IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 29TH JANUARY 2010 / 9TH MAGHA 1931 WA.No. 2122 of 2009() ------------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.14333/2009 DATED 11/08/2009 .................... APPELLANT/ 8THE RESPONDENT IN THE WP ----------------------------------------------------------------- VELAYUDHAN. K., FULL TIME MESSENGER SOUTH MALABAR GRAMIN BANK, MANNARKKAT. BY ADV. MR.ELVIN PETER P.J., SMT.POOJA SURENDRAN. RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 7 & 9 IN THE WP --------------------------------------------------------------------------------------------------- 1. K. RAMACHANDRAN, S/O.C.DAMODARAN NAIR, THAYYULLATHIL HOUSE, PERAMBRA, CHENOLI.P.O., KOZHIKODE DIST. 2. THE SOUTH MALABAR GAMIN BANK, HEAD OFFICE AT MALAPPURAM, REP. BY CHAIRMAN. 3. THE GENERAL MANAGER, SOUTH MALABAR GRAMIN BANK, MALAPPURAM. 4. THE BRANCH MANAGER SOUTH MALABAR GRAMIN BANK, CHALIKKARA, KOZHIKODE DIST. 5. CHEKKINI.C., FULL TIME MESSENGER, SOUTH MALABAR GRAMIN BANK, KOKKALLUR, KOZHIKODE DIST. 6. DAMODHARAN. V.T., FULL TIME MESSENGER SOUTH MALABAR GRAMIN BANK, KOTTALIDA, MALAPPURAM DIST. 7. GEETHA. K., FULL TIME MESSENGER SOUTH MALABAR GRAMIN BANK, VAZHIKKADAVU, MALAPPURAM DIST. 8. UNNI.P., FULL TIME MESSENGER, SOUTH MALABAR GRAMIN BANK, WADAKKANCHERRY, THRISSUR. 9. VELAYUDHAN. V.T., FULL TIME MESSENGER SOUTH MALABAR GRAMIN BANK, KADAVAM KOZHIKODE. R1 BY ADV. MR.T.M. CHANDRAN. R2 TO R4 BY ADV. MR.DEVAN RAMACHANDRAN, SC. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29/01/2010, ALONG WITH W.A. NO. 2123 OF 2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ------------------------------------------------------ W.A.Nos.2122, 2123, 2167, 2169, 2179, 2180, 2192, 2266, 2267, 2269, 2270, 2271, 2272, 2273, 2274, 2275, 2276, 2400, 2401, 2402, 2403,2404, 2423 and 2474 of 2009 ----------------------------------------------------- Dated 29th January, 2010 JUDGMENT Balakrishnan Nair, J. This batch of appeals has been filed against the judgment of the learned Single Judge in W.P.(C)No.15027 of 2008 and connected cases. Since the very same point arises for decision in all these appeals, they are heard together and disposed of by this common judgment. W.A.No.2123 of 2009 This appeal is treated as the main case for the purpose of referring to the facts and exhibits. The appellant herein was the 10th respondent in the writ petition. Respondents 1 to 3 herein were the writ petitioners. The said respondents submitted that they were working as Part-time Messengers on daily wage basis in Kariyachira, Kodungallur and Kaipamangalam branches of the first respondent South Malabar Gramin Bank (hereinafter referred to as “the Bank”). They were being so engaged from 13.11.2000, 2.11.2000 and 21.05.2001 respectively, it is submitted. They further submitted that W.A.No.2122/2009 & connected cases 2 as daily wage employees, they were being paid all service benefits including provident fund, bonus etc. While so, the Bank published Ext.P8 notification dated 27.3.2008, inviting applications for appointment to 111 posts of Full-Time Messenger and one post of Driver-cum-Messenger. The notification provided that those who have experience in the relevant field under the South Malabar Gramin Bank will have preference and get age relaxation. It also provided that such persons will be exempted from having registration with the Employment Exchange. Respondents 1 to 3 and others applied. After completing the selection process, the Bank published Ext.P9 list of selected candidates for appointment to the post of Full-Time Messenger in various branches. Challenging Ext.P9 and seeking consequential reliefs, the Writ Petition was filed. Respondents 1 to 3, who were the writ petitioners, contended that they are having superior qualification when compared to the persons included in the select list. The selection process was a farce and it was vitiated by favouritism. It was also contended that the selection was made in violation of the relevant rules. 2. The Bank filed a counter affidavit, supporting Ext.P9. According to it, the persons who were engaged on daily wage basis between 1984 and 1999 were considered for selection, which was strictly made based on certain parameters fixed by the Bank. The allegations of favouritism and malafides were denied. The learned W.A.No.2122/2009 & connected cases 3 Single Judge, upon hearing the petitioners, found that the recruitment was made in violation of the provisions of the Regional Rural Banks (Appointment and Promotion of Officers and Other Employees) Rules, 1988 (hereinafter referred to as “the Rules). As per the Rules, the method of appointment is by direct recruitment. In this case, there was no open invitation of applications by publishing notification in the newspapers. Further, the notification provided for relaxation of age as also educational qualification. It also provided for waiving the requirement of registration with the Employment Exchange. The learned Judge took the view that in the absence of any provision in the Rules enabling such relaxation, the notification, which was issued preceding the selection, itself was illegal. Therefore, the learned Judge held the entire selection bad and nullified the select list (Ext.P9). The learned Judge also ordered to make fresh selection in accordance with law. Feeling aggrieved by the said judgment, the 10th respondent in the Writ Petition, who was one of the selected candidates, has preferred this appeal. The connected appeals are filed by the Bank and the other persons included in the rank-list, who were, in fact, appointed on regular basis and working for quite some time. 3. We heard Sri.Elvin Peter, learned counsel appearing for the appellant and also M/s.K.K.Mohamed Ravuf, T.M.Chandran, M.K.Dileepkumar, P.V.Kunhikrishnan, N.Manoj Kumar, Mohan Pulikkal, W.A.No.2122/2009 & connected cases 4 P.C.Sasidharan and K.M.Jamaludheen, learned counsel appearing in the connected Writ Appeals, filed by affected employees. We also had the benefit of hearing Sri.Devan Ramachandran, learned standing counsel for the South Malabar Gramin Bank, who appeared for the Bank in all the Writ Appeals. The learned counsel for the appellants submitted that there was no prayer or pleading in the Writ Petitions, seeking relief against the notification, Ext.P8. Even in the absence of any pleadings or prayer, the learned Single Judge has suo motu found that Ext.P8 was bad. The same has caused very serious injustice to the selected persons. It is also pointed out that none of the writ petitioners is benefited by the judgment under appeal. The writ petitioners, in fact, claimed that they are engaged on daily wage basis and on that ground they are claiming inclusion in the select list. The only ground of attack raised by them is that they are persons with superior merit and persons with lesser number of days' service have been included in the list, ignoring their claim. Thus, the judgment under appeal has resulted in rejecting the claims of the writ petitioners also. The learned counsel for the appellants also brought to our notice that since the persons included in the rank-list are not impleaded personally, the writ petitions should have been dismissed. The representative impleadment, as provided under Rule 148 of the Rules of the High Court of Kerala, 1975 was not permissible in this case, in W.A.No.2122/2009 & connected cases 5 view of the decision of the Apex Court in Siraj v. High Court of Kerala (2006(2) KLT 923 (SC)). 4. The appelllants also supported Ext.P9, relying on the decision of the Apex Court in Secretary, State of Karnataka v. Umadevi ((2006) 4 SCC 1). Special reference was made to paragraph 53 of the said decision. They also brought to our notice the minutes of a meeting of the representatives of the workmen and management of the South Malabar Gramin Bank, concerning certain demands raised by the employees' union. One of the demands was regularisation of daily wage employees. The minutes dated 15.3.2008, copy of which is produced as Annexure A1 in W.A.No.2123 of 2009, would indicate that there was some consensus regarding the regularisation of daily wage employees. In implementation of the said understanding between the management and workmen, the selection was made. So, the learned counsel for the appellants prayed for allowing the appeals. 5. The party respondents, who were the writ petitioners, supported the judgment under appeal, though they are not benefited by it. They also pointed out that since the learned Single Judge allowed the writ petitions on a technical ground, their claim for inclusion in the list on merits was not considered in the judgment under appeal. For example, they submitted, some of the writ W.A.No.2122/2009 & connected cases 6 petitioners have longer period of service, if it is reckoned with reference to the number of days worked. Some of the selected persons have worked for a few days and remained absent for years. Some of the persons, who commenced service earlier but worked only for a few days were preferred. Such contentions were not considered by the learned Single Judge and therefore, that aspect may be considered in these Writ Appeals. They also submitted that the decision of the Apex Court in Umadevi's case (supra) has no application to the facts of this case. 6. We considered the rival submissions made at the Bar and also perused the materials on record. We are of the view that unless the direction in paragraph 53 of the decision of the Apex Court in Umadevi's case (supra) applies, it is difficult to interfere with the decision of the learned Single Judge. In paragraph 53, the Apex Court held in Umadevi's case (supra) as follows: “53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore v. S.V.Narayanappa (AIR 1967 SC 1071), R.N.Nanjundappa v. T.Thimmiah ((1972) 1 SCC 409) and B.N.Nagarajan v. State of Karnataka ((1979) 4 SCC 507) and referred to in para 15 above, 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 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 W.A.No.2122/2009 & connected cases 7 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 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.” If the selectees involved in this case have more than 10 years' service on daily wage basis, we are of the view that, if the management takes steps to regularise them, the same cannot be termed as illegal or unauthorised, on the ground that the process adopted runs counter to the procedure for direct recruitment in the relevant recruitment rules. The directions issued by the Apex Court in Umadevi's case (supra) will definitely save regularisation of persons working on daily wage basis for more than 10 years, as a one-time measure. 7. In this case, the learned standing counsel for the Bank submitted that almost all the persons, who are included in Ext.P9, have more than 10 years' service and therefore, there is nothing illegal or irregular about the selection. A few persons who come under the W.A.No.2122/2009 & connected cases 8 SC/ST, physically challenged and Ex-servicemen quotas alone are having lesser service. 8. In view of the above factual position, we think, the selection should be saved, though the same runs counter to the recruitment rules. But, of course, the management has to examine the individual grievances regarding omission to include eligible persons and wrongful inclusion of ineligible persons. In the result, we reverse the judgment of the learned Single Judge and dispose of the Writ Appeal with the following directions: The quashing of Ext.P9 select list and the appointments made pursuant to it is set aside. But, the management shall examine whether all the persons included in Ext.P9 are eligible for regularisation, as held by the Apex Court in paragraph 53 in Umadevi's case (supra). The management shall have the freedom to consider the case of members of the SC/ST, physically handicapped persons and Ex-servicemen separately. If anybody, who is included in Ext.P9, is found not eligible for regularisation in terms of the directions in Umadevi's case (supra), the Bank shall put the concerned incumbent on notice, hear him and take a decision. The contesting respondents, who were the writ petitioners, may also bring to the notice of the management of the Bank regarding the non-inclusion of W.A.No.2122/2009 & connected cases 9 eligible persons and inclusion of ineligible persons. While taking a decision, the Bank shall take into account those representations also. The Bank shall complete the exercise within four months from the date of receipt/production of a certified copy of this judgment. Based on the final decision, needless to say, the Bank will be competent to make appropriate modification in Ext.P9, if found necessary. W.A.Nos.2122, 2167, 2169, 2179, 2180, 2192, 2266, 2267, 2269, 2270, 2271, 2272, 2273, 2274, 2275, 2276, 2400, 2401, 2402, 2403,2404, 2423 and 2474 of 2009 In view of the judgment in W.A.No.2123 of 2009, these Writ Appeals are disposed of. The directions in the judgment in W.A.No.2123 of 2009 will govern these appeals also. K.BALAKRISHNAN NAIR Judge P.N.RAVINDRAN Judge TKS