IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 WP(C).No. 20357 of 2006(S) -------------------------- OA.109/2004 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER(S): --------------- K.S.RADHAKRISHNAN, PART TIME SWEEPER, OFFICE OF THE OFFICIAL LIQUIDATOR, HIGH COURT OF KERALA, CARMEL BUILDING, ERNAKULAM, KOCHI-682 018. BY ADVS. SRI.P.SANKARANKUTTY NAIR SRI.T.V.AJAYAKUMAR RESPONDENT(S): --------------- 1. OFFICIAL LIQUIDATOR, HIGH COURT OF KERALA, CARMEL BUILDING, ERNAKULAM, KOCHI-682 018. 2. REGIONAL DIRECTOR, DEPARTMENT OF COMPANY AFFAIRS, CHENNAI. 3. UNION OF INDIA, REPRESENTED BY SECRETARY, DEPARTMENT OF COMPANY AFFAIRS, NEW DELHI. ADV. SRI.JOHN VARGHESE, ASSISTANT SG FOR R1TOR3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2009, THE COURT ON 11/08/2009 DELIVERED THE FOLLOWING: W.P.C.NO.20357 OF 2006 APPENDIX PETITIONER'S EXHIBITS: Ext.P1: True copy of the appointment order dated 8.8.1988 issued by the 1st respondent. Ext.P2: True copy of the office memorandum and scheme called 'Casual Labourers' (Grant of temporary Status and Regularisation) Scheme of Govt. of India 1993. Ext.P3: True copy of the letter of the 2nd respondent dated 27.1.2004. Ext.P4: True copy of the Office Memorandum dated 10.2.2004. Ext.P5: True copy of the order dated 12.2.2004 of the Tribunal. Ext.P5(a) True copy of the Order dated 1.3.2004 of the Tribunal. Ext.P6: True copy of the amended O.A.No.109/2004 dated 7.4.2006. Ext.P7: True copy of the Reply Statement dated 1.12.2004. Ext.P8: True copy of the Miscellaneous Application No.Nil in O.A.No.109/2004 dated 7.10.2005. Ext.P9: True copy of the rejoinder to the reply affidavit filed by the applicant dated 18.2.2006. Ext.P10: True copy of the Reply statement dated 15.6.2005. Ext.P11: True copy of the additional reply statement filed by the respondents dated 15.6.2006. Ext.P12: True copy of the Argument Note submitted by counsel for appellant dated 7.7.2006. Ext.P13: True copy of the order in O.A.109/2004 dated 19.7.2006 of C.A.T. RESPONDENTS' EXHIBITS: Nil K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.P.(C) NO. 20357 OF 2006 --------------------------------------------- Dated this the 11th day of August, 2009 JUDGMENT Balakrishnan Nair, J. The writ petitioner was the applicant in O.A. No.109 of 2004 before the Central Administrative Tribunal, Ernakulam Bench. He was appointed by Ext.P1 order by the first respondent as Part-time Sweeper in the office of the said respondent on 8.8.1988. It is common ground that he was not sponsored by the employment exchange, but was chosen from the open market by the first respondent. The writ petitioner/applicant continued in service without break until he was terminated by Ext.P4 order of the first respondent dated 10.2.2004. The said order was issued pursuant to the instructions given by the second respondent as per Ext.P3. In Ext.P3, the second respondent ordered to terminate the service of the petitioner and to appoint another person as Part-time Sweeper for a period not exceeding 89 days in a year under intimation to his office. Before Ext.P4 was served on the petitioner, he moved the Tribunal and obtained W.P.(C) NO. 20357/2006 2 Ext.P5 interim order. As per that order, status quo was ordered to be maintained till the next hearing date. The Original Application was heard and admitted as per Ext.P5(a) order and the order of status quo was extended until further orders. Ext.P6 is a copy of the Original Application filed by the petitioner. The prayer in the Original Application was, inter alia, to quash Exts.P3 and P4 orders. The respondents filed Ext.P7 reply. The petitioner filed Ext.P9 rejoinder and the respondents filed Ext.P10 additional reply. The Tribunal, after hearing both sides, dismissed the Original Application by Ext.P13 order. Challenging Ext.P13 order of the Tribunal, this Writ Petition is filed. 2. We heard the learned counsel on both sides. The petitioner claimed the benefit of the direction contained in paragraph 53 of the decision of the Apex Court in Secretary, State of Karnataka v. Umadevi (2006) 4 S.C.C. 1, wherein a Constitutional Bench of the Apex Court directed to consider the claim for regularisation of irregularly appointed, but not illegally appointed persons working in sanctioned posts for more than ten years. The said claim was rejected by the Tribunal, holding that the applicant was not working in a sanctioned post. Learned counsel for the petitioner canvassed before us, relying on the decision of the Apex Court in State of Haryana v. Piara Singh,A.I.R.1992 S.C. 2130, that if a W.P.(C) NO. 20357/2006 3 person has worked in a post for a very long period, it creates a presumption that creation of a regular post is warranted. So, the petitioner should have been ordered to be regularised, it is submitted. But, we notice that the decision in Piara Singh's Case has been overruled in Umadevi's Case. Further, the Apex Court in Official Liquidator v. Dayanand (2008) 10 S.C.C. 1, reiterated the position that creation of posts etc. are matters exclusively within the domain of the employer. The relevant portion of the said judgment reads as follows: “59. The creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source and mode of recruitment and qualifications and criteria of selection, etc. are matters which fall within the exclusive domain of the employer. Although the decision of the employer to create or abolish posts or cadres or to prescribe the source or mode of recruitment and laying down the qualification, etc. is not immune from judicial review, the Court will always be extremely cautious and circumspect in tinkering with the exercise of discretion by the employer. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post or number of posts be created or filled by a particular mode of recruitment. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provisions or is patently arbitrary or vitiated by mala fides.” W.P.(C) NO. 20357/2006 4 3. Learned counsel for the writ petitioner pointed out that in Dayanand's Case, the Apex Court ordered framing of a scheme for regularisation of temporary hands working for long periods. Such a direction has been issued apparently invoking the power under Article 142 of the Constitution of India. Unless the petitioner shows that he has got a legal right, this Court under Article 226 of the Constitution of India, cannot grant any relief. 4. In view of the decision of the Apex Court in Umadevi's Case and subsequent decisions, we are of the view that no relief can be granted to the petitioner. But, the learned counsel for the petitioner pointed out that the termination of the petitioner to accommodate another temporary hand for 89 days is not justified and that such a direction is illegal. We feel that the petitioner does not have any right to continue in service. Therefore, he has no locus standi to probe as to how the said post is manned, subsequent to his termination. 5. Finally, learned counsel pointed out that the petitioner has not been paid salary for the period he has worked, pursuant to the interim order of the Tribunal and this Court. The petitioner may file a representation, giving the details regarding non-payment of wages during W.P.(C) NO. 20357/2006 5 the period he worked, pursuant to the interim order of the Tribunal and this Court, before the first respondent along with a copy of this judgment. In that event, the first respondent shall settle the claim of the petitioner, based on his representation, within one month from today. If there is any dispute, the petitioner shall be given a hearing and a decision taken. If the petitioner's claim for salary is rejected, the first respondent shall intimate the reason for the same to the petitioner within the said time limit. With the above observation, this Writ Petition is dismissed. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.P.(C) NO. 20357/2006 6 K.BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.P.(C)NO.20357/2006 JUDGMENT 11th August, 2009