IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 2ND SEPTEMBER 2008 / 11TH BHADRA 1930 WA.No. 1245 of 2008() ------------------------------ AGAINST THE JUDGEMENT/ORDER IN WPC.17028/2007 Dated 04/04/2008 .................... APPELLANTS: PETITIONERS -------------------- 1. MANOJ KUMAR C.P., AGED 36, S/O. BALAKRISHNAN, PAYATTUVALAPPIL HOUSE, KOYILANDI P.O. KOZHIKODE. 2. MEENAKUMARI T.M., AGED 33, D/O. K.K.NANU, KARIYADANTAVIDA HOUSE, P.O. PALAYAD, THALASSERY. 3. ANITHA V.P. AGED 35, ALIYAPARAMBATH HOUSE, P.O.PAVAL, KODIYERI, KARAL STREET, THALASSERY. BY ADV. SRI.K.S.MADHUSOODANAN SRI.T.V.JAYAKUMAR NAMBOODIRI RESPONDENTS/ RESPONDENTS --------------------- 1. KANNUR UNIVERSITY, KANNUR UNIVERSITY P.O., MANGATTPARAMBA, KANNUR REP.BY REGISTRAR. 2. STATE OF KERALA TO BE REP.BY PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUANANTHAPURAM. 3. C.H.NOORJAHAN, RESIDING AT NADIRA, TEMPLE GATE, THALASSERY, KANNUR (DATA ENTRY ASSISTANT, KANNUR UNIVERSITY) SRI.M.SASEENDRAN,SC,KANNUR UNIVERSITY FOR R1 SRI.P.C.SASIDHARAN FOR R3 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02/09/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & P.N.RAVINDRAN, JJ. ------------------------------- W.A.NO.1245 OF 2008 (E) ----------------------------------- Dated this the 2nd day of September, 2008 J U D G M E N T KOSHY,J. The question involved in this appeal is regarding the correctness and legality of the regularisation of the 3rd respondent as Data Entry Assistant in the Kannur University. The Kannur University is a statutory University constituted under the Kannur University Act, 1996. The Colleges and establishments affiliated to the Calicut University in Kannur and Kasaragod Districts were bifurcated and attached to the Kannur University. Section 99 of the above Act reads as follows: “99. Act 5 of 1975 not to apply:- (1) Subject to the provisions of this section, the Calicut University Act, 1975 (5 of 1975), shall, with effect from the date of commencement of this Act, cease to apply in respect of the areas to which the jurisdiction of the Kannur University extends. W.A.1245/08 2 (2) Notwithstanding anything contained in sub-section (1), all Statutes, Ordinances and Regulations made under the Calicut University Act, 1975 (5 of 1975) and in force on the date of commencement of this Act shall, in so far as they are not inconsistent with the provisions of this Act, continue to be in force in respect of the areas referred to in sub-section (1), until they are replaced by the Statutes, Ordinances and Regulations made under this Act. (3) All property, whether movable or immovable, including lands, buildings, equipment, books and library and all rights of whatever kind owned by or vested in or held in trust immediately before the date of commencement of this Act by the University of Calicut in the territorial jurisdiction of the Kannur University as well as all liabilities legally subsisting against the University of Calicut in respect of these properties shall stand transferred to and vest in the Kannur University. (4) Nothing in this section shall be held to prejudice or affect the application of Sections 4 and 23 of the Interpretation and General Clauses Act, 1125 (VII of 1125).” 2. There is no doubt that the appointments in Kannur University are public appointments. By Ext.P1 notification dated 2.8.1999, applications were invited from eligible candidates for appointment to certain posts in the Kannur University. One of the posts was Data Entry Assistant. Both the 3rd respondent as well as the writ petitioners (appellants) W.A.1245/08 3 applied for the above post. It is stated that there were 1709 applicants to the above post including the appellant and the 3rd respondent. 525 eligible applicants including the appellants and the 3rd respondent attended the written test held on 24.4.2005. Out of them, 122 candidates including the appellants qualified for the practical test. The 3rd respondent failed in the written test. Thereafter, on 25.5.2006, a practical test was conducted. 98 candidates including the appellants attended the practical test. The appellants were also successful in the practical test and the interview was scheduled to be held on 31.10.2006 as can be seen from Exts.P2 to P2(b). It is the contention of the appellants that the interview was postponed in view of the stay order issued by this Court in WP(C).No.28435 of 2006 filed by the 3rd respondent. As far as the 3rd respondent is concerned, it is the contention of the University that though a notification for regular appointment was issued and published, it was decided to fill up the post by temporary hands till regular hands are appointed and the 3rd respondent was appointed for 179 days on contract basis with effect from 19.11.1999. She continued for some time. The above appointment was made after the issuance of Ext.P1. So, it can be stated that when permanent W.A.1245/08 4 employees are appointed, automatically contract employees and casual employees will have to go out. The selection process continued. Even after the failure of the 3rd respondent in the written test, she was again given appointment on contract basis with breaks. One of such agreements is Ext.P3 dated 22.7.2006. In that agreement, it was specifically mentioned at paragraph 10 that “No claim will be made for regular employment nor for continuation of temporary employment and for this no litigation procedure will be adopted”. In the earlier agreement also there was such a clause. Though appointment was only for a period of 179 days on contract basis with the specific clause that no claim will be made for regularising the 3rd respondent, against the specific clause in the agreement, she approached this Court in O.P.No.27806 of 2001 for regularisation of her service. Without expressing any opinion, by Ext.R3(f) judgment delivered on 19.9.2001, a learned Single Judge of this Court directed the University to consider her representation. But it is pertinent to note that on that basis, she was not regularised in service and only after Ext.R3(f), Ext.P3 and similar agreements were executed. While considering the representation, by Ext.P5 dated 31.10.2001, the Syndicate W.A.1245/08 5 resolved to regularise the appointment of the 3rd respondent, “provided there is a clear direction from the Honourable High Court to do so”. Ext.P5 resolution reads as follows: Considered the request of Sri.Sajesh Kottambrath, Computer Operator and Smt.Noorjahan, C.H.Data Entry Assistant on contract basis to regularise them along with the judgment in O.P.No.27806/01 dated 19.9.2001 of the Honourable High Court. “Resolved that the University has no objection to regularise Sri.Sajesh Kottambrath and Smt.Noorjahan.C.H., provided there is a clear direction from the Honourable High Court to do so.” There was no decision by the Syndicate to regularise the 3rd respondent but it was decided that if the High Court issues a positive direction for regularising the 3rd respondent, it can do so. The proposal for regularisation was challenged in two writ petitions which resulted in Ext.R3(h) judgment dated 28.3.2006, wherein the learned Single Judge did not interfere with the proposal for regularising the employees like light motor vehicle drivers, peons, security guards, watchman and sweepers. With regard to the Data Entry Assistants like the 3rd respondent, the writ petition was disposed of with the W.A.1245/08 6 following directions: “10. Learned counsel for respondent No.2 in O.P.No.31195/2002 submits that the University has given regular appointment to respondent No.2. It is also submitted by the learned counsel that because of the pendency of these two original petitions, the University has not yet complied with the direction issued by this Court in O.P.No.27806/2001. Similarly, no decision has been taken by the University on the representation submitted by respondents 2 and 3 so far because of the pendency of these cases. It is made clear that it will be open to the University to take an appropriate decision in the matter as directed by this Court in the above original petition.” There also, there was no clear direction to regularise the 3rd respondent. Thereafter the 3rd respondent again approached this Court by filing W.P.(C).No.9282/2006. By Ext.P4 judgment dated 9th October, 2006, a learned Single Judge of this Court again directed as follows: “5. Therefore, this writ petition is disposed of with a direction to the respondents to consider and pass orders on Ext.P5 in tune with the decision of the syndicate dated October 31, 2001 to regularise the service of the petitioner. An appropriate decision shall be taken as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment.” W.A.1245/08 7 There, the direction was only to consider and pass orders on Ext.P5 in tune with the decision of the Syndicate dated 31.10.2001. We have already seen that and that decision of the Syndicate was only to regularise if there is a clear order from this Court. Meanwhile, the 3rd respondent again approached this court by filing WP(C).No.28435/2006 when selection continued for regular appointment as per Ext.P1 notification which resulted in Ext.P6 judgment dated 3rd April 2007. Recording the submission of the Standing Counsel for the University that her representation will be considered before regularisation is ordered, the writ petition was disposed of. The last paragraph of Ext.P6 judgment is as follows: “Learned Standing counsel for the University submits that a copy of the said judgment was received by the University on 26.3.2007. He submits that a decision will be taken as directed in the said judgment within the period mentioned in the said judgment. He also submits that any further steps taken for selection pursuant to the selection process undertaken by the University will be subject to the decision to be taken in the case of the petitioner.” W.A.1245/08 8 There were many objections regarding the regularisation of employees after their first appointment on temporary/contract or casual basis. Ext.P8 is the note put up to the Syndicate. Apart from the opinion of the Standing Counsel, the following submissions from the University Staff Organisation were also mentioned in the note, which reads as follows: Kindly note that in the 'opinion' it is stated that the issue could be considered based on the position as prevailing in the year 2001. It may be noted that the post of Data Entry Assistant so far created in the University is only one and the same was notified by the University for open recruitment early in the year 1999 itself, vide Notification dated 02.08.1999, that is, even before Smt.Noorjahan.C.H. was engaged as Data Entry Assistant. The Kannur University Staff Organisation, vide its submission dated 04.05.2007, has requested to desist from initiating steps to regularise the service of Smt.Noorjahan.C.H., because of the following reasons: (i) University has conducted all tests for the selection of Data Entry Assistant, through open recruitment. (ii) Though interview was fixed on 31.10.2006 for the selection through open recruitment, it was postponed on the strength of the letter received from the Standing W.A.1245/08 9 Counsel that a stay to the process has been obtained by Smt.Noorjahan.C.H. (iii) Regularisation of Smt.Noorjahan.C.H., an applicant, who disqualified in the test for open recruitment, is against rules and justice. (iv) If Smt.Noorjahan.C.H., is regularised, hundreds of daily wage workers may come forward with the same claim. It is also pertinent to note that in the parent University of Kannur University, namely the Calicut University, there was a dispute regarding regularisation of such appointments which resulted in Ext.P9 judgment and a Division Bench of this Court held as follows: “6. The indefinite continuation of daily employees or provisional employees without due process of selection is always considered to be illegal and a way to do favoritism. Such back door entries cannot be promoted or practised by a Statutory University. Here the selection has to be done on the basis of the interview and marks in the written examination. On the basis of the written examination by an independent expert body a short list was already published. The daily wages employees who did not undergo any selection process cannot be allowed to continue as held repeatedly. Their appointments can only be treated as back door appointments. No such candidate can be W.A.1245/08 10 appointed on regular basis. Candidates should be appointed after conducting interview from the 2nd selection list already published. Selection process shall be completed within two months from the production of a copy of this judgment before the University. Persons in the short list cannot be denied illegally the right to undergo selection process and consequent appointments merely based on irregularities committed by the University or refuse to obey the court order obtained from this Court. If at all any daily wages employees are appointed on provisional basis they cannot continue in regular vacancies for more than two months from today.” 3. As far as this case is concerned, the 3rd respondent was initially appointed on contract basis for a specific period after Ext.P1 notification inviting applications for regular appointment was published. She failed in the written test. 122 candidates passed in the written test. If there was any delay in finalising the selection, atleast after the written test, any one of the candidates who passed the written test could have been appointed on a temporary/contract basis. She was again given temporary appointment even though she failed in the written test. As can be seen from Ext.P3 contractual appointment agreement, there was a clear provision that no W.A.1245/08 11 claim will be made for regular appointment and no litigation will be raised. But she approached this Court for considering her representation for regularisation. A learned Single Judge of this Court directed the University to consider her representation. The Syndicate decided to regularise her service only if there is clear direction from this Court to regularise her service. But no clear positive direction was issued from this Court to regularise her service. The appellants approached this Court by filing the writ petition challenging the steps for regularising the appointment of the 3rd respondent before actual regularisation order was issued. The following reliefs were claimed by the appellants: i. Call for the records connecting Exts.P1 to P3, P5 and P8 from the respondent concerned; ii. Declare that the 3rd respondent is not entitled for regularisation as Data Entry Assistant by virtue of her contract engagement with effect from 19.11.1999. iii. Issue writ of mandamus directing the 1st respondent to dissuade from regularising the 3rd respondent as Data Entry Assistant; iv. Issue writ of mandamus directing the 1st respondent to proceed with the selection direct recruitment notified under Ext.P1 to the post of Data Entry Assistant and finalise the W.A.1245/08 12 appointment to that post there from within a time frame.” The learned Single Judge dismissed the writ petition and held as follows: “7. It may be true that petitioners had passed the written test. But as mentioned earlier, it is the undisputed fact that respondent No.3 had been working in the University ever since 1999, of course with a break of 2 or 3days on completion of 179 days. The services of all other similarly placed employees had been regularised by the University. The issue of regularisation of the service of respondent No.3 remained on the back burner because of the pendency of some writ petitions before this Court, which were filed by some aspirants to various posts. The crucial aspect was that the Syndicate of the University, after considering the recommendation of the Standing Committee on Staff had resolved to regularise the service of such employees.” Till the impugned judgment was passed, the Syndicate never regularised the service of the 3rd respondent. The Syndicate resolved to regularise her service only if this Court issues a positive direction to regularise her service. The regularised employees referred to by the learned Single Judge were those who were working as drivers, sweepers and class IV W.A.1245/08 13 employees. Here the documents produced show that temporary/contract appointment and regularisation of the 3rd respondent were questioned not only by the petitioners but by the Staff Union of the University as can be seen from Ext.P8 note. After publishing the notification for regular appointment, she was appointed on contract basis. Along with the counter affidavit filed in the appeal, Annexure R3(a) and R3(b) are produced by the 3rd respondent. They are photocopies of affidavits sworn to by the 2nd and 3rd appellants that they have not authorised anybody to file an appeal. But the 1st appellant is prosecuting the appeal. In Annexure R3(a) and R3(b), it is also not stated that they had informed the Advocate to whom they had entrusted the writ petition not to file an appeal. Annexure Exts.R3(a) and R3(b) are not dated or verified. Since appeal was admitted and counter affidavit was filed, considering the nature of the contentions, we have decided to hear the case on the merits. After the dismissal of the writ petition, by Annexure R3(c) order passed on 4.6.2008, the 3rd respondent was regularised. A separate writ petition is not therefore necessary to challenge the above regularisation order, on the facts of the case. W.A.1245/08 14 4. The contention of the appellants is that appointment of the 3rd respondent is in violation of the dictum laid down by the Constitution Bench of the Supreme Court in Secretary, State of Karnataka and others v. Umadevi and others ((2006) 4 SCC 1) wherein in paragraph 49 it was held as follows: “49. It is contended that the State action in not regularising the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to W.A.1245/08 15 establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.” The learned counsel for the 3rd respondent submits that the employer has the discretion to regularise long standing service if the original appointment was not illegal. Paragraph 53 of the above decision reads as follows: “53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V.Narayanappa, R.N.Nanjundappa and B.N.Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made an the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be 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 State Governments and their instrumentalities should take steps to regularise 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 the 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 W.A.1245/08 16 where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.” The above decision was followed by the Supreme Court in Post Master General, Kolkata and others v. Tutu Das (Dutta) ((2007) 5 SCC 317). Regularisation of a candidate who was appointed on contract basis with a specific condition that no claim for regularisaton will be raised is clearly illegal. It is not merely irregular. Regularisation of a candidate after a due process of selection for regular appointment was initiated is also illegal and in violation of Articles 14 and 16 of the Constitution of India. In this connection we also refer to the decision of the Supreme Court in National Fertilizers Ltd. v. Somvir Singh ((2006) 5 SCC 493) , Kendriya Vidyalaya Sangathan and others v. L.V.Subramanyeswara and another ((2007) 5 SCC 326) and Punjab State Warehousing Corporation v. Manmohan Singh ((2007) 9 SCC 337). In this case, the W.A.1245/08 17 3rd respondent filed various writ petitions preventing the University from making regular appointments and against the clear terms in the contract of employment. Initial contract appointment itself was made only after steps were taken to make regular appointment. From 2001 onwards she started filing various writ petitions and she continued in service only on the basis of the opinion of the Standing Counsel. The contractual appointment was for 179 days only. She failed in the written test conducted in 2005. But by Ext.P3 agreement, she was again appointed on contract basis. While passing the impugned judgment, the learned Single Judge was under the impression that the resolution of the Syndicate dated 31.10.2001 was a resolution to regularise her service and on that ground the writ petition was dismissed and judgment was passed on 4.4.2008. That is not a direction to regularise the service of the 3rd respondent. After the dismissal of the writ petition on 4.4.2008, she was regularised by Annexure R3(c) order dated 4.6.2008, even though after the issuance of Ext.P1 notification, she was appointed on contract basis and she failed in the written examination. She cannot continue in service even on provisional or contract basis making a mockery of justice, discarding those who passed the written W.A.1245/08 18 test in the regular selection process pursuant to Ext.P1 notification. In these circumstances, we are of the view that the regularisation of the service of the 3rd respondent is illegal and amounts to back door appointment. She is not entitled to be regularised and her regularisation order is set aside and selection process interdicted by filing various writ petitions should continue according to law from the stage at which it was stopped. With the above observations this appeal is allowed. J.B.KOSHY, JUDGE P.N.RAVINDRAN, JUDGE prp J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 4th August, 2008