IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 WA.No. 1385 of 2008() --------------------- AGAINST THE JUDGEMENT IN WPC.32395/2004 Dated 06/02/2008 .................... APPELLANT(S)/3RD RESPONDENT: -------------- THIRUVANANTHAPURAM REGION CO-OPERATIVE MILK PRODUCERS UNION, PATTOM P.O., THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR. BY ADVS. SRI.B.S.KRISHNAN, SENIOR ADVOCATE SRI.K.ANAND (A.201) SMT.LATHA KRISHNAN RESPONDENT(S)/PETITIONER AND RESPONDENTS 1 A ND 2: --------------- 1. JOY Y., S/O YOHANNAN, TECHNICIAN GRADE - II (BOILER), KOLLAM DAIRY OF THIRUVANANTHAPURAM REGIONAL, CO-OPERATIVE MILK PRODUCERS UNION, KOLLAM. 2. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TO GOVERNMENT DEPARTMENT OF AGRICULTURE (DAIRY), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF DAIRY DEVELOPMENT, PATTOM P.O., THIRUVANANTHAPURAM. ADV. SRI.GEORGE POONTHOTTAM FOR R1 SENIOR GOVT. PLEADER SRI. BENNY GERVASIS-R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16/09/2009, THE COURT ON 16.10.2009 DELIVERED THE FOLLOWING: KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NO. 1385 OF 2008 --------------------------------------------- Dated this the 16th day of October, 2009 JUDGMENT Ravikumar, J. The appellant - Thiruvananthapuram Regional Co-operative Milk Producers Union was the third respondent in W.P.(C) No.32395 of 2004 and it is a Co-operative Society engaged in the production, distribution and sale of milk and milk products. The first respondent, on being nominated by the Employment Exchange, was subjected to a process of selection and was appointed as Technician Grade II (Boiler) in to its service on temporary basis, on 23.11.1995. He was initially engaged for a period of three months and the said engagement, based on orders issued from time to time, continued uninterruptedly with artificial breaks. While he was continuing as such, the question of his regularization was taken up for consideration along with Messers R.T. Sanil and S. Raju who were also appointees on temporary basis. Though their services were regulairsed, the first respondent was discriminated arbitrarily and in an hostile manner. Feeling aggrieved by the said action, he approached the W.A. NO. 1385/2008 2 third respondent herein. The third respondent considered all the attending circumstances. The fact that the first respondent had been continuing in service from 23.11.1995 and that he possessed the requisite qualification for appointment to the post of Technician Grade II (Boiler) were taken into consideration. The requirement of a permanent hand in the said post and that persons similarly situated were regularized in the service of the appellant, were also taken into consideration. The third respondent, thereupon, issued Ext.P3 order allowing the request of the first respondent. The appellant took up the matter in appeal before the second respondent and consequently Ext.P4 order was passed by the Government setting aside Ext.P3 order of the third respondent. Challenging the said order, the first respondent had approached this Court by filing O.P. No.26503 of 1999. 2. In O.P. No. 26503 of 1999, Ext.P4 order was sought to be sustained mainly on two grounds. Firstly, it was contended that the two persons whose names were mentioned above were appointed, though on a permanent basis, after public advertisement and an interview whereas in the case of the first respondent, there was no such advertisement. Secondly, it was contended that the said two persons had longer period of temporary service than the first respondent herein. However, the fact that W.A. NO. 1385/2008 3 the first respondent was nominated by the Employment Exchange and that he was subjected to a selection process prior to his appointment on temporary basis were not disputed. This Court after considering the rival contentions, set aside Ext.P4 order as per Ext.P5 judgment holding that basically there was no difference in status between the first respondent herein and those temporary appointees who were made permanent. It was categorically found that there was no reason to discriminate the first respondent. It was after entering into such specific findings that as per Ext.P5, this Court directed the first respondent to consider the appeal preferred by the appellant herein afresh and to pass orders thereon. In purported compliance of the directions in Ext.P5 judgment, the Government issued Ext.P6 order rejecting the claim of the petitioner for absorption and allowing the appeal filed by the appellant herein. A bare perusal of Ext.P6 order would reveal that in order to reject the claim of the first respondent and to allow the appeal preferred by the appellant, the Government had relied on the reasonings which were considered and rejected by this Court in Ext.P5 judgment. The fact that Messers R.T. Sanil and S. Raju were working for longer periods than the petitioner/first respondent and that they were appointed on temporary basis after public advertisement and interview were again assigned as the reasons for rejecting the claim of the petitioner. As noticed earlier, those were the W.A. NO. 1385/2008 4 reasons unsuccessfully raised before this Court in O.P. No. 26503 of 1999, as is obvious from Ext.P5. The fact that the petitioner was nominated through the Employment Exchange and that he was subjected to a process of selection prior to his appointment on temporary basis were not given due consideration while passing Ext.P6 order. 3. Taking note of the fact that this Court had earlier entered into a specific finding on facts and Ext.P5 judgment has become final, this Court passed an interim order on 17.8.2009 when the appeal was taken up for hearing. It reads thus: “It is seen that a finding on facts as entered in Ext.P5 judgment has become final and therefore, on the face of such a finding, prima facie, it is difficult for this Court to advert to other contentions. The judgment under appeal is only a logical conclusion based on a finding which has become final. ......” Subsequently, when the matter was taken up for final hearing, learned counsel for the appellant was asked to clarify the position in the light of the aforesaid interim order. It is not disputed that Ext.P5 judgment had become final. It is also not disputed that as per Ext.P5 judgment, this Court had entered into a specific finding based on facts that the first W.A. NO. 1385/2008 5 respondent herein was arbitrarily discriminated in the matter of regularization. The fact that he was appointed on temporary basis after being nominated through the Employment Exchange and after a selection process is also not disputed. In the light of Ext.P5 judgment, the appellant herein cannot legally re-agitate the said issues which has already been considered and decided by this Court with a view to sustain Ext.P6 order. We are in complete agreement with the finding of the learned Single Judge that this Court had already concluded the issues involved in this case by entering into finding that there was failure to regularize the first respondent herein and the same would amount to hostile discrimination. 4. As observed by the learned Single Judge, Ext.P5 is an inter parte judgment. On the face of such a finding in Ext.P5, this Court cannot now legally advert to any other contentions now raised by the appellant. We, therefore, find no reason to deviate from the prima facie view expressed by us in the interim order dated 17.8.2009. The judgment of the learned Single Judge under appeal is nothing but a logical conclusion based on the finding in Ext.P5 which has become final. The appellant is not justified in the challenge against the findings in Ext.P5 judgment either in the Writ Petition or in the Writ Appeal. In the circumstances, we are of the W.A. NO. 1385/2008 6 opinion that the judgment of the learned Single Judge does not call for any appellate interference. The Writ Appeal is hence devoid of merits and it is accordingly dismissed. (KURIAN JOSEPH) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. NO. 1385/2008 7 KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. W.A. NO. 1385/2008 JUDGMENT 16th October, 2009 W.A. NO. 1385/2008 8