W.P.(C) No.5749 of 2008. 6. I shall now deal with the petitioner's contention that the Board ought to have gone into the validity of the selection procedure pursuant to the notification dated 4.8.2005 while considering Ext.P4 representation. I am afraid that there is no merit in the said contention as well. A reading of Ext.P5 judgment would indicate that this Court only direct the Board to consider the claim of the petitioner for regularization in service. Though the petitioner had in Ext.P4 representation challenged the selection made pursuant to notification dated 4.8.2005, this Court did not direct the Board to go into the validity of the said selection. None of the candidates who had been selected were on the party array in W.P (C) No. 28260 of 2007. They were also not put on notice or heard. The writ petition itself was filed in the second half of the year 2007 challenging appointments made pursuant to the notification dated 4.8.2005, nearly two years after the candidates were selected and appointed. I am therefore satisfied that the challenge to the selection and appointment made under notification dated 4.8.2005 is belated. Further in W.P(C) No. 28260 of 2007, the petitioner did not seek to set aside the appointment of the candidates selected pursuant to the notification dated 4.8.2005. They were also not on the party array. Even in this writ petition, the selected candidates are not on the party array, I W.P(C) No.12540 of 2008-P 6 am therefore of the considered opinion that there is no merit in the challenge to Ext.P7. I accordingly hold that there is no merit in this writ petition. The writ petition fails and is accordingly dismissed. It is clarified that if the Chief Executive Officer of the Board is desirous of engaging the petitioners on daily wage basis, it will be open to him to engage her on such basis subject to the condition that such engagement will not confer on her any right to seek regularisation in service. Sd/- P.N.RAVINDRAN JUDGE //True Copy// PA to Judge ab